Westerlund v Pati [2001] WSCA 5 (23 November 2001)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

BETWEEN

CHARLES WESTERLUND
of Palisi, Businessman
Appellant

AND

TULAI TAULAPAPA PATI
of Vaitele, Housewife
Respondent

Coram: The Hon. Sir Ian Barker, (presiding)
The Rt Hon. Sir Ian McKay
The Hon. Justice Robertson

Hearing: 21 November 2001

Counsel: P A Fepulea'i for Appellant
Richard Lussick for Respondent

Judgement: 23 November 2001

JUDGEMENT OF THE COURT DELIVERED BY SIR IAN McKAY

In a judgement delivered on 23 August 2000, the Chief Justice ordered the present appellant to vacate the reclaimed land which was the subject of the proceedings. The land had been reclaimed by the appellant, however, with the result that the respondent would obtain the benefit of this work. The respondent was therefore ordered to pay compensation to the appellant on the basis of unjust enrichment. Counsel were invited to file submissions and valuation reports as to the measure and quantum of compensation. This was done, and on 25 January :2001 the Chief Justice issued an addendum to his earlier judgment. He ordered compensation to be paid to the appellant in the sum of ST$57,628.

The appeal is only in respect of the addendum. The appellant claims that the compensation awarded to him should have been greater. There is no cross-appeal by the respondent.

The grounds set out in the Notice of Appeal are as follows:

(a) the learned Chief Justice erred in fact in that he should have awarded higher compensation than the $57,628.00;

(b) that the learned Chief Justice should have accepted that the reclamation was paid for by a barter system and therefore it costs the appellant $232,000 to carry out the reclamation;

(c) that if the measure of compensation to be paid by the respondent is the market cost at today's rate that she would incur to carry out the same reclamation then, the $57,628.00 would be totally inadequate to carry out such a large and compact reclamation;

(d) that the learned Chief Justice also erred in utilising the rates for the truck load as they should be 4m³ rather than the 8m³ used in this calculation;

(e) that the learned Chief Justice also failed to give due consideration to the extra volume needed for compaction as the land is used as a container park and for use by heavy equipment;

The Chief Justice referred to the appellant's evidence as to the cost of the reclamation work:

In his evidence, the defendant said that the reclamation work was carried out for him by one of his brothers. He did not pay for it with money but with 150 heads of cattle, on the basis of $1,000 tala per cattle, and two flat deck trucks worth $42,000 and $40,000 each. He said that is how he has always done business with his brother who is also a businessman like the defendant. They use a barter system where payment for goods or services rendered by one to the other is made not in money but in kind. On the basis of 150 heads of cattle at $1,000 tala each and the two flat deck trucks, the defendant estimated that it cost him a total of $232,000 to carry out the reclamation which will now be used by the plaintiff. He does not recall the number of truckloads of fill that were used in the reclamation and he did not keep a record of the number of those truckloads. He also did not give evidence as to the cost per truckload of fill.

The Chief Justice regarded this approach as "too subjective and somewhat arbitrary". The respondent had gained a benefit, he said, "in the sense that she would be saved the expense she would have inevitably incurred of carrying out the same reclamation herself'” if it had not been done by the appellant. The compensation should therefore be measured in terms of the expense, at today's rate, she had been saved. The Chief Justice was clearly entitled to take this view, and to rely on the valuers' evidence rather than on the actual barter "price" paid by the appellant to his brother.

The valuers for the respondent proceeded on the basis of a calculation of the total quantity of fill, increased by 5% to allow for sinking effect and compaction. They divided the result by 8m³ to arrive at the number of truckloads. The valuers made enquiries from earthworks companies, and were given rates of from ST$100 to ST$300 per 8m³ truckload. They applied the lowest rate of ST$100 to 491 truckloads, and added 10% for contingencies to arrive at a figure of ST$54,010. They said they were adding 20% for contingencies and other expenses, but in fact added only 10%. The first valuation report obtained for the appellant adopted a smaller total quantity of fill, but arrived at a greater number of truckloads of only 4m³. They applied a quoted rate provided to them of ST$121 per 4m³ truckload. They calculated 541 of the smaller truckloads and arrived at a total sum of ST$43,280. Allowances for levelling and for a seawall and a fale brought the figure up to ST$93,000. Subsequent valuation reports increased the total quantities and hence the total figure claimed by the appellant.

