LT Endemann & Company Ltd v Roebeck [1992] SamoaLawRp 13; [1980-1993] WSLR 471 (17 February 1992)

[1980-93] WSLR 471

THE SUPREME COURT OF SAMOA
APIA

L.T. ENDEMANN & COMPANY LTD

v

ROEBECK (TAUTULU)

AND

PHILIPP (CHRIS) TRADING AS
SAMOA HANDCRAFT INCORPORATED

Supreme Court Apia
Ryan CJ
11 February, 17 February 1992

CONTRACT LAW - contractual relationship can create a fiduciary relationship - implied term to be read in that Defendant personally liable.

COMPANY LAW - Limited liability - whether limited liability existed -non-existence of company at time of entry into contract - genuine belief company duly incorporated - distinction between incorporation and limited liability - infer personal liability on the part of the agent where the alleged principal is not in existence.

The plaintiff sued the Defendant for the balance owing for work carried out on the renovation of a building. There was a defence raised at the hearing that the Defendant was not personally liable for the moneys claimed but that the company Samoa Handcraft Limited was responsible.

HELD: In addition to the contractual relationship an implied fiduciary relationship existed whereby the Defendant was to be responsible for the payment of the moneys due under the contract should there be no such legal entity as Samoa Handcraft Incorporated in existence then or ever.

CASES CITED:

- Richmond Ltd v DHL International (NZ) Ltd (High Court) Auckland 23.8.1991 CL 91/90

-McBride v Brown [1960] NZLR 782

-Hawke's Bay Milk Corporation Ltd v Watson & others [1974] 1 NZLR 236

-Marblestone Industries Ltd v Fairchild [1975] 1 NZLR 529

-Kelner v Baxter (186) L.R. 2 CP 174

-Re Empress Engineering Co [1880] 16 Ch.D. 125, C.A.

-Richmond Ltd v DHL International (NZ) Ltd High Court Auckland 23.8.1991 CL 91/90

-The Moorcock [1889] 14 PD 64

-Reigate v Union Manufacturing Co (NZ) (Ramsbottom) [1918] 1 K.B. 592

-Shirlaw v Southern Foundaries (1926) Ltd [1939] 2 K.B. 206

R Drake for Plaintiff
E F Puni for Defendant Philipp

Cur adv vult

The Plaintiff sues the Defendant for $62,794.00 being the balance of $88,445 for work carried out on the renovation of a building at Tauese, Apia, in late 1989.