Mortensen v Pihl Rorbyg Joint Venture [2004] WSSC 5 (11 May 2004)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

ANDREW MORTENSEN
and his wife VERONIKA MORTENSEN
both of Apia but currently residing in Tafuna, American Samoa.
Plaintiffs

AND

E PIHL & SONS
of 116, Nybroyej 2800 Lygnby, Denmark and
A/S RORBYG,
Industrial Holmen 80,2650 Hridrove, Denmark,
carrying on business in Samoa as the PIHL/RORBYG JOINT VENTURE at Fuluasou.
Defendants

Counsel: M Tuatagaloa for plaintiffs
S Leung Wai for defendants
TK Enari for Moors (a different plaintiff) by consent of both counsel for plaintiffs and defendants

Hearing: 6 June, 30 September, 1, 2, October, 13 December 2002; 25, 26 March 2003;
3 April 2003

Judgment: 23 December 2002 on Parts A, B, C and D
11 May 2004 on Parts E and F

JUDGMENT OF SAPOLU CJ

Introduction

This is an action by the plaintiffs against the defendants claiming damages for trespass to land. To that action the defendants, apart from a general denial in their statement of defence of the allegations in the plaintiffs statement of claim, have raised as a defence the issue of illegality in relation to the deed of conveyance by which the plaintiffs claim to have acquired ownership of the land. The plaintiffs have never occupied the land and do not appear to have been in possession of it.

By consent of both counsel for the plaintiffs and for the defendants, Mr Enari has joined these proceedings as counsel for Mr Moors, the vendor from whom the plaintiffs had purchased the land. The reason for Mr Enari’s appearance, as he informed the Court, is that if the defendants succeed in their defence of illegality against the plaintiffs and the conveyance between Mr Moors and the plaintiffs is declared unlawful and of no effect, Mr Moors should regain ownership of the land. Mr Moors would then like to proceed against the defendants for trespass. And the evidence in the present action by the plaintiffs on the issue of trespass will be the same evidence in any future proceedings between Mr Moors and the defendants. Thus Mr Enari’s presence as counsel for Mr Moors in the present proceedings will make it unnecessary to repeat the evidence on the issue of trespass in any future proceedings between Mr Moors and the defendants if the defendants succeed on their defence of illegality in the present proceedings by the plaintiffs. As it will appear later in this judgment, the tort of trespass to land is concerned primarily with the protection of possessory rights rather than with the protection of rights of ownership to land.

Mr Enari has filed a statement of claim alleging trespass to land against the defendants and seeking damages. He has also filed a motion for an interim injunction to restrain the defendants from selling or otherwise disposing of their assets in Samoa before judgment is given on Mr Moors claim. This motion for an interim injunction is in substance really a motion for a domestic Mareva injunction to prevent the defendants who are leaving Samoa soon from selling or otherwise disposing of their assets within Samoa, leaving no or insufficient assets to satisfy any judgment Mr Moors may obtain in his action against the defendants. Whether Mr Moors claim and motion have been filed prematurely was not in issue in the present proceedings which was confined to the contest between the plaintiffs and the defendants.

For convenience, I have decided to deal with this case under five Parts. Part A will deal with the evidence; Part B will deal with issue of illegality raised by the defendants; Part C will deal with the issue of trespass to land which forms the basis of the plaintiffs claim; Part D will deal with the defendants motion to strike out the plaintiffs statement of claim as disclosing no cause of action; Part E will deal with damages; and Part F with the judgment. Even though it may appear odd to deal first with the plaintiffs claim and then afterwards with the defendants motion to strike out, I have, in the circumstances of this case, decided that it will be more convenient to deal with those matters in that order.

PART A
Evidence

The plaintiffs are husband and wife. They are Samoans born, lived and grew up in Samoa. They were also married in Samoa. Their respective families are also in Samoa. In 1989 Mr Mortensen decided to seek employment in American Samoa because of higher salaries there. He travelled on his Samoan passport. He found a job in American Samoa but he visited Samoa on a regular basis, about once a month, because his wife and their two children were still living in Apia. The other reasons for his visits to Samoa were because his elderly mother lives here in Apia and because of family faalavelaves. In 1992 Mrs Mortensen also went to American Samoa principally for the same reason, higher salaries there. She travelled on her Samoan passport. She left behind her two children with her parents and family here in Apia. She had some difficulties in finding a job as she is not an American Samoa citizen. She had to find sponsors. Eventually she was accepted as a schoolteacher in one of the senior colleges in American Samoa. She rapidly rose to the top to become the principal of the college. After Mrs Mortensen joined her husband in American Samoa, they still visited Samoa regularly to see their two children in Apia and their respective parents and for family faalavelaves. The plaintiffs apparently had two more children in American Samoa.

The plaintiffs testified that their only reason for staying in American Samoa is because of higher salaries there. With the very strong value of the American dollar compared to the Samoan tala that must undoubtedly be correct. They have no intention of residing permanently in American Samoa. They still consider Samoa as home. Their plan is to return to Samoa to stay sometime in the future. However, they would return immediately to Samoa to stay should Mr Mortensen’s elderly mother pass away as there will then be no adult member of his family in Apia. Pursuant to their intentions and plan to return to Samoa to stay sometime in the future, the plaintiffs in 1997 purchased an acre of land at the Ululoloa Heights for the purpose of building a home when they return to Samoa. They paid the full purchase price. For the purpose of that transaction, the plaintiffs engaged a solicitor in Apia. They placed their trust in the solicitor that he would do everything required by law to validly complete the transaction and have it registered. Unfortunately for the plaintiffs the solicitor they engaged made a bad mistake. That solicitor is not the present counsel for the plaintiffs.

The deed of conveyance that was prepared by the solicitor in 1997 shows as vendor Mr Moors of American Samoa and as purchasers the plaintiffs also both of American Samoa. Both the vendor and the purchasers were residing in American Samoa at the time of their transaction. Under the provisions of the Alienation of Freehold Land Act 1972 the consent of the Head of State is required to a land transaction if the purchaser is a “non-resident citizen” in terms of the Act. However, no such consent was obtained by the then solicitor for the plaintiffs. The deed of conveyance, however, somehow got registered. The plaintiffs had paid the full purchase price and to them, when the deed was registered, they were the legal owners of the land. They were not aware that, as a matter of law, the consent of the Head of State to their conveyance was required. They had left all matters in the hands of their solicitor, but their solicitor made no application for the required consent. It was not until this case when the defendants raised statutory illegality as a defence to the plaintiffs claim for trespass that the plaintiffs became aware for the first time that their deed of conveyance may be unlawful and of no effect in terms of the Act because the consent of the Head of State to their conveyance had not been obtained. I am confident if the appropriate application had been made by the solicitor for the plaintiffs, the required consent would have been readily given as a matter of course. There appears to have been an initial period of uncertainty and hesitation on the part of the plaintiffs on what to do when they first became aware of the defence of illegality raised by the defendants. But when this case was recalled on 13 December to hear submissions by counsel, a written consent of the Head of State dated 14 November 2002 was produced to the Court by counsel for the plaintiffs. I will become back to this matter when I deal with the issue of illegality.

The land purchased by the plaintiffs, as I have mentioned, is situated at the Ululoloa Heights. It has a gradual slope and a good view of the city of Apia. It was bush land covered by trees and shrubs. Even though it is accessible by an unsealed road, it is quite some distance from the main road. There are no houses nearby except other bushlands. As the plaintiffs are living in American Samoa, they have not been in possession or occupation of the land. But they are aware of the land and its location. They must have visited and inspected the land before they purchased it.

In October 2000, the defendants, which are two companies operating a joint venture as construction contractors in Samoa, entered the plaintiffs land and occupied it without the knowledge or consent of the plaintiffs. They set up a camp on the land to facilitate the construction of water treatment clarifiers for the Samoa Water Authority on adjoining land. They cut down the trees and the shrubs on the land. They used their heavy machines to make the land flat by scraping away the topsoil on about sixty two percent of the total area of the land which is one acre. Rocks, boulders, tree trunks and other rubbish were piled up on one part of the land which represents about twenty nine percent of the total area. According to Mrs Mortensen that pile is about 18 feet to 20 feet high. The defendants then built two workshops on the land. They also kept their trucks, heavy machines and equipment on the land. They also stored on the land transport containers, 44 gallon oil drums and gallon drums of other sizes, heavy electrical cables and pvc pipes of various sizes. The defendants also dug large holes on the land. According to Mr Mortensen those holes vary in depth from 3 ½ feet in some parts to 5 ½ feet in other parts. The defendants also dug water drains of about 2 feet deep, 2 feet wide and 20 feet long on the land. A barbed wire fence was also built around the land. The defendants also filled up parts of the land where the topsoil had been removed with imported fill that was not suitable for the land. Parts of the land were also contaminated with spilt oil and chemicals.

According to the plaintiffs evidence, when they discussed this matter with the representatives of the defendants in August 2001 after they became aware of the defendants occupation of the land, they were told by the defendants representatives that a chief (matai) of the district where the land is situated told them the land belongs to him and they can go ahead and use the land. Whether that is true or not, the defendants should have taken appropriate steps to check the true ownership of the land at the land registry office. The defendants appear to have vacated the land in October 2001.

PART B
Illegality

Essentially the argument for the defendants on the issue of illegality is that the plaintiffs are “non-resident citizens” in terms of the provisions of the Alienation of Freehold Land Act 1972. That being so, the Act applies to the transaction evidenced by the deed of conveyance to which the plaintiffs are a party as purchasers. The written consent of the Head of State to the conveyance is therefore required in terms of the Act. As that consent was not obtained, the conveyance shall be unlawful and of no effect in terms of the Act. As the plaintiffs ownership of the land is derived from the deed of conveyance, once the conveyance is declared unlawful and of no effect, the plaintiffs alleged ownership of the land vanishes with the conveyance. As I have already mentioned, the tort of trespass to land upon which the plaintiffs are suing the defendants is primarily concerned with the protection of possessory rights to land rather than with the protection of rights of ownership to land.

I am satisfied that the plaintiff Mr Mortensen who has been residing in American Samoa since 1989 and his wife, the plaintiff Mrs Mortensen, who has been residing in American Samoa since 1992, were not resident citizens in terms of s.2 of the Act when they purchased the land in question in 1997. That being so, the Act applies to their land transaction by reason of s.4(1)(a)(i) and the Head of State’s consent is required to their transaction. Section 6(1) then provides:

“Where any alienation to which this Act applies is entered into, the transaction shall be deemed to be entered into in contravention of this Act, unless an application for the written consent of the Head of State to the transaction is made in writing to the Minister within 3 months after the date of the transaction or within such further time as may be allowed by the Minister.”

It is clear from s.6(1) that a transaction to which the Act applies, like the conveyance of land to the plaintiffs, will be in contravention of the Act unless application for the written consent of the Head of State is made to the Minister within 3 months of the transaction or within such further time that the Minister may allow. This implies that a transaction to which the Act applies will not be deemed to have been entered into in contravention of the Act, if application for the written consent of the Head of State is made within three months or within such further time the Minister may allow. The transaction will be in contravention of the Act if no application for consent is made within three months or within such further time allowed by the Minister.

Section 6(6) then states the circumstances where the Minister may grant an extension of time to apply for the consent of the Head of State in spite of a delay by providing:

“The Minister shall not grant an extension of time within which to make an application for the consent of the Head of State, unless the Minister is satisfied that the delay in making the application was due to mistake (whether of fact or of law) of the parties or any of them or of any other person or to circumstances beyond the control of the parties or of any of them, and that the delay has not been used for the purpose of contravening the provisions of the Act.”

