Lavulavu v Wang Sam Lin [2007] TOSC 17; CV 334-2007 (28 September 2007)

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

CV 334 of 2007

BETWEEN:

‘ETUATE SUNGALU LAVULAVU
Plaintiff

AND

1. DR WANG SAM LIN
2. GOLDEN ASIA (PACIFIC LTD)
3. HELEN WANG
Defendants

BEFORE THE HON. JUSTICE ANDREW

Counsel:
Mrs Vaihu for the plaintiff and
Mr. C. Edwards for the defendants.

Date of judgment: 28 September, 2007

JUDGMENT

In this matter there are two applications. The first is an application by the Plaintiffs for ancillary orders and injunction as follows:

"(i) The plaintiffs be granted a disclosure order requiring the defendants to disclose to the plaintiffs its 60 sets of scaffolding hired to the defendants whilst it was employed to do construction works for the defendants at the Royal Tonga International Hotel at Fua’amotu and allow the plaintiff to inspect these assets.

(ii)An order be made for the detention and custody by the plaintiffs of this 60 sets of scaffolding.

(iii) An order for the safe custody by the plaintiff of his 60 sets of scaffolding.

(iv) Costs of an incidentals to this application to be paid by the defendants.

(v) Any other order his Honourable Court may deem just. "

Secondly, the defendants make application for the second and third defendants to be struck out from this action.

I deal firstly with the application to strike out.

The statement of claim alleged that the 1st and 3rd defendants are husband and wife and that they are the beneficial owners, proprietors and developers of the Royal Tonga International Hotel. It is further alleged that the second defendant is a tourist facility registered under the Company Act of Tonga and is owned and managed by the first and third defendants and its major project is the establishment of the Hotel.

I do not propose to set out the whole tortured history of the relations between the plaintiffs and the defendants except to say that there is evidence of the involvement of the 2nd defendant in the contractual relations between the parties over a period of 13 years. There is also evidence of the involvement of the 3rd defendants particularly when they terminated the second plaintiffs work and it is alleged, refused to pay for all services rendered including suppliers of building materials which it is claimed led to considerable loss. Claims have been made against all 3 defendants.

In my view the evidence established that there are triable issues involving all three defendants in this matter. They are live issues which in my view can only be resolved at trial and I see no reason why the 2nd and 3rd defendants should be struck out; absence the hearing and resolution of those issues at trial. It cannot be said that there is no reasonable cause of action against the second and third defendant.

The application to strike out is refused. There is also an application filed by the defendants for further & better particulars but no evidence or submission in support of that application has been made.

The Plaintiffs claim for ancillary orders.

There is evidence that after the plaintiffs contract with the defendants was terminated, that 60 sets of scaffolding remained at the defendant’s hotel and were hired out and that they remained at the hotel.

The defendants say from the bar table that they don’t have the scaffolding and therefore can’t deliver it up.

I think there is prima facie evidence that the scaffolding remained at the hotel. I think it only reasonable in order to protect the plaintiff’s position that a disclosure order be issued requiring the defendants to disclose to the plaintiffs where its 60 sets of scaffolding are. There seems no issue that the scaffolding is the property of the Plaintiffs and an order for the detention and custody by the plaintiffs of the 60 sets of scaffolding is granted.

I make an order in terms of the application for ancillary orders providing that the plaintiffs give an undertaking as to damages in terms of the draft order for undertaking as to damages.

I order that the costs of these applications be costs in the cause.

NUKU'ALOFA: 28 September 2007

JUDGE