Vea v Vea [2009] TOLawRp 65; [2009] Tonga LR 460 (16 October 2009)

IN THE LAND COURT OF TONGA
Land Court, Nuku'alofa

LA 22/2009

Vea anor

v

Vea anors

Salmon J
8 October 2009; 16 October 2009

Practice and procedure – application for security for costs – strong case and unjust if unable to pursue – refused

The case concerned a dispute over the validity of the registration of a town allotment. The defendants made an application that the plaintiffs provide security for costs in the sum of $15,000.

Held:

1. The Court had a broad discretion as to whether to grant security for costs against a plaintiff. The fact that the plaintiffs live outside the jurisdiction was one factor to be taken into account as was the comparative strength of the parties' cases. Another factor was the existence of assets within the jurisdiction. The plaintiffs' claim that they would not be able to pursue their case if required to provide security was another relevant factor particularly if their case appeared strong.

2. The Court was satisfied on the facts that the plaintiffs had a strong case. It would be unjust if they were not able to pursue it. The application for security was refused.

Statutes considered:

Land Act (Cap 132)

Nationality Act (Cap 59)

Counsel for the plaintiffs : Mr Niu
Counsel for the defendants : Mr Fakahua

Judgment

[1] This judgment concerns an application by the defendants seeking that the plaintiffs provide security for costs in the sum of $15,000. The application is opposed by the plaintiffs.

[2] The first named plaintiff claims the right to occupy land at Kolomotu'a as the widow of the deceased lawful holder. In 2002 the deceased leased half the land to the second plaintiff (his youngest son) for 50 years. The second plaintiff built a workshop on the leased land. There is a house on the balance of the land.

[3] The plaintiffs have lived for some years in New Zealand and the first plaintiff became a naturalised citizen of that country prior to her husband's death. Shortly after the husband's death in 2006 and while the plaintiffs were living in New Zealand the defendants entered into occupation of both buildings on the site. The first defendant is the eldest son of the deceased and the 2nd and 3rd defendants are his 2 eldest sons.

[4] In their statement of defence the defendants claim that the registration of the town allotment in the name of the 1st plaintiff was invalid because she was a New Zealand citizen at the time. Mr Fakahua was unable to provide me with any basis for this claim when he appeared before me. However it is likely to be based, as Mr Niu said, on S4 of the Nationality Act which I note has now been deleted by the 2007 Amendment Act.

[5] The effect of S4 is by no means clear in its Application to the 1st plaintiff. S 113 of the Constitution and S 80 of the Land Act would both suggest that a widow's entitlement to occupation may not be affected by S4. In any case the registration of the allotment in the 1st plaintiff's name must be prima facie evidence of her entitlement. In addition the 2nd plaintiff appears to have a valid lease of his half of the 50 land.

[6] All of this is relevant because the Court has a broad discretion as to whether to grant security for costs against a plaintiff (see O17, R1 of the Supreme Court Rules). The fact that the plaintiffs live outside the jurisdiction is one factor to be taken into account as is the comparative strength of the parties' cases. Another factor, where it exists, is the existence of assets within the jurisdiction. In this case there is at least the house and the 2nd plaintiff's lease although there is no evidence as to their values. The Plaintiff's claim that they will not be able to pursue their case if required to provide security is another relevant factor particularly if their case appears strong.

[7] In the present case I am satisfied on the facts presently before me that the plaintiffs do have a strong case. It would be unjust if they were not able to pursue it. The application for security is therefore refused. Should the circumstances change the defendants are always able to make a further application. The plaintiffs are entitled to costs on this application.

[8] Mr Fakahua wishes to file an amended statement of defence. He must do so on or before the 22 October 2009. I have set the proceedings down for a 2 day trial on 18 February 2010.