IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY                                                                              

LA 4 of 2023

BETWEEN:	
1.	HUA HUANG
2.	HALA TAUELANGI 
-	Plaintiffs 

AND:		
ZIGAO WANG 
-	Defendant

RULING ON SUMMARY JUDGMENT APPLICATION

BEFORE: 	HON. JUSTICE TUPOU KC

Counsel: 	Mrs. Sisi Ebrahim for the Plaintiffs
Mrs. Fitilangi Fa’anunu for the Defendant

Date:		10 October, 2024

Background
1.	The proceedings concern a duly registered town allotment in the name of the second plaintiff situated at Pea, Tongatapu. Apart from the second plaintiff’s residence, there was an old building also on the land that he agreed to rent to the defendant for a period of 10 years from 7 April, 2009. Their agreement was recorded in a document which they signed. That tenancy was later extended on 5 June, 2015 for another 30 years. 
2.	On 15 November, 2021, the second plaintiff allegedly terminated the tenancy agreement for breach of the terms of the tenancy including non-payment of rent. 
3.	The defendant objected to the termination tenancy and claim that he had already paid the rent in full for the remaining term and that the second plaintiff owed him debts for goods taken from his shop. He refused to leave the premises. These events went on while the defendant was in China. 
4.	When the Defendant returned to Tonga, he was not permitted to enter the shop without assistance from the police. However, on 1 March he was stopped from entering again. 
5.	On 22 December, 2022, the first plaintiff registered lease No. 10107 over the entirety of the second plaintiff’s town allotment including the area of the land on which the defendant’s shop stood. 
6.	On 22 February, 2023, the plaintiffs filed its claim against the defendant seeking orders to vacate the said land.
7.	On 1 March, 2023, the first plaintiff erected a fence in front of the defendant’s shop to stop him from entering. 
8.	On 11 April, the first plaintiff opened the defendant’s shop and container on the premises and proceeded to demolish the shop.   
9.	On 17 April, 2023 the Defendant filed his statement of defence along with an application for orders to restrain the plaintiffs from interfering with his shop and any other belongings he had on the land and to return all belongings removed from his shop and the land to him. 
10.	On 20 April, 2023 the defendant filed an amended defence and a counterclaim. In summary, the defendant alleged he still held a valid tenancy with the second plaintiff and he is estopped from evicting him. Consequently, whatever the agreement between the plaintiffs, it is unlawful and the first plaintiff’s interference with his shop and occupation of the land on which his shop stood is unlawful. Additionally, the defendant counterclaims for debt he claim the second plaintiff owe him in the amount of $107,219.60, loss of profit and damages for inconvenience and humiliation. 
  11.	On 21 April, 2023 I granted an injunction against the plaintiffs. In turn, the plaintiffs sought to lift the injunction. Subsequently, the parties agreed to leave the injunction as is and agreed that the defendant will not enter the land pending determination of the substantive case. 
12.	On 20 March, 2024, the plaintiffs filed the present application for summary judgment.  
The application
13.	The plaintiffs’ in this application contend that (a) the first plaintiff is the lessor of the town allotment and has the rights to the disputed area; (b) a new shop has been built where the defendant’s shop was located (c) new tenants are lawfully operating a shop from the allotment; (d) the defendant’s business license has been suspended and the case is largely against the second plaintiff and not with him; and (e ) the defendant has not put up an arguable defence.  As a result they seek a summary judgment or in the alternative, orders to strike out the defence. 

14.	The defendant lists what he says are triable issues he has properly raised on his behalf. They were, (a) whether the second plaintiff’s lease should be subject to his tenancy agreement with the first plaintiff; and (b) did the first plaintiff’s lease lend him a right to destroy his shop. 
Considerations
15.	Applications for summary judgment are made under Order 15 rule 3 of the Supreme Court rules, where a defendant has filed a defence which fail to disclose a reasonable defence to a claim or any part thereof. 
16.	Principles that apply to summary judgment applications are well established since the decisions in Australia and New Zealand Banking Group Ltd v Toloke both at first instance and on appeal. Those principles were helpfully summarized in Topui v Vea [2022] TOLC 2 as :
“(a) 	The purpose of the rules allowing  summary judgment  applications to be made is to enable a Plaintiff to obtain  summary judgment  without trial if he can prove his claim clearly and if the Defendant is unable to set up a bona fide defence or raise an issue against the claim which ought to be tried.

