Peacock v Fukofuka [2000] TOSC 36; C 0861 2000 (17 October 2000)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

C861/00

BETWEEN:

GAVIN PEACOCK
SIMOTE 'UHILA
VAOKAKALA HOLDINGS LTD
Plaintiffs;

AND:

PAULA FUKOFUKA
Defendant.

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr S. Tu'utafaiva for plaintiffs

Date of Ruling: 17th October 2000.

RULING

The plaintiffs seek an interim order for the release of a trailer which is the subject of an ownership dispute. It is currently held by the police at Vaini.

The application was made ex parte but I ordered that it should be inter partes. However, it has not been possible, in the short time I allowed, to serve the defendant. I consider that the circumstances of the case require an immediate decision regarding the interim order and so I shall proceed ex parte.

The trailer is a 40 foot trailer which the plaintiffs claim was lent by a third party to the first plaintiff on the condition that he was at liberty to use it if he put it into good repair. He claims the plaintiffs did this in 1999 and were able then to use it for delivery of squash during the 1999 season.

Following that, the trailer was kept at a quarry which is the subject of a dispute between the plaintiffs and the defendant in another action. In that action there is a court order restricting the use of the quarry and its equipment. The plaintiffs claim they were only keeping the trailer at the quarry and they do not admit, therefore, that it is part of the quarry machinery.

Earlier this year, the plaintiffs took the trailer from the quarry to repair it ready for this year's squash delivery and, on 8 October, started to use it for that purpose. The defendant claimed it did not belong to the plaintiffs and accused them of stealing it. As a result of his complaint, the police took possession of the trailer on 10 October and have it in their custody.

I accept that whilst the police may be treating this as a criminal matter, the question of the ownership of the trailer is part of the long running civil dispute between the parties to this application.

I do not need to into the facts of the case at this stage further than to state that I accept there is a dispute over the ownership of the trailer, that the plaintiffs were using it to transport squash, there is similar work for it over the next few months and the defendant has not attempted to use it for such work since he asked the police to take possession of it.

I am satisfied that the status quo can be preserved best by making the order sought. The alternative is to cause the trailer to lie idle for the rest of the squash season. Should the case be decided against the plaintiffs, it can be properly and completely remedied by an award of monetary damages.

An urgent decision is needed to avoid inevitable loss of income from the trailer. For that reason I shall proceed ex parte and order that the police release the trailer to the plaintiffs forthwith. The plaintiffs shall keep the trailer in working repair and shall use the trailer for the purpose of hire for the transporting squash only. They shall keep separate and complete accounts of all the costs and earnings of the trailer until further order. Such accounts shall be filed with the Court for each calendar month by the fifth working day of the following month and a copy served on the defendant at the same time. The first such accounts shall be for the remainder of October and all of November and be so served and filed by December 8 2000.

There shall be liberty to apply on three days notice.

NUKU'ALOFA: 17^th October 2000.

CHIEF JUSTICE