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Estate of Wong v Commercial Factors Ltd - Judgment [2011] TOCA 9; AC 6 of 2011 (30 September 2011)

IN THE COURT OF APPEAL OF TONGA
CIVIL NUKU'ALOFA REGISTRY

JURISDICTIONAPPEAL NO.AC 6 of 2011
[CV 115 of 2010]

BETWEEN:

1. THE EXECUTOR(S) (OR ALTERNATELY THE
ADMINISTRATOR) OF DR SAM LIN WANG
(a.k.a SAM LIN WONG) DECEASED

2. HELEN CHEN WANG
(a.k.a. HELEN CHEN WONG)
Appellants

AND :

COMMERCIAL FACTORS LIMITED
Respondent

Coram : Burchett J
Salmon J
Moore J

Counsel : Mrs P. Tupou for the Appellants
Mr Harrison SC QC for the Respondent
Mr Niu for the Intervenors Fund Management Ltd and Tourist Services Ha'apai Ltd
Mr Stephenson for the Intervenor Christine Uta'atu

Date of Hearing : 22 September 2011
Date of Judgment: 30 September 2011

JUDGMENT OF THE COURT

INTRODUCTION

[1] This is an application for leave to appeal and stay of execution out of time and an appeal. The former relates to orders of Ford CJ of 16 July 2010 and the latter relates to parts of orders of Scott CJ of 8 March 2011. There is an issue about whether the appeal should be an application for leave to appeal but we will address this issue later.

[2] The background can be stated briefly. Dr Sam Wang was a businessman who died on 18 May 2010. The second appellant was his wife. It appears Dr Wang borrowed extensively to undertake his business activities though, unsurprisingly, those activities were undertaken through companies he apparently controlled. One such activity involved the construction and operation of a large hotel, the Royal Tonga International Hotel at Fua'amotu. It was constructed on land the subject of a lease, Lease 5404 ("the Lease").

[3] Proceedings were commenced shortly after his death, on 14 July 2010, in the Supreme Court of Tonga by the respondent, Commercial Factors Ltd ("CFL"), which had lent significant sums to one of Dr Wang's companies. As plaintiff, CFL named the first and second appellants in these proceedings as the first and second defendants respectively. CFL sought judgment against the defendants in the sum of NZ $5,731,135.56. Ultimately summary judgment was given in its favour on 14 February 2011. Somewhat simplified, CFL's case was that Dr Wang and his wife had guaranteed the loans to the company which had not been repaid as agreed. The amount claimed represented the principal and interest.

[4] At an early stage in the proceedings, CFL successfully sought certain ex parte orders in the Supreme Court of Tonga. The orders were made by Ford CJ on 16 July 2010. The orders were: