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Moehau v Namoa [2025] TOSC 84; CV 20 of 2020 (28 November 2025)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY
CV 20 of 2020

BETWEEN:
SIOSAIA MOEHAU
- Judgement Creditor/Respondent

AND:
LESIELI NAMOA
-Judgement Debtor/Applicant

RULING
Application to Vary or Discharge Charging Order Absolute dated 9 June 2025

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mrs A ‘Aholelei for the Judgement Creditor/Respondent
Mr D Corbett for the Judgement Debtor/Applicant
Mr W C Edwards for Mr Hiroshi Tominaga, an interested party
Date: 28 November 2025

1. BACKGROUND

1. On the 9 June 2025 I made a charging order absolute which inter alia ordered that the interest of the Judgement Debtor in the assets described in the schedule be charged absolute with the payment of $1,707,993 as the sum due under the judgement of the Court on the 1 December 2022 together with interest at 10% per annum.
2. The assets in question are as follows, the Judgement Debtor’s:
   1. One third interest in Lease 9503 situated at Kolofo’ou with a term of 99 years expiring on the 26 May 2118. The Judgement Debtor is one of the three lessees of the lease.
   2. Interest in Lease 9550 situated in Matatoa with a term of 50 years expiring on 13 August 2069. The Judgement Debtor being the sole lessee of the lease.
   3. Beneficial interest in her 100 shares of Sakura Company Limited (Registration No. 9005515)
   4. TOP $160,000 by way of rental income received in respect of the Ha’ateiho tax allotment; and
   5. Beneficial interest in her lease of the house at One Way Road, Nuku’alofa.
3. Pursuant to Order 34 Rule 7, the Judgement Debtor seeks to vary or discharge the charging order. The rules of the Supreme Court permit such an application to be made although here it appears to be more akin to an appeal against my earlier order but setting jurisprudential issues aside in the interests of bringing this matter to a conclusion, I will deal with it on the basis that the application is to vary my earlier order.
   
   2. THE SUBMISSIONS
4. The judgment debtor has challenged the charging order first on the 17 June 2025 when she sought that Lease number 9508 and 9550 be removed from the schedule together with further or alternative relief as the Court deems just.
5. On 20 June 2025, the Judgement Creditor responded in opposition seeking that the application be dismissed with costs and seek the usual consequential further orders
6. A response to that opposition was then filed on 22 July 2025 seeking a discharge of the charging order absolute dated 9 June 2025, to set aside the receivership or enforcement order for lease 9508, dismissing judgement creditor’s opposition in full (this appears otiose), confirming that there is no enforceable debt or obligation arising out of the 2018 agreement and seeking further relief.
7. By a further submission filed on 30 October 2025 the Judgement Debtor expanded her application and asked the Court to; discharge the charging order absolute dated the 9 June 2025, to set aside any enforcement order against lease 9508, to exclude Sakura shares from enforcement, to dismiss the Judgement Creditors opposition, to confirm that no enforcement debt arises from the 2018 agreement and to grant any further relief as the court deed just and equitable.
8. The Judgement Creditor responded by submission filed on 31 October 2025 ultimately seeking a dismissal of the Judgement Debtor’s application with costs
9. A hearing was fixed for 31 October 2025. On the date of the hearing the Judgement Debtors counsel filed what he called oral submissions of the Judgement Debtor and read out the its contents in which he asked that the application under Order 34 Rule 7 of the Supreme Court Rules be granted that the charging order dated 9 June 2025 would be varied to remove or to conditionally exclude ease 9508, 9550, the 100 shares in Sakura company Limited, and in the Judgement Debtor is interest in One Way Road.
10. Because the submissions were filed on the date of the hearing, I gave leave to the Judgement Creditor to file supplementary submissions which she did timeously and dealt comprehensively with the matters raised. This was filed on 11 November 2025.
11. The Judgement Debtor responded to these submissions in a submission filed on 18 November 2025 and sought to vary the charging order to exclude or conditionally stay enforcement over at lease 9508, lease 9550, the Sakura shares, the one-way road lease and also to recognise annexures A & B as fresh evidence (this would be difficult because no such annexures were filed with the submissions) and to award costs. This was not placed before me until 20 November 2025, due to an administrative oversight.
    
