By Linny Folau
The Bank of South Pacific was granted entitlement for immediate possession of a leased land registered in the name of Fielea Faeamani, after the defendant failed in their mortgage payments.
Justice Tupou (with Land Assessor, Sinilau Toumo’ua) in a ruling on 25 September at the Land Court Nuku’alofa Registry stated that the bank sought a declaration that it is lawfully entitled to immediate possession of all that land comprised in lease No.8594, situated at Kolofo’ou registered in the name of Fielea Faeamani.
There were also two orders against the defendant (Nancy Faeamani) to surrender up all that land contained in the relevant lease.
“After service of the proceedings upon her, the defendant has not taken any steps or engaged in the proceedings. She has had notice of the hearing today and is in court. Pursuant to Order 6 Rule 1(3) she is not allowed to be heard,” stated the judge.
The bank called its only witness, Ms ‘Ana Fono, a credit analyst of Fasi. She had provided a written brief of evidence that she confirmed in court at this hearing.
The court was told that prior to taking up the credit analyst position Ms Fono was a Collections officer where she reviewed loans that had fallen into default and enforced securities pledged in support of those defaulting facilities. She was familiar with Fielea home loan and produced the documents in the court book relevant to the bank’s claim.
On 28 September, 2015, Fielea mortgaged the land to the bank in consideration of advances amounting to $142,438.37. The mortgage was registered in the register of mortgages Book 7, on 23 August, 2016.
The judge stated that in April, 2016, Fielea’s loan was varied to increase the borrowed amount to $185,509.25. The mortgage deed was appropriately varied to record the increased loan amount and registered in the register of mortgages Book 7 Folio on 12 June, 2017.
After cyclone Gita in 2018, customers of the bank were offered financial relief assistance by way of a three month repayment top-up in the amount of $1,600 per month. Fielea received this assistance.
The bank registered its interest on the said lease on the Personal Property Securities Register on 25 January, 2024 with registration number. However, Fielea fell into arrears early on, then resumed payments for a time. He died on 30 April, 2021. Then on 14 July, 2022 letters of administration of Fielea’s estate was granted to the defendant by the Supreme Court.
Loan repayments ceased in November 2022 to September, 2023 and then ceased altogether since December, 2023. Then on 4 January, 2024, the bank issued a demand for the full amount in arrears which stood at $3,580.00 at the time. Ms Fono personally served the demand on the mortgaged property.
“No repayments were made by the defendant in response. and by her failure to settle the arrears as demanded, the bank claims that the she was in default for the purposes of section 109 of the Land Act,” she said.
Section 109 provides as follows: "In the event of the mortgagee taking possession of the lands mortgaged following default by the mortgagor of any of the obligations to the mortgagee set out in the mortgage deed or in any other document lodged with the Minister in terms of the next succeeding section the mortgagee shall give notification both to the mortgagor and the Minister of his intention to take possession of the lands mortgaged and may thereafter take possession at any time after the expiry of 14 days from the date of said notification.”
The judge stated that on 19 June 2023 the bank served the defendant with a notice personally served by Ms Fono on the defendant. “The defendant had made no response but has remained on the land. We accept Ms. Fono’s evidence and we are satisfied that the bank has proved on the balance of probabilities that:
a) Fielea mortgaged his Lease No.8594 to the bank for total advances of $185,509.25;
b) that Fielea and/or his estate defaulted under the said mortgage;
c) that a demand to remedy the default was served on the Defendant;
d) that no payments were made in response;
d) that a notice to enter and take possession under s.109 of the Land Act was issued and served on the defendant and Minister of Lands; and
f) the defendant have not made any further repayments since December, 2023 in continual default, while she has remained on the land, she stated.
As a result, the Land Court accordingly declared that the bank was entitled to possession of all the land comprised in lease registered in the name of Fielea Faeamani. It was also ordered that Nancy Faeamani and all persons claiming through her are to surrender up and grant vacant possession of the said lease to the bank in 28 days.
The defendant was also ordered pay the plaintiff's costs to be taxed, if not agreed.
