Kappenberger v Tapusoa [2004] WSSC 23 (18 October 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

MARCO KAPPENBERGER
of Afiamalu, Philanthropist
Plaintiff

AND:

VAINUU TAPUSOA
of Vailima, Businessman
Defendant

Counsel: Ms S Hazelman for the Plaintiff

Decision: 18 October 2004

JUDGMENT BY FORMAL PROOF OF JUSTICE VAAI

1. By written contract dated 21st June 2000 the defendant agreed to build a home for the plaintiff for the total sum of $539,000.00 to be completed by the 1st November 2000. A supplementary contract was executed on the 29th September 2000 for the construction of other additionals like the garage, concrete ramp and driveway but the contract price remained the same.

2. Pursuant to the Agreement the following amounts were paid by the plaintiff:

(i) $ 60,000 on the 21st June 2000.
(ii) $249,000 on the 10th July 2000
(iii) $ 88,000 on the 30th August 2000
(iv) $ 88,000 on the 29th September 2000.

Total paid = $485,000

3. Pursuant to the Agreement the balance of $54,000 was retained by the plaintiff until completion of the construction work and if completion was delayed beyond the 1st November 2000 the plaintiff was to deduct $600 per day until completion.

4. By statement of claim dated 9th July 2002 the plaintiff alleges that in breach of the contract the defendant not only fail to complete the construction work within the agreed time, but the workmanship also failed to measure up to the agreed standard. Particulars of poor workmanship are characterized in the statement of claim. Proceedings were adjourned sine die as both parties resolved to settle their dispute.

5. On the 14th July 2003 the defendant filed a Statement of Defence and Counterclaim, followed by an Amended Statement of Defence dated 25th August 2003 and another Amended Statement of Defence and Counterclaim dated the 5th September 2003. On the 19th September 2003 the plaintiff filed a Statement of Defence to the defendant’s counter claim which was followed by interlocutory motions and applications, which upon completion the matter was then set down for hearing. But the defendant has left the jurisdiction without consulting his counsel which prompted counsel to apply for leave to withdraw. No one knows the defendant’s whereabouts and the matter set down for formal proof.

6. In breach of the Agreement the defendant not only failed to complete the construction of the house but the work that was done was of very poor workmanship. Particulars of poor workmanship are detailed in the statement of claim and include the use of inferior building materials and failure to comply with structural and building plans.

7. As a result of the defendants failure to comply with the terms of the building agreement the plaintiff will be obliged to engage contractors to rectify the inferior workmanship and complete the construction. The plaintiff seeks damages under various heads:

(a) $485,000 - being the total amounts paid to the defendant. The plaintiff is entitled to recover the amounts paid over to the defendant. I therefore allow the claim under this head.

(b) $824,000 - being the agreed damages of $600 per day from the 1st November 2000.

I cannot allow the plaintiff to recover the amount the full amount claimed under this heading as he is obliged to mitigate his losses. I will allow penalty damages for the first 6 months after the 1st November less the $54,000 retained by the plaintiff. Damages for 6 months @ 5 working days per week amounts to:

$72,000.00

$54,000.00

$18,000.00

(c) $180,000 - cost of alternative accommodation since the 1st November 2000.

The statement of claim does not state the grounds for this claim, nor does it specify how the quantum of accommodation costs was arrived at. The claim under this heading is refused.

(d) $3,000 - being the cost of providing electricity and water to the construction site.

In the absence of documentary evidence which should be readily available the claim under this heading is also refused.

(e) $200,000 - legal fees for pursuing claim ($50,000) and likely costs for enforcing of judgment against the defendant who has absconded overseas.

In the absence of any written estimate of legal fees I am reluctant and therefore refuse to grant the total costs claimed under this heading. In any event costs of enforcement of judgment can be claimed against the defendant at the time when enforcement is effected.

I allow $15,000 under this heading.

(f) $8,760 - costs of hiring firm of security to watch over the property.

These costs are supported by documentary evidence and the claim under this heading is allowed.

(g)&(h) The claims under these two headings are denied.

Judgment for the plaintiff by Formal Proof is the sum of $526,760.00.

JUSTICE VAAI