By Linny Folau

An application by Lord Luani to grant and transfer over to him Lord Nuku’s tax allotment and two of his leases, was dismissed by Justice Tupou, who, among other reasons, was not convinced this was a genuine request for directions in the Land Court.

Justice Tupou with Land Assessor, Faiva Tu’ifua issued a written ruling on 8 November, in a case brought by the Applicant, Dianne Warner (the Receiver) against the Minister of Lands as Respondent.

This was an application seeking directions from the court to grant and transfer the leases.

The judge stated that on 7 September 2017, the Court of Appeal granted judgment in favour of Lord Luani (the Judgment Creditor) in the sum of $3,380,335 against Lord Nuku (the Judgment Debtor).

“By way of enforcement, the judgment creditor secured a charging order over various assets of Lord Nuku made absolute on 17 July 2020. Included on the list were the three concerned properties: a tax allotment registered in the name of Lord Nuku, consisting of an area of 8a 1r 11.1p situated on Nuku’s land, and Lease Nos. 9436 and 9473 registered in the name of Faka’osifono Finefeuiaki Valevale, situated at Veitongo.

“To enforce the charging orders, Lord Luani applied for the appointment of a Receiver. On 18 February 2021, the applicant was appointed as Receiver.”

The judge stated that in reliance on the prescribed powers afforded to her (Warner) under the Receivership Act, the applicant prepared and signed an application for lease over Lord Nuku’s tax allotment and a transfer of the remainder of leases, 9436 and 9473 in favour of Lord Luani as Judgment Creditor.

“Essentially, the applicant relied on the inherent powers of the Supreme Court pursuant to the Supreme Court and Order 33 Rule 6(2) of the Supreme Court Rules in bringing this request.

The Applicant claimed the two issues for determination are whether the Minister can grant a lease over Nuku Island without the holder’s consent and whether he can transfer the lessor’s interest in the lease to the Judgment Creditor, a third party. She submitted that sections 9 and 17 of the Interpretation Act supported her position that the Minister was empowered to grant and transfer the land.

“It was suggested that a charging order creates a security interest over the land equivalent to that of a mortgage lease under Part VI of the Land Act. Therefore, it was permissible to direct the Minister to grant and transfer the land as applied for. Amended forms were provided to be endorsed by this Court,” stated the judge.

Minister of Lands opposed request

In the meantime, the judge pointed out that for his part, the Respondent (Minister of Lands) disregarded the application to lease and transfer the land signed by the Applicant giving rise to the present request for directions.

“The Respondent opposed to the request and contends that the directions sought fall outside the scope of his duties under the Land Act. His power to grant a lease under the Act is subject to the consent of the allotment holder and Cabinet approval and his power to transfer a lease is subject to the consent of the Lessor and consultation with the Lessee.

“It is denied that the Receiver had authority to sign the application to lease/transfer the land on behalf of the Judgment Debtor or to compel him to transfer the land to the Judgment Creditor.

“Generally, the principle of enforcement requires a judgment or order of the court must, so far as possible, be obeyed or complied with for otherwise the authority of the court would be diminished and the legal order would suffer a breakdown.”

In addition, the judge stated that the execution was essentially a matter of procedure and is machinery which the Court can operate for the purpose of enforcing its judgments, subject to rules in force.

“In recognition of the unique codified framework of the processes in the Land Act, the laws and rules in force, the Courts have been expressly cautious, when dealing with the enforcement of judgments over land.”

Receivership Act not in force

She added that recently, in the case of Namoa v Moehau [2024], the Court of Appeal dealt with an appeal against the appointment of a receiver where the orders appointing the receiver gave the appointee powers under sections 14, 17, 18, 20 and 21 of the Receivership Act. The Court held that because the Receivership Act was not in force, the judge was prevented from making any orders under it and set aside the order appointing the receiver.

“Here, the orders appointing the Receiver similar to Namoa also granted her powers under sections 14, 17, 18, 20 and 21 of the Receivership Act. Clearly, the terms of her appointment under the provisions of the Receivership Act cannot stand nor can any steps already undertaken by her in exercise of those powers,” stated the judge.

 The appointment was not appealed and only the Court of Appeal may set it aside. Consequently, the balance of the terms of her appointment stands. Her general powers under Order 33 Rule 6, to promptly pay into Court all surplus moneys received under the order and submit such accounts at such intervals as the Court may direct, remain. She may also request the Court for directions stating the matters upon which directions are required, which she has done here.

“Respectfully, I am not convinced that the request before me is a genuine request for directions as such; rather it is principally an application for Court orders to be issued against the Respondent to grant a lease over the Judgment Debtor’s registered tax allotment and to transfer leases 9436 and 9473 to the Judgment Creditor.

“To exclude the holders of the relevant land from this proceeding is unfair.”

The judge stated, that being the case, she agreed with the position of the Court in Safety at Sea (Australasia) Ltd. that a specific application was required for the orders sought here in line with the laws currently in force, and in order for all relevant issues to be resolved, all persons whose interests are likely to be affected should be joined.

“The relevant authorities on the subject illuminate a surplus of issues likely to be mounted by potential litigants that should be properly pleaded and argued. It is acknowledged that powers of the court to grant a charging order over land and to appoint a receiver are provided for under the Supreme Court Act.

“However, in the absence of governing legislation, jurisprudence in the area will no doubt develop over time. For the reasons discussed, the request must be refused,” she ruled.

“The request for directions is dismissed. Costs in favour of the respondent to be taxed if not agreed.”