There are significant differences between the valuers. These were discussed in detail by the Chief Justice, and he gave reasons for accepting parts of the evidence and rejecting other parts. One of the most significant differences was in respect of the volume of a truckload, and hence the number of truckloads. The valuers for the respondent used as their basis a volume of 8m³ per truckload. Those for the appellant used a volume of 4m³, thus doubling the number of loads. We were informed that 4m³ is the generally accepted typical load for a dump truck, but 8m³ is normal for larger units. The Chief Justice accepted the evidence of the valuers for the respondent, who testified that they had actually gone out and measured the trays of the trucks to find out their capacity. We cannot say he was wrong to do so. The larger units were available, and the rates used were those quoted for 8m³ loads. The larger units were clearly more economic, and it was not suggested that they could not have been used.

The depth of fill was variously assessed as 2.4m, 2m and 1.5 m. These figures were obtained by measurement in particular locations and calculating averages. The Judge adopted 2m as the average depth. This was a reasonable figure for him to use.

The respondent's valuers had obtained four quotes from trucking contractors and took the lowest of these, namely ST$100. As the Judge said, a prudent developer would be expected to take the lowest rate consistent with satisfactory service. The Judge cannot be criticised for doing the same. The Judge appears to have overlooked the percentage addition which the valuers suggested for contingencies and other expenses, as he made no reference to it.

Mr Lussick very helpfully provided us with an analysis of the Chief Justice's calculations, as set out in his judgment with references to the evidence on which he relied. This can be summarised as follows, with certain corrections noted:

Average depth of fill 2m

Area reclaimed 2400m²

Fill required 5190m³ (4800m³ plus 390m³ for batter slope)

Volume of fill in the above total

not required, as it was the fale site 630m³

Area between south side of fale

and fence, not filled 275m³

Volume of fill not needed 470m³ (275m³ x 2m=550m³ less

80m³ for possible overlap with fale site)

* Actual reclamation 4090m³ (5190m³-630m³-470m³

Add 15% for compaction, so total 4704m³

Total truckloads of 8m³ 588

Cost at ST$100 per truckload ST$58,800

* The Chief Justice in error took this figure as 4909m³, but his method is clear and this appears to be a slip in calculation He then added on 390m³ for batter slope, overlooking that this volume had already been added earlier in the calculation.

The figure arrived at by the Chief Justice, because of the errors identified as above, was ST$64,200. The valuers for the respondent had reached a final figure of ST$54,010. The Chief Justice took the average of these figures, namely ST$59,105, and then deducted 2¹/2% to allow the increases in costs since completion of the hearing. This resulted in his final award of ST$57,628.

If one took the corrected calculation of the Chief Justice at ST$58,800, and added for contingencies the 20% which the valuers said was appropriate, the figure becomes ST$70,563. The average between this and the respondent's valuer's figure of ST$54,010 would be ST$62,285. The final discounted figure would then be ST$60,728. The assessment of restitution, however, is not an exact science.

We have followed the Chief Justice's approach, which is one that was open to him, but we have corrected the errors in calculation that have been drawn to our attention. We therefore allow the appeal to the extent of increasing the amount payable from ST$57,628 to ST$60,728.

We have considered the various other grounds of appeal, and counsel's submissions. We find no reason to criticise the Judge's approach or to make any other change to the judgment. The appeal is allowed and the judgment is varied to award the appellant the sum of ST$60,728. In the circumstances we make no order as to costs.

Solicitors:
Fepulea'i & Schuster Law Firm, Apia, for Appellant
Sapolu & Lussick Law, Apia, for Respondent