The Supreme Court has rejected a request by the wife of late MP Joe Tu’ilatai Mataele for his sister, to pay security of $10,000 in their legal case over two leases of land.
‘Aiona Fa’asau Mataele and Joe’s sister Kalo Mataele Soukop have brought the case before Justice Laki Niu in Nuku’alofa.
Court statement said, ‘Aiona had applied for probate of the will of Joe and had included the two said jointly owned leases as properties left to her by her deceased husband.
The Supreme Court had granted that probate to her in 2010 but to date she has not had that probate registered under S.131 of the Land Act.
‘Aiona claimed Kalo had abandoned or surrendered her interests in the two said leases to her late husband and that the two leases were her sole property by virtue of her late husband’s will.
In her claim against the defendant Kalo said that the two said leases are her sole property because they are both in the joint names of Joe Mataele, and of herself, Kalolaine Soukop, and that upon the death of Joe, she became the sole owner as survivor of the two joint owners.
‘Aiona has applied for security for costs in the sum of $10,000 to be paid by the Kalo upon the ground that the plaintiff is ordinarily resident out of the jurisdiction, and she may be unable to pay the costs of the defendants if ordered to do so.
Kalo did not deny that she is ordinarily resident outside of the jurisdiction.
“In fact, she pleads that she resides in Hawaii, United States of America, in her statement of claim. But she denies that she may be unable to pay the costs of the defendant if ordered to do so because she is the lawful owner of two valuable leases of land situated in Tonga, with substantial buildings situated thereon, which may be ordered to be sold if she fails to pay the costs of the defendant, if so ordered by the Court,” Mr Niu said.
She argued that she has at least an arguable claim against the defendant and that she should not be required to pay security for costs up front no matter how poor she maybe.
In his conclusion Mr Niu said: “The burden of proving the grounds for the grant of an order for security for costs is upon the defendant. Not only does the defendant have to prove that the plaintiff ordinarily resides outside of the jurisdiction or that she may be unable to pay costs if ordered to do so, she must also prove that the plaintiff has no possibility of succeeding in her claim so that in all the circumstances of the case it is just that the order be made.”
Mr Niu said ‘Aiona has failed to prove that Kalo has no possibility of succeeding in her claim.
“I order that her application is dismissed with costs to the plaintiff, to be taxed if not agreed.”