Vehikite v Bank of South Pacific Tonga Ltd [2018] TOSC 48; Civil Case 39 of 2018 (10 September 2018)

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

CV 39 of 2018

BETWEEN : KOLINIA VEHIKITE

- Plaintiff

AND : 1. BANK OF SOUTH PACIFIC TONGA LIMITED
2. ‘ALANA LAVAKA

- Respondents

BEFORE HON. JUSTICE NIU

Counsel for plaintiff : Mr. S. Tu’utafaiva
Counsel for first defendant : Mrs. D. Stephenson
Counsel for second defendant : Mrs. F. Vaihu

Hearing date : Friday, 7 September 2018
Judgement date : Monday, 10 September 2018

JUDGEMENT ON APPLICATION TO SET ASIDE INTERIM RESTRAINING ORDER

The applications

1. On 6 August 2018, I granted an interim restraining order restraining the defendant from returning a substantial sum of US$420,000 to the Bank of Hawaii in Hawaii which the plaintiff had had remitted from that bank to his account at the defendant bank in Tonga on 27 July 2018. I granted that order upon the exparte application of the plaintiff supported by his sworn affidavit and documents attached thereto in support, and he having also filed his statement of claim against the defendant bank on the same day and in view of the urgency, because of the imminent return of that substantial sum out of the jurisdiction of this Court.
   
2. On 21 August 2018, the plaintiff’s wife, who is now joined by consent on 4 September 2018 as the second defendant, filed her application for orders:
   • (a) that the plaintiff be restrained from accessing the said sum;
   • (b) that the said sum be remitted back to the Bank of Hawaii, and
   • (c) that the dispute between the plaintiff and the second defendant be dealt with in Hawaii where the transactions took place.
     
3. On the next day, 22 August 2018, the first defendant, filed its application for orders:
   • (a) that this Court declines jurisdiction on the ground that Hawaii is the more appropriate forum,
   • (b) that the plaintiff’s claim is struck out, and
   • (c) that the interim restraining orders be set aside.
     
4. On the same day, 22 August 2018, the Lord Chief Justice issued a minute to all counsel that the wife apply to be joined as a party and that the applications be called before him on 24 August 2018.
   

5. On 23 August 2018, the wife filed her application to be joined as defendant.

6. On 24 August 2018, all counsel attended before the Lord Chief Justice and Mr. Tu’utafaiva for the plaintiff advised that the plaintiff opposed the applications. The Lord Chief Justice directed that the plaintiff file any opposition to the applications by 31 August 2018, that the wife and the defendant file any reply thereto by 5 September 2018, and that the applications be heard before me on 7 September 2018.
   
7. The plaintiff failed to file any opposition by 31 August 2018 or by 3 September 2018 and Mrs. Stephenson raised her concern, in writing, that she may not have time to file any reply by her own deadline of 5 September 2018. I summoned all counsel and they attended before me on 4 September 2018.
   
8. At that hearing, Mr. Tu’utafaiva for the plaintiff advised that the plaintiff had had to travel urgently to Australia because his mother was very sick there and that he just would not be able to have any opposition by affidavit filed even by Friday 7 September 2018. He advised that he would only file his written submissions for the hearing in respect of the applications and affidavits of the other two parties. He stated that the plaintiff did not oppose the application of the wife to be joined as defendant. I then ordered that the wife, Alana Lavaka be joined by consent as second defendant. I also directed that Mr. Tu’utafaiva file his submissions by noon Thursday 6 September 2017 in order that other counsel could study them over night for the hearing on 7 September 2018.
   
9. I indicated to Mr. Tu’utafaiva that on the sworn evidence of the second defendant, supported by proper documents attached to her affidavit, it appeared that the money sent by the plaintiff to Tonga from Hawaii was not his money but that of his wife alone. I also indicated to him that on the sworn evidence of the bank officer of the defendant bank, supported by proper documents attached to his affidavit, it appeared that the first defendant bank was bound by the instructions of the remitting Bank of Hawaii to return the money. Finally, I indicated to Mr. Tu’utafaiva that if the restraining order was lifted, and the money was returned to Hawaii, the plaintiff could still proceed with his claim against the first defendant bank because he still had an alternative claim for damages in the sum of the fund remitted. I invited Mr. Tu’utafaiva to make his submissions on those 3 matters, and any other relevant matter by deadline directed and he undertook to do so.
   
10. Mr. Tu’utafaiva filed his submissions by said deadline and both Mrs. Stephenson and Mrs. Vaihu, helpfully filed their submissions in reply thereto, by Mrs. Stephenson on 6 September 2018 and by Mrs. Vaihu before the hearing on the 7 September 2018.
    

The hearing

11. The hearing was only in respect of the application to set aside the restraining order, as I had indicated on 4 September 2018. Mr. Tu’utafaiva made the following submissions:
    

(a) the ownership of the money in dispute (US$420,000) was a live issue to be determined at the trial of this action;

(b) the second defendant has now submitted to the jurisdiction of this Court by having applied to be joined and having being joined as second defendant;

(c) if the money is now returned to Hawaii, the second defendant may not wish to appear and defend the plaintiff’s claim here in Tonga anymore;

(d) the parties are here in Tonga and the money is here in Tonga and so the money should remain in Tonga until the trial is finally disposed of;

(e) the money was in the joint account of both the plaintiff and second defendant in Hawaii – that is evident from the bank record. If the plaintiff had forced (by threat or duress) the second defendant to let him be a joint account holder with her, she did not complain to any lawyer or other person about such force by the plaintiff;

(f) no agreement was produced by the bank officer to prove the bank’s obligation to return the money to the remitting bank.

