Kaukauloka v Luna'eva & Sons Co Ltd [2021] TOLC 4; LA 6 of 2020 (31 March 2021)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

LA 6 of 2020

BETWEEN:

[1] PELENAISE KATRINA MALIA KAUKAULOKA
[2] SOSAIA TALA’OFA MEI LANGI KAUKAULOKA KUPU Plaintiffs

-and-

LUNA’EVA & SONS COMPANY LIMITED Defendant

Defendant's application to vary judgment by extending date for removal of its chattels

RULING

BEFORE: PRESIDENT WHITTEN QC LCJ
Counsel: Mr W.C. Edwards SC for the Plaintiffs
Mr S. Fonua for the Defendant (by AVL)
Date of hearing: 31 March 2021
Date of ruling: 31 March 2021

1. In this matter, after a trial in November 2020, the court delivered judgment on 24 November 2020 in favor of the plaintiff. Order 3 of those made that day, reflected in the reasons for verdict at paragraph 166, provided:

“Further the defendant is to vacate the town allotment the subject of the proceeding within 42 days of the date hereof and within that period it is to remove any personal property belonging to it which it wishes to remove and without damaging the allotment.”

2. The 42 day period expired on 5 January 2021.
3. On 3 March 2021, Mr. Fonua who continues to act for the defendant, Luna’eva and Sons Company Limited, filed a memorandum which was in fact an application for an extension of the 42-day period granted in the judgment.
4. At paragraph 5 of the memorandum, Mr. Fonua stated:

“Unfortunately due to other commitments and the Christmas holiday intervention the defendant could not remove all the chattels in time.”

5. Mr Fonua described (at paragraph 6) that upon the expiry of the 42 day period, Mr. Edwards wrote to the defendant advising it to remove its chattels. There was then reference Mr Fonua corresponding with Mr. Edwards on effectively negotiations for the plaintiffs to buy the Defendant’s fences and coral dust or rocks left on the plaintiff’s property. Mr Fonua then requested (paragraph 8) an extension of 10 days to remove the chattels from the land.
6. The plaintiffs oppose the application. Mr Edwards filed two memoranda, one on 26 March 2021 and the other, today. In the first, Mr Edwards set out the history of the matter, the basis for his clients’ opposition and then concluded with a proposal by which the plaintiff would agree to extend time on terms including payment of costs, removal of the rocks and fence on or before 30 April 2021, any damage to the top soil of the allotment to be paid for by the deposit of a ‘bond’ of $10,000 and for the defendant to pay rent for a specified period at a specified rate.
7. By his second memorandum, Mr Edwards sought to modify the above proposal in relation to payment of rent and removing the requirement for a bond to be deposited with the court.
8. During the hearing, Mr. Fonua further explained that his client had not complied with the timeframe in the judgment because “they were busy at the time” and that they “overlooked” removing all of their belongings from the plaintiff’s property.
9. Mr Fonua submitted that the court’s power to vary the judgment is to be found in ss 5(2) of the Supreme Court Act which provides, relevantly, that:

The powers of the Supreme Court referred to in this section includes, subject to any other applicable law to the contrary, all powers that the court considers necessary or desirable to enable it to give effect to and enforce the judgments and orders of the Court ...”

10. Mr. Fonua further submitted that the reference to “any other applicable law to the contrary” is confined to any statutory provision.
11. I disagree.
12. In Police v Falevai [2020] TOSC 55, the common law position on reopening judgments was described thus:

