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Tu'ivai v Tonga Development Bank [2009] TongaLawRp 41; [2009] Tonga LR 329 (10 July 2009)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

AC 06, 09, 16 of 2009

Tu'ivai

v

Tonga Development Bank

Burchett, Salmon, and Moore JJ
2 July 2009; 10 July 2009

Practice and procedure – application for leave to appeal out of time – leave refused

Mr Tu'ivai and others borrowed money from the Tonga Development Bank ("the Bank"). They did so pursuant to a loan agreement for which security was pledged which included mortgages over two tax allotments. The money was not repaid and in March 2006, the Bank commenced proceedings against Mr Tu'ivai and the other debtors. Further proceedings were commenced by the Bank against Mr Tu'ivai and the other debtors. All three proceedings were referred to as "the Proceedings". In the Proceedings the Bank alleged that there had been loan agreements between it and Mr Tu'ivai and the other debtors, the loans had been secured, the money had been lent to Mr Tu'ivai and the other debtors and the money had not been repaid in accordance with the loan agreements. In their defence Mr Tu'ivai and the other defendants put the Bank to proof of its claims. Additionally they raised a defence that the Bank was a statutory authority and was bound to act fairly and had not. Also, Mr Tu'ivai and the other defendants raised a counterclaim to the following effect. The money the Bank lent was to finance an agricultural venture by Mr Tu'ivai and others to grow squash in 2004. It was alleged that the agricultural venture was undertaken under the auspices of the Friendly Islands Marketing Cooperative ("FIMCO"). It was also alleged that the loan application by Mr Tu'ivai and the other defendants was supported by FIMCO. The counterclaim went on to allege that an employee of the Bank (the lending manager) and the general manager of FIMCO entered an illicit and corrupt agreement whereby they would take advantage of a portion of the squash export quota managed by FIMCO and, in order to do so, reduce the loan payments to, or terminate the loan agreement of, Mr Tu'ivai and his other co-venturers. It was further alleged that Mr Tu'ivai's agricultural venture in 2004 failed because of the activities of the lending manager of the Bank and the general manager of FIMCO. Even though Mr Tu'ivai participated in a number of interlocutory skirmishes during November 2008 in the Proceedings, he did not participate in the trial. It follows that Mr Tu'ivai did not take up the opportunity presented by the trial of testing the evidence of the Bank and giving his own evidence or the opportunity of making whatever submissions he wished to the trial judge and jury in support of his defence and his counterclaim.

Held: