Faleaupu v Ola [2004] WSDC 7 (30 January 2004)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

TAVITA FALEAUPU
of Vaoala, Certified Public Accountant
Plaintiff

AND:

SIONE VUI OLA
of Lano Savaii, Fisherman
Defendant

Counsel: F.P. Meredith for plaintiff
S. Leung Wai for defendant

Hearing: 23 June 2003
Decision: 30 January 2004

DECISION OF JUDGE NELSON

The Plaintiff is a businessman who agreed to help his wife’s relatives in relation to the cost of building materials for the construction of certain houses for rent on a beachfront property at Lano, Savaii. The building materials were sourced from two Savaii hardware companies, Salafai Metals Industry Limited (“SMI”) and Bluebird Lumber and Hardware (“Bluebird”). The bulk of the materials were from the former company and totalled $5,696.60. The Plaintiff paid $2,000 of this cost leaving outstanding as at 22^nd July 2002 a balance of $3,696.60. From the latter company came $793.30 worth of materials which was ordered while the construction project was underway and at a time when SMI did not have such materials in stock. The evidence shows these materials were intended to be replaced by materials to be ordered from SMI but this arrangement was not adhered to by the defendant who used some of the building materials for his own private buildings. As at 22^nd July 2002, the outstanding accounts with the hardware companies together with the $2,000 paid by the plaintiff remained unpaid.

As the accounts were in the plaintiffs name, on or about 22^nd July 2002, the plaintiff called a meeting with the defendant to address the issue of payment. The plaintiffs evidence as to who was present and what happened at this meeting is not entirely clear and the defendant did not adduce any evidence at the trial. However it does appear clear that the end result of that meeting was a document produced as Exhibit “1” for the plaintiff signed by the plaintiff and the defendant (on behalf of him and his father) whereunder the defendant and his father purportedly agreed to undertake responsibility for the payment of all the outstanding accounts.

This document is fundamental to these proceedings and it recites the outstanding accounts as being:

1. a sum of $2,793.30 representing the $2,000 paid by the plaintiff to SMI plus the Bluebird account, less the sum of $300 paid that day to the plaintiff leaving a balance of $2,493.30 recited as “due and owing by the defendant and his father to the plaintiff”;
   
2. an account totalling $3,696.60 in the name of the plaintiff owing to SMI, liability for which is recited as being “accepted by the defendant and his father”; and
   
3. the sum of $2,000 or so paid by tenants of the buildings under construction, the fate of which is recited as being “left to the parties to determine”.
   

Following execution of this document, certain payments were made by the defendant as are recorded on Exh. “2” for the plaintiff - the $300 paid on the 22^nd July 2002, $600 paid on the 02^nd August 2002 plus a further payment of $1,100. Also paid on the 20^th September 2002 was $3,000 towards the SMI account with the balance of $696.60 being cleared on 28^th September 2002. Left outstanding and unpaid was the $793.30 account with Bluebird. This account was paid by the plaintiff and the defendant now argues he is not liable to reimburse same.

The defendants argument in relation to the Bluebird account appears based on the fact that these materials were not ordered by him but by the tenants of the buildings under construction. He also argued that the materials were used by the tenants and were not applied or used for the project under construction. But the defendant called no evidence to show this to be the case. The only evidence before the Court was that of the plaintiff and his wife who testified that the defendant used part if not all of the materials from Bluebird for his own private dwellings. This evidence was not conceded in cross-examination and there is no reason for the Court to disbelieve it.

In any event, it is clear from Exh. “1” for the plaintiff, that the defendant accepted liability for this account when he accepted liability for item 1 which included the Bluebird account. Further, there is nothing in the evidence placed before the court to suggest the document should be ignored because the defendant was in an inferior bargaining position or because the plaintiff was in an unconscionable bargaining position given their respective occupations and absence from the meeting of the defendants father. As stated earlier, the defendant did not call evidence and chose instead to rely solely on submissions from counsel. This issue is not substantiated by the evidence and in any event, was not pursued by counsel and need be given only minimal consideration. There is accordingly no reason why the defendant should not be held liable for the Bluebird account in terms of the document he signed on 22^nd July 2002.

The argument by the defendant that liability is joint with his father as he signed on their behalf, in the absence of any testimony from his father or indication from the father that he accepts liability under Exh. “1”, cannot be sustained. What is clear from Exh. “1” is that the defendant personally and without limitation accepted liability for the accounts recited therein and indeed, subsequently made payments in settlement of same. The father was not sued by the plaintiff and the defendant did not move to join him as a party to these proceedings. The father's liability is therefore irrelevant to the inquiry at hand.

There is also no question the plaintiff is the proper plaintiff. It was his funds and name used in this matter and he signed Exh. “1”, no one else. This part of the plaintiff’s claim must succeed.

The remainder of the plaintiff’s claim concerns other costs incurred by the plaintiff. The first relates to a sum of $130 paid by the plaintiff for a travel visa for one of the defendant's relatives. There is however no evidence the defendant requested this of the plaintiff. The plaintiff's evidence was that the request came to him from his wife. This is only natural since it concerns a member of her family. There is no reason for the defendant to be held liable for this cost and the claim concerning that is dismissed.

The second item relates to some $150 in toll charges incurred by the plaintiff for telephone calls to the defendant's father concerning this matter. Had they been calls to the defendant, there may have been some basis for holding the defendant liable for same. But the plaintiff’s evidence clearly was they were calls to the defendant's father. And there is no evidence that the defendant told the plaintiff to take this matter up with his father. It is recited in the statement of claim but the plaintiff never testified to such. There is no evidence as to what these phone calls were about. The defendant's father is not party to these proceedings and I can find no basis upon which liability for such calls should be inflicted on the son. These costs of the plaintiff for doing business with his wife's family are also disallowed.

The third item is a $70 charge for the plaintiff’s solicitors’ costs for issuance of a demand letter in this matter. I find this reasonably incidental to the plaintiffs efforts to recover money which the defendant admitted liability for under Exh. “1”. Such costs are fully recoverable. I allow this part of the claim and also award reasonable costs on the hearing to the plaintiff. Plaintiffs counsel to file and serve a memorandum of such costs within 7 days hereof.

All in all, judgment will be entered for the plaintiff as follows:

(a) in the sum of $793.30; and
(b) in the sum of 70.00

$863.30

plus costs in an amount to be determined by the Court.

DISTRICT COURT JUDGE