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Ieremia v Ieremia [2025] WSCA 6 (19 June 2025)

IN THE COURT OF APPEAL OF SAMOA
Ieremia v Ieremia & Ors [2025] WSCA 6 (19 June 2025)


Case name:
Ieremia v Ieremia & Ors


Citation:


Decision date:
19 June 2025


Parties:
MEKELI IEREMIA (Appellant) v LUAIVA IEREMIA & LUPE IEREMIA (First Respondents); BOARD OF BANK OF SOUTH PACIFIC (Second Respondent)


Hearing date(s):
10 June 2025


File number(s):
2025-00229


Jurisdiction:
Court of Appeal – CIVIL


Place of delivery:
Court of Appeal of Samoa, Mulinuu


Judge(s):
Hon. Justice Harrison
Hon. Justice Asher
Hon. Justice Young
Hon. Justice Clarke


On appeal from:
Supreme Court of Samoa, Mulinuu


Order:
Mekeli’s appeal is dismissed.

He is ordered to pay separate sets of costs of ST$ 5000 plus disbursements to each of Lupe and the BSP.


Representation:
S. Wulf for the Appellant
A. Faasau for the Second Named First Respondent
G. Latu for the Second Respondent


Catchwords:
Power of attorney – ownership of property


Words and phrases:


Legislation cited:


Cases cited:
Ieremia v Ieremia [2024] WSSC 126 (20 December 2024);
Moors v Mortenson [2009] WSSC 103;
Powell v Thompson [1990] 1 NZLR 597.


Summary of decision:

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU


BETWEEN:


MEKELI IEREMIA


Appellant


A N D:


LUAIVA IEREMIA and LUPE IEREMIA


First Respondents


A N D:


BOARD OF BANK OF SOUTH PACIFIC


Second Respondent


Hearing: 10 June 2025


Coram: Hon. Justice Harrison
Hon. Justice Asher
Hon. Justice Young
Hon. Justice Clarke


Appearances: S. Wulf for the Appellant
A. Faasau for the Second Named First Respondent

G. Latu for the Second Respondent


Judgment: 19 June 2025


JUDGMENT OF THE COURT

Introduction

  1. The appellant, Mekeli Ieremia, owned jointly with his late parents a property at Alafua. The property was then subject to a mortgage to the ANZ Bank. In 2005 Mekeli signed a Power of Attorney (a POA) in favour of his brother, the first named first respondent. Luaiva Ieremia. Luaiva subsequently signed three transfers of title to the property: first, to Mekeli alone by virtue of survivorship (the first transfer); second to himself and his former wife, Lupe Ieremia, the second named first respondent (the second transfer); and third to Lupe alone (the third transfer).
  2. While title to the property was in their joint names, Luaiva and Lupe executed a mortgage to Westpac Bank to refinance the ANZ mortgage. The Bank of South Pacific Ltd, (the BSP), the second respondent, is the current mortgagee. Lupe remains the registered proprietor.
  3. Mekeli claims that by signing the second and third transfers Luaiva acted (1) outside his lawful authority; (2) fraudulently; or (3) in breach of a fiduciary duty owed to Mekeli. As well, and more relevantly for present purposes as Luaiva did not participate in the proceedings, Mekeli claims that Lupe was a party to Luaiva’s dishonesty and obtained title fraudulently. He filed proceedings in the Supreme Court for orders setting aside the transfers of title and the BSP mortgage together with an award of damages.
  4. Following trial the Chief Justice dismissed Mekeli’s claim. He rejected all of Mekeli’s grounds, directed that a caveat lodged by Mekeli against the title to the property be discharged, and ordered Mekeli to pay solicitor client costs to both Lupe and the BSP. Mekeli now appeals against that judgment.[1]

