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Hoch v Malupo [2025] TOCA 30; AC 24 of 2024 (20 November 2025)

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BETWEEN THOMAS HOCH and PEPISI EDWARDS aka LINI HAUSIA
Applicants

AND VILISONI MALUPO and LOPASI MALUPO
Respondents

Hearing: 12 November 2025

Court: Randerson, White and Harrison JJ

Counsel: David F Corbett for Applicants
Fatai L Vaihu for Respondents

Judgment: 20 November 2025

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JUDGMENT OF THE COURT
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Introduction

[1] The parties to this application are engaged in a civil dispute in the Supreme Court over a property in Vava’u. The respondents’ statement of claim states that they are the owners of a substantial double storey building at Pangaimotu which they built in 1995 at a cost of TOP $131,000 with a further TOP $50,000 spent on furnishings. The property has been used for hospitality and accommodation purposes.
[2] The respondents say that in May 2023 they negotiated a verbal tenancy agreement with the applicants, in terms of which the applicants agreed to pay rent of TOP $1,500 per month with the first payment due in August 2023. A written tenancy agreement signed by the respondents was sent to the applicants but it is unclear whether and in what form it was signed by the applicants.
[3] It is not in dispute that the applicants moved into the property in early 2024 and remain in possession at present. A business operates there managed by others on the applicants’ behalf. No rent has been paid other than for a short period we refer to below. The arrears from August 2023 to the present amount to TOP $42,000 and continue at TOP $1500 per month.
[4] On 23 March 2021, the King’s Palace had issued a letter stating that the respondents were not entitled to the land because it belonged to the King who had not granted any right of occupation. Their eviction was sought. The applicants say that the respondents were aware they were occupying land owned by the King before the tenancy was agreed and they misrepresented the true position. They also claim they have been obliged to spend substantial sums of money on the premises and bring a counterclaim for TOP $120,000 and other consequential expenses. The respondents deny any misrepresentation and say that the applicants have not provided any particulars nor evidence to support the claimed expenditure.
[5] The true ownership of the land and the right of the respondents to occupy it has not been determined nor has the issue of whether the respondents misrepresented the true position at the time the tenancy was entered into. In any event, the respondents say their claim is based on a tenancy of the building which they built and paid for rather than on the land and building. We note that the written agreement says as much. For present purposes, the only common ground is that the applicants occupied the premises and have carried on a business there for a substantial period without paying any rent.
[6] The matters before us for determination stem from a ruling by Cooper J declining to order security for costs in favour of the applicants and from subsequent orders made by the Lord Chief Justice both in the Supreme Court and as a member of this Court. These are detailed below. Suffice to say, at this point, the applicants apply under Order 7 rule 3 of the Court of Appeal Rules challenging a ruling made by the Lord Chief Justice in his capacity as a Judge of this Court refusing leave to appeal interlocutory orders made in the Supreme Court.

The relevant orders

[7] On 22 October 2024, Cooper J declined the application by the applicants for an order that the respondents provide security for costs under Order 17 Rule 1 of the Supreme Court Rules. Since the respondents were ordinarily residing out of the jurisdiction in Australia, there was jurisdiction to make an order for security for costs but the Judge decided not to do so on discretionary grounds. In particular, the applicants admitted taking possession of the property without paying rent at material times. He considered it was unfair to order the respondents to pay security for costs in those circumstances. Cooper J added that the affidavits before him were untested and did not express any view about the merits of the dispute.
[8] On 27 November 2024 the Lord Chief Justice made timetable orders in the Supreme Court leading to a fixture set for 28 April 2025. These orders allowed for an intention, signalled by the applicants, to promptly appeal against Cooper J’s decision on the security for costs application. However it was not until 17 April 2024, shortly before the trial was to commence, that the applicants applied for leave to appeal and for the necessary extension of time to do so.
[9] On 28 April 2025, the Lord Chief Justice made the following orders in the Supreme Court:
(a) Leave was granted to the applicants to file a notice of appeal within 14 days against Cooper J’s refusal to make an order for security for costs.
(b) The appeal was to be referred to the May 2025 session of the Court of Appeal to be dealt with on the papers by a single Judge if practicable. Given the delays it was later necessary to vacate the listing of the appeal in that sitting.
(c) The trial due to commence that day (28 April) was also vacated.
(d) The applicants were to commence paying rent to the respondents of $1,500 per month “of (sic) way mesne profits until the case is determined”.
(e) Wasted costs on the adjournment of the trial were to be taxed if not agreed and paid by the applicants to the respondents.

