Lelea v Lelea [2024] TOLC 2; LA 5 of 2023 (13 September 2024)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 5/2023

SOLOMONE TUPANIKOLO LELEA
PLAINTIFF

-v-

LUTOVIKO PASIAKA LELEA
DEFENDANT

ORDERS MADE BY : COOPER J

DATE OF ORDER : 13 SEPTEMBER 2024

The Court Orders :

1. I order a Writ of Distress be issued for the sum $8, 536.00.
2. The Judgement Debtor’s goods are to be seized and sold by public auction. Costs to be awarded for and in association with the hearing 15 July 2024.
   

REASONS

1. On 16 February 2024 there was a hearing for formal proof in this matter. 19 February 2024 a ruling was handed down granting Formal Proof in favour of the Plaintiff. This included costs being awarded in the cause.
2. 18 June 2024 an application for an ex parte writ of distress was then filed, the costs having not been paid.
3. Accompanying that application was the affidavit of Ms. Setaita Lotaki. She is secretary to Counsel for the Plaintiff, Mrs. Vaihu. The Plaintiff lives in America and it is not practical for her to attend and file an affidavit, whereas Ms. Lotaki is fully acquainted with the facts and history of this case.
4. The fact of the matter is this, Mr. Fili for the Defendant filed an appeal on 11 March 2024 against Formal Proof entered for the Plaintiff.
5. Yet the order for costs has gone unpaid.
6. There was a hearing in respect of the application for the writ of distress, as a complete matter of fairness to Mr. Fili and the Defendant on 15 July 2024. This was because the basis for objecting to the payment of costs is that the appeal is outstanding.
7. The history of the matter is most unfortunate in that no Statement of Defence was ever filed. That was the position on 16 February 2024, whereas the initiating application (for an injunction) was filed 12 May 2023 and Directions set on 31 May 2023, requiring a response be filed by 6 June 2023.
8. On 9 August 2023 further directions were set when the case was transferred to my list. By that date the injunction was no longer being pursued. A statement of Claim had been filed. The Statement of Defence was directed to be filed by 30 August 2023.
9. This was then not done at any time up to and including, as noted above, 16 February 2024.
10. A lack of Statement of Defence was pointed out on 22 September 2023 hearing. No application to extend time for service of a Statement of Defence was ever made.
11. It was against that history that Formal Proof was entered.
12. The application is for the Defence to postpone payment of costs.
13. It is appropriate to note here that Ms. Lotaki in her affidavit 14 June 2024, deposed that the bill of costs was first sent to Mr. Fili on 21 February 2024, no objection was received.
14. A certificate of taxation was sent to Mr. Fili on 11 March 2024 and no response was ever received to that either.
15. Just because an appeal is underway, is not of itself a reason to suspend the award of costrs. It is quite common for the Court of Appeal to reverse of amend a lower Court’s award of costs, for example as in Veikune v Kingdom of Tonga [2008] TO Law Rep 14.
16. Whereas Mr. Fili argues that it is unfair for the Plaintiff to be encumbered with charges whilst his appeal is in train, I take the view that the continued lack of compliance both with Court Directions and then in respect of the Plaintiff’s correspondence outweigh this.

Order

17. I therefore order the Writ of Distress be issued for the sum $8, 536.00.
18. The Judgement Debtor’s goods are to be seized and sold by public auction. Costs to be awarded for and in associtation with the hearing 15 July 2024.
    

SUPREME COURT	13 SEPTEMBER 2024
NUKU ‘ALOFA	COOPER J