Kitekei'aho v Moehau [2017] TOLC 12; LA 22 of 2016 (9 November 2017)

IN THE LAND OF TONGA

NUKU’ALOFA REGISTRY

LA 22 of 2016

BETWEEN: FUKA KITEKEI’AHO

Plaintiff

AND : SOSAIA MOEHAU

Defendant

Counsel: Mrs. P. Tupou for plaintiff
Mr. V. Mo’ale for defendant

Date of Ruling: 9 November 2017

Ruling on security for costs

1. The defendant has applied for security for costs. The application is opposed.
2. Counsel are agreed that the application should be dealt with on the papers. The defendant has filed written submissions.
3. The circumstances under which an order that a plaintiff is to provide security for costs may be made are set out in O.17 Rule 1 Supreme Court Rules which apply to the proceedings in the Land Court by O.2 Rule 2 of the Land Court Rules.
4. The principles to be applied in the exercise of the Court’s unfettered discretion under O.17, assuming that one of the threshold grounds in O.17 Rule 1 are made out, have been fully discussed by the Court of Appeal in Public Service Association Inc anor v Kingdom of Tonga [2015] Tonga LR 439.
5. Before I reach the point of considering whether to exercise my discretion to order security the defendant must satisfy me that one of the threshold grounds in O.17 Rule. 1 are made out. In this case the defendant relies only upon O.17. Rule 1(b), that the plaintiff may be unable to pay the costs of the defendant if ordered to do so.
6. The only evidence relied upon by the defendant that the plaintiff may not be able to pay costs is that the plaintiff has failed to pay $500 that he was ordered (and agreed) to pay as costs in related proceedings AC 6 of 2014.
7. The defendant has failed by a significant margin to satisfy me on the basis of this one matter that the plaintiff will not be able to pay costs if ordered to do so. The amount awarded in AC 6 of 2014 is very modest and it is unlikely it has not been paid because the plaintiff is unable to do so. The defendant has only very recently made a demand for payment of the $500 and apparently taken no steps to recover the money by the usual enforcement methods. Had such steps been taken and failed to recover payment there might have been more force in this application.
8. The defendant’s real complaint appears to be that he has been forced to incur costs by the plaintiff who has issued a number of actions against him on the same facts but never taken those cases to trial. The defendant’s concern is understandable but not relevant to the question of whether the plaintiff will be able to pay costs in this action.
9. I would note also that in this case the making of an order for the payment of security might well act to the prejudice of the defendant. This dispute has gone on too long and it is in the interests of the defendant that it be resolved as soon as possible. The ordering of security would likely delay the resolution of the matter.
10. The application for security for costs is refused.
11. Costs on this application are reserved.
    

O. G. Paulsen

NUKU’ALOFA: 9 November 2017. P R E S I D E N T