Mahe v Mahe [2020] TOSC 14; CV 10 of 2018 (2 April 2020)

IN THE SUPREME COURT OF TONGA CIVIL JURISDICTION NUKU’ALOFA REGISTRY CV 10 of 2018
BETWEEN:
SIAOSI MAHE (a.k.a Siaosi Puamau)	Plaintiff
-and-
‘AKOSITA MAHE	Defendant

JUDGMENT

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Counsel:	Mrs P. Tupou for the Plaintiff Mr H. Tatila for the Defendant
Date of hearing: Date of further submissions: Date of judgment:	16, 17 March 2020 25, 27 March 2020 2 April 2020

Introduction

1. The Plaintiff claims damages from the Defendant for trespass to and conversion of a concrete house foundation and slab and a quantity of timber.

Facts

2. The Plaintiff gave evidence and called evidence from ‘Elenoa Tatola (one his sisters), Netane Kavaegiafi (an assistant builder of the subject house) and Sosefo Mahe (the Plaintiff’s nephew).
3. The Defendant gave evidence and called evidence from Taufa Mahe (one of her brothers) and Lui Langi (a builder who assessed and dismantled the subject house after it was damaged by Cyclone Gita).
4. For brevity, I will refer to each of the witnesses by their first names.
5. There were few controversies in the evidence. I will address any material differences as I recount the relevant facts from the evidence.
6. The Plaintiff, Siaosi, is the eldest of ten children of Tipilisio and Elisapeta Mahe. He was customarily adopted as a child and raised by his father’s sister. He migrated to the United States of America in the 1980s.
7. The Defendant, ‘Akosita, is Siaosi’s sister and the youngest of the siblings. She is also the only living sibling to have remained in Tonga, where she has looked after the parents.
8. Sometime in the past, Lord Kalaniuvalu Ngalu granted Tipilisio permission to live with his family on a town allotment in the noble’s estate at Lapaha. The land was never granted to Tipilisio or registered in his name.
9. Originally, a small traditional house was built on the land in which Tipilisio, his wife and remaining children lived. By 2002, the house was in poor condition and leaning to one side. A new house was required.
10. Siaosi said the first discussion about rebuilding his parents’ home was when his father came to visit him in America. Siaosi was content with a town allotment from his adoptive parents and did not think about ‘his father's land’ because of his brothers. He said their father told him that he had asked the Plaintiff's brothers, Peni, Taufa and Tano, but they had refused and told the father that Siaosi should build it because he was the heir and the land ‘would come to him’. The father repeated his requests over a number of years including when Siaosi was visiting Tonga in about 2001. He said that his father told him that because he was the eldest, he would eventually get the land. That was supported by ‘Elenoa’s evidence that she overheard the conversation.
11. In contrast, Taufa, who also lives in the United States, said that he had only “recently learned” that the Plaintiff is the eldest brother of the family. When asked to explain what he meant by ‘recently’, Taufa said that he found out some time in the 1970s. Despite being shown an affidavit sworn by the father in 1992 deposing that Siaosi is the eldest child, Taufa refused to believe that Siaosi is their father’s heir. He described how Penisimani, the second eldest, took up the role as eldest among the other siblings. When asked why he and the other siblings had not built a house for the parents earlier, he first denied ever being asked to do so by the father; but later, he said it was because the Plaintiff didn't want them to because that he always wanted to do everything by himself.
12. Siaosi finally agreed to build the new house. His evidence was that the Defendant and two daughters of the eldest sister, Susana and Tomoko, agreed to each contribute $3,000 to help with the labour because they would be living in the home until their parents passed away. Each borrowed their contribution amount.
13. In cross-examination, ‘Akosita recalled the father telling each of the children to make a ‘donation’ to the building of the house. She said that it was then clear that it was the Plaintiff who was going to build the house. Notwithstanding, she regarded the purpose of the house construction as to provide their ageing parents with a safe and comfortable house within which to live, with the Defendant, since most of the other children worked and lived overseas.
14. Siaosi returned to the United States. Around 2002/3, he packed a 20 foot container of materials for the construction of the new house and shipped them to the father in Tonga. Those materials included plywood, timber of various sizes such as 4 x 2, 8 x 2 and 6 x 2, nails, bags of cement, external doors, internal doors, windows, toilet sets, bathroom sets and various other items. He said that he purchased other materials such as roofing, bricks, sand and rock locally.
15. He flew to Tonga to move his parents and those living with them to Elenoa’s house to enable the old house to be demolished and the new one built.
16. A New Zealand qualified builder by the name of Tu'I ‘Uvea Na’a was in Tonga to build the estate holder's residence. He agreed to build the subject house during time off from doing the noble’s work. The father supervised the construction.
17. Siaosi returned to Tonga in the second month of construction. His father told him that Tomoko wanted to become a nun and that therefore she would not be able to pay off her loan. The Plaintiff paid Tomoko’s loan. There was also evidence that he paid off a balance of about $700 of ‘Akosita’s loan. She did not contradict that evidence. Susana was the only one who paid off her loan.
18. The dimensions of the new house were originally to be 30 x 20 feet. However, when Siaosi returned in 2006, expecting the house finished, he discovered that his father had doubled the size of the house to 60 x 40 feet. It was therefore incomplete and then still without a roof. Siaosi therefore used materials he had sent in a second container for his own house to finish off the subject house. He also purchased more roofing materials at a cost of $4,800.
19. The construction took approximately three years.
20. The Plaintiff initially claimed that he paid around $100,000 in cash and materials for the construction of the house. However, in evidence, it became clear that that figure was derived from the agreed value of an insurance policy Siaosi took out over the house when it was completed. That policy was only maintained for one year.
21. There was no building contract with the New Zealand builder. Siaosi did not have any documentary evidence of the value of cash or materials he contributed to the construction. That was not surprising given the relevant events took place 17 years ago. He gave evidence, from memory, of the cost of some of the materials he shipped over. For instance, he said that they included about 20 bags of cement which he valued at US$2,500. He said that the other materials were worth about US$2,000. He also gave approximately $12,000 to his father to pay for the labour for the whole construction. An old concrete slab, about 12' x 12' wide, which supported a cement water tank and some concrete posts from the old house were incorporated into the new foundations.
22. Siaosi estimated that the new concrete foundations and slab cost about $15,000. When asked to elaborate, he Plaintiff was unsure as to whether he in fact gave his father more money than the $12,000. At one stage in his evidence, he said that he paid workers for the slab about $5,000 for their labour. It was not clear whether that was part of the $12,000 or in addition thereto.
23. Apart from the partial contributions of the Defendant and that of Susana, Siaosi said he was not aware of any other contributions to the building of the house from any other family members, including the father. Netane Kavaefiafi, who was an assistant builder on the project, recalled that Tipilisio telling the builders that the house was being built by Siaosi.
24. However, Taufa gave evidence that he also contributed materials to the construction. He produced a list of materials, units and prices which included timber, drywall, windows, doors, floor tiles, kitchen countertops, sinks and faucets, toilets and bathroom sinks, totaling USD$6,333.56. He too did not have any supporting documentary evidence. All the details in the list were from his memory. He said that at the time, there were three different constructions at three different sites taking place. There was the building of the subject house, the building of the Plaintiff's house on his adopted father’s land and also another house for their sister ‘Elenoa. Taufa said that the materials shipped over by the Plaintiff came together with those that he sent over and were not all for the subject house. He said the majority of the Plaintiff's materials went to his own house and some were applied to the building of the subject house.
25. After the house was completed, Siaosi moved his parents in and he returned to the United States.
26. In about 2009 or 2010, Siaosi heard that Taufa had requested their father’s land from the estate holder. Siaosi told Taufa that the land would come to him as the eldest and he said that their father told all of them that Siaosi was the eldest and they should listen to him. Even though the references to the father’s statements were arguably impermissible hearsay (although without objection being taken by Mr Tatila), Elenoa corroborated that account.
27. ‘Akosita and Taufa gave evidence that sometime after completion of the subject house, ‘Akosita contacted Taufa complaining about repairs being required and that some of the works were incomplete. Taufa travelled to Tonga and performed a number of repair and completion works such as replacing a shower and a damaged sink and installing cupboards. Siaosi gave evidence that, in 2010, Taufa had gone to Siaosi’s property and taken a bathtub and materials to use at the subject house. Neither of the above accounts were put during cross-examination of the respective witnesses.
28. Tipilisio passed away in 2012. The mother and the Defendant still live on the land. The present estate holder will allow this to continue until the mother passes away, at which time, he will decide who should have the land. Siaosi’s adoptive parents obtained a town allotment at Lapaha for him on which he and his wife have built a home. He intends to claim the ‘family land’ when his mother passes and give his allotment to his eldest son.
29. ‘Elenoa gave evidence that in 2015-2016, it became clear that there was dissatisfaction with the Plaintiff among certain members of the family and a move to push him out of the family circle. Between 2016 and 2017, Siaosi too sensed that the Defendant was cold towards him as she was no longer contacting him about their mother’s needs and appeared displeased when he went to visit his mother.
30. In February 2018, Cyclone Gita damaged the house. There was an issue as to the extent of the damage. From photographs taken by Sosefo, it was obvious that the roof and some walls were severely damaged exposing the house to the elements. The government undertook a survey and depending on the level of damage suffered, gave cheques for various amounts to those affected. The amounts ranged from $500 for minor damage to $1,500 for major damage and $3,000 where a house was completely irreparable. A cheque for $1500 was issued for the subject house. Despite it being issued in the name of Siaosi, the Defendant cashed the cheque without Siaosi’s knowledge or permission.
31. Siaosi considered the house could be repaired and offered to undertake the repair work. At the same time, Taufa told ‘Akosita to contact a builder, to assess the damage. She engaged Lui Langi. Lui assessed the house as being 70% damaged. He also said he found problems with the foundations because a smashed brick showed that it had not been filled with concrete. He told the Defendant and Taufa that it would be better and safer to dismantle the house and rebuild it. Taufa then engaged Lui to dismantle the house.
32. When Siaosi learned that the house was being dismantled, he called Lui and told him that he was the owner of the house and that Lui was not to touch it. Lui replied that they were on the second day of working, had not been paid and that they had hired equipment for the job. Siaosi told him again to stop work and that he would come and look at the house. Lui continued anyway because he said he had no agreement with the Plaintiff in relation to payment. Taufa paid Lui $3,000, although he said the work was not completed.
33. ‘Elenoa considered that when Cyclone Gita hit, the Defendant and other siblings supporting her saw it as an opportunity to ‘cut the Plaintiff out’ completely from the home and their mother, and that is why they dismantled the house despite knowing that Siaosi intended to come and repair it. Early in his cross examination, it became apparent that Taufa harboured significant enmity towards the Plaintiff. His position was that the Plaintiff should stay with his adoptive family and stay away from his natural family. He considered that the Plaintiff had ‘done wrong by the family’ and had ‘hurt people’. Those sentiments peaked and coalesced with ‘Elenoa’s evidence when Taufa agreed that when he heard about Cyclone Gita, he saw it as an opportunity to get the Plaintiff out of what he considered to be the family home.
34. Siaosi arrived in Tonga in early March 2018 to find that the house had been dismantled and the Defendant had locked up all the materials. Only the concrete slab remained in situ. The Defendant obtained a protection order against Siaosi to prevent him removing the materials.
35. Subsequently in 2018, the Defendant, with financial support from Taufa and a number of other siblings, commissioned the construction of a new cyclone proof (concrete block) house on the existing foundation. ‘Akosita considered the genesis of the Plaintiff’s claim as being that when he arrived from the USA, he was not satisfied with the construction of the new house and so he claimed that the ‘old’ (subject) house belonged to him.
36. ‘Akosita gave evidence that Siaosi tried to stop construction of the new house. The Ministry of Infrastructure issued a stop work notice pending permission from the estate holder. The Defendant approached the estate holder requesting permission. The noble provided a letter of consent authorising one of the other brothers, Penisimani Mahe, to continue with the construction.
37. Following an injunction ordered in April 2018 (discussed further below), the Plaintiff recovered the dismantled materials. He gave evidence that the remaining materials might have been worth about $10,000 but that many had been rendered worthless because of the careless manner in which they had been removed from the house. He thought the windows and possibly the ‘umu (earth oven) were probably the only items that could be reused. Some of the materials were used to a erect a storage space for the rest of the materials from the house.
38. Siaosi gave evidence that he spent between USD$1,500 and $1,700 (approximately TOP$3,000) on a return fight in order to come to Tonga to arrange and oversee the recovery work. The erection of a storage space and removal of the materials took six days. For that work, he paid eight people, including Sosefo, a total of $3,840. That evidence was unchallenged.
39. ‘Akosita and Taufa gave evidence that the materials recovered by Siaosi included those which Taufa had contributed. Taufa said that at the time, he told ‘Akosita not to worry about it and to let Siaosi take them. He confirmed in evidence that he did not care about those materials. He was more concerned that the house be rebuilt for his mother and sister to live in. Notwithstanding, he said he always regarded the subject house as belonging to his parents and that the slab belonged to his father.
40. Self-evidently, Siaosi did not recover the slab. During her evidence, ‘Akosita maintained her denial that Siaosi had paid for the slab. In answer to a question from the bench about who paid for the construction of the slab, the Defendant said: “we all paid”.
41. Netane gave evidence based on his experience working in construction over the last 25 years and in estimating, that the same slab, if built today, would cost about $6,000 for labour and $22,000 for materials; that is, a total of approximately $28,000.
42. Lui considered Netane’s estimate was too high. He opined that, at current rates, the work would take about three weeks depending on whether the underlying soils were soft or hard and would cost no more than $20,000 inclusive of labour.
43. Siaosi also claimed that certain timbers were retained by the Defendant and used in the construction of the new house. He said he recognised the timbers in photographs tendered in evidence of timber being used as formwork for the upper sections of the concrete works on the new house because they still had some paint marks on them consistent with the original colour of the subject house. The numbers and dimensions of that timber claimed were: 6 x 2 inch, 16 of; 4 x 2 inch, 18 of; 8 x 2 inch, 20 of. ‘Akosita said that the timber depicted in the photographs was partly comprised of old treated timber from the original family home and some from the "Plaintiff’s house".
44. Siaosi recalled the unit rates of the cost in US cents per foot for each of the sizes of timber claimed when he originally purchased them. That totaled approximately US$865. Lui valued the timber at current prices as the 4 x 2 pieces at between $6-7 per linear metre, 6 x 2s at about $8 per metre and the 8 x 2s were more expensive (without specifying a price). Again, none of that evidence was challenged.
45. The new house has been completed and the mother and the Defendant reside there.

Pleaded claims and procedural history

46. The Plaintiff commenced this action on 12 April 2018. He initially claimed, in summary, that:
    • (a) he built the house at a cost of $100,000 for his parents to live in;
    • (b) that he would succeed them as heir after the parents died;
    • (c) because it would have cost more to reconstruct the house than to repair it, it would have been better to rebuild a new house altogether and to use materials from the existing house to repair the damage to his house on his allotment;
    • (d) the Defendant had wrongly refused to allow him to take his materials and that she had instead brought sand and gravel onto the land to use the materials to rebuild the house;
    • (e) as a result, he suffered a loss of $80,000 in damaged materials and the cost of reconstruction of the house. He also sought an order for the return of the dismantled materials.
47. On the same day, the Plaintiff also applied for an injunction restraining the Defendant and related persons from making any use or destroying or otherwise dealing with the dismantled materials. Paulsen LCJ granted the injunction.
48. On 23 April 2018, after being informed that the Defendant was continuing to build a new house on the existing foundation, the Plaintiff applied to vary the injunction to restrain the Defendant from using the foundation.
49. On 26 April 2018, the Defendant filed her own application to vary the injunction. The application did not state what variation was being sought. Paulsen LCJ later recorded his understanding that the Defendant wanted the Court to authorise her to continue to build the new house. In her affidavit, the Defendant disputed the Plaintiff’s ownership of the house and his right to the ‘family land’ but said that the Plaintiff could have the materials (but not the foundation). She also said that there was an urgent need to build a new house for their mother, who was then 89 years old. At that time, construction was well advanced and was expected to only take another 2-3 months to complete. The estate holder did not object to the construction of the new house. Mr. Tatila advised the court on that occasion that when the mother passes, the Defendant also intends to apply for the family land, but if it is ultimately granted to the Plaintiff, she will ‘walk away’ and leave the new house to the Plaintiff.
50. Counsel for the Plaintiff at the time (now Niu J) contended that the Plaintiff’s loss would not be the value of the foundation, but rather his concern was that if a new house was built, the estate holder would take that into account when deciding to whom he grants the land. The Plaintiff’s view was that if he was not able to halt construction of the house, he would lose the land itself.
51. On 23 May 2018, Paulsen LCJ dismissed the variation application. His Honour considered, in summary, that:
    • (a) the effect of the variation order sought would be to halt construction;
    • (b) the original injunction had been granted on substantially the terms sought (which did not specify the foundation);
    • (c) it would be unjust to halt construction and potentially inflict significant financial loss, and certainly great inconvenience, on the Defendant and the mother when the Plaintiff could have been clearer at the outset;
    • (d) it would be very difficult for the Plaintiff to show any loss if the construction were permitted to continue;
    • (e) the foundation is permanently attached to the family land and is of no use to anyone apart from a person in occupation of the family land (“which the Plaintiff was not”) and could hardly be taken to other land or sold.
52. His Honour confirmed that the Plaintiff was entitled to enter onto the family land and remove the materials that were the subject of the injunction granted on 12 April 2018, but not the foundation or any other materials incorporated in the house under construction.
53. On 15 October 2019, the Plaintiff filed an Amended Statement of Claim. Among other things, the amendments alleged that:
    • (a) the Defendant had deprived the Plaintiff of his possessory interest in the materials until she was ordered by the court to give them up;
    • (b) the materials he collected were approximately only 30% of the materials used to build the original house;
    • (c) the value of the concrete slab and balance of materials which he has not been able to recover, and which have been converted by the Defendant to her own use without his permission, was $45,000. That figure was calculated by deducting from the alleged cost to build the house of $100,000 the sum $25,000 representing 25% damage by Cyclone Gita and a further $30,000 representing 30% returned to the Plaintiff, thereby leaving a balance of $45,000.
54. By her Defence to the Amended Statement of Claim filed on 31 October 2019, the Defendant alleged, in summary:
    • (a) the Plaintiff did not own the original house;
    • (b) the parties’ brothers and sisters living in Tonga and abroad contributed to the construction;
    • (c) the house was intended for the safe and comfortable living of the unmarried Defendant and their parents;
    • (d) the Defendant, Susana and Tomoko gave the Plaintiff $8,862 by way of contribution to the construction;
    • (e) the Plaintiff settled part of the loan she took out for her $3,000 contribution;
    • (f) the Plaintiff only contributed the roofing iron;
    • (g) all other materials were contributed by other siblings;
    • (h) Taufa performed repair works to the house;
    • (i) the Plaintiff’s removal of materials in accordance with the injunction included materials ‘belonging to siblings’;
    • (j) that by his Honour’s ruling on the variation application, Paulsen LCJ has determined that the Plaintiff is not entitled to the slab or other materials now claimed; and
    • (k) the slab belongs to the mother while she is still alive as it is “the widow’s property”.
55. In his Statement of Reply filed 14 November 2019, the Plaintiff joined issue with the following:
    • (a) he denied that any other sibling contributed by providing any building materials;
    • (b) the Defendant, Susana and Tomoko, who were living with the parents, agreed to assist with the labour on the understanding that they would continue to reside in the house;
    • (c) the only person who ended up making a contribution to the labour was Susana;
    • (d) the foundation for the concrete water tank used in the old house was used as part of the foundation for the new house and the Plaintiff installed a new water tank for the subject house;
    • (e) the house was his sole property as a result of the father asking him to build it after the other siblings “refused to have anything to do with” the project;
    • (f) the Defendant “participated in begging him” to rebuild the house;
    • (g) all his materials have not been returned to him and some of them have been used in Defendant's new house construction;
    • (h) the slab is not and cannot be part of the land; and
    • (i) the slab has been converted by the Defendant for her own use or others’ use knowingly as part of the new house.