“15. ... With the possible exception of calling back a case during the same session in order to correct an error, once a court has pronounced a decision, it is functus officio and has no right to alter it. Correction or alteration thereafter is for an appellate court: Bourke v Poli60;[1999] TOSC TOSC 67; Booth v 0;[2017] 1 NZLR 223R 223 at 228.The common law powerpower to re-open a case is limited to a decision that has been made as a result of a substantial procedural error, defect or mishap onl60;R he application ofon of Broxbourne Borough Council) v North orth and East Hertfordshire Magistrates' Court [2009] All ER (D) 96. 16. That may be distinguished from a court’s implied or inherent power to recall or correct an order made by ithe absence of a party where the absence is through no fault of that party or the Court or w or where the absence is excusable, and consideration of delay, acquiescence or prejudice are not countervailing: Piukala v Bank of T#160;[200; [2001] TOCA 7.
17. Also, in Australia, it has been held that a judge has power to set aside his/her order upon being satisfied either thatorder has been made improvidently, or that facts have been been withheld from him which should have been disclosed to him, but which were not disclosed either through negligence or some other cause, or where the order was made under circumstances which operated to deprive his/her mind of the power of exercising a fair judgment at the time: Re Bruce&#1886) 12 VLR 696. 696. The jurison is, however, tor, to be exercised with great caution, having regard to the importance of the public interest in the finaof liion. However, that public interest will not preclpreclude the exceptional step of reviewingewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law: Autodesk Inc. v. Dyason [No. 2] [1993] HCA 6; (1993) 176 CLR 300;per Maso Mason CJ (dissenting) at [4], approved by the majority in Aktas v Westpac Banking Corporation Limited [2010] HCA 47&#t [6].”#8221;

Here, the Supreme Court Rules generally regulatudgments and orders provideovide, at Order 28 rule 1, that every judgment or order made by the court shall be drawn up by the court, signed by or on behalf of the judge who made the order and sealed with the court seal. Rule 3 provides that, unless otherwise stated, a judgment or order shall take effect from the date on which it was made. In the present case, the judgment in question was drawn up by the court, signed by me and sealed on 24 November 2020. It took effect from that date. It was thus a judgment perfected and formed part of the record of the court.
14. Order 28 rule 5 provides that clerical mistakes in judgments or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court without an appeal. The current application does not fall within the so called ‘slip rule’ exception.
15. Finality in litigation is an important value. As the plurality said in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at 17, [34]: “controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances”. In Clone Pty Ltd v Players Pty Ltd (In Liq) (receivers & Managers apptd) [2018] HCA 12 at [69], the High Court observed that the interests of finality mean not every error can be corrected.
16. It is important, however, to identify when a judgment or order has the character of finality which attracts that value to which I have just referred. A judgment or order is usually pronounced orally in court. Such a judgment is effective from when it is pronounced. However, there is a difference between when a judgment or order is pronounced and when it is entered in the records of the court: Holtby v Hodgson [1889] UKLawRpKQB 162; (1889) 24 QBD 103 at 107. Pronouncing judgment is not entering judgment; something has to be done which will be a record and so the judgment that the judge has pronounced is the judgment which is to be entered. The entry of the judgment or order is effected by the sealing of a formal order of judgment. It is that procedure which provides the method by which a judgment or order is formally entered: Eastman v R [2008] FCR 579 at 586-7. When a judgment or order has been entered into the records of the court, sometimes referred to as having been perfected or authenticated, then the principle of finality applies to it: Burrell v R [2008] HCA 34; (2008) 238 CLR 218 at 224.
17. Prior to that time, the court has power to recall the judgment or order and reconsider it. However, once the order has been perfected, the trial judge is functus officio and, in his capacity as the trial judge, has no further power to reconsider or vary his decision whether under the authority of the slip rule or otherwise. ‘Identifying the formal recording of the order of a superior court record as the point at which that court’s power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court and provides conclusive certainty about what was the end result in that court’: Burrell, ibid, at [20].
18. For those reasons, I do not accept Mr. Fonua’s submission based on ss 5(2) of the Supreme Court Act. The above long standing statements of principle constitute ‘other applicable law to the contrary’. There is nothing in language used in ss 5(2) to limit any such contrary laws to statutory provisions. Those legal principles curtail the extent of any powers this court could consider ‘necessary or desirable to enable it to give effect to and enforce its judgments’.
19. Further, in my view, those last words do not apply to the application hereunder consideration. There is nothing in the application which is necessary to give effect to and enforce the judgment. It is simply an application for an indulgence by the defendant, created purely by its failure to comply with the terms of the order within the timeframe which Mr. Fonua, on behalf of the defendant, specifically requested at the time the judgment was pronounced.
20. I therefore find that I am functus officio. The application is misconceived and must be dismissed. There are only two options available to the parties: agree or appeal.
21. The defendant is to pay the plaintiffs’ costs of the application to be taxed in default of agreement.
    

NUKU’ALOFA	M. H. Whitten QC
31 March 2021	LORD CHIEF JUSTICE