(b) 	The onus is on the Plaintiff to establish that there is no real doubt or uncertainty as to his entitlement to  summary judgment . Where the evidence is sufficient to show that there is no defence the Defendant will need to respond if the application is to be defeated.

(c) 	Whilst the Court will not normally seek to resolve genuine conflicts of evidence or assess the credibility of witnesses, the Court will not accept uncritically evidence that is equivocal, imprecise or inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents and other statements by the same deponent or is inherently improbable. The Court is entitled to examine and reject spurious defences or plainly contrived factual conflicts. The Court may take a robust and realistic approach when the facts warrant it.

(d) 	The Court will not hesitate to decide questions of law where appropriate.

(e) 	Commonsense, flexibility and a sense of justice are required.

(f) 	In assessing a defence, the Court will look for appropriate particulars and a reasonable level of detailed substantiation. The Defendant is under an obligation to lay a proper foundation for the defence in the affidavits filed in support of the Notice of Opposition.

(g) 	In weighing these matters, the Court will take a robust approach and enter judgment even where there may be differences on certain factual matters if the lack of a tenable defence is plain on the material before the Court.

(h) 	The need for judicial caution in summary judgment  applications has to be balanced with the appropriateness of a robust and realistic judicial attitude when that is called for by the particular facts of the case. Where a last-minute, unsubstantiated defence is raised and an adjournment would be required, a robust approach may be required for the protection of the integrity of the summary judgment process.

(i) 	Once the Court is satisfied that there is no defence, the Court retains a discretion to refuse summary judgment  but does so in the context of the general purpose of the Court Rules which provide for the just, speedy and inexpensive determination of proceedings.

(j) 	However, the Court should proceed with appropriate caution bearing in mind the consequences of summary judgment  for a Defendant. A Defendant should not be deprived of his right to contest a Plaintiff’s claim at trial unless his defence is so clearly untenable or has no prospect of succeeding at trial that it must fail.

17.	In Topui the court dealt with similar circumstances as in the instant case. The defendant in that case held a tenancy agreement. Prior to the expiration of its term the plaintiffs moved to terminate for alleged breach and non-payment of rent. While issues were still in discussion, the plaintiffs leased the allotment to a 3rd party and then moved to evict the defendant.

18.	In have considered the pleadings and affidavit material on this application closely and I am not convinced that the Plaintiffs have demonstrated in a clear and lucid manner that they are entitled to the relief they seek. 
 
19.	Conversely, I find that there are triable issues this court cannot properly determine on the evidence or submissions advanced in this application. Those triable issues include but not limited to:
(a) 	whether the defendant was in breach of the tenancy agreement;
(b)		whether the second plaintiff was entitled to terminate the tenancy agreement;
(c) 	whether if the tenancy agreement is terminated, is the defendant entitled to damages and from whom;
(d)		whether the second plaintiff is indebted to the defendant;
(e)		whether the plaintiffs are estopped from denying the validity of the tenancy agreement;
(f)		whether the second plaintiff’s lease is valid;
(g)		whether the first plaintiff had notice of the defendant’s tenancy agreement when he applied for his lease;
(h)		whether the Minister of Lands was informed of the defendant’s tenancy 			and shop on the leased land;
(i)		whether the granting of the lease revokes the tenancy agreement; if it remained valid at time of grant;	
(j)		whether the defendant has standing to challenge the lease;
(k)		whether the defendant was entitled as tenant to be heard by the Ministry of Lands;
(l)		whether the Ministry of Lands was required to afford the defendant natural justice;
(m)	whether the plaintiffs are estopped from denying the validity of the tenancy agreement;
(n)		whether there has been a legal or equitable assignment of the tenancy agreement from the second plaintiff to the first plaintiff. 

20.	A proper assessment of the pleadings plainly indicates the prospect of substantial disputes on facts and law. On balance, I do not consider it appropriate in this case to deprive the defendant of his right to contest the plaintiffs’ claim at trial. 

Result

21.	For those reasons, the plaintiff’s application for summary judgment is dismissed with costs.

P. Tupou KC
J U D G E

Nuku’alofa: 10 October, 2024