Submissions

Plaintiff

56. Mrs Tupou submitted that there were two issues for determination:
    • (a) did the Plaintiff own or have a right to possess the concrete slab and timber; and
    • (b) if he did, what is their value?
57. She relied on the definition of conversion stated in Vaitulala v Cook [2010] TLR 35, namely:

“...an act of deliberate dealing with a chattel in a manner inconsistent with another's right whereby that other was deprived of the use and possession of it. The essence of the wrong is the unauthorised dealing with the claimant's chattel so as to question or deny his title to it.”

58. Here, it was submitted that the Plaintiff owned the slab and timber, and the Defendant had wrongfully and intentionally exercised control over his personal property and deprived him of the use and possession of it by using the slab for the foundation and the timber for construction of the new house.
59. An action in conversion may be brought either by a person who has actual possession or the immediate right to possession. Here, as the Plaintiff was not in actual possession at the time of the Defendant's conversion by constructing on the slab and using the timbers, the Plaintiff’s claim is based on his immediate right to possession.
60. The Plaintiff built the house for his parents. His father died and his mother has survived him. The arrangement with the Defendant was that she would contribute to the labour and live in the house with the parents while they were alive. That arrangement did not exclude the Plaintiff from possession and, as such, falls within the category of a bailment at will, where the bailment is one which does not exclude the bailor from possession: "The Law of Torts in New Zealand", by Todd, second edition (1997) at page 635 to 636.
61. The Defendant falls within the description of a bailee along with her parents in that she was permitted to live in the house during the parents’ lifetime.
62. Where a bailee’s acts are inconsistent with the terms of the contract and thereby terminates the bailment, possessory title reverts to the bailor and entitles him to maintain an action in trover or detinue: Halsbury’s [1211]; North Central Wagon and Finance Co Ltd v Graham [1950] 1 All ER 780 at 784; Pollock and Wright on Possession in the Common Law, page 132. The Defendant's actions in dismantling the subject house were inconsistent and repugnant to the bailment, thereby reverting an immediate right of possession to the Plaintiff and founding the claim.
63. Alternatively, if the Defendant is not a bailee, then she is a third party who has caused damage and conversion to the Plaintiff's property and can be sued by both the bailee (their mother) and/or bailor (Plaintiff).
64. In relation to ownership of the slab, Mrs Tupou identified the evidence of the Plaintiff’s contributions in money and materials:
    • (a) The concrete posts on which the old house stood and the cement base for the water tank were absorbed into the slab, and in any event, they were the property of third parties, not party to this action, and who had not claimed them.
    • (b) Siaosi shipped 20 bags of cement from the States for US$2,5000 (approximately TOP$5,000). The other materials for the slab were purchased locally at a cost estimated at $2,000. Labour was estimated at $5,000. That made a total of $12,000 expended by the Plaintiff on the slab.
65. On the current cost of the slab, the Plaintiff relies on the evidence of:
    • (a) Netane Kavaefiafi, who estimated the cost at $28,000, comprising labour at $6,000 and $20,000 to $22,000 for materials; and
    • (b) Lui Langi, who estimated the slab would take about three weeks to complete and cost $20,000 inclusive of labour.
66. The Plaintiff’s valuation of the timber was not far off the valuation given by Lui Langi. It was submitted that the valuation by Siaosi was ‘close enough to the correct value’ which totalled $1,770.
67. By contrast, the Defendant’s evidence was effectively to deny each and every piece of evidence given by the Plaintiff and his witnesses. Despite denying the Plaintiff’s claim to ownership of the house, the Defendant and Taufa admitted that the dismantling of the house was to exclude Siaosi and to get him out of the ‘parents’ land’. That, it was submitted, could only be possible if they believed that Siaosi in fact built the house and owned it.
68. The purpose of the Defendant’s (net) contribution of about $2,300 was so that she could live in the house until the parents were gone. In response to a question from the Bench whether she considered her contribution as her share of the house, the Defendant said that she “lives there”. That is consistent with the agreement they had that she would contribute in order to live in the subject house.
69. As for Taufa’s contribution, he admitted that he made his list of materials, quantities and prices from memory. There was no evidence that between 2003 to the commencement of these proceedings that Taufa ever made known to anyone that he had contributed to the subject house.
70. Taufa’s evidence that he was never asked by the father to build the house is inconsistent with the Defendant’s evidence that their father asked every child to contribute to the house.
71. Though Taufa said that he funded the construction of the new house, he accepted that Penisimani would claim the land after their mother passed. That Taufa was prepared to not hold any interest in the new house whatsoever, despite having funded most of it, was probably explicable by his dislike for the Plaintiff and his desire to get rid of him from their ‘parents’ land’.
72. Taufa claimed that Siaosi forced their father to do everything in favour of Siaosi. However, when asked if he had ever asked his father why he allowed Siaosi to build on the land, Taufa said because he knew it was out of his father’s love for Siaosi.
73. Taufa may have carried out renovations to the house, but it was without the knowledge and consent of Siaosi.
74. The dismantling of the house was without regard to Siaosi’s rights to the materials from which the house was built. It was done out of spite and bad faith.
75. There was no evidence to support the Defendant’s pleaded allegation that the concrete slab belongs to their mother.
76. Accordingly, it was submitted that the evidence of the Defendant and Taufa was made up to deny that any part of the subject house belonged to Siaosi.
77. On the question of valuation, it was submitted that damages are to be calculated as the value of the chattel at the time of conversion: James v Bank of Tonga, supra; Vaitulala v Cook, ibid; and that the court has to do the best it can, even if that involves some guesswork rather than estimation: James v Bank of Tonga [1997] TLR 54.