12. In response, Mrs. Stephenson for the first defendant pointed out that whereas the plaintiff has claimed that the money was derived from selling of tiki during their married life, the wife has now proved that the money was in fact the proceeds of insurance claims in respect of the life of her previous husband who had died in a motor vehicle accident, and also in respect of injuries that she herself sustained in that same accident, and that she had received those payments before she was married to the plaintiff. Mrs. Stephenson submitted that the plaintiff knowingly gave untrue information to this Court, that the money was from the tiki business of his and his wife, when he knew that the money was from the insurance claims of his wife alone. Mrs. Stephenson submits that that is an abuse of process of the Court and that the restraining order be set aside immediately. I accept that point.
    
13. Mrs. Vaihu for the second defendant replied that the plaintiff ought to have responded to the affidavit of the second defendant by sworn affidavit if he disputed any of the matters in her affidavit. If he did not respond because of the urgent need to travel to Australia, he ought to have forwarded a doctor’s letter to verify the critical illness of his mother and of his wish to file his affidavit in rebuttal of the wife’s affidavit. I also accept that point.
    

Consideration

14. I only have the sworn affidavits of the plaintiff dated 3 August 2018, the sworn affidavit of the second defendant dated 21 August 2018, the sworn affidavit of the bank officers, Daniel Henson, dated 21 August 2018, and of bank officer, Viliami Hia, dated 5 September 2018, and of the second defendant dated 24 August 2018, to consider as the evidence in this matter. These are the only evidence upon which I have to decide whether or not to set aside the restraining order.
    
15. It is a pity that the plaintiff has not responded by affidavit to the affidavit of the second respondent which virtually contradicts his only affidavit upon which the restraining order was based. I cannot ignore the documentary evidence attached to the second defendant’s affidavit. They show that the money which the plaintiff has had remitted to Tonga on his own without the consent of the other account holder (the second defendant) was the money of the second defendant alone.
    
16. But in applying for the restraining order, the plaintiff stated in paragraph 5 as follows:
    

“5. In Hawaii I and my wife earned our income from selling Hawaiian tiki. We deposited our money in a joint account with the Bank of Hawaii under our joint names and anyone of us could withdraw the money from our joint account because only one signature was required.”

The plaintiff thereby wrongfully, and falsely, led me to believe that the US$420,000 which he had had remitted to Tonga was money derived from their joint business of selling Hawaiian tiki in Hawaii, and I believe that he so intended me, or whoever judge would handle the application, to believe that he was lawfully entitled to that money, so that a restraining order would be issued to prevent the money from being returned to Hawaii. That was improper and was an abuse of the process for issuance of the interim restraining order.

17. The plaintiff has been served with a copy of the second defendant’s affidavit and supporting documents since 21 August 2018 and that affidavit contradicted not only the source of the money but also the claim by the plaintiff that only one signature was required to withdraw any money. There was a dire need for the plaintiff to reply to that affidavit, especially when that affidavit was in support of an application for an order that the bank be ordered to return the US$420,000 to Hawaii. The plaintiff has not responded or disputed that affidavit at all, up to now.
    
18. When I made the restraining order on 6 August 2018, I also directed that the parties may apply to vary or revoke the restraining order on 7 days notice. Now, both the first defendant and the second defendant have applied on at least 7 days notice to revoke that restraining order.

Conclusion

19. Now, based on the evidence before me as I have stated, I am satisfied that the interim restraining order issued to the first defendant bank on 6 August 2018 be revoked and set aside. It had been issued because of wrong and false information knowingly given to me by the plaintiff.
    
20. Both defendants have asked for costs in their applications to set aside the restraining order, and I believe it is only just that that the plaintiff shall pay the defendants’ costs of the applications.
    
21. In the plaintiff’s affidavit of 3 August 2018, which was attached to his application, he undertook (in paragraph 17) to be responsible for any damages that may be caused to the Defendant (bank) if the interim restraining order is granted but that he is unsuccessful in his claim.
    
22. An undertaking as to damages is required by Order 22 Rule 22 1(4) of the Supreme Court Rules 2007. Such undertaking is as to damages which may be suffered by any person by reason of the injunction being granted. It is not restricted to damages suffered by the person restrained by the injunction only. In the present case, the injunction has affected both defendants and if they have suffered any damage by reason of the restraining order made, then the plaintiff is liable for those damages, irrespective of the outcome of the plaintiff’s claim.
    
23. As to the submissions which Mr. Tu’utafaiva has made, I consider that they are properly matters to be considered when the applications by the first defendant and the second defendant for orders striking out the plaintiff’s claim are considered, which applications are yet to be dealt with.
    
24. I am only now concerned with the applications to revoke and set aside the interim restraining order.
    

Orders

25. Accordingly, I make the following orders:
    
    • (1) The orders no. (a) and no. (b) made by this Court on 6 August 2018 are forthwith revoked.
      
    • (2) The costs of the first and second defendants in this application shall be paid by the plaintiff, to be taxed if not agreed.
      
    • (3) The first and second defendants shall file and serve the particulars and documents of any damage, if any, which either of them has suffered by reason of the making of the restraining order of 6 August 2018 (other than costs of the application) within 7 days of the date of these orders, and the plaintiff shall file his opposition thereto, if any, within 7 days thereafter. The hearing to assess those damages shall be held at 10am on Friday 28 September 2018.
      
    • (4) The plaintiff shall file his opposition and submissions in respect of the applications of the defendants to strike out his claim by 24 September 2018, and the hearing of the applications shall be held at 10am Friday, 28 September 2018, together with the hearing on the assessment of damages.
      

L.M. Niu J
NUKU’ALOFA: 10 September 2018. J U D G E