A Tongan couple has won a three year legal battle with a tenant who the Supreme Court ruled had changed the rules of their agreement to benefit her without the couple understanding what was happening.
The dispute had already been the subject of three previous judgments in the Land Court (2014), the Supreme Court in 2015 and the Court of Appeal earlier this year.
Yushen Yang had sought a declaration that she is living legally in buildings erected by her on land owned by ‘Olioni Makelita according to the terms of a 2007 agreement.
Mr Justice Scott said that over a period of years the agreement had been changed to the advantage of the tenants, that it appeared illegal building work had been done and that large sums of rent had never been paid.
An agreement on the land was originally drawn up between ‘Olioni Manoa and one Meng Sen Tsay for a shop in 1999. The tenancy was redrawn in 2005, making Yuzhen Yang the tenant and adding several changes.
Whereas originally tenant had very tightly controlled guidelines on the use of the property and what they could do with it, the new agreement gave them the freedom to change what they were doing.
Then, in 2007, Yang produced a new document which said the tenancy would not be terminated without the Manoa’s paying a substantial amount of money.
This was signed by ‘Olioni’s wife, Makelita, who had no real grasp of English.
In his judgement, Mr Justice Scott said that over several years Mrs Yang and her son had changed the tenancy agreement to their own advantage without the Manoas being aware of what was going on.
“What started off as a simple non-transferable licence to operate a small shop which could not be altered or added to ended up as a right to occupy the premises now at least twice as large,” he said.
The modified agreement allowed them to use the premises for “any business’ and to transfer the tenancy to a third party. The rent for the original shop was $400 per month in 1999, but by the time of the last agreement in 2007, this had shrunk to $291.60 per month, fixed until 2023.
While neither Makelita Manoa or Yuzhen Yang could properly understand English, all the documents were drawn up by Yang’s lawyer on her instructions.
“Since Mrs Yang had the agreements drawn up and their terms altered to suit the circumstances which she wished to see changed it cannot plausibly be argued that she did not know what the agreements contained,” Mr Justice Scott said.
“I found Matelita to be a witness of truth and accept that she saw her only duty to be to sign the agreements on behalf of the landholder, ‘Olioni, her husband, not to examine them and assess their worth.
“In my opinion it is absolutely unsatisfactory for an agreement of this type, conferring as it does a lease of substantial duration in almost all but name to be entered into in this way.”
The agreements should have been drawn up so they could be understood properly by everybody involved and be the subject of independent legal advice.
On those grounds, he said it would be unconscionable to uphold the agreements and the therefore refused to find in favour of Yang. He said the 2007 agreement should be rescinded.
The main points
• A Tongan couple has won a three year legal battle with a tenant who the Supreme Court ruled had changed the rules of their agreement to benefit her without the couple understanding what was happening.
• Yushen Yang had sought a declaration that she is living legally in buildings erected by her on land owned by ‘Olioni Makelita.
• Mr Justice Scott said that over a period of years the agreement had been changed to the advantage of the tenants, that it appeared illegal building work had been done and that large sums of rent had never been paid.
• He said the 2007 agreement should be rescinded.