Defendant

78. Mr Tatila submitted, in summary, that:
    • (a) By reason that the subject house was built for the purpose of providing accommodation for the parents, and the Defendant who looked after them, and the various contributions to the construction, the subject house was to be regarded as the ‘family home’.
    • (b) Contributions to the construction of the subject house were made by:
      • (i) Penisimani Mahe and Suliana Mahe in that parts of the old house such as cement poles and water tank slab foundation were incorporated in construction of the larger foundation;
      • (ii) the Defendant, Tomoko and Susana, who contributed cash; and
      • (iii) the Plaintiff, ‘Elenoa Mahe and Taufa Mahe, who contributed materials.
    • (c) The father, with some assistance from ‘Elenoa, supervised the construction while the Plaintiff was in America.
    • (d) As the allotment is not registered to any of the Mahe family members, after the mother passes away, it will be a matter for the estate holder as to whom he might grant the land whether that be the Plaintiff, Penisimani, Taufa or the Defendant (or, I add, someone else entirely).
    • (e) Construction of the new house was funded by Taufa with the aid of other siblings. It is admitted that it has been constructed on the foundation of the subject house and some timbers from the subject house were used.
    • (f) The new house is being treated as the ‘family house’ whilst the mother is still alive.
    • (g) The injunction entitled the Plaintiff to remove all materials but not the foundation or timbers incorporated in the new construction. [During submissions, Mr Tatila accepted that Paulsen LCJ’s ruling did not and could not determine the Plaintiff’s substantive claim for damages for conversion.]
    • (h) The Plaintiff has no legal entitlement to the concrete slab or the timber because he was not the sole owner of the subject house. All the siblings who contributed to the construction of the subject house are entitled to the timber and concrete slab.
    • (i) Further, the Plaintiff has no possessory interest in the slab or timber because:
      • (i) they had become the property of the mother when the father passed away;
      • (ii) the “old” house was built for the parents and the Defendant to live in. The subject slab and timber are now part of the new house where the mother and the Defendant continue to live. They continue to be used for the same purpose that the “old” house was built;
      • (iii) if the Plaintiff were to take possession of the slab and timber now, it would mean that the new house would have to be dismantled, thereby defeating the purpose for which the old and the new houses were built, namely, for the parents and the Defendant to live in;
      • (iv) the new house replaced the old house and the Defendant and their mother are entitled to occupy and/or have possession of it.
    • (j) On the death of their father, the house was inherited by the mother pursuant to s.16 of the Probate Act. As the widow, the mother has a ‘first priority right’ to the timber and concrete slab until she dies. The siblings who contributed will have ‘second priority rights’. None of the Plaintiff, Defendant or the rest of the siblings have any right or legal interest to claim the house or any part of it while their mother is still alive. If the mother dies intestate, they may claim their respective shares of the house in accordance with Schedule I of the Probate Act.

Discussion

79. It remains a curious idiosyncrasy of Tongan land law that houses or ‘other buildings in general are regarded as items of personal property rather that accreting to the land and thus forming part of the realty’: Kolo v Bank of Tonga [1997] Tonga LR 18; Cowley v Tourist Services Ha'apai Ltd and Fund Management Limited [2001] Tonga LR 183 (CA); Westpac v Fonua [2014] Tonga LR 94 at [14]; Veamatahau v Tulikifanga [2015] TOSC 32 at [25]. It follows that the individual elements or materials used in the construction of a house, such as subject matter of the claim here – a concrete foundation and slab and timber – are all to be regarded as chattels or personalty.
80. While that longstanding principle originated at a time when traditional houses or ‘fales’ were constructed to a size and of materials which enabled them to be readily disassembled, transported and reassembled on different land, the same can no longer be said for houses and other buildings constructed with modern methods and materials such as concrete foundations and slab floors or concrete block walls.
81. This case illustrates some of the practical difficulties associated with disputes over ownership of building elements which, for all intents and purposes, are fixed to the land on which they are built.

Liability

82. Conversion involves the intentional assertion of rights or dominion over, or the wrongful appropriation of, goods which is inconsistent with a Plaintiff’s possessory interest or title in the goods, whereby the Plaintiff is deprived of the use and possession of them permanently or for a substantial or indefinite time; or where the goods have been destroyed or their quality changed: Caxton Publishing Co Ltd v Sutherland Publishing Co Ltd [1938] 4 All ER 389 (HL); Corbett v Si'i Kae Ola Holding Co Ltd [2006] TOSC 32; Vaitulala v Cook [2010] Tonga LR 1; Friendly Islands Satellite Communications (Tongasat) Ltd v Pohiva [2015] TOSC 16; Finau v Heimuli [2015] TOCA.^[1]
83. In order for conversion to be established, it must be shown that the Defendant, in taking possession of the chattel, excluded others from the control of the goods: Aitken Agencies Ltd v Richardson [1967] NZLR 65; Empresa Exportadora de Azucar v Industria Azucarera Nacional SA, The Playa Larga and Marble Islands [1983] 2 Lloyd's Rep 171.^[2]
84. Conversion is a tort of strict liability.^[3] Once the tortfeasor has interfered with the owner's right of dominion over his goods in the manner explored in the authorities, he is prima facie liable to pay the owner the market value of those goods over which he has asserted his competing dominion at his peril: Kuwait Airways Corp v Iraqi Airways Co (No 3) [2001] 1 All ER (Comm) 557; National Australia Bank Ltd v Nemur Varity Pty Ltd [2002] VSCA 18; Corbett v Si'i Kae Ola Holding Co Ltd, ibid.
85. There is no issue here that the Defendant has used the slab and some timber from the subject house to construct the new house on the land. The principle issue raised by the Defendant is one of ownership. She contends that as the construction of the subject house was contributed to by not only the Plaintiff but also her and a number of other family members, the Plaintiff cannot be said to be the owner of the slab or timbers in question.
86. However, the right to sue in conversion extends beyond mere ownership. As explained by the learned authors of “The Law of Torts in New Zealand”:^[4]

“Generally, the person with the right to bring an action in conversion is the one who has actual possession, or the immediate right to possession, of the goods at the time the act of conversion was committed. Because it is possession and not ownership, which is protected, it is not necessary to show ownership to establish a right to sue, although of course an owner who is also in possession of the goods as such a right. The right, however, is a consequence of the right of possession, rather than that of ownership.^[5] Possession is not just evidence in support of ownership; rather, a possessory title is as good as ownership against all the world except for the true owner.^[6]
It follows that in cases where rights of ownership and possession are vested exclusively in different people, the right to sue in conversion will be with the person who has the possessory interest in the goods and the owner will be excluded. A bailment for a fixed term, for example, comes into this category, for, until the expiry of the term, the owner is not entitled to possession of the goods. It is therefore the bailee who has the right to sue in conversion in such a case. If, however, the bailment is one which does not exclude the bailor from possession, such as a simple bailment at will, both bailor and bailee may be able to sue in conversion a third person who interferes with the goods. This is because the bailor in such a case has an immediate right to possession of the goods, because a bailment at will is one which, by its nature, may be terminated at any time.^[7]”

87. As the Plaintiff here was not in possession of the subject house at the time the slab and timbers were converted by the Defendant’s use of them in the construction of her new house, two questions arise:
    • (a) did the Plaintiff own the slab and timber?
    • (b) further or alternatively, was the Defendant’s (and parents’) occupation of the subject house a simple bailment at will, such that upon its termination, the Plaintiff had an immediate right to possession of the slab and timbers?
88. Section 109 of the Evidence Act provides:

Ownership in disputed cases
When the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

89. As the Plaintiff here was not in possession of the house at the relevant time, he bears the onus of proving his ownership.
90. In considering the evidence and the parties’ respective submissions, I have come to the view that the Plaintiff’s analysis is to be preferred.
91. For the reasons which follow, I am satisfied, on the balance of probabilities, that the Plaintiff is and was the owner of the slab and timber claimed:
    • (a) There is no evidence that the Plaintiff gave or ‘gifted’ the money and materials he provided for the construction of the subject house to any other member of the family, including the parents.
    • (b) I accept the Plaintiff’s evidence that, at the request of his father, he agreed to build the house on the basis that:
      • (i) the parents and the Defendant, Susana and Tomoko, could live in it until the parents died;
      • (ii) upon the death of the parents, the Plaintiff would then make a claim to the estate holder for the land; and
      • (iii) if granted, he would seek to transfer his existing town allotment in Lapaha to his son.

The evidence of that arrangement was not seriously challenged by the Defendant. To the extent that Taufa’s evidence differed, I consider his evidence in relation to the father’s requests for the house to be built was inconsistent and was further undermined by his expressed enmity towards the Plaintiff best illustrated by his refusal to acknowledge the Plaintiff as the eldest child of the parents and therefore the father’s heir, notwithstanding an affidavit from the father to that effect.

(c) There is no evidence that the Plaintiff and the Defendant, or any other family member who contributed to the construction of the subject house, did so pursuant to any form of joint venture or partnership agreement, or any other arrangement or relationship analogous to common law concepts elsewhere such as joint tenants^[8] or tenants in common^[9].
(d) As to the other ‘contributions’:

• (i) The Defendant contends that the original small slab for the old water tank and concrete posts from the original house were contributed by Penisimani and Susana Mahe. In my view, that contention does not advance the Defendant's case for three reasons. Firstly, neither were called to give evidence. Secondly, there is no evidence that either of them have made any such claim prior to or since commencement of these proceedings. Thirdly, I consider it more likely than not that the incorporation of those materials into the much larger foundation and slab which was constructed for the subject house amounted to little more than them being used as fill for the new foundation which may have to some limited extent reduced the amount of sand or other material which would otherwise have been required.
• (ii) The Defendant originally agreed to contribute $3,000. She borrowed that sum from a bank. She could not repay the entire loan. She asked the Plaintiff to pay off the balance of approximately $700, which he did. Further, the Defendant cashed a cheque from the Government following Cyclone Gita for $1500 which was marked payable to the Plaintiff. She did so without his knowledge or consent In those circumstances, I consider it appropriate to deduct that amount from the overall amount contributed to the construction by the Defendant. That leaves a balance of $800. I accept the Plaintiff’s evidence that the Defendant's agreement to contribute towards the labour costs was in return for her being able to live in the house. There is no evidence that the Plaintiff has ever requested, or that the Defendant has ever paid, any rent while she occupied the subject house. That is consistent with the Defendant’s own evidence that she agreed to contribute because she ‘lived in’ the house. I find therefore that the Defendant's actual contribution, as described above, was not for any proprietary interest or ownership of any portion of the subject house, but simply because she derived benefit from being permitted to live in the house while the parents were alive.
• (iii) I accept the Plaintiff’s unchallenged evidence that he paid off Tomoko’s loan of $3,000. The effect is that his overall expenditure on the construction was increased by the amounts he paid of the said loans.
• (iv) Apart from the effective $800 contributed by the Defendant, Susana was the only family member who contributed any money for the construction. She was not called to give evidence. She is not a party to the proceeding. There was no evidence that she has made any claim in respect of her contribution or that it was paid for any purpose other than characterised above in relation to the Defendant’s contribution.
• (v) I have reservations about the accuracy or reliability of Taufa’s evidence of the materials and values thereof he said he contributed. While similar doubts may be applied to the Plaintiff's evidence in relation to the materials he said he shipped over because both were drawing from memory of matters which occurred many years ago, and without independent documentary evidence, there is no doubt that all the materials the Plaintiff recounted were actually included in the construction of the subject house. For instance, there was no evidence that the materials for the foundation and slab came from anyone other than the Plaintiff. Conversely, there was no independent evidence that the materials Taufa said he contributed were all incorporated into the subject house.
• (vi) The assertion by the Defendant that the materials recovered by the Plaintiff included those said to be contributed by Taufa was referred to briefly at paragraph 21 of her brief of evidence but was neither pleaded nor put to Siaosi during the trial. It was also never particularised in the form of any breakdown or list of materials said to have been so taken. Had it been of any significance to the outcome of this case, and assuming counsel for the Defendant was conscious of and gave effect to his obligations under the common law rule in Browne v Dunn,^[10] I would have been very slow to accept that evidence. In any event, as:
  1. Taufa is not a party to the action;
  2. he has not made any claim in respect of any of his materials;
  100. in evidence, he not only acquiesced, but agreed, to the Plaintiff taking his materials (if that was in fact what occurred); and
  4. the Defendant did not contend that any damages now claimed by the Plaintiff should be reduced or offset by the value of Taufa’s materials taken by Siaosi,

it is unnecessary to determine any issue in relation to Taufa’s materials.

(e) Even if it be accepted that Taufa’s materials were all applied to the construction of the subject house, by their description, none of those materials had anything to do with the construction of the concrete foundation and slab. That is to be contrasted with the Plaintiff's evidence of shipping over bags of cement and having purchased other materials such as rock and sand here locally for that part of the works.
(f) I also accept the Plaintiff’s unchallenged evidence that he provided the father with (at least) $12,000 to pay for the labour for the overall works. That either included $5,000; or, he paid an additional $5,000 for the labour for the foundation works.
(g) The Defendant’s preparedness to permit the Plaintiff to remove all the materials that had been dismantled, deposed to by her for the application to vary the injunction, is inconsistent with her denial of his rights to the slab and timber, and smacked more of convenience than principle.

