IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY					                     
LA 17 of 2024

BETWEEN	:		
VE’ETUTU SATINI
-	Plaintiff/Respondent

AND	:			
LOFIA SATINI
-	Defendant/Applicant

RULING ON APPLICATION FOR SECURITY FOR COSTS

BEFORE:	HON. JUSTICE TUPOU KC

To:		Mrs T. Cokanasiga for the Applicant/Defendant 
Mr C. Edwards for the Respondent/Plaintiff

Date:		3 February, 2025

The Application 
1.	This is an application for security for costs by the Applicant against the Plaintiff. The Defendant relied on the following grounds, that the Plaintiff:
a)	is ordinarily resident in Canada;
b)	does not hold any assets in his name in this jurisdiction;
c)	has failed to disclose his full residential address;
d)	may be unable to pay costs should his claim fail. 
2.	 The security sought is in the amount of $9,500.

The Opposition 
3.	The application is opposed. The Plaintiff says that:

a)	the land in dispute is his asset and is within this jurisdiction;
b)	there is no merit in the defence; and as further appearing in the Plaintiff’s affidavit. 
4.	In an affidavit in support of his opposition dated 22 October, 2024, the Plaintiff:
	c)   denies that he ever gave the Defendant permission to live on his land indefinitely;
	d)   alleges that the Defendant’s house was on the land prior to his registration; and 
	e)  the Defendant holds a registered town allotment himself and should move there. 

The Proceedings
5.	The Plaintiff and the Defendant are brothers. The Plaintiff is the registered holder of a town allotment situated at Halatu’i, Kolofo’ou, Tongatapu. It was registered on 21 March, 2000. 
6.	Prior to the Plaintiff’s registration, the Defendant claim that he had built a house on the neighbouring land belonging to one Manase Kamoto. In January, 2000 that house burnt down. 
7.	The parties mother died in March 2000 and it is the Defendant’s case that it was then that the Plaintiff requested him to build his house on the subject allotment and that he could live on the land indefinitely.  

The Law 
8.	The application is brought under Order 17 Rule 1.  Counsel for the Defendant also seeks to rely on the four step approach set out in Public Service Association and anor v Kingdom of Tonga and anor [2015] Tonga LR 439. Those steps are:  
a)	The approximate level of costs likely to be awarded to the defendant, if successful;
b)	Whether the plaintiff will be "good" for such an award;
c)	Whether, in 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;
d)	In those circumstances, the amount of the security that should be ordered and the means by which it should be satisfied.
9.	In ‘Ulu’ave v Fukofuka [2018] TOLC 2, the Court made two important observations in dealing with applications of this type. Firstly, that the burden of persuading the Court that an order should be made rests upon the Defendant. Secondly, that the court must exercise discretion that is unfettered.  	
10.	Both Counsel filed written submissions for which I am grateful. 

