Kappenberger v Tapusoa [2003] WSSC 36 (27 November 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of an application by VAINUU TAPUSOA
of Vailima, Businessman to join defendant
and/or third party to the Claim by the Plaintiff against the Defendant.

IN THE MATTER

BETWEEN:

MARCO KAPPENBERGER
of Afiamalu, Philanthropist
Plaintiff

AND:

VAINUU TAPUSOA
of Vailima, Businessman
Defendant

Counsel: Mr TS Apa for the Plaintiff
Mr R Faaiuaso for the Defendant

Hearing: 29 October 2003
Decision: 27 November 2003

JUDGMENT OF JUSTICE VAAI

The Court here is concerned with an application by the defendant to be granted leave to issue and serve third party notice or to join a defendant.

These proceedings issued by the plaintiff against the defendant is based on a breach of contract and arose out of an alleged failure by the defendant firstly to complete constructing a residential home for the plaintiff and secondly on the defendant’s failure to construct the house in a proper and workmanlike manner.

In its notice of motion the defendant moves to join Spacemakers Steel Systems Ltd as a defendant and or third party. In his supporting affidavit the defendant deposes at paragraph 3:

3. THAT I Defendant verily believe that though I signed the building contract and amendments thereto in my personal capacity I was also acting for and on behalf of Spacemaker Steel Systems Limited a duly incorporated company having its registered office at Vaitele and of which I am Managing Director.
   

THAT all financial transactions pertaining to the Building Contract with the Plaintiff, were done through the books of accounting and the Bank Account of Spacemaker Steel Systems Limited including but not limited to the following:

(a) the quote to build was provided by the said Company;
(b) the drawings to build were provided by the said Company
(c) the staff employed including myself are all employees of the Company
(d) payment of all materials supplied to the construction site were paid out of the said Company’s Bank Account with ANZ Bank (Samoa) Limited
(e) payment of sub-contractors such as the Plasterers were paid out the said Company’s Bank Account with ANZ Bank (Samoa) Limited
(f) all deposits and payments received from the Plaintiff were receipted into the receipt books of the said Company and lodged into the Bank Account of the said Company
(g) at no time where income received lodged into the personal account of the Defendant
(h) at no time were any payments relating to staff or materials, made by personal chequ8es or funds of the Defendant
(i) all statutory payments such as NPF Contributions, PAYE ACB and VAGST were made from the Bank Account of the Company
(j) the majority of correspondence with the Plaintiff was made using the letterhead of the Company
(k) all materials ordered for the works were under purchase orders of the Company

The plaintiff opposes the application to join the intended defendant or issue third party simply because the intended defendant or third party was never mentioned at any time during the negotiations of the contract between the plaintiff and the defendant; during the time the contract was signed; during the time of the construction of the building and cheques for payments due under the contract were issued by the plaintiff in the name of the defendant. The plaintiff simply denies all the allegations in paragraph 3 of the defendant’s affidavit.

The Statement of Claim is dated the 9^th July 2002, served on the defendant on the 22^nd August and was called for mention on the 23^rd September when it was adjourned Sine die to be brought back on seven days notice. On the 21^st September 2002, two days before the Statement of Claim was first called in court, the plaintiff and the defendant entered into another written agreement in an effort to resolve the dispute between themselves without resorting to court action. Again on the 10^th October 2002 the plaintiff and the defendant signed another agreement. All these agreements are attached to the plaintiff’s motion to strike out the defendant’s Statement of Defence and Counterclaim.

In May 2003 the proceedings were recalled and after several adjournments a Statement of Defence and Counterclaim was filed on the 14^th July 2003. An amended Statement of Defence and Counterclaim was also filed and on the 22^nd September the proceedings were taken off the list for the completion of interlocutory matters.

By a Notice of Motion dated 15^th September 2003 the defendant seeks an order to join Spacemakers Steel Systems Ltd as Second Defendant or be joined as third party. This Notice of Motion was called on the 6^th October and a hearing date was then set.

During the course of the hearing of the Motion Counsel for the defendant did not pursue (correctly in my view) the issue of joining Spacemakers as a Second defendant. The plaintiff had no dealings with Spacemakers Steel Systems Ltd. He did not hear about such an identity.

I now deal with the third party application. The Statement of Claim was in July 2002 called before the court and the defendant in July 2003 after several adjournments filed a Statement and Counterclaim; this was followed by an amended Statement of Defence and Counterclaim. And it was not until September 2003, some fourteen months after the matter first came to court that the defendant decided to and did file to join Spacemakers Steel Systems Ltd as third party. The delay in filing the notion to join the third party is in my view fatal to the application and provides good reason for a refusal of the exercise of the courts discretion to grant leave to issue third party notice.

In the second place counsel for the plaintiff in his submissions told the court that the intended third party Spacemakers Steel Systems Ltd is a company owned by the defendant as the major shareholder and Managing Director and two overseas shareholders. Counsel for the defendant does not dispute the statement and it is therefore a reasonable assumption in my view in the absence of any statement or assumption of fact to the contrary that the intended third party, although it is a separate legal entity, is really the defendant wearing a different hat. Any notice therefore to the intended defendant or third party is really to the defendant himself.

Leave is therefore refused. Costs is reserved. Adjourned to 12 December 2003 to set a new hearing date.

JUSTICE VAAI