    100. DISCUSSION
12. Let me say it once that the way in which this matter has progressed has not been helpful and there was some ambiguity as to which challenge was being mounted and for what reasons, however I will deal with the broad nature of the relief applied for by reference to the assets to be excluded or otherwise modified in the charging order they are as follows.
    

Lease 9508 – Situated at Kolofo’ou with a term of 99 years

13. The Judgement Debtor alleges that the Judgement Creditor had no involvement in procuring assigning or extending this lease and accordingly should not form part of the charging order.
14. The purpose of a charging order is to secure a debt against the Judgement Debtor’s property and other assets. It therefore matters not how the lease was acquired. What is important is that the debtor has an equitable interest in the form share in the underlying asset usually as an interest in the proceeds of sale and accordingly in my judgement is amenable to a charging order.
15. The Judgement Debtor alleges that there is no outstanding debt arising from the sale and purchase of the lease in question and that all money has been paid to the Judgement Creditor and disputes there is any money owing under the loan agreement dated the 15 May 2019.
16. This matter has already been litigated and findings have been made in the judgement of the former Lord Chief Justice Whitten KC on 1 December 2022 and cannot now be reopened.
17. In particular the learned former Lord Chief Justice found that the first sale agreement was the binding agreement, the payments made by the purchasers which included the applicant, the calculation of the amount owing and the resulting judgement sum was binding and as all the payments made by the purchasers, including the Judgement Debtor, the amount remains owing and the consequential judgement sum are binding.
18. The Judgement Debtor’s affidavit is simply an attempt to reopen what was found by the Court as a challenge to enforcement applications whereas its true character is to relitigate matters already determined; accordingly, it is transparently misconceived.
    

Lease 9550 – Situated at Matatoa with a term of 50 years

19. The Judgement Debtor asserts that the Land Act prevents the Court from granting or enforcing a charging order because the express consent of cabinet is required and that has not been obtained. Accordingly, it is submitted the enforcement of a charging order would be ultra virus and unenforceable.
20. This submission fails.
21. I am bound by the decision of the Court of Appeal in Luani v Minister of Lands which held that “the source of authority to sue and enforce charging orders is entirely independent of the Land Act and does not require consent from anyone including the Minister or the holder of the allotment of lease at issue or the lessee”^[1]
22. That clear exposition of the law positively defeats this submission.
    
23. In her submissions filed 31 October 2025 the judgement debtor by counsel makes the following additional submissions;
    1. Procedural Defect - Joinder
24. The Judgement Debtor alleges that the charging order is defective because all the interested parties were not joined. They were all however, served with the notice of the proceedings but none chose to participate except the Tonga Development Bank.
25. It is to be noted that the authority relied on by the Judgement Debtor, Luani makes plain in paragraph 15 that provided those with an interest in the proceedings were served and aware of them that would suffice.
26. The courts cannot compel parties to participate in litigation if they choose not to do, they are free not to become involved and be prepared to take the consequences.
    
    2. Fresh Evidence – Lease Origin and Payments Records.
27. The Judgement Debtor fundamentally misunderstands the charging order. It deals with protecting the Judgement Creditor by dissipation of the underlying assets by the Judgement Debtor. It is well settled law that land may be subject to concurrent interests. As was explained by Megarry and Wade in their Law of Real Property paragraph 3–001;

“Thus the position of Black Acre today may be that A is entitled to the land for life, B to a life interest in remainder, and C to the fee simple in remainder at the same time D may own a lease for 99 years subject to a sublease in favour of E for 21 years and the land may be subject to a mortgage in favour of F, a profit a prendre and in favour of G and an easement such as a right of way in favour of H and so on indefinitely most of those rights exist as equitable interests”

28. I struggle to see how the origin and payment records relied on by the Judgement Debtor in any way affects the validity of the charging order. As previously explained the Judgement Debtor has an equitable interest in lease 9508 i.e she is entitled to her share of the proceeds of sale. That is an asset which is the subject of a charging order which the courts have granted.
    
