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Court of Appeal of Tonga |
IN THE COURT OF APPEAL OF TONGA
CIVIL
JURISDICTION
NUKU'ALOFA REGISTRY
AC 12 of 2015
[CV 98 of 2010]
BETWEEN:
AUSTRALIA AND NEW ZEALAND BANKING GROUP
LTD
Appellant
AND :
HON. LASIKE TRADING AS SANDYBOYS
MOTEL
Respondent
Coram : Moore J
Handley J
Blanchard J
Tupou J
Counsel : Mr. A. H. Waalkens KC and Mrs. P. Tupou for the Appellant
Mr.
W. C. Edwards SC for the Respondent
Date of Hearing : 29 March 2016
Date of Judgment : 8 April 2016
[1]. This is an appeal from the judgment of Cato J entered pursuant to the verdict of a jury. The action was brought by the Bank to enforce a debt resulting from 8 loan agreements it claimed the defendant entered into between 5 October 2004 and 30 October 2006. It also sought to enforce a further agreement between the parties relating to the use of an EFTPOS machine in the defendant's motel. This enabled the defendant and his staff to debit the credit and debit cards of customers and transfer the proceeds to the defendant's overdraft account with the Bank.
[2]. The difficulties faced by the trial Judge and the Jury arose because six of the eight loan agreements and inferentially the agreement relating to the use of the EFTPOS machine were said to have been destroyed when the Bank's premises in Nuku'alofa were burned down in the riot on 16 November 2006. The difficulties were compounded by the decision of the Bank to sue on the eight loan agreements instead of on a common money count for money lent.
[3]. The loan agreements dated 5 October 2004 (no.1) and 22 October 2004 (no. 2) had been in the Bank's strongroom, survived the fire and were produced. The defendant admitted signing those agreements. The Bank was able to produce copies of the other 6 agreements from the records on its backup computer but these copies had not been signed by the defendant.
[4]. The Bank relied on its general system, proved by Mrs Leilani Va'enuku (Pw1) and Mr Sosaia Sefesi (Pw2), that money would not be lent to a customer on a loan account or overdraft unless and until the Bank had received a copy of the relevant agreement signed by the customer. There was also evidence from Pw2, who managed the account from late 2005 until early 2008, that he had sighted in the Bank's file signed copies of agreements nos 1 to 3, and 5 and had seen the Defendant actually sign agreements no 6 and 7 which he had prepared.
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