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Parrish v Rush [2008] TongaLawRp 35; [2008] Tonga LR 179 (25 July 2008)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

AC 08/2008

Parrish

v

Rush anors

Burchett, Salmon, and Moore JJ
17 July 2008; 25 July 2008

Appeal against refusal of adjournment – new medical evidence – appeal allowed – costs to respondent

The proceedings were issued by the appellant in December 2006. The appellant claimed that, in breach of the management agreement entered into between him and the first, second and third named respondents the respondents purported to dismiss him as manager of the Mala Island Resort in Vava'u. He also claimed that the respondents were responsible for the laying of a number of criminal charges against him all of which were later dismissed. He claimed that he was wrongfully evicted from the resort and suffered loss of possessions and income. Finally he claimed an entitlement to unpaid remuneration and repayment of loans to the business. His prayer for relief detailed his declarations and damages that totalled almost $700,000. Contemporaneously with the issue of the proceedings the appellant applied for an ex parte injunction seeking orders that had the effect of restoring exclusive occupation of the Resort to him. The injunction was granted on 18 December 2006. Prior to 8 April 2008 no application was made by the Respondents to rescind the injunction.

On 8 April 2008 the Supreme Court refused the appellant's application for an adjournment of a trial due to commence on the 7 April (application based on medical grounds) and dismissed the appellant's proceedings. The court also vacated the order made in December 2006. The appellant appealed this decision.

Held:

1. The respondents conceded at the hearing that the additional medical reports clearly established that the appellant had been very ill and that the proceedings should be reinstated and a new date should be set for the hearing.

2. The concession left two issues for consideration. The first was whether the injunction discharged on 8 April should be reinstated. The Court declined to make any order relating to the injunction. The situation had changed. The respondents employed a Manager and the appellant was unable to resume management. If the question of management could not be resolved by agreement then the issue must be determined by a Supreme Court Judge preferably the Chief Justice who was already familiar with this issue.

3. The other issue was costs. There were two costs issues. The first concerned the costs associated with the adjournment. The other question concerned the costs of the appeal.