Background

  1. These core chronological events are drawn from public records and are not in dispute:

Supreme Court

  1. Certain financial transactions which occurred in the earlier stages of this timeframe were disputed in the Supreme Court. Based on contemporaneous documents and evidence given at trial the Chief Justice found that:
  2. It appears that the primary focus of Mekeli’s claim in the Supreme Court was on proving that Lupe had acquired title fraudulently with knowledge that Luiava had acted without legal authority and dishonestly in exercising the POA to effect the second and third transfers. Mr Wulf for Mekeli argued that the transfers, to Lupe’s knowledge, were designed to cheat Mekeli out of his legal entitlement to the land. Lupe’s title was defeasible as a result.[2]
  3. Lupe’s position was that the land could only be retained in family ownership if she continued to fund the liabilities secured against the title. She was only prepared to do this if she had what she saw as appropriate security which required her to be on the title to the land. But although she took title (initially jointly with Luaiva) this was on the basis that she would return the land to Mekeli if reimbursed for the costs to her of clearing debts on, and generally maintaining the condition of the property. She says that the contemporary email correspondence between the parties (and particularly between her and Mekeli) is consistent with her explanation as to why she acted as she did and that this was accepted by Mekeli at the time.
  4. The Chief Justice dismissed Mekeli’s claim that Luaiva acted dishonestly in executing these transfers [3]. We shall consider his reasoning by reference to Mekeli’s appeal against his findings on each.

Appeal

(1) Second Transfer
  1. The Chief Justice found that the second transfer was necessary to save the property from sale by the ANZ Bank which had threatened to exercise its powers following the borrowers’ frequent defaults in from 2002 onwards. The transaction allowed Luaiva and Lupe to grant a mortgage to Westpac to secure the refinancing necessary to repay the ANZ debt. Without this refinancing, Mekeli would have lost the property and any right to a share in its equity. The Chief Justice also gave weight to the fact by this refinancing transaction Luaiva and Lupe were (a) assuming liability to repay the debt originally incurred by Mekeli with the ANZ and (b) securing the release of his personal guarantee in favour of that bank.
  2. In support of Mekeli’s appeal, Mr Wulf submits that Perese CJ erred by failing to find that the POA did not authorize Luaiva to transfer the land to himself and Lupe. This argument hinges upon establishing that Luaiva used the POA to his own financial advantage and Mekeli’s detriment in effecting the second transfer to himself and Lupe. Mr Wulf cites the leading authorities of Moors v Mortenson [4]and Powell v Thompson[5] to support the settled propositions that a POA creates a relationship of agency where the agent or donee’s authority is limited to acting only in the best interests of the donor or principal. Perese CJ acknowledged these principles.[6]
  3. In support Mr Wulf submits that the loan application submitted by Luaiva and Lupe to Westpac provides evidence that they were seeking to use the security of the property to raise funds for their own improper purpose. He observes that of the Westpac advance of ST$250,000, Luaiva and Lupe required ST$165,725 to discharge the ANZ loan and the balance ofST$84,275 was for their own use.
  4. Before addressing these specific submissions, we note that the evidential transcript shows that Mekeli was a persistently evasive and untruthful witness. Mekeli’s whole case was predicated on denying two fundamental parts of the evidence. He denied knowledge of the ANZ loan or signing the mortgage. He also denied authorship and receipt of emails sent from and received at his wife’s email address Both were inherently implausible and were contradicted by the contemporaneous documents and Mekeli’s subsequent conduct. It is significant that on appeal Mr Wulf does not attempt to revive those denials. That Mikeli was prepared to give false evidence on two fundamental issues in the case undermined his other evidence.[7]
  5. Mr Wulf’s submission fails for several reasons:
  6. A claim of civil fraud requires proof to a high standard of probability. The Chief Justice enjoyed the benefit of presiding at trial and evaluating the reliability and credibility of the parties as they gave evidence. His rejection of Mekeli’s allegations that the second transaction was fraudulent was soundly based and supported by all the documentary evidence and surrounding circumstances. Mr Wulf has failed to satisfy us that we should interfere.
  7. The Chief Justice found that Luaiva acted honestly in effecting the third transfer to divest his joint interest to Lupe in 2015 after they separated in 2007 when he shifted to the United States[10]. She had assumed sole responsibility for meeting the Westpac mortgage obligations for the intervening eight years. Luaiva wanted to regularize the legal and factual position by securing a release of his liability as joint mortgagor. In consideration, as part of a property settlement, Lupe agreed to become the sole mortgagor. Westpac agreed to this arrangement with the result that Lupe took sole title to the property. Lupe subsequently refinanced the Westpac loan through the BSP, the current registered mortgagee. We observe that again if Lupe had not taken action the property would have gone to a mortgagee sale.
  8. Mr Wulf did not advance a discrete challenge to this decisive finding. He apparently relies upon his earlier grounds of challenge to the second transfer based on Luaiva’s alleged misuse of the POA. was dishonest.
  9. Mr Wulf’s argument meets a conceptual obstacle. As Ms Faasau emphasizes, the two-year term of the POA had long expired in 2015. Luaiva transferred his joint interest in the title to Lupe in his capacity as registered proprietor. Mr Wulf’s argument could only succeed by establishing that the third transfer was tainted by Lupe’s knowledge that the second transfer was fraudulent. Our dismissal of that argument is decisive, and as noted Mr Wulf did not advance a discrete challenge to the Chief Justice’s findings that the third transfer was not fraudulent.
  10. It follows that we dismiss Mekeli’s appeal against the dismissal of his claims that the second and third transfers were fraudulent and should be set aside.
  11. Mr Wulf did not press on appeal an argument for the existence of a constructive trust which had failed in the Supreme Court.[11] He did make a submission akin to a claim of unjust enrichment which also failed at first instance. It was to the effect that Lupe has unfairly benefitted from acquiring title at the expense of Mekeli’s original ownership interest.
  12. This submission is directly contrary to the facts. For at least 15 years Lupe carried the entire burden of caring for the proper and financing the indebtedness incurred by Mekeli and his family. Her evidence establishes that she also assumed a great deal of the pastoral responsibility the wellbeing of her elderly in laws while Mikele was imprisoned without their knowledge. The Chief Justice accepted evidence that these burdens took a heavy toll on her marriage, family relations and her health[12]. Lupe produced a schedule of her expenditure over the relevant period. It is apparent that she kept meticulous records. She paid over ST$500,000 to both the ANZ and Westpac banks. She spent more than $400,000 in maintaining and renovating the property so that it was in a fit state for rental by 2017. She paid out far more than was received in rent.
  13. Up to the date of trial Lupe was prepared to convey title back to Mekeli if he reimbursed her for her mortgage and improvements payments. However, Mekeli’s case was that she was not entitled to any credit for this expenditure; and that he is entitled to a reconveyance free of any encumbrances. The Chief Justice was unimpressed by this stance[13]. We are similarly unimpressed. None of the underlying equities favour Mekeli’s position.
  14. Mr Wulf submits that the Chief Justice erred in failing to grant any relief against the BSP. However, Mekeli has no possible right of relief against the bank given the failure of his underlying claim against Lupe. And Ms Faasau and Mr Latu confirmed that Lupe has now repaid the BSP mortgage which is awaiting registration of a discharge.

