Stowers v Chan Mow Co Ltd [2013] WSCA 2 (28 June 2013)

COURT OF APPEAL OF SAMOA

Stowers v Chan Mow Co Ltd [2013] WSCA 2

Case name: Stowers v Chan Mow Co Ltd

Citation: [2013] WSCA 2

Decision date: 28 June 2013

Parties:
AGNES LAMA STOWERS of Vaitele, Samoa. (Appellant) v CHAN MOW CO.LTD a duly incorporated company having its registered office at Apia. (Respondent)

Hearing date(s): 24 June 2013

File number(s): C.A. 15/12

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s):
Fisher J
Hammond J
Hansen J

On appeal from: Supreme Court (CP 73/11)

Order:

Representation:
K L Enari for appellant
A Su’a for respondent

Catchwords:

Words and phrases:

Legislation cited:
Bills of Exchange Act 1976
General Laws (No. 2) Ordinance 1932

Cases cited:

Summary of decision:

C.A. 15/12

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

BETWEEN:

AGNES LAMA STOWERS of Vaitele, Samoa.

Appellant

AND

CHAN MOW CO. LTD a duly incorporated company having its registered office at Apia.

Respondent

Coram:

Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Hansen

Counsel: K L Enari for appellant

A Su’a for respondent

Hearing: 24 June 2013

Judgment: 28 June 2013

JUDGMENT OF THE COURT

Introduction

1. Agnes Stowers, the appellant, appeals against a judgment of Nelson J in the Supreme Court of Samoa (CP 73/11) in which that Court entered judgment against her for the following sums:
   • (a) $7,566.70 being the unpaid balance of the appellant’s dishonoured cheques, and for goods supplied;
   • (b) $7,162.41 for interest; and
   • (c) $2,646.00 for costs.

The Facts

2. Ms Stowers obtained goods for business purposes from the respondent. She gave the respondent cheques which she maintained were to be held, merely as some sort of guarantee, or collateral, until she could pay for those goods. Her argument was, and is, that by agreement they were never to be presented.
3. The appellant paid some monies, but fell into arrears for goods supplied. After demand the respondent presented the cheques, which were dishonoured.
4. The trial Judge rejected her version of the arrangement between the parties. He held there was no evidence to support it; and, the arrangement suggested by her made no commercial sense.

• The Issues on Appeal
  • (a) The Principal Sum
  5. The appellant contends the sum owing is $4,707.05. But that sum is based upon the propositions rejected by the Judge that no cheques were to be presented (so that no dishonour fees were properly incurred) and no interest was agreed (as to which, see more shortly).
  6. The onus was on the appellant on this appeal to demonstrate that the Judge was wrong in his determination of the merits. She has not done so.

(b) Interest

7. The cheques were dishonoured. The respondent was entitled to recover on them and for the dishonour fees.
8. The Judge found there was no agreement as to interest between the parties on the supply of the goods. But as the Judge correctly pointed out, section 57(a)(ii) of the Bills of Exchange Act 1976 of Samoa makes specific provision for interest on dishonour of cheques, although it does not prescribe the rate of such interest.
9. In circumstances where there is no agreement, the General Laws (No. 2) Ordinance 1932 of Samoa provides that interest on money received in any proceeding where interest has not previously been agreed upon shall not exceed 8% (see section 4). That is the rate the Judge utilized in the judgment as entered. He was correct as to the law.
10. In any event, the appellant’s solicitor, in a letter of July 9, 2012 to the respondent’s solicitor had said:

“we do not dispute your use of the 8% per annum rate.”

11. This appeal point fails.

(c) Costs

12. The Judge allowed the respondent a sum of $2,646.00. That was 2/3 of its actual solicitor and client costs of $3,969.10. This was in accordance with the usual rules in Samoa that costs should follow the event; and for a reasonable sum.
13. There was no error in this respect by the Judge.

Conclusion

14. None of the appeal points have been made out.
15. The appeal is dismissed.
16. The respondent will have costs of $2,500.00 on this appeal; and its disbursements, if necessary, is fixed by the Registrar.
    

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Honourable Justice Fisher

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Honourable Justice Hammond

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Honourable Justice Hansen