92. The Defendant’s submission that the subject house was built as the ‘family home’ so that all the family members who contributed to the construction are entitled to the concrete slab and timber is, in my view, inconsistent with, and in fact contradicts, her further submission that the Plaintiff has no possessory interest in the slab or timber because they became the property of the mother when the father passed away pursuant to s.16 of the Probate Act.
93. I have already explained why I do not accept the proposition that the subject house was built as a family home in the sense that it was owned by all members of the family who contributed to its construction. Relevantly, I have found that, on the evidence, the Plaintiff paid for and is the owner of the concrete slab and claimed timbers.
94. In relation to asserted claim that the mother inherited the slab and timbers:
    • (a) that claim stands in direct conflict with the Defendant’s earlier submission that the slab and timbers are owned by all the family members who contributed;
    • (b) the mother was not a party to this action nor has she made any such claim;
    • (c) the Defendant has no standing to make a de facto claim on her behalf or to indirectly seek the benefit of it; and
    • (d) even if such a claim were properly before the court, for the mother to have inherited the slab and timber when the father passed would require a finding that the father owned them. As I have stated at the outset of this section of the judgement, there is no evidence that was the case.
95. I also agree with the Plaintiff's submission that whilst the Plaintiff was not in possession of the concrete slab and timbers at the time of their conversion, he did have a possessory title or interest in those items. Consistent with the analysis above as to the agreement or arrangements by which the Plaintiff agreed to build the house with limited contributions from other family members (for which they did not request or receive any proprietary interest in any part of the house), I consider that the relevant relationship between the Plaintiff and Defendant (and the mother) was one of bailor and bailee. In other words, as the Plaintiff gave possession, but not ownership of the house, to the parents and the Defendant on the understanding that they could live in the house until the parents died, a bailment arose and the Defendant possessed the house at the will of the Plaintiff: Veamatahau v Tulikifanga, ibid.^[11]
96. Therefore, upon the Defendant refusing to permit the Plaintiff to repair or reconstruct the house as he insisted he wanted to do, instead, having it dismantled and constructing a new house using the concrete foundation and slab and claimed timbers, the Defendant:
    • (a) intentionally asserted rights or dominion over the slab and timber which were inconsistent with, or wholly repugnant to, the Plaintiff’s possessory interest or title in them;
    • (b) wrongfully appropriated them to her own use (and the use of the mother);
    • (c) wrongfully and permanently deprived the Plaintiff of the use or possession of them; and
    • (d) excluded the Plaintiff from the control of them.
97. As a result, I am satisfied that:
    • (a) the bailment was terminated;
    • (b) the Plaintiff’s right to possession was re-vested; and
    • (c) he is entitled to damages for the Defendant’s wrongful conversion of the slab and timber.
98. I am further fortified in the above conclusions by:
    • (a) the evidence of ‘Elenoa, the Defendant and, in particular, Taufa, that he and the Defendant, and the other siblings supporting them, saw and took the opportunity presented by Cyclone Gita to get rid of the Plaintiff from the house and the family; and
    • (b) Mr Tatila’s concession during oral submissions that as the Defendant (and the mother) have received the benefit of the slab and timber, it would be fair for the Defendant to pay something for them.

Quantum

99. The measure of damages in conversion is normally the value of the goods at the time of the conversion, together with any consequential damage flowing from the conversion which is not too remote to be recoverable in law: Kuwait Airways Corp v Iraqi Airways Co (No 3) [2001] 1 All ER (Comm) 557.^[12] The principle of restitutio in integrum is fundamental, meaning that the loss suffered must be compensated by an award of money which represents the value of the goods: Furness v Adrium Industries Pty Ltd [1966] 1 VR 668; Hughes v Fea [2016] NZHC 3043 at [72]; Bird v Biedrzycki [2019] ACTSC 214. It is axiomatic that the Plaintiff can recover no more than the loss actually sustained by him: Corbett v Si'i Kae Ola Holding Co Ltd [2006] TOSC 32.^[13] The relevant value is the amount of money required to buy a similar article in the market at the date of the act of conversion: Chubb Cash Ltd v John Crilley & Son [1983] 2 All ER 294, 296. The Court will look at the market in which the Plaintiff could replace the goods, rather than the market in which he or she could sell them, but that is not universally the approach taken.^[14]
100. However, the courts have rejected the proposition that there is some universal rule of law governing the assessment of such damages: Vaitulala v Cook [2010] Tonga LR 1.^[15] The law governing the assessment of damages for conversion is flexible and depends to a considerable extent on the facts and circumstances of the individual case. For example, the ‘user principle’ has been adopted for calculating damages in cases such as trespass to land and wrongful detention of goods. There has been a move towards applying the label of restitution to awards of this character: Ministry of Defence v Ashman [1993] 2 EGLR 102 at 105.^[16] Is such cases, the proper test is: what ought the Defendant have paid for that matter in the form in which it was when converted: Caxton Publishing Co Ltd v Sutherland Publishing Co Ltd, ibid. It is irrelevant that the owner would not have used the goods himself: Strand Electric & Engineering Co Ltd v Brisford Entertainments Ltd [1952] 1 All ER 796 at 800, CA, per Denning LJ.
101. The above principles are consistent with the idea that the Plaintiff is effectively forced to sell the goods to the Defendant by virtue of the conversion. The judgment for the Plaintiff, once satisfied, divests the Plaintiff of his or her title to the goods and vests it in the Defendant, the Defendant being obliged to pay the value of the goods.^[17]
102. In the present case, if one were to approach valuation from the perspective of what the slab could have been sold for in an available market in 2018 when it was converted, in my view, an unjust outcome would result. The slab, by its design and construction, only had intrinsic worth to anyone with a right to the land on which it sat. At all material times, the only persons in that category, apart from the estate holder, were the Defendant and her mother. The slab would have been virtually worthless if sold to anyone else, for if it were demolished and removed, its value, at best, would have been little more than that of rubble or fill. At worst, it could have represented an expense in having it disposed of.
103. Had they not been converted, the slab and timber represented to the Plaintiff the value of not having to build or procure them again at 2018 prices. As they have been converted, the Defendant has enjoyed that benefit without, to date, having paid anything for them.
104. In my view, therefore, the appropriate approach to valuation here is guided by restitutionary principles, and by asking what the Defendant ought to have paid for the slab and timber when they were converted by her in 2018. That approach is consistent with the aim of the Defendant, Taufa and their supporting siblings to get rid of the Plaintiff, thereby effectively forcing him to sell the goods to the Defendant by virtue of the conversion. Once satisfied then, this judgment will divest the Plaintiff of his title to the slab and timber and will vest title in the Defendant as having paid the value of the goods.
105. Here, the evidence of the value of the slab and timber as at 2018 when they were converted, was adduced indirectly, and without notice, during the cross-examination of the Plaintiff, Netane and Lui. Counsel for the Defendant did not challenge that evidence nor was any other evidence as to quantum called by or on behalf of the Defendant.
106. Mere difficulty in estimating damages does not relieve courts from the responsibility of estimating them as best it can, even if, sometimes, that of necessity involves guess work rather than estimation: James v Bank of Tonga [1997] Tonga LR 54;^[18] Bird v Biedrzycki [2019] ACTSC 214. A court must do the best it can: Jones v Schiffmann [1971] HCA 52; (1971) 124 CLR 303 at 308.
107. The evidence of the current cost to construct the slab ranged from $20,000 to $28,000. While there was little between the two witnesses upon which to base any preference, having regard to:
     • (a) the most accurate assessment of the Plaintiff's evidence (as referred to by Mrs Tupou in her written closing submissions) of what the slab originally cost being around $12,000; and
     • (b) the fact that as at 2018, the slab was approximately 15 years old,

I take the figure of $20,000 as a reasonable starting point.