As counsel for the plaintiffs informed the Court at the hearing of submissions on 13 December, the plaintiffs had made application to the Minister for the consent of the Head of State to their deed of conveyance. The Minister then submitted the application to the Head of State who gave his consent on 14 November 2002. I assume from this that the Minister must have been satisfied in terms of s6(6) that the delay of five years in seeking the consent of the Head of State to the plaintiffs conveyance which was executed in 1997 was due to a mistake of law on the part of the solicitor engaged by the plaintiffs to handle their transaction and that the delay was not used for the purpose of contravening the Act. The plaintiffs as lay persons were themselves not aware that the consent of the Head of State was required to their transaction until this case. It follows from the granting of the consent of the Head of State that the plaintiffs deed of conveyance does not contravene the Act and is therefore not unlawful and of no effect in terms of the Act. The defence of illegality must therefore fail.

However, counsel for the defendants, in response to the granting of the statutory consent, submitted that in terms of s6(5) the deed of conveyance did not have any effect until the consent was granted on 14 November 2002. Any trespass committed by the defendants to the land prior to that date will therefore not be actionable by the plaintiffs as they have only acquired legal ownership of the land on 14 November 2002. Thus the plaintiffs cannot sue for the damage alleged to have been done to the land prior to that date. The tort of trespass to land is, of course, primarily concerned with the protection of possession and possessory rights to land rather than with the protection of rights of ownership to land. The point raised by counsel for the defendants that the consent can only apply prospectively and not retrospectively is important as it will appear shortly, because the plaintiffs had not been in possession of the land at the time the alleged acts of trespass were committed as they were residing in American Samoa.

Section 6(5) of the Act provides:

“Where any transaction is entered into subject to the consent of the Head of State, the transaction shall not have any effect unless the Head of State consents to it and the conditions upon or subject to which the consent is granted are complied with.”

It is clear for the purpose of s6(5) that as the Act applies to the plaintiffs deed of conveyance, the transaction which is involved in that conveyance was subject to the consent of the Head of State. The consent which has been given contains no conditions. So there is no condition the plaintiffs would have to comply with in order to satisfy s6(5). But the important words of s6(5) emphasized by counsel for the defendants are the words: “the transaction shall not have any effect unless the Head of State consents to it.” The question is whether those words mean the transaction had no effect at law and in equity until the consent was given or whether those words mean the transaction had no effect only at law. It was submitted by counsel for the defendants that the effect of the words of s6(5) is that the plaintiffs deed of conveyance had no effect in both law and equity until the Head of State gave his consent to it on 14 November 2002. It was further submitted that the consent applies prospectively and not retrospectively.

In Bevin v Smith [1994] 1 NZLR 648 the New Zealand Court of Appeal had to deal with the question of whether a contract for the sale of farm land became unlawful and in contravention of the provisions of s25 of Land Settlement Promotion and Land Acquisition Act 1952 (NZ) due to the failure to apply for the consent of the Land Valuation Tribunal within the required one month from the date of the transaction. The provisions of s25 of the Land Settlement Promotion and Land Acquisition Act 1952 (NZ) are similar to the provisions of s6 of our Alienation of Freehold Land Act 1972. The contract for the sale of land in that case was in contravention of s26 and was therefore unlawful because the required consent was not sought within the specified period of one month. On application by the purchasers to the High Court of New Zealand for validation of the contract under s7 of the Illegal Contracts Act 1970 (NZ), the High Court validated the contract. On appeal to the Court of Appeal that Court upheld the validation of the contract. The Court of Appeal also had to deal with the question of whether an equitable interest may pass under a conditional contract for the sale and purchase of land such as the contract in that case which was conditional on the consent of the Land Valuation Tribunal being obtained. On that question Gault J in delivering the judgment of the Court discussed the relevant case law in Australia and says at p.663:

“The position in Australia would therefore appear to be that the Courts are willing to recognize that some form of equitable interest may pass to a purchaser under a conditional contract, not necessarily amounting to a full equitable title.”

Gault J then goes on to discuss the English and New Zealand authorities on the question of whether an equitable interest passes under a conditional contract for the sale and purchase of land and says at p664:

“The view that a purchaser under a conditional contract has no equitable interest in the property pending fulfilment or waiver of the condition, is unsatisfactory in a number of respects. Both Blanchard, A Handbook on Agreements for Sale and Purchase of Land, (4^th ed, 1988), para 256 and McMorland, Sale of Land (1994) para 10.03, argue convincingly that the law in New Zealand should recognize that an equitable interest may be acquired under a conditional contract.

