Court denies Deputy PMs application for $15,000 security costs

By Lagi Keresoma

APIA, SAMOA – 17 MAY 2023: The Deputy Prime Minister Tuala Iosefo Ponifasio’s effort to deport New Zealand businessman Alan Belcher and his application for $15,000 security costs, has been seen by the Court as oppressive.

Yesterday, Justice Leiataualesa Daryl Clarke delivered his decision on Tuala’s (Defendant) application for Belcher (Plaintiff) to pay a security cost before they proceed with the hearing of Belcher’s civil claim against Tuala.

“The defendant’s effort to deport the Plaintiff undermines his application and raises the risk that it is oppressive,” said Justice Clarke.

Justice Clarke said the reason behind Tuala’s prompt enquiry into Belcher’s immigration status was because Belcher took legal action against him.

“The Defendant was in possession of information concerning the Plaintiff’s immigration status for some years prior to these proceedings, but took no steps to raise any concerns beforehand,” said Justice Clarke.

He also said that the “accompanying call to deport the Plaintiff is linked to these proceedings, with the Plaintiffs deportation likely to make his continuation of these proceedings more difficult.”

Reason for dismissal of application
On 8 April 2019, Belcher lodged a written complaint with the police concerning the alleged sale and theft of his excavator.

Belcher claimed that Tuala tried to deport him so he could not file a legal claim.

Around September 2020, Belcher filed a claim with the Supreme Court and soon after, the Ministry of the Prime Minister & Cabinet (MPMC) received information about Belcher’s immigration status.

“The timing of the letters to MPMC also supports the inference that the calls to deport the Plaintiff is likely to be due to these proceedings,” said Justice Clarke.

The first letter was sent to MPMC on 19 September 2022 after Belcher filed his claim and another letter to MPMC Chief Executive Officer on 28 March 2023, two days before the hearing of Tuala’s security cost application.

The Court also noted that the steps taken by Tuala to have Belcher deported “colours his application and raises risks that the application may be oppressive in that it is being used as a vehicle to deny a potentially impecunious litigant his right to litigate.”

“Taking these factors into account, the merits of the Plaintiff’s claims and the Defendant’s defence and mindful that the ordering of security for costs may frustrate the Plaintiff’s right to litigate, I have determined to deny the motion for security costs,” said Justice Clarke.

Background
The dispute between Tuala and Belcher stemmed from an excavator owned by Belcher which Tuala hired for his work and was later agreed to be sold to Tuala in 2014 on the price of $130,000 tala.

Tuala was to make payment of the sale “when he can.”

Tuala was also tasked to prepare a written agreement but did not do so.

The Court noted that between July 2014 and October 2015, Tuala made three payments totalling $2,300 and sometime in July 2018, he allegedly sold the excavator for $60,000 without Belcher’s consent.

Tuala denied agreeing to buy the excavator, but said after his work at Malifa, the excavator was stored at his family property at Papaloloa and later Alafua where it was visible to the public.

He received many interesting inquiries to either hire or buy the excavator and he sold it for $40,000 to a third party.

The Defendant has filed a counter-claim against the Plaintiff for $50,000 for costs allegedly incurred in transporting and storing the excavator. The Defendant claimed the only payment he made were for his use of the excavator.

Belcher’s civil claim against Tuala is $207, 800 and the matter has been referred to set a date to hear the claim.