Lord Chief Justice Whitten has blamed Lord Lasike for creating a situation in which he sub-let a building to tenants without telling the ANZ Bank, from which he held a mortgage.
He said the Noble’s failure to adhere to his obligations had led to a situation in which one of his tenants believed that she still held a tenancy in the building on terms set by Lord Lasike, even after the bank had reclaimed it and re-sold it.
Junior Leata McCarthy sought to argue that her tenancy agreement with Lord Lasike was valid and that she believed that the building’s new owners and the bank, had by their actions and failure to directly indicate otherwise, accepted the arrangement and would let her stay in the building for many years to come.
The case had its origins in October 2004 when Lord Lasike borrowed TP$170,000 from the ANZ. As security for the loan, Lord Lasike executed a land and chattel mortgage over the land.
The property on Taufa’ahau Road is between the premises of EM Jones and Sioeli Tuita’s property in Nuku’alofa.
As part of the mortgage, Lord Lasike, a former Speaker of Parliament, had to agree to not lease or sublease the property without the previous consent in writing of the bank.
Lord Lasike went on to establish on the property what became known as the Sandyboyz Motel, which was a commecial failure.
He therefore decided to rent out rooms within the buildings to be used by tenants for shops. On March 1, 2014, Lord Lasike entered into a rental agreement with McCarthy, who opened the Le-Ata Fashion Boutique & Giftshop.
The agreement was for 15 years at TP$1000 a month.
She agreed to renovate and upgrade the premises at her own expense.
Lord Lasike did not tell the bank about the rental agreement.
During his oral evidence, he said he did not obtain any legal advice before executing the documents or read them before signing them.
In or about 2016, Lord Lasike defaulted on the loan in 2016, owing TP$1.159 million.
After the Noble defaulted on the mortgage, the bank sold the building to Edgar Cocker, currently Tonga’s Chief Secretary and Secretary to Cabinet for TP$750,000.
The Noble then told his tenants to pay their rent to the bank.
McCarthy said she had the “impression” that her rental agreement with Lord Lasike “was alright.â
Mr Cocker presented the Defendant with a new rental agreement, the key terms of which were an increased rent to $1,500 per month and a period of only one year.
The Defendant rejected the agreement, claiming she was entitled to remain on the property under her tenancy agreement with Lord Lasike.
Cocker demanded that McCarthy leave the property so that he could demolish the existing buildings and redevelop the site into a shopping mall.
McCarthy refused to move and Cocker sought an eviction order and damages.
Ruling
Lord Chief Justice Whitten ruled that Cocker Enterprises Ltd had given McCarthy more than reasonable notice of the termination of her tenancy of the shop and the demand for her to vacate it.
The Defendant’s refusal to vacate the property was unlawful. Therefore, since February 16, 2020, the Defendant has been a trespasser on the property.
McCarthy was ordered to pay TP$11,000, the equivalent of 11 months’ rent.
The judge ruled that McCarthy had to vacate the property and remove her belongings from it within 28 days of the ruling and pay Cocker’s costs.
ONGOONGO’ ‘I HE LEA FAKA-TONGA’
Ne pehÄ âe he âEiki Fakamaau Lahi ne hoko âa e tĆnounou he ngaahi fatongia âo Looti Lasikeâ ke kei kohu pe taha âene kau fakalele pisnisi totongi âi he taha hono ngaahi faleâ âoku kei mafai lahi pe âa e aleapau nofo totongi ne na fefakamoâoniâaki ai âo aâu pe ki he hili hono toâo âe he pangikeeâ mei he nĆpeleâ âo toe fakatau atu âa e fale ko âeniâ ki ha âouna kehe. Ko e fefine pisinisi âeni ko Junior Leata McCarthy pea naâaâ ne hÄ âi he fakamaauâanga lahi hili hano fakaâilo ia âe Edgar Cocker mo âene pisinisi Cocker Enterprise Ltd, âa ia ko e âouna foâou ia âo e kelekele mo e fale ko âeni âoku tuâu he hala TaufaâÄhauâ âi loto Nukuâalofa. Ko e pisinisi âa McCarthy ne âiloa ko e Le-ata Boutique & Gift Shop. Ne na aleapau mo Looti Lasike âi he 2014 ke pisinisi totongi âa McCarthy he fale âo e nĆpele âa ia ne âiloa ko e ‘Sandyboyz Motel’ ki he mahuâinga ko e $1,000 he mÄhina âi ha taâu âe 15 toki âosi ki he 2029. Ka ne âikai fakahÄ âe Looti Lasike ‘eni ki he pangikee’, ‘o hangÄ ko e aleapau’, pe kia McCarthy âoku fihia e âapiâ âi ha mĆkisi âi he pangikÄ ANZ. âI he 2016 ne âikai toe lava âe Lasike tÄ fakafoki âene nooâ, âa ia ne aâu e moâua he taimi ko iaâ ki he 1 miliona tupuâ, pea iku ala mai e pangikeeâ âo faâao e faleâ âa ia ko e taha ia e koloa maluâi. Ne fakatau leva ia âe he pangikeeâ ki he âouna foâouâ ko Edgar Cocker mo hono hoaâ. Ne hoko heni ha palopalema âi hono toki âilo âe Cocker âa e tuâunga ne âi ai âa McCarthy mo âena aleapau mo Lasikeâ. Ne kau heni hono hono tuâutuâuni atu âe Cocker ke fakafoâou e aleapau ke $1,500 he mÄhina. Ne iku foki âo âikai lelei e alea ko âeniâ pea aâu ki he tuâunga ne liliu âe Cocker e loka ki he faleâ ka ne toâo ia âe McCarthy. Ne iku ai âo âave âe Cocker âa McCarthy ki he fakamaauâanga. Naâe tuâutuâuni aofangatuku leva âa e fakamaau lahi ke mavahe âa McCarthy mei he âapiâ ni pea ke ne totongi huhuâi âa e fakamole âa Cocker.
