Julina Exports Pty Ltd v Luna'eva Enterprises Ltd [2017] TOSC 28; CV 23 of 2017 (9 November 2017)

IN THE SUPREME COURT OF TONGA

CIVIL JURISDICTION

NUKU’ALOFA REGISTRY

CV 23 of 2017

BETWEEN : JULINA EXPORTS PTY LTD

- Plaintiff

AND : LUNA’EVA ENTERPRISES LIMITED

Defendant
Date of ruling: 9 November 2017

Counsel: Miss L Tonga for plaintiff
Mr H Tatila for defendant

RULING

1. The defendant has applied for security for costs. The application is opposed.
2. I have been asked by Counsel to deal with the matter on the papers.
3. The circumstances under which an order that a plaintiff is to provide security for costs may be made are set out in O.17 Rule 1 Supreme Court Rules.
4. The principles to be applied in the exercise of the Court’s unfettered discretion under O.17, assuming that one of the threshold grounds in O.17 Rule 1 are made out, have been fully discussed by the Court of Appeal in Public Service Association Inc anor v Kingdom of Tonga [2015] Tonga LR 439.
5. Before I reach the point of considering whether to exercise my discretion to order security the defendant must satisfy me that one of the threshold grounds in O.17 Rule. 1 is made out.
6. In this case the defendant relies only upon O.17. Rule 1(a) and (b); that is that the plaintiff is ordinarily resident out of the jurisdiction and that the plaintiff will be unable to pay the costs of the defendant if ordered to do so.
7. There is no evidence that the plaintiff is impecunious but it is not disputed that it is incorporated and resident in Australia. Accordingly the threshold in O.17 Rule 1(a) is satisfied and I must now consider whether to order security in the exercise of my discretion.
8. There is very little evidence before me in relation to whether it is appropriate to exercise my discretion. This is an unsatisfactory aspect of such applications that are made to the Court. However there are matters which lead me to the view that security should be ordered.
9. These factors are:
   1. That there is no evidence that the plaintiff will be good for payment of costs if they are ordered;
   2. There is no suggestion that the ordering of security will be oppressive or stifle the plaintiff’s claim from being heard;
   100. There is no evidence that the plaintiff has assets in the jurisdiction that might otherwise satisfy a costs award; and
   4. There have already been indications that the plaintiff is not dealing with this matter with the degree of diligence that it deserves as a result of which the defendant may well incur substantial costs over and above what is reasonable (notwithstanding that Miss Tonga submits it is only a debt collection matter).
10. As to the amount of security, I have considered the information provided by the defendant and note that any trial will be lengthened as a result of the defendant’s counterclaim. The plaintiff should not be providing security to protect the defendant for costs that shall be incurred in the pursuit of its counterclaim.
11. On the information before I consider it appropriate to fix security for costs in the amount of $3500.

Result

12. The plaintiff is ordered to provide security for costs in the amount of $3,500 by making payment of that sum to the Registrar of the Supreme Court to be held pending the hearing of this action. In default of payment the plaintiff’s claim shall be stayed.
13. The costs of this application are reserved.
    

O.G. Paulsen
NUKU’ALOFA: 9 November 2017. LORD CHIEF JUSTICE