Considerations
11.	An assessment of the statement claim readily discredits two of the grounds relied on by the Defendant in his application. Those grounds being, that the Plaintiff has no assets in his name in Tonga and secondly, that he failed to disclose his full residential address. 
12. 	The land on which the Defendant built his house is registered in the name of the Plaintiff. A deed of grant in the name of the Plaintiff is before the court. I agree that this is a substantial asset. Secondly, the Plaintiff disclosed that he is of Kolofo’ou but is resident in Canada.  That, in my view is sufficient. Generally, where the plaintiff fails to state his address or mis-states his address innocently without intentions to deceive, security for costs will not be ordered. I do not consider the Plaintiff’s description of his address as being intentionally deceptive. 
13.	That leaves in issue the applicant’s complaint that the Plaintiff may be unable to pay costs in the event his claim failed.
14.	The Plaintiff proclaims that his registered town allotment is a substantial asset within this court’s jurisdiction and no security should be required of him. 
15.	The general rule is that security is not required from a person permanently residing outside of the jurisdiction, if he has substantial property whether real or personal within it, provided the property must be of a fixed and permanent nature, which can certainly be available for costs, or at any rate such as common sense would consider it to be so and such person must show that it is so available.	
16.	The Defendant denies that the relevant town allotment is registered to the Plaintiff. Yet his fundamental complaint depends on an assertion that the Plaintiff gave him permission to build his house on the said town allotment and with a promise he could live on it indefinitely. If the Plaintiff did not own the said town allotment, why then would it matter that he had his permission to build and reside on the land? It makes no sense. 
17.	A deed of grant in the name of the Plaintiff has been produced to show it is registered under DG Bk364 Folio 9 on 21 March, 2000. I find that to be strong prima facie evidence the Plaintiff is the registered holder of the subject town allotment. 
18.	The next consideration is whether the Defendant has shown that the Plaintiff may not be good for costs or whether the Plaintiff has shown that the town allotment is available for costs. 
19.	The Plaintiff did not dispute he was retired. He argued that his 3 children were grown and working. Nothing further was provided on which this court could safely infer that they would support the Plaintiff in paying costs if he was unsuccessful. 
20.	For the purposes of this application, I am not satisfied that the Plaintiff has shown that his town allotment is so available for costs or how it would be so subject to the provisions of the Land Act.
21.	However, the question of whether the overall justice of the case require that the Plaintiff to give some security for costs necessitates an assessment of the strength or weakness of the case on the pleadings and affidavits before this court. 
22.	As mentioned, there is a prima facie case that the Plaintiff is the registered holder of the land in dispute. The defence will stand or fall on whether or not the Defendant can establish in evidence and tip the balance in his favour that the Plaintiff required him to build on the land and promised that he may live on it indefinitely against the Plaintiff’s strenuous denial. However, on the material before me, I am unable to make a reasonable assessment as to the prospect of success for either party. As such, I consider the prospects at this stage, equal.
23.	I have gone on to consider the principle that a party to litigation who is defending rights is not ordered to give security for costs. According to, Australian Civil Procedure, 3rd ed, B.C.Cairns, 1992, 502:
	“In deciding whether a party is a defendant or a plaintiff, that party’s position on the record is not decisive. Where a plaintiff has been forced into suing to protect a right the plaintiff is not automatically treated as such, for depending on the circumstances of the case the plaintiff might be treated as a defendant. This arose in Re Travelodge, where a company, after acquiring shares under a takeover bid, applied to compulsorily acquire the shares of a dissenting shareholder. The shareholder instituted proceedings to restrain the compulsory acquisition and the company applied for security for costs. However, the court considered that the plaintiff, while nominally the moving party, was in substance the defendant in that he was defending his interest against a compulsory acquisition. Security for costs was refused on that ground.”
24.	It is almost too common in this court for landholders residing abroad to resort to legal action in order to defend their lawful right to immediate possession or occupation of land duly registered in their name, granted or promised to them by the Minister or estate holder to defend an application for security for costs, as in this instant. A careful assessment of the circumstances of each case ought to determine whether or not the plaintiff may be treated as a defendant before an order for security for costs is granted. 
25.	Here, I am satisfied that the Plaintiff is the registered owner of the land armed by law with a right to immediate possession. That right is currently obstructed by the Defendant who has built on the land and asserts a right of indefinite occupation by virtue of an alleged promise that is vehemently denied by the Plaintiff while acknowledging he owns a registered town allotment in his name elsewhere. 
26.	In order for the Plaintiff to assert his right to immediate possession over his registered town allotment he has no choice but to institute these proceedings. Accordingly, and under the existing circumstances, I have come to the conclusion that although the Plaintiff is the moving party, he in substance is the defendant. He has been forced to defend his right to immediate possession and quiet enjoyment of his registered town allotment against the Defendant who built on the land and insists on a right to indefinite occupation. For that reason, I do not consider it appropriate to order security for costs. 
Result
27.	The Defendant’s application for security for costs is refused. 
28.	Costs in the cause.

P. Tupou KC
J U D G E
NUKU’ALOFA	
3 February, 2025