• [10] On 12 May 2025, the applicants filed a notice of appeal against the order for security for costs although the respondents say this was not served until 18 June 2025.
• [11] On 5 June 2025, the applicants applied to the Court of Appeal for “special leave” to appeal the interlocutory orders made on 28 April 2025 and for a stay of execution of the orders made for payment of rent and costs. Leave was required by virtue of section 10(1)(b) of the Court of Appeal Act.
• [12] On 13 June 2025, the Lord Chief Justice refused the application for leave pursuant to Order 7 Rule 1 of the Court of Appeal Rules under which an application for leave may be determined by a single Judge ex parte and without a hearing.
• [13] On behalf of the applicants, Mr Corbett challenged the refusal of the Lord Chief Justice to grant leave, relying on section 10(3) of the Court of Appeal Act. However, in a Minute issued on 26 August 2025, Randerson J ruled that section 10(3) relates to appeals against interlocutory orders made in the Supreme Court and did not relate to interlocutory orders made in the Court of Appeal.
• [14] The Lord Chief Justice determined the application for leave to appeal the interlocutory order of the Supreme Court in his capacity as a Judge of this Court. Accordingly, Randerson J ruled that, in terms of Order 7 Rule 3 of the Court of Appeal Rules, the order could only be challenged with the leave of this Court at its forthcoming sitting in November. The applicants were directed to notify the Court and the respondents within 14 days whether they wished to renew this matter in the November sitting and they did so.
• [15] Randerson J observed that since leave to appeal had been refused, the orders made in the Supreme Court including those for payment of rent and costs remained in force unless and until set aside or varied by order of this Court at the next sitting. Further, Randerson J noted that the respondents might be liable to pay back to the applicants any money later found to have been overpaid.
• [16] Notwithstanding that, the applicants have made only four payments of TOP $1500 each, totalling TOP $6,000.00. Their counsel, Mr Corbett told us they now refuse to pay any more. That means the applicants are in contempt of court for failure or refusal to comply with the order of the Supreme Court.

The issues

[17] In support of the application under Order 7 Rule 3, Mr Corbett seeks:
(a) Special leave to appeal the interlocutory orders made on 28 April 2025;
(b) A stay of execution of the order for payment of mesne profits and costs;
(c) Leave to appeal the refusal to grant leave to appeal on 13 June 2025; and
(d) Costs on the various applications made to this Court.

• [18] For the respondents, Mrs Vaihu submits there has been a continuing pattern of unjustified delay on the part of the applicants and that, until the order made to pay $1500 per month, the applicants have been in possession of the property without payment of any rent. She submitted there is no justification to revisit any of the orders made.

Consideration

[19] At the heart of the issues currently before this Court are two questions:
(a) Is there any justification to interfere with the order by Cooper J refusing the application for security for costs; and
(b) Is there any valid basis to challenge the order made by the Lord Chief Justice on 28 April 2025 for payment of $1500 per month by way of mesne profits?

Security for Costs

[20] Order 17 rule 1 of the Supreme Court Rules provides:

Where on the application of a defendant to any proceeding it appears to the Court that –

(a) the plaintiff is ordinarily resident out of the jurisdiction;
(b) the plaintiff may be unable to pay the costs of the defendant if ordered; or
(c) the plaintiff has not disclosed his true address to the Court;
(d) the Court may, after having regard to all the circumstances of the case it thinks just to do so, order that all the action be stayed until the plaintiff gives security for the defendant’s costs of the proceeding in such manner as the Court may determine.