108. There was no evidence of the estimated cost to build the slab in 2018. However, given the publicly available information on inflation rates in the Kingdom over the past few years,^[19] which have been relatively modest, I consider an appropriate discounting factor to be $2,000 leaving a net value of the slab as at 2018 of $18,000.
109. The Defendant’s evidence that the timber for the formwork was a mix of old original house timber and the Plaintiff’s, was not mentioned in her brief of evidence, was non-specific and not put to the Plaintiff. I am satisfied from the photographs of the timber being used as part of the formwork for the Defendant's construction of the new house, and the Plaintiff's evidence of the timber he shipped from America, that the pieces he claims were his.
110. In the absence of any evidence the contrary, I am also satisfied that Mrs Tupou’s submission as to valuation of that timber, based on the evidence of the Plaintiff and Lui Langi, produces a reasonable starting point of $1,770. However, again, because the timber as at 2018 was very much second-hand, a significant discounting factor should be applied to arrive at a value which the Defendant would have had to pay for such second-hand material had she purchased it in 2018. Doing the best I can, I assess that value at $1,000.
111. The Plaintiff's claims for travel expenses (approximately $3,000) and removal and storage costs ($3,840) were not separately claimed or specified in the Amended Statement of Claim. In his brief of evidence [85], the Plaintiff said that he was then “content to reduce his damages claim for the materials (then calculated at $45,000) in lieu of” the travel, removal and storage costs. They was not pressed by Mrs Tupou in closing submissions. In my view, the operative cause of those expenses was the damage caused by Cyclone Gita. Even if the Defendant had not had the house dismantled, it was likely that the Plaintiff would have travelled to Tonga after learning of the damage and that he would have had to pay for the removal and storage of those materials (even on the same site) if they were to be reused for any repairs he originally intended to carry out. Insofar as that claim was maintained only by the Plaintiff's evidence in chief, it is rejected.
112. No claim was made for pre-judgement interest or interest in the nature of damages.

Result

113. The Plaintiff has succeeded on his claim, albeit for a lesser quantum than that pleaded.
114. The reductions in the Plaintiff's quantum through amendments to his pleadings, his brief of evidence and ultimately this judgment, are unlikely to have had any significant bearing on the manner in which the Defendant presented a case at trial. Accordingly, unless either party wishes to apply for a different order, I consider that costs should follow the event.
     

Orders

115. Judgment for the Plaintiff.
116. The Defendant is to pay the Plaintiff the sum of $19,000.
117. Subject to:
     • (a) any application for a different costs order, to be filed within 14 days of the date hereof; and
     • (b) any previous costs orders in the proceeding,

the Defendant shall pay the Plaintiff's costs of the proceeding to be taxed in default of agreement.

NUKU’ALOFA	M. H. Whitten QC
2 April 2020	LORD CHIEF JUSTICE

---

^[1] Citing Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204. See also Marshall v Dibble [1920] NZGazLawRp 52; [1920] NZLR 497; Salmond & Heuston on the Law of Torts (19th Ed) p 108. For a convenient summary of the relevant principles, see Palermo Seafoods Pty Ltd) v Lunapas Pty Ltd & Anor [2017] NSWSC 1583, per Slattery J, at [162]-[164].

^[2] See also White v Withers LLP [2009] EWCA Civ 1122.

^[3] Liability is strict in the sense that a person may commit a conversion without any fault on his or her part. In Caxton Publishing Lord Porter said at 202 that conversion "consists in an act intentionally done inconsistent with the owner's right, though the doer may not know of or intend to challenge the property or possession of the true owner". In Marfani & Co. Ltd. v. Midland Bank Ltd. [1968] 1 W.L.R. 956 at 970-971 Diplock, L.J. (as his Lordship then was) said that the liability was strict in that "the moral concept of fault in the sense of either knowledge by the doer of an act that it is likely to cause injury, loss or damage to another, or lack of reasonable care to avoid causing injury, loss or damage to another, plays no part. ... The duty is absolute; he acts at his peril." Of course a converter may not be without fault: he or she may be a thief, for example.

^[4] By Todd (and others), third edition, Brookers 2001.

^[5] Harris v Lombard NZ Ltd [1974] 2 NZLR 161

^[6] Flack v Chairperson, National Crime Authority (1997) 150 ALR 153 at 156

^[7] Manders v Williams (1849) 3 Ex 339

^[8] Where each party on the title to property holds equal ownership and interest in the property. When one of the joint tenants dies, the interest of the deceased joint tenant automatically passes automatically to the surviving joint tenant or tenants and does not form part of the estate of the deceased (''right of survivorship'').

^[9] Where two or more people co-own a property in defined shares that they can dispose of as they wish. Each person holds an individual, undivided ownership interest, which gives them an equal right to use the property or transfer their ownership interest. If one of the parties dies, their interest in the property forms part of the deceased’s estate and does not automatically pass on to any co-owner of the property.

^[10] (1893) 6 R. 67, H.L.: that where a party intends to lead evidence that will contradict or challenge the evidence of an opponent’s witness, it must put that evidence to the witness in cross-examination.

^[11] Per Paulsen LCJ citing Palmer 'Bailment' The Law Book Company, 1979 at 348.

^[12] Cited in Trailways Transport Ltd v Thomas [1996] 2 NZLR 443.

^[13] See also National Australia Bank Ltd v Nemur Varity Pty Ltd [2002] VSCA 18.
^[14] Gardiner v Metcalf [1994] 2 NZLR 8 (CA) at 11.

^[15] Citing BBMB Finance Ltd v Eda Holdings Ltd [1991] 2 All ER 129.

^[16] See also Ministry of Defence v Thompson [1993] 2 EGLR 107.

^[17] Stephen Todd (ed) The Law of Torts in New Zealand (7^th ed, Thomson Reuters, Wellington, 2016) at 655 (footnotes omitted).

^[18] Citing Sellars v. Adelaide Petroleum N.L. [1994] HCA 4; (1994) 179 CLR 332 at 349; Commonwealth of Australia v. Amann Aviation Pty. Limited [1991] HCA 54; (1991) 174 C.L.R. 64 at 83.

^[19] http://www.reservebank.to/index.php/economic/inflation.html; https://www.statista.com/statistics/729475/inflation-rate-in-tonga/; https://www.worlddata.info/oceania/tonga/inflation-rates.php