“This case provides a compelling example. Many contracts in New Zealand are made conditional upon the consent of a statutory board, consent which is ordinarily given as a matter of course. It would be a peculiar situation if pending that consent the vendor was free to treat the land as his own..... We consider that purchasers in the position of the Smiths should in equity have sufficient interest in the land to support a caveat and to impose fiduciary obligations on the vendor continuing in possession.”

His Honour then goes on to say at p665:

“For these reasons we consider that an equitable interest in land, should and does, pass under a conditional contract of the kind involved here, even though specific performance in the strict sense is not available. We agree with the recent Australian authorities to the effect that the equitable estate passes when equity will, by injunction or otherwise, prevent the vendor from dealing with the property inconsistently with the contract of sale, ie inconsistently with the purchaser’s contingent ownership rights. It will be sufficient if the Court will order specific performance of the contract subject to the contingent pending fulfilment or waiver of the condition, in the same way as the interest may come to an end in several other situations: upon cancellation for breach; or upon non-payment of the purchase price.”

In Sale of Land (2002) 2^nd ed, by McMorland, the learned author states at p300, para 10.02:

“Before the passing of the Illegal Contracts Act 1970 it was held that an equitable estate or interest does not pass under an illegal contract, but the accepted view now appears that it does, even when an order validating the contract has not been made under the Illegal Contracts Act 1970.”

It is of interest to note that one of the cases cited in Sale of Land by McMorland in support of the currently accepted view that an equitable estate or interest does pass under an illegal contract before an order by the Court is made to validate it under the provisions of the Illegal Contracts Act 1970 (NZ), is the judgment of Casey J in Merbank Corporation Ltd v Carter (1978-1982) 1 NZCPR 279. In that case the Court had to deal with a contract for the sale and purchase of farm land. The purchaser paid the deposit. On the basis of the contract of sale, the purchaser lodged a caveat. The provisions of the Land Settlement Promotion and Land Acquisition Act 1952 (NZ) (which are similar to the provisions of our Alienation of Freehold Land Act 1972) applied to the contract in that case. However, the required consent of the Land Valuation Tribunal was not obtained within the specified period of one month. Consequently the contract became unlawful and of no effect under s25(4) of the Act which is similar to s6(4) of our Alienation of Freehold Land Act 1972. Application was made by a third party to remove the purchaser’s caveat on the basis that the contract for sale and purchase of land to which the caveat related was unlawful and of no effect in terms of the Act. Casey J did not grant the application for removal of the caveat. That implies the existence of an equitable interest to sustain the purchaser’s caveat even though in terms of the Act the contract was unlawful and of no effect due to the failure to obtain the required consent of the Land Valuation Tribunal.

In Sale of Land (supra) para 10.03, McMorland goes on to say:

“Because contingent conditions are so common in New Zealand conveyancing practice, it is important to know whether the equitable estate passes to the purchaser while the contract remains subject to the condition or only after the contract has become unconditional. Until 1994, the judicial answer in New Zealand was that an equitable estate or interest, and therefore a caveatable interest, did not arise while the contract remained conditional, although this result was subject to criticism.

“In Bevin v Smith [1994] 3 NZLR 648 the matter fell for reconsideration by the Court of “Appeal. After a full review of the authorities, the Court held that an equitable interest in land should, and does, pass under a conditional contract of the kind involved here, even though specific performance of the contract in the strict sense is not available.........

“The Court went on to stress that whether the equitable interest has passed must always depend on the terms of the contract itself. There will be some conditional contracts, particularly those subject to true conditions precedent, where the parties cannot be regarded as intending that equitable title will pass to the purchaser until the conditions are fulfilled or waived.

“In the period immediately following this judgment, the argument was several times raised that the conditions in subsequent cases were of the kind last referred to so that the equitable estate did not pass under the contract, but true conditions precedent, while not impossible, are very rare in New Zealand conveyancing practice, and to date all such arguments have failed.”

