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Poland v Paeniu [2008] TVHC 5; Civil Appeal Case 3 of 2008 (29 May 2008)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI
Civil Appellate Jurisdiction

Civil App Case no. 3/08

Between:

Gordon Poland
Appellant

And:

Foai Paeniu
Respondent

BEFORE THE CHIEF JUSTICE

J Grover for appellant
S Earl for respondent

Hearing: 26 May 2008
Judgment: 29 May 2008

Judgment

It appears that a writ and statement of claim was filed in the Senior Magistrate’s Court and, on 22 October 2007, the court ordered that the defendant (respondent in these proceedings) should pay $1,500.00 into court as security for the value of an outboard engine.

By notice of motion filed on 28 March 2008, the plaintiff/ appellant sought an order that the defendant comply with the order of 22 October 2007 on the ground that he had not complied and that he had the means to pay.

The motion reserved the right of the plaintiff to cross examine the defendants as to his means to pay the security ordered by the court. It was, simply, an application to examine the defendant as to his means.

The learned Senior Magistrate refused the application in these terms:

"There is no merit in this application The court is of the view that the plaintiff needs to bring in evidence to the court to satisfy it that there are means the respondent can comply with the order on 22 October 2007. In this motion, there is none."

The appellant challenges the requirement by the magistrate that the plaintiff establish through evidence that the defendant has the means to pay before the plaintiff can examine him. There are other grounds but Ms Grover tells the Court that is the only issue.

Where a judgment debtor fails to comply with a judgment, the judgment creditor has the right to examine him as to his means. It is often used to ascertain whether it is worthwhile attempting to execute the judgment. In this case, the defendant had failed to comply with an interim order of the court. That order had, presumably, been made to protect the plaintiff’s interests and the plaintiff had good reason for wishing to see that it was obeyed as it provided some security for his action, By seeking to examine him, the plaintiff could ascertain whether he had means to pay and, if so, would no doubt have taken appropriate steps to have the court order implemented.

Clearly the purpose of such an examination is to ascertain whether the person examined has means or not. It is done because the plaintiff has no other way of discovering his opponent’s means. Clearly, therefore, it is impossible for the plaintiff to establish by evidence, a fact he needs to examine the other party in order to find out. When such application is made, the applicant should supply a notice of the basis for his or her belief that the person to be examined may have means but that is far short of providing evidence of the fact before the examination.

The appeal is allowed and the case is returned to the Senior Magistrate with an order to summon the defendant for examination as to his means to comply with the court order of 22 October 2007.

Dated: 29th day of May 2008

Hon. Gordon Ward
CHIEF JUSTICE