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Pacific Royale Hotel v Tevita Siale Trading As Siale Tyre Shop [2009] TongaLawRp 61; [2009] Tonga LR 450 (2 October 2009)

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

CV 662/2006

Pacific Royale Hotel

v

Tevita Siale Trading As Siale Tyre Shop

Ford CJ
29 July 2009; 2 October 2009

Debt recovery – bailiff seized property – judgment debtor non-legal entity – could still be enforced against individual owners - seized goods could be sold

On 5 December 2008 a writ of distress was issued against the judgment debtor, the Hotel, in the sum of $10,538 which represented the total amount owing to the judgment creditor, Siale, under the judgments in both the Supreme Court and Court of Appeal. The bailiff initiated interpleader proceedings to determine whether property seized by him on 11 December 2008 pursuant to a distress warrant, belonged to the judgment debtor Pacific Royale Hotel (the Hotel), and therefore could be seized, or to the interpleaders. Interpleaders argued that the Hotel (judgment debtor) was "an unincorporated body not recognised by law as being a body capable of suing or being sued." Counsel submitted that because the Hotel was a non-legal entity, there was no legal basis under which Siale could enforce his judgment against the individual owners of the Hotel, 'Olive Ramanlal and her husband Joseph.

Held:

1. As a general proposition judgment against a non-legal entity was worthless. It was equivalent to having judgment against "the Raintree" in Post Office Square. One of the first things that counsel in any civil litigation should do was check the status of the parties to ensure that, in the event of a successful outcome, judgment in the client's favour would not be rendered otiose.

2. Leave was granted by the Court for the judgment creditor to issue execution in the form of a warrant for distress against Mr and Mrs Ramanlal. The bailiff acted pursuant to the warrant and there was no reason why the Court should not order the vehicles and other goods seized to be sold by public auction with the proceeds going towards the reduction or extinguishment of the judgment debt owed.

3. The Court would ordinarily award full costs to the judgment creditor but it declined to do so because it was clear from the submissions filed that counsel had not carried out even basic research into the law. No authorities or rules of court were cited or referred to. Clients should be able to expect more from their counsel in commercial litigation. To show the Court's concern over the issue, the judgment creditor was awarded costs against Mr and Mrs Ramanlal in an amount to be agreed or otherwise fixed at 50% of those allowed on taxation together with reasonable disbursements.

Cases considered: