Sharon v Koto [2021] TOLC 6; LA 21 of 2019 (19 April 2021)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

LA 21 of 2019

BETWEEN:

SAMUEL LARRY SHARON
Applicant
-and-

ANZ BANKING GROUP LIMITED
Plaintiff
-and-

JACINTA KOTO
Defendant

Application to vary final consent orders
RULING

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr S. Fili for the Applicant
Mrs D. Stephenson for the Plaintiff
Mr D. Corbett for the Defendant
Date of hearing: 14 April 2021
Date of ruling: 14 April 2021
Date of published reasons: 19 April 2021

1. On 19 March 2021, the Plaintiff and Defendant consented to final orders disposing of this proceeding. They included that the Plaintiff was lawfully entitled to immediate possession of all the land comprised in the Defendant’s Lease (No. 6436) and the buildings thereon and that the Defendant agreed to forthwith surrender up and grant vacant possession of the said property to the Plaintiff.
2. On 6 April 2020, Mr Fili filed an application on behalf of Samuel Sharon, who is the tenant of the lease property the subject of this proceeding and the final orders by consent. He is not, and has never been, a party to the proceeding.
3. Mr Sharon applied for orders extending the date by which he is required to vacate the premises to 20 June 2021, to be permitted to remove his belongings from the house and for removal of the security guard installed at the property by the bank. The grounds set out in his affidavit in support included:
   • (a) he was not given any notice of the final order by consent on 19 March 2021, and as a result, he felt disadvantaged as he has "a vested interest on the same property and therefore unjust and unfair" [6];
   • (b) that the defendant had engaged in fraudulent misrepresentation in getting him to sign the agreement to ‘lease’ the property [7] when she stated in the agreement that "... there is no legal impediment past, present or future whatsoever to...granting (Mr Sharon) exclusive and peaceful possession of the property during the term of this agreement" [9];
   • (c) that in September 2016, he paid the defendant $120,000 to ‘lease’ the property for 20 years;
   • (d) he is 66 years of age and suffers from autism. His wife suffers from bipolar disorder; and
   • (e) his retirement fund from the USA government will resume on or about 6 June 2021.
4. At the hearing, Mr Corbett did not have any instructions and sought leave to be excused. Leave was granted.
5. After hearing from Mr Fili and Mrs Stephenson, the application was dismissed with costs. A summary of reasons was delivered ex tempore. These are the more fulsome reasons for the decision.
6. The first issue was whether the Court had power to entertain the application. Mr Fili was unable to assist.
7. As discussed recently in Kaukauloka v Luna'eva & Sons Co Ltd [2021] TOLC 4 at [17], “once the order has been perfected, the trial judge is functus officio and, in his capacity as the trial judge, has no further power to reconsider or vary his decision whether under the authority of the slip rule or otherwise.” The order in this case was perfected on 19 March 2021 and took effect from that date: Order 28 of the Supreme Court Rules.
8. However, it was also noted in Kaukauloka, at [12], that the Court’s common law power to reopen a case is limited to a decision that has been made as a result of a substantial procedural error, defect or mishap; or where the order has been made improvidently, or that facts have been withheld from him which should have been disclosed to him, but which were not disclosed either through negligence or some other cause, or where the order was made under circumstances which operated to deprive his/her mind of the power of exercising a fair judgment at the time. The jurisdictionhowever, tor, to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation. However, that public interest will not preclude the exceal step of reviewing or rehr rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law.^[1]
9. I do not consider that the present application falls within any of those exceptions.
10. Section 5(2) of the Supreme Court Act confers on the court, subject to any other applicable law to the contrary, all powers that the court considers necessary or desirable to enable it to give effect to and enforce its judgments and orders. Arguably, that might apply to the current application, although I tend to the view that that provision is more concerned with powers to be exercised in respect of parties to proceedings rather than non-parties who seek to intervene in a proceeding after it has been finalised. Further, I can see no basis in the application now before the court to exercise any power which is necessary or desirable to give effect or enforce the orders consented to by the parties to the proceedings which have been made. The current application, by a non-party, seeks to vary a term of those orders which gave the bank immediate right of possession.
11. The Supreme Court Rules are silent in respect of an application such as the present. Order 2 rule 3 then imports the UK rules of the Supreme Court (the White Book) prior to 1998. Those rules do not include any which could accommodate the instant application. However, rule 4 provides:

If it appears in any given situation that no appropriate provision exists either in these rules or the English Rules referred to in rule 3, then the procedure to be followed shall be that prescribed by the Judge and in exercising any powers under this rule the Judge may be guided by any provision in the English Civil Procedure Rules 1998 (CPR).

12. The 1998 version of the English CPR saw the introduction of rule 40.9 which provides:

A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied.

13. I therefore determined to follow a procedure guided by rule 40.9. As Mr Sharon was not a party but is directly affected by the order, I agreed to entertain his application.
14. Having identified a source of power, the next question was whether the circumstances of the application warranted the exercise of that power in Mr Sharon’s favour.
15. Mrs Stephenson, on behalf of the bank, opposed the application. From the Bar table, she informed the court that the facts disclosed in Mr Sharon’s affidavit did not include the full history of dealings between him and the bank. She added that:
    • (a) in 2019, the bank first gave notice to Mr Sharon of its foreclosure under the mortgage and its intention to take possession of the property;
    • (b) Mr Sharon requested eight weeks within which to vacate the premises;
    • (c) the bank agreed; and
    • (d) in the last week of that period, Mr Fili, on behalf of Mr Sharon, wrote to Mrs Stephenson informing her that Mr Sharon was not going to move out of the property and for much the same reasons as are now relied upon in this application.
16. Mr Fili agreed with that historical account. He also clarified the reference to a ‘lease’ in the application material as being a tenancy agreement. He added that further in 2019, he served a letter of demand on Mrs Koto for what I understood to be effectively a refund of a pro rata amount of the sum paid for the 20 year term and any other damages which might flow from Mrs Koto entering into the agreement at a time when she was in default of her obligations to the bank and which were secured by her mortgage to the bank over the subject property. The demand has not been answered. When asked why some form of legal action had not been taken on behalf of Mr Sharon until now, Mr Fili said that he was acting pro bono.
17. In relation to the bank’s present position, Mrs Stephenson explained that:
    • (a) the current court order was served on Mr Sharon shortly after it was made;
    • (b) in that notification, the bank gave Mr Sharon a further 28 days within which to vacate the property (Annexure A to Mr Sharon’s affidavit);
    • (c) in normal circumstances, the bank would usually be prepared to allow further time;
    • (d) but given the history of this matter, the bank’s position is that it has given Mr Sharon more than enough time to vacate.
18. I agree. Mr Sharon has had since 2019 to vacate the property. There is no evidence that he and his wife have been incapable of doing so; rather, that it is inconvenient for them to do so. Beyond that, their real grievance is clearly with Mrs Koto.
19. Accordingly, the application was refused.
20. On the issue of costs, Mr Fili did not object to an order requiring Mr Sharon to pay the bank’s costs of the application to be taxed in default of agreement.

NUKU’ALOFA		M. H. Whitten QC
14 April 2021		LORD CHIEF JUSTICE

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^[1] Police v Falevai [2020] TOSC 55 referring to R (on the application of Broxbourne Borough Council) v North and East Hertfordshire Magistrates' Court [2009] R (D) 96; Re i>Re Bruce ( 12 VLR 696 and Auti>Autodesk Inc. v. Dyason [No. 2] [1993] HCA 6; (1993) 176 CLR 300 per Mas (dissentit [4], app, approved by the majority in Aktas v Westpac Bankirporatporatioration Limited ] HCA 47 at [6]. <6].