    100. Statutory Restriction – Cabinet Consent Clause.
29. This has been addressed above as the same position submitted in relation to the Lease 9550.
30. It may or may not be true as the Judgement Debtor alleges that the absence of cabinet consent is a statutory barrier as required by the Land Act.
31. But, as previously explained, this misunderstands the nature of a charging order and if the judgement debt is able to establish that cabinet has in its discretion terminated the lease, it may follow that this is an asset on which the order cannot bite in the sense of being any practical value, that does not affect its validity.
    
    4. Rebuttal – Alleged Agreement
32. In so far as this submission is understood, again it misunderstands the judgement of the former Lord Chief Justice Whitten KC. Paragraphs 17, 26, 36, 37, 39 and 40 of the Judgement which are gratefully adopted made on 1 December 2022 provide complete answers to this submission.
    
    5. Asset Specific Classifications
33. Again, so far it is understood this submission is misconceived since it fundamentally misunderstands the purpose of a charging order which is to provide security against description of the Judgement Debtors assets.
34. In far as those assets are worthless, the validity of the charging order remains unaffected whether it will result in any benefit to the Judgement Creditor in due course is irrelevant.
    
    6. Res Judicata & Anshun Estoppel
35. The Judgement Debtor relies on dicta in Anshun that this is barred by estoppel. Estoppel does not bar procedural correction and fails to appreciate the former Lord Chief Justice finding of fact and law in his judgement of the 1 December 2022, which has not been appealed and so remains in force.
36. The Judgement Debtor raises issues of res judicata and issue estoppel. They are separate but linked.
37. Res judicata prevents the same parties from relitigating a claim that has already been decided by a court. This principle ensures the finality of judgments, conserves judicial resources, and protects litigants from being harassed by a multiple of lawsuits on the same matter.
38. Issue estoppel prohibits the re-litigation of an issue which is a necessary and legal, justification or foundation for the prior decision. Here, the judgement debtor is attempting to set aside the consequences of a valid order which has not been appealed by claiming a procedural variation.
39. The Judgement Debtor asserts that there is no attempt by her to reopen liability but simply to seek procedural correction of the enforcement scope pursuant to Order 34 Rule 7.
40. The distinction sought to be drawn between enforcement and liability is not understood. Enforcement can only be made once liability has been established. Here liability has been established and no appeal mounted, accordingly although dressed up as an attempt at procedural correction of enforcement scope under Order 34 rule 7, in fact its true characterisation is an attempt to overturn issues which have already and finally been determined. This approach is neither inconsistent with Ashun nor its underlying jurisprudence.
41. In my view having considered the evidence even if the circumstances do not give rise to an estoppel, the continuance of these challenges would be unjustifiably vexatious and oppressive and amounts to a third attempt to reanimate proceedings already determined as was held in Walton v Gardner 1990 177CLR 378 at 393.

“proceedings before a court should be stayed as an abusive process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexations and oppressive for the reason that it is sought to relitigate a case, which has already been disposed of by earlier proceedings.”

42. Here there have been many attempts to avoid the consequences of Court Orders including assertions on oath which I found in my ruling on 28 February 2025 to be untrue at paragraph 10, 11 & 12.
43. I consider, the continuance of repeated challenges such as these to the validity of the charging order is inimical to the procedures of the Court which exist to administer justice with fairness and impartiality rather than to become instruments of injustice and unfairness as stated in Walton.
    
    4. FINAL RESULT
44. It therefore follows that this application by the Judgement Debtor to vary the charging order absolute dated 9 June 2025 is dismissed.
45. Costs to the Judgement Creditor.
    

^[1] AC 26/2024 [LA 29/2015] para