'Ulu'ave v Fukofuka [2018] TOLC 2; LA 30 of 2017 (10 January 2018)

IN THE LAND COURT OF TONGA

NUKU’ALOFA REGISTRY

LA 30 of 2017

BETWEEN: SEMISI ‘ULU’AVE Plaintiff

AND: VILIAMI FUKOFUKA

Defendant

AND: MINISTER OF LANDS

Third Party

BEFORE PRESIDENT PAULSEN

To: Miss L. Tonga for the plaintiff

Mr ‘A. Pouvalu for the defendant

Mr ‘A. Kefu SC for the third party

Hearing: On the papers
Ruling: 10 January 2018

RULING

[1] This is an application by the defendant that the plaintiff provide security for costs. I was asked to deal with the matter on the papers.

[2] I have previously expressed my concern that applications for security for costs are routinely filed with insufficient evidence and with no regard for the relative principles of law. This is such application.

[3] The defendant has filed just one affidavit in support of the application. To say the affidavit is terse is an understatement. It consists of just six very brief paragraphs. Three of those paragraphs are by way of introduction and one other simply states what is being sought. The evidence in support of the application consists then of just these two paragraphs (in fact just sentences).

[4] The plaintiff is currently residing in New Zealand which is out of the Jurisdiction.

[5] The plaintiff has no assets here in Tonga, and may be unable to pay the costs of the defendants if ordered to do so.

[4] There is no evidence to support either of these assertions.

[5] The only other information filed for the defendant in support of the application is what is referred to as a ‘statement in reply’ which is in the nature of a submission and not evidence.

[6] An affidavit of the plaintiff’s nephew has been filed in opposition to the application. It is also unsatisfactory but as I shall note the burden of persuading the Court that an order should be made rests upon the defendant. It is not up to the plaintiff to persuade the Court that an order for security should not be made.

[7] 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. These apply to proceedings in the Land Court by O.2 Rule 2 of the Land Court Rules. In this case the defendant’s application asserts that an order should be made because:

[7.1] The plaintiff is ordinarily resident in New Zealand.

[7.2] The plaintiff has not disclosed his true address overseas.

[7.3] The plaintiff may be unable to pay costs if ordered to do so.

[8] The grounds set out in O.17 Rule 1 are threshold matters. In deciding whether to order a plaintiff to give security for costs the Court must exercise a discretion which is unfettered. The principles to be applied in the exercise of the Court’s 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. Relevantly, the Court said at [23] and [24]:

[23] Order 17 Rule 1 confers on the Court a broad and unfettered discretion but one that must be exercised in a principled manner. It requires the Court to take four steps. It must assess:

1. The approximate level of costs likely to be awarded to the defendant, if successful;

2. Whether the plaintiff will be "good" for such an award;

3. Whether, in the light of all the circumstances of the case, justice requires that the plaintiff should be required to give some security for those costs and, if so;

4. In those circumstances, the amount of the security that should be ordered and the means by which it should be satisfied.

[24] In making its assessment at each step of its consideration of the application the court should not lose sight of the fact that the onus of persuading it to make an order for security is borne by the applicant/defendant.

[9] The Court of Appeal went on to discuss, at paragraphs [25] and [26], the sort of factors that might be relevant to step 3 (the justice of the case).

[10] I am satisfied that at least one of the threshold grounds in 0.17 Rule 1 for the making of an order that the plaintiff give security is made out. It appears to me that the plaintiff is ordinarily resident overseas. I would not have been so satisfied on the bald assertion of the defendant alone but I also have the affidavit of the plaintiff’s nephew which states that the plaintiff comes to Tonga at least 3 times a year for visits. Clearly, if the plaintiff only visits Tonga he must be ordinarily resident overseas.

[11] Where this application fails is that there is no satisfactory evidence upon which I could possibly exercise my discretion in the defendant’s favour bearing in mind the Court of Appeal’s strong caution that the Court must ‘not lose sight of the fact that the onus of persuading it to make an order for security is borne by the applicant/defendant’.

[12] Specifically, the defendant has failed to put before me:

[12.1] Any evidence whatsoever as to the approximate level of costs likely to be awarded to the defendant if successful.

[12.2] Any evidence to support the bald assertion that the plaintiff will not be good for costs. There is however some evidence that he will be good for costs from his nephew’s affidavit which is not contradicted by any affidavit evidence.

[12.3] Any matters which might suggest that the justice of the case requires the plaintiff to provide security. Notably there has been no information put before the Court upon which it could possibly assess the merits of the action (and in this regard the pleadings are most unsatisfactory) and on what is before me it appears that the defendant’s case is not strong. There is also no information relevant to the degree of risk that costs will not be met.

Result

[13] The application for security for costs is dismissed.

[14] Costs are reserved.

O.G. Paulsen

NUKU’ALOFA: 10 January 2018 PRESIDENT