Moehau v Namoa [2025] TOSC 14; CV 20 of 2020 (28 February 2025)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY
CV 20 of 2020

BETWEEN:
SIOSAIA MOEHAU
-Plaintiff/Judgement Creditor

AND:
LESIELI NAMOA
-Respondent/Judgement Debtor

RULING
Examination As to Means of the Judgement Debtor

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

To: Mrs Fa’otusia for the Plaintiff
Ms Namoa in Person
Date: 28 February 2025

1. BACKGROUND

1. The judgement debtor was examined on her means today based on affidavits from both parties that were submitted to the Court.
2. It now falls to me, based on the examination and submissions received from both parties to determine the assets that are of the judgement debtor.
3. I make it plain that it is my duty here solely to determine whether the assets concerned do in fact belong to the judgement debtor or are in her possession. The value of these assets is not a question for me nor am I required to place a value on them if I find that they are of the judgement debtor. I deal with them in turn.
   2. DISCUSSION
4. The Loumalie Lodge lease is plain on its term, it is a 99-year lease. The Debtor is 1 of 3 lessees to the property, she says that it is in a state of disrepair, that may be so, but I note that it was sold by the head lessor to the present lessees for $5.7m which suggest to me it must be worth something.
5. There is nothing in the lease to suggest the nature of the interest of the Lessees, whether they are tenants in common, joint tenants, or bound by any other arrangements, so I take it on the face of the document that they are equal owners and I find that is part of the judgment debtor’s asset, that is to say, one-third of the proceeds of sale or the value of the lodge.
6. I also find that and has been accepted by the judgment debtor that she is the beneficial owner of Sakura Company Limited, whether that is worth anything or not, is another matter.
7. I also accept that she is the owner of a crane. I'm not satisfied so that I am sure that it has been established, that any of the other machinery is owned by the judgment debtor, but I am satisfied that she is the registered owner of the vehicles/machinery set out on her affidavit sworn 20 November 2024. Whether or not those vehicles have any value is not a matter for me.
8. Further, there is the house at One-Way Road, Nuku’alofa that was raised by counsel for the judgement creditor. Again, she accepts it was leased to her, but there is a dispute with the landlord that may or may not be true, but it does not affect the conclusion I reach, which is, that it is her asset.
9. So far as her income is concerned, again, this is clouded in mystery. I simply observe that at paragraph 4 of her affidavit sworn on 8 February 2025, the judgment debtor claims that she has no bank account, that may or may not be the case.
10. In my view, if she does not have a bank account, I am satisfied that this was a device on her part to avoid any assets or money she may have, being traced.
11. I note that $160,000 TOP was received by way of rental income. She says that she has given that to her children. I do not believe a word of it. I found her to be mendacious and duplicitous, and in those circumstances, I am bound to find that the $160,000 TOP is part of her assets.
12. Further, there is some indication that the land in Matatoa was a matter of a dispute. In my view, there's no evidence but that this is an asset of the judgment debtor. There is a letter from the Ministry of Lands & Resources stating a request from the Palace Office to cancel the mortgage application and the lease. Its current status stated in the letter is currently on hold. All it does is may or may not affect the value of the lease which the judgment debtor has, but it is plain to me that that is certainly part of her notional assets, whether it's worth anything or not.
13. I just say this there comes a time when commercial entities must consider whether it is really worthwhile, pursuing this application but that is a matter for them. It is going to be extremely difficult. It may be thought to secure realisation of the assets may prove to be hopeless, but that is not for me to decide.
    100. FINAL RESULT
10. For the avoidance of doubt, I find the following assets to be those of the judgement debtor;
    1. Lease at Loumalie Lodge – as 1 of 3 lessees
    2. Sakura Company Limited
    100. House at One-Way Road Nuku’alofa
    4. $160,000 TOP
    5. Lease at Matatoa
       

HON. MALCOLM BISHOP KC

LORD CHIEF JUSTICE

NUKU’ALOFA

28 February 2025