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Polynesian Ltd v Fonua [2009] TongaLawRp 27; [2009] Tonga LR 260 (17 June 2009)

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

CV 107/2009

Polynesian Limited

v

Fonua anor

Andrew J
16 June 2009; 17 June 2009

Practice and procedure – injunction sought seizing business – doubt as to liability of defendants – injunction denied

The plaintiff claimed that the defendants guaranteed the payment of air fares for the Tongan Volleyball team to travel to Australia and back. It appeared that the first defendant wrote a letter on the 4th December 2008 in which he appeared to guarantee the payment of the air fares. He mentioned that the second defendant would also be liable to pay off the debt. The plaintiff applied for an interim injunction that the graphic design and other business of the defendants at Loumaile Lodge be seized by the plaintiff and not to operate until the debt of $18,614.56 plus 16% interest was paid. The application was opposed.

Held:

1. There was doubt as to whether the second defendant had guaranteed the debt. Further, the Court was told that the first defendant had no particular interest in the property or involvement in the business.

2. The Court was not prepared to make the order for an injunction that seized the business. The application was dismissed.

Counsel for the plaintiff/applicant : Mr Fakahua
Counsel for the defendant/respondent : Mrs Stephenson

Judgment

The applicant/plaintiff seeks an interim injunction against the first and second defendants.

They seek an order that:

"That the graphic design and other business of the defendants at Loumaile Lodge at the corner of TAUFA'AHAU Road and Laifone Road is now seized by the plaintiff and not to operate until they pay their debt in the sum of $18,614.56 plus 16% interest per annum since February 2008 until paid"

The application is opposed.

This matter revolves around whether the defendants guaranteed the payment of air fares for the Tongan Volleyball team to travel to Australia and back. It appears that the first Defendant wrote a letter on the 4th December 2008 in which he appears to guarantee the payment of the air fares. He does mention that Ms. Tanginoa (the second defendant) shall also be liable to pay off the debt. However that letter is signed only by Mr Fonua. There is a letter dated 25th March 2009 whereby the lawyer for the defendants advise that her clients will commence to pay the money once the interest payment has been sorted out. There is no direct reference to Ms. Tanginoa. I think in the circumstances there is some issue of whether Ms. Tanginoa has guaranteed the debt. The injunction is seeking to seize her property. I am told that the 1st defendant has no particular interest in the property. I think that the seizure of the business is a matter which might only occur until after judgment. As there is some doubt as to Ms. Tanginoa's position in this matter I am not prepared to issue an order seizing the business. I am told that the 1st defendant has no involvement in the business described as the graphic design business at Loumaile Lodge.

In these circumstances I am not prepared to make an order for an injunction to seize this business.

I would dismiss the application and order that costs of the application be costs in the cause.