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Davisco Pineapple Industries Company Ltd v Vakavelo [2003] TongaLawRp 6; [2003] Tonga LR 34 (11 March 2003)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 96/2002

Davisco Pineapple Industries Company Ltd

v

Vakavelo

Ford J
27 November, 3 December 2002 and 7 March 2003; 11 March 2003

Land law – charging order nisi – over interest in land – made absolute

On 3 October 2002 a charging order nisi was issued in favour of the plaintiff company over the defendant's tax and town allotments at Kolonga. The plaintiff sought to have that order made absolute. The defendant opposed the application and claimed that in Tonga it was not possible for a charging order to be issued over any interest in land apart from leasehold interests. That was the issue before the court.

Held:

1. A charging order was a statutory, not an equitable, remedy. Charge holders needed to be aware that the available enforcement options would need to be adapted to accommodate the unique land tenure structure in the Kingdom.

2. The burden of showing cause as to why a charging order nisi should not be made absolute was on the judgment debtor. The only ground in opposition advanced by the defendant in the present case was the legal issue which the court disposed of. Apart from that, the defendant (judgment debtor) took no steps in the proceedings and he had not sought to defend any part of the plaintiff's claim.

3. The charging order nisi was made absolute. The plaintiff was entitled to the costs of this application to be agreed or taxed. The said costs were to be added to the judgment debt.

Cases considered:

First National Securities Ltd v Hegerty [1984] 3 All ER 641

Intracor Trading Co (NZ) Ltd v Finau [1990] Tonga LR 133 (CA)

OG Sanft and Sons v Tonga Tourist and Development Co Ltd [1981] Tonga LR 1981 -- 88, 26

Roberts Petroleum Ltd v Bernard Kenny Ltd [1982] 1 All ER 685

Counsel for plaintiff: Mr Tu'utafaiva
Counsel for defendant: Mr Etika
Counsel for the Minister of Lands: Mr Kefu

Judgment

On 3 October 2002 a charging order nisi was issued in favour of the plaintiff company over the defendant's tax and town allotments at Kolonga. The plaintiff now seeks to have that order made absolute. The defendant opposes the application and claims that in Tonga it is not possible for a charging order to be issued over any interest in land apart from leasehold interests. That is the issue before the court.