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Pasili v Tonga Development Bank [2004] TOLawRp 27; [2004] Tonga LR 207 (28 July 2004)

IN THE COURT OF APPEAL OF TONGA

Pasili

v

Tonga Development Bank

Court of Appeal, Nuku'alofa
Burchett, Tompkins, and Salmon JJ
AC 8/2004

28 July 2004

Practice and procedure – memorandum of judgment by consent

The parties to the appeal agreed to settle the case. The Court accepted and noted the undertakings and made the following orders: orders in terms of paragraphs 1 and 3 of the said Memorandum; orders in terms of paragraph 2 of the said Memorandum.

Held:

1. The judgment of the Supreme Court was confirmed, the appellant undertook that he would pay off the debt to the respondent; and the appeal was dismissed with costs to the respondent.

2. In recording the orders, the Court noted that a recent statutory amendment had the incidental and probably unintended effect of depriving the Kingdom of Tonga of the benefits of a modern system of bankruptcy law. The Court drew the attention of the Government of Tonga to the urgency of the problem thereby created.

Counsel for appellant: Mr Piukala
Counsel for respondent: Mrs Vaihu

Memorandum of Consent Orders

[1] Upon Mr Piukala giving an undertaking to the Court on behalf and upon the instructions of the Appellant in terms of Clause 2 of the "Memorandum of Judgment by Consent" signed by both counsel dated 28 July 2004 annexed hereto, initialled and dated by the presiding judge, the Court accepted and noted the undertakings and made the following orders:

1. Orders in terms of paragraphs 1 and 3 of the said Memorandum;

2. Orders in terms of paragraph 2 of the said Memorandum.

[2] And in recording the above orders, the Court notes that a recent statutory amendment has had the incidental and probably unintended effect of depriving the Kingdom of Tonga of the benefits of a modern system of bankruptcy law. The Court draws the attention of the Government of Tonga to the urgency of the problem thereby created.

Memorandum of Judgment by Consent

TAKE NOTICE that the parties to the above stated Appeal hereby agree to settle this case and jointly request this Honourable Court to enter judgment by consent upon the following terms –

1. That the Judgment of the Supreme Court of Tonga dated the 7th day of June, 2004 is confirmed.

2. The Appellant undertakes to this Court that he will pay off the debt to the Respondent and subject of the Order of the Supreme Court of Tonga dated the 26th day of May, 2004 as follows –

(i) The sum of $2,000.00 due to be paid by the 31st December 2003 within four weeks from today and in default the Appellant shall be committed to prison for contempt for six weeks as ordered.

(ii) The sum of $5,000.00 that fell due by March and June 2004 shall be paid by the Appellant within four weeks 50 from today and in default the Appellant shall be committed to prison for contempt for a further six weeks in addition to the penalty in paragraph 2 (i) hereof.

(iii) The Appellant shall continue to observe court order dated the 26th May, 2004 by making payments when they fall due otherwise he shall be liable for contempt of court.

3. The Appeal is dismissed with costs to the Respondent to be taxed or agreed.