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Choose the Right Contractors Ltd (in Liquidation) v Hasiata [2025] TOCA 17; AC 28 of 2023 (16 May 2025)

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

AC 28 of 2023
[CV 46 of 2023]

BETWEEN
CHOOSE THE RIGHT CONTRACTORS LIMITED (IN LIQUIDATION)
Appellant

AND
ROGER JOE HASIATA
Respondent

Hearing:
7 May 2025

Court:
Randerson, Harrison and Morrison JJ

Counsel:
Dana Stephenson KC for the Appellant
No appearance by or for the Respondent

Judgment:
16 May 2025

JUDGMENT OF THE COURT

Background

[1] The appellant obtained a judgment against the respondent in the High Court of New Zealand on 11 July 2023 for a total debt of NZ$730,832.69. The liquidator applied to register the judgment in the Supreme Court of Tonga pursuant to the Reciprocal Enforcement of Judgments Act ( the Act). This enables the enforcement of the judgments of superior courts from certain foreign jurisdictions.
[2] By a ruling given on 10 November 2023, Acting Lord Chief Justice Tupou dismissed the application on the basis that the High Court of New Zealand was not deemed to be a superior court because it was not named as such under the Schedule to the Reciprocal Enforcement of Judgments (Extensions to Countries and States) Order (the Order).
[3] The appellant submits on appeal that the application for registration was dismissed in error arising from the change in nomenclature of the former Supreme Court of New Zealand when it was renamed the High Court of New Zealand in 1979, the change being made after the Order came into force.

The relevant legislation

[4] The Act came into force on 24 November 1967. It was designed to allow enforcement in the Kingdom of judgments given in foreign countries which accord reciprocal treatment to judgments given in the Kingdom.
[5] Part II of the Act sets out the framework for registration of foreign judgments in the Kingdom. Section 3(1) permits the King by Order in Council to direct:

• (a) The countries that Part II of the Act shall extend to; and
• (b) The courts that are deemed for the purposes of the Act to be superior courts of the countries specified in the Order.

[6] The judgment of superior courts of countries to which Part II of the Act apply must, in addition, satisfy the conditions in s 3(2). In brief:

• (a) The judgment must be final and conclusive between the parties thereto;
• (b) It must be for a sum of money payable thereunder (with certain exceptions not relevant here); and
• (c) It must be given after the relevant Order in Council came into force.

[7] There are further requirements under s 4(1) of the Act. The application for registration must be made within six years of the date of the judgment and registration is not permitted if:

• (a) It has been wholly satisfied;
• (b) It cannot be enforced by execution in the country of the original court; and
• (c) It must not be liable to being set aside.^[1]

[8] Pursuant to the power contained in s 3(1) of the Act, the Order came into force on 31 March 1977. The Schedule to the Order:

• (a) Lists New Zealand as a country to which Part II of the Act applies; and
• (b) Deems the Supreme Court and Court of Appeal of New Zealand to be superior courts for the purposes of Part II of the Act.

The judgment below

[9] Acting Lord Chief Justice Tupou accepted that New Zealand was one of the countries listed in the Schedule to the Order and noted that the New Zealand courts listed for the purpose of the legislation were the Supreme Court and Court of Appeal. She reasoned that since the High Court was not listed as one of the courts to which the legislation applied, there was no jurisdiction to register the judgment in the Kingdom.^[2]

Consideration

[10] We accept the submission made by Mrs Stephenson KC on behalf of the appellant that the High Court of New Zealand is a superior court for the purposes of the Reciprocal Enforcement of Judgments legislation. In essence, for the purposes of this legislation, the High Court of New Zealand and the Supreme Court of New Zealand are one and the same. This becomes clear when the history of the legislation and the constitution of the currently named High Court of New Zealand is examined.
[11] We set out the sequence of events:

• (a) The High Court of New Zealand (as it is currently known) was originally established in 1841 as the Supreme Court of New Zealand. Its jurisdiction was largely based on that which the superior courts in England had at that time. The jurisdiction of the Court was confirmed by the Judicature Act 1908.
• (b) The Order relating to Reciprocal Enforcement of Judgments came into effect in Tonga on 31 March 1977.
• (c) In 1979, the Judicature Amendment Act reconstituted and renamed the Supreme Court as the High Court of New Zealand. This was in anticipation of the eventual creation of a new Supreme Court of New Zealand as the highest court. This occurred pursuant to the Supreme Court Act 2003.
• (d) The Senior Courts Act 2016 was subsequently enacted to consolidate the provisions of the Judicature Act 1908 and the Supreme Court Act 2003 into a single statute. Its purpose was also to continue the High Court, the Court of Appeal and the Supreme Court and to provide for their constitution and jurisdiction.

[12] At the time the Order came into effect in Tonga, the Supreme Court of New Zealand had not then been renamed as the High Court of New Zealand and the current Supreme Court of New Zealand had not been created. We accept Ms Stephenson’s submission that the reference in the Schedule to the Order to the “Supreme Court” of New Zealand was a reference to the ( now renamed) High Court of New Zealand which are one in the same.

Conclusion

[13] We are satisfied that the Judge below erred in dismissing the application on the grounds that the judgment at issue was not that of a superior court for the purposes of the Reciprocal Enforcement of Judgments Act and the Reciprocal Enforcement of Judgements (Extensions to Countries and States) Order. The judgment of the High Court of New Zealand was eligible to be registered in the Kingdom and we are satisfied on the evidence that all other requirements of the legislation as outlined above were met. It follows that the judgment should have been registered in the Kingdom of Tonga.

Result

[14] The Order of the Supreme Court refusing the appellant’s application for registration of the judgment of the High Court of New Zealand is set aside and replaced with orders:

• (a) That the judgment issued by the High Court of New Zealand on 11 July 2023 under number CIV-2023-404-0955 be and is hereby registered in the Supreme Court of Tonga.
• (b) The total judgment debt of NZ$730,832.69 shall be registered for the equivalent total Tongan pa’anga amount of TOP$1,046,055.45.
• (c) The respondent must pay to the appellant costs in the Supreme Court and in this Court as fixed by the Registrar.
  

Randerson J

Harrison J

Morrison J

^[1] See s 4(2) and the grounds under which a judgment may be set aside under ss 6 and 7 of the Act.

^[2] The Court below considered but declined to follow a decision in Barrett v Fulivai & Anor [2022] TOSC 8, CV 36 of 2022. We do not need to consider that decision.