by Linny Folau
A former Governor of Vava’u, Lord Fulivai and his wife Lady Fulivai who made personal loans and were paid large sums of money by an Auckland company director in exchange for promised land leases in Tonga, which they did not honour, have been ordered by the High Court of New Zealand to pay back NZD$253,370.60.
The civil suit was brought by two plaintiffs, Christopher Sean Barrett, an Auckland company director, and SAI Limited, a company with a registered office in Nuku’alofa.
Hon. Justice Venning on September 29 issued the judgment against the defendants, namely David Fulivai also known as Lord Fulivai, and Helen Fulivai, also known as Lady Fulivai, in the High Court’s Auckland Registry.
After leaving Vava’u, the Fulivai’s were living in Auckland.
The judgment said that on February 18 this year the plaintiffs issued the proceedings against the defendants in New Zealand seeking to recover $170,000.
The plaintiffs claimed that they had paid that sum to the defendants, on the basis the defendants said they they could arrange the grant of 99 year leases of land in Tonga to the plaintiffs.
The plaintiffs agreed to do so in exchange for the payment of the $170,000 and raised a number causes of action to support their claim for the recovery of the this amount.
No arguable defence
The judge said, the first plaintiff also sought to recover a further $50,000 advanced to the defendants, for personal matters.
“During the course of the proceedings the defendants’ position has evolved. The defendants now admit they have no defence to the claim for $170,000 and also admitted the first plaintiff has advanced various sums to them personally. The defendants also admitted that at least $21,500 was advanced by way of loan to them,” stated the judgement (NZHC2569).
“In light of the change of position, the first plaintiff then applied for leave to seek summary judgment regarding the first and fourth causes of action. That application was supported by a substantive affidavit by the first plaintiff, he said.
The judge said, the application for leave and for judgment was called before the Court on September 28.
“There was no appearance by or for the defendants. Having reviewed the documents on the file and the evidence of Mr Barrett the Court is satisfied that leave ought to be granted to the first plaintiff to seek summary judgment and further, that the defendants have no arguable defence to the first plaintiff’s claim for $170,000.00 under the first cause of action.”
The defendants also did not have any arguable defence to the first plaintiff’s claim for the sum of $46,700.00 being the total of the various sums paid by him to the defendants for their personal benefit over a number of years.
The court ordered that there will be judgment for the first plaintiff against the defendants jointly and severally in the sum of $170,000, together with interest from January 1, 2018 in the sum of $17,408.04.
In addition, there will be judgment for the first plaintiff on the fourth cause of action regarding the loans in the sum of $46,700.00 together with interest thereon in the sum of $393.56.
The first plaintiff was entitled to costs for the entire proceedings, and to have costs and disbursements in the sum of $18,869.00.
“In total, judgment including costs and disbursements is entered for the first plaintiff against the defendants jointly and severally for $253,370.60,” ordered the judge.
Mr A.H. Waalkens QC represented the plaintiffs. There was no appearance for the defendants.
Lord Fulivai, a Tongan hereditary noble was appointed Governor of Ha’apai in 2011, a position which he held for a few years.
His estates are Hunga, Fangalepa and Loto’uiha in the Vava’u Group.
Following the successful judgement in this civil case, the plaintiff Chris Barrett will proceed to make demands on the Fulivai’s for payment of the sum, before they face enforcement action in New Zealand and in Tonga.