Conclusion

  1. The relief sought by Mekeli in the statement of claim is predicated on the basis that Lupe acted dishonestly and fraudulently. As the Chief Justice indicated in his judgment, such claims show an astonishing failure of moral compass on Mekeli’s part. He abandoned all the responsibility for the property to Lupe. While it was retained only by Lupe’s financial and personal efforts, she has remained willing to recognise Mekeli’s potential residual interest in it.
  2. Mekeli’s failure to recognise Lupe’s contributions and lack of any fraudulent intent has led to him pleading this case on the basis that he should get the property back with no financial recognition of Lupe’s interests. Orders are sought placing the property in Mekeli’s name and for Lupe and Luaiva to pay him damages. These claims must fail. This is why the Chief Justice dismissed the claim.
  3. There might have been some return for Mekeli in the case if he had recognised and pleaded the correct legal and factual position. He may have been able to show a residual equitable interest in the property on the basis that after repayment to Lupe of all her net contributions together with fair interest some equity might be left in the property for him. But this is speculation, and such an accounting exercise might result in a conclusion in Lupe’s favour. In any event, that is not how Mekeli has pleaded his case, and it is too late to fix it now. Indeed no attempt has been made to do so. His causes of action must all fail.

Result

  1. Mekeli’s appeal is dismissed.
  2. He is ordered to pay separate sets of costs of ST$ 5000 plus disbursements to each of Lupe and the BSP.

HON. JUSTICE HARRISON
HON. JUSTICE ASHER
HON. JUSTICE YOUNG
HON. JUSTICE CLARKE

[1] Ieremia v Ieremia [2024] WSSC 126 (20 December 2024).
[2] See Judgment at [50] – [59], sections 32 & 76 of the Land Titles Registration Act 2008
[3] At [84] – [87] and [43]
[4] Moors v Mortenson [2009] WSSC 103
[5] Powell v Thompson [1990] 1 NZLR 597 at 605
[6] Judgment at [63] and [64].
[7] Judgment at [32] –[39]
[8] Judgment at [86]
[9] Judgment at [3]
[10] Judgment at [40] – [46]
[11] Judgment at [87]
[12] Judgment at [86]
[13] Judgment at [87]

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