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.”
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.
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 pehē ‘e he ‘Eiki Fakamaau Lahi ne hoko ‘a e tōnounou he ngaahi fatongia ‘o Looti Lasike’ ke kei kohu pe taha ‘ene kau fakalele pisnisi totongi ‘i he taha hono ngaahi fale’ ‘oku kei mafai lahi pe ‘a e aleapau nofo totongi ne na fefakamo’oni’aki ai ‘o a’u pe ki he hili hono to’o ‘e he pangikee’ mei he nōpele’ ‘o toe fakatau atu ‘a e fale ko ‘eni’ ki ha ‘ouna kehe. Ko e fefine pisinisi ‘eni ko Junior Leata McCarthy pea na’a’ ne hā ‘i he fakamaau’anga lahi hili hano faka’ilo ia ‘e Edgar Cocker mo ‘ene pisinisi Cocker Enterprise Ltd, ‘a ia ko e ‘ouna fo’ou ia ‘o e kelekele mo e fale ko ‘eni ‘oku tu’u he hala Taufa’āhau’ ‘i loto Nuku’alofa. Ko e pisinisi ‘a McCarthy ne ‘iloa ko e Le-ata Boutique & Gift Shop. Ne na aleapau mo Looti Lasike ‘i he 2014 ke pisinisi totongi ‘a McCarthy he fale ‘o e nōpele ‘a ia ne ‘iloa ko e ‘Sandyboyz Motel’ ki he mahu’inga ko e $1,000 he māhina ‘i ha ta’u ‘e 15 toki ‘osi ki he 2029. Ka ne ‘ikai fakahā ‘e Looti Lasike ‘eni ki he pangikee’, ‘o hangē ko e aleapau’, pe kia McCarthy ‘oku fihia e ‘api’ ‘i ha mōkisi ‘i he pangikē ANZ. ‘I he 2016 ne ‘ikai toe lava ‘e Lasike tā fakafoki ‘ene noo’, ‘a ia ne a’u e mo’ua he taimi ko ia’ ki he 1 miliona tupu’, pea iku ala mai e pangikee’ ‘o fa’ao e fale’ ‘a ia ko e taha ia e koloa malu’i. Ne fakatau leva ia ‘e he pangikee’ ki he ‘ouna fo’ou’ ko Edgar Cocker mo hono hoa’. Ne hoko heni ha palopalema ‘i hono toki ‘ilo ‘e Cocker ‘a e tu’unga ne ‘i ai ‘a McCarthy mo ‘ena aleapau mo Lasike’. Ne kau heni hono hono tu’utu’uni atu ‘e Cocker ke fakafo’ou e aleapau ke $1,500 he māhina. Ne iku foki ‘o ‘ikai lelei e alea ko ‘eni’ pea a’u ki he tu’unga ne liliu ‘e Cocker e loka ki he fale’ ka ne to’o ia ‘e McCarthy. Ne iku ai ‘o ‘ave ‘e Cocker ‘a McCarthy ki he fakamaau’anga. Na’e tu’utu’uni aofangatuku leva ‘a e fakamaau lahi ke mavahe ‘a McCarthy mei he ‘api’ ni pea ke ne totongi huhu’i ‘a e fakamole ‘a Cocker.