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Fonua v Taufateau [2003] TOCA 5; CA 05 2002 (25 July 2003)

IN THE COURT OF APPEAL OF TONGA
NUKU'ALOFA REGISTRY

APPEAL NO. CA 05/2002

BETWEEN:

SIONE TU'ILOTOLAVA FONUA
Appellant

AND:

KARL TAUFAETEAU
Respondent

Coram: Ward CJ
Burchett J
Tompkins J

Counsel: Dr R. Harrison Q.C. for Appellant
Mr. Tu'utafaiva for Respondent

Date of hearing: 15 July 2003
Date of judgment: 25 July 2003

JUDGMENT OF THE COURT

[1] This is an appeal from an interlocutory decision not to strike out the respondent's claim for damages against the appellant, special leave having been granted by the trial judge.

[2] The appellant is the first of three defendants to a claim to property passed under a will. He is one of two executors of the will. The other executor is the wife of the plaintiff/respondent. The third defendant is the son of the deceased.

[3] The background can be stated from the judgment:

"Before the court is an application by the first defendant to strike out the plaintiff's claim... The grounds advanced are that the statement of claim discloses no reasonable cause of action against the first defendant and that it is frivolous and vexatious or otherwise an abuse of the process of the court. The second and third defendants have taken no part in the interlocutory argument.

The first defendant is a barrister and solicitor practicing in Auckland, New Zealand. He made a will for Tevita Fauonuku (the "deceased") who was a Tongan subject then resident in Grey Lynn, Auckland. The will is dated 30 November 2000. It appoints the first defendant and the deceased's married daughter, Palu Taufaeteau, as trustees and executors.

It appears from the court records that the deceased died on 1 January 2001 and that probate was granted to him in the High Court in Auckland on 6 July 2001. Probate was then resealed in the Supreme Court of Tonga on 24 July 2001.

The deceased had properties in Auckland and in Tonga. The present proceeding relates to a building in Tonga. The relevant paragraphs in the deceased's will read as follows:

"5. I direct that my real properties in Tonga (the town allotment in Khyber-pass road and the bush allotment in Nualei) be vested in my son Tevita Fauonuku absolutely.

6. I direct that my business (retailed shop) in Tonga be vested in and run by my son Tevita Fauonuku and my daughter Mele Peaufa."

It is accepted that the reference to 'Khyber-pass road' ... is intended to be a reference to "By-Pass Road" ... [in] Nuku'alofa.

The relevant paragraphs in the statement of claim read as follows:

"5. The deceased's estate consists of properties in New Zealand and also at By-Pass Road, Pahu, Tongatapu.

6. The plaintiff had notified the first defendant and Palu that he (plaintiff) is the owner of the following properties situated on the deceased's town allotment at By-Pass Road in Pahu.
   
   • (a) double storey building at the front of the property.
   • (b) residential house at the back of the property.
   • (c) cement water tank.
   • (d) garage at the rear of the double storey building.
     
7. The properties referred to in the immediately preceding paragraphs were built by the plaintiff on the deceased's town allotment pursuant to an agreement with deceased.
   
8. Palu has acknowledged the interest of the plaintiff in the properties he is claiming but the first defendant is not doing anything to settle the plaintiff's claim against the estate of the deceased.
   
9. The failure or refusal by the first defendant to settle the plaintiff's claim is a breach of his duties as one of the executors and trustees of the deceased's will.
   
10. As a result of the first defendant's failure or refusal to settle the plaintiff's claim the plaintiff is deprived of the use of his properties."
    

[4] Other matters were dealt with by the learned judge in relation to jurisdiction of the court but, in this court, the appellant's case is that he has no legal duty to 'settle the plaintiff's claim' and that the respondent has suffered no damage as a result of any act or omission of the appellant as executor of the deceased's estate.

[5] The learned judge correctly stated the principle that no party should have his claim denied without a hearing except where the claim is so hopeless that it cannot possibly succeed and concluded:

"The court is always reluctant to strike out a plaintiff's claim if the apparent defects are capable of remedy by appropriate amendment to the pleadings. Despite having misgivings about the plaintiff's cause of action as pleaded, I do not consider that it can fairly be said that the proceedings are frivolous and vexatious or an abuse of the court process. Nor am I prepared to hold that they do not disclose a reasonable cause of action. It may well be possible to remedy the apparent defects by appropriate amendment and I am prepared to allow the plaintiff that opportunity."

He then gave the plaintiff 21 days to file an amended statement of claim.

[6] That amended claim has been filed. In light of the judge's expressed misgivings, Mr Harrison suggests this court should look at the new pleading to see whether, even after amendment, there is any more substance to the claim. Mr Tu'utafaiva for the respondent urges the court to consider this application solely on the material which was before the judge at first instance. We agree that the appeal must be based on the documents before the court below at the time of the hearing.