• [21] The principles applicable were comprehensively stated in the decision of this Court in Public Service Association Incorporated v Kingdom of Tonga^[1] and need not be repeated in full. Suffice to say that the jurisdiction of a Court to make an order for security for costs exists to protect the efficacy of the exercise of its jurisdiction to award costs. The onus is on the applicant to persuade the Court to make an order for security. The Court has a broad and unfettered discretion but one that must be exercised in a principled manner. Relevantly to the present case, the Court may consider the strength or weakness of the plaintiff’s case, the degree of risk that a Court’s costs order will not be met and whether the order would be oppressive because it would stifle a reasonably arguable claim.
• [22] We are not persuaded there is any proper basis to challenge the decision by Cooper J to refuse the application for security for costs. Jurisdiction exists to make an order for security since the respondents ordinarily reside in Australia. The only evidence before the Court about their ability to meet a costs order is the existence of the building in dispute. It is clear that it remains a substantial asset within the jurisdiction. It was valued for the respondents in July 2024 at TOP $1.39 million although the valuer acknowledged the “extreme difficulty” in establishing the true market value.
• [23] It is now accepted that the land is owned by His Majesty the King, but we are in no position to reach any conclusion as to the respondents’ right to occupy the land. We were informed that each party has sought a lease of the land from the estate holder, the outcome of which is unknown. The amount of security for costs sought was $20,000.00. There is a reasonable basis to infer that the building has at least some residual value available to the respondents sufficient to meet any likely claim for costs.
• [24] Moreover, as Cooper J observed, the applicants have had the benefit of the property and the business they carried on there for a substantial period of time without payment of rent. We consider the respondents have reasonable prospects of success and we agree that to require the respondents to pay the sum sought for security for costs of TOP $20,000 would in all the circumstances be unjust.

The order to pay mesne profits

[25] Nor do we see any valid basis to interfere with the order made by the Lord Chief Justice on 28 April 2025 requiring the applicants to pay TOP $1,500 per month by way of mesne profits which we interpret as meaning until the disposal of the appeal and associated renewal application. Mr Corbett submitted that this issue had not been raised in advance before the hearing in which the Judge made the order and since the respondents had no entitlement to occupy the property, they could not recover rent or mesne profits for the period in which it was occupied by the applicants.
[26] There are several difficulties with this argument. First, Mrs Vaihu informed us that she had raised the matter orally before the Lord Chief Justice. Second, it has not been determined that the respondents had no right to occupy the property. Third, the Lord Chief Justice was entitled in his inherent discretion, as a condition of granting leave, to require payment of a sum of money by the applicants as occupiers. It is immaterial whether this was on the footing that the applicants were holding over post -tenancy or were trespassers at the conclusion of a licence to occupy who continued to occupy the property and enjoy its benefits while paying nothing in return. Given the pattern of delays on their part, it was clearly within the discretion of the Lord Chief Justice to require payment of the amount the applicants had agreed to pay for rent but did not. As already noted, if, in the final analysis, the respondents are found to have been overpaid, they may be liable to refund any overpaid amount to the applicants.

Outcome

[27] For these reasons:

(a) Leave to appeal the decision of Cooper J on 22 October 2024 refusing the application by the applicants for an order that the respondents provide security for costs is declined.
(b) The orders made in the Supreme Court by the Lord Chief Justice on 28 April 2025 are all upheld save for a variation to clarify that the applicants are to pay rent to the respondents of TOP$ 1,500 per month from that date until the date of this judgment.
(c) The application for a stay of proceedings in the Supreme Court is dismissed.
(d) The Registrar is now to fix the costs payable by the applicants on the adjournment of the trial in the Supreme Court.
(e) The applicants must pay costs to the respondents on the applications made to this Court to be fixed by the Registrar if not agreed.

• [27] The proceedings in the Supreme Court should now proceed to determine the claim and counterclaim. Any payments made by the applicants to the respondents by way of rent may be taken into account as part of the Court’s assessment.
  

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Randerson J

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White J

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Harrison J

^[1] Public Service Association Incorporated v Kingdom of Tonga [2015] Tonga LR 439; AC 9 of 2015.