In Australia, the position of a purchaser having an equitable interest under a conditional contract for sale and purchase of land is explained in Equity and Trusts in Australia and New Zealand (2000) 2^nd ed by Dal Pont and Chalmers at pp980-981 where it is said:

“[It] can be said that the purchaser (and arguably a sub-purchaser) obtains an immediately (albeit conditional) equitable proprietary interest in the property at the moment when the contract is made. This interest is clearly sufficient to entitle the purchaser to lodge a caveat to protect it. The extent of the interest is measured by the protection which equity will afford to the purchaser. In times past, this protection has been equated by the Courts to the doctrine of specific performance. On this approach, contracts that are in any way conditional do not give rise to the purchaser’s equitable interest until the condition is fulfilled because such contracts are not amenable to specific performance.

“Yet the modern and better view, which has been endorsed by the High Court of Australia, is that equity’s protection should not be limited to specific performance, but cover all those remedies which would be available to a purchaser in equity to protect the interest which he or she has required under the contract, including relief by way of injunction. Pursuant to this approach, that the contract is conditional does not of itself prevent the purchaser from deriving an equitable interest – the nature of the condition must be analysed. If it is a true condition precedent, it is clear that the parties intend that equitable title should pass to the purchaser only when the condition is fulfilled (of it is waived). On the other hand, if the parties intend to be and remain bound subject to the fulfilment of the condition, the purchaser can derive an equitable interest under the contract. For example, in Bevin v Smith [1994] 3 NZLR 648 the New Zealand Court of Appeal held that purchasers under a contract for the sale of land conditional on the consent of a statutory board, which consent was ordinarily given as a matter of course, had an equitable interest in the land as soon as the contract was signed. Gault J reasoned that were the purchasers denied an equitable interest, they would be unable to protect their interest by means of a caveat and would be forced to take the more expensive and difficult course of seeking an injunction if alerted in time.

“In any event, the purchaser’s interest is subject to defeasance if the contract is lawfully cancelled or otherwise goes off for failure of condition.”

Even though an equitable interest may not pass to the purchaser under a conditional contract for the sale and purchase of land where the condition is a “true condition precedent”, it is clear from what McMorland says in Sale of Land 2000 2^nd ed at para 10.03, pp 301 – 302 that “true conditions precedent” are very rare, at least in New Zealand, and all attempts in New Zealand cases subsequent to Bevin v Smith [1994] 3 NZLR 648 to treat a condition in a conditional contract as a “true condition precedent” have failed.

I have quoted at some length because of the importance of the issue raised by counsel for the defendants in relation to s6(5) of the Alienation of Freehold Land Act 1972. It must be said that the contract for the sale and purchase of land embodied in the plaintiffs' deed of conveyance was a conditional contract of sale. It was conditional on obtaining the consent of the Head of State. And while the contract as represented in the deed of conveyance remained conditional, it was not amenable to specific performance. Under the earlier law, the passing of an equitable interest to a purchaser under a contract for sale and purchase of land depended on the availability of specific performance. As a conditional contract for the sale of land was not amenable to specific performance, it was considered that no equitable interest would pass to the purchaser under such a contract. However under the currently accepted view, the position is different: Bevin v Smith [1994] 3 NZLR 648; Sale of Land (2000) 2^nd ed. by McMorland paras 10.02, 10.03; Equity and Trusts in Australia and New Zealand (2000) 2^nd ed. by Dal Pont and Chalmers pp980-982. An equitable interest may now pass under a conditional contract for the sale and purchase of land or a conditional deed of conveyance, such as a contract or conveyance which is conditional on obtaining a statutory consent, even though specific performance of the contract in the strict sense is not available. That may happen, as the authorities show, if equity will, by injunction or otherwise, prevent the vendor from dealing with the property in a manner inconsistent with the contract or conveyance as the case may be. It is clear that in the present case the vendor and the purchasers (plaintiffs) had intended to be bound by their contract for the sale and purchase of land as evidenced by the plaintiffs paying the full purchase price and the vendor executing the deed of conveyance in 1997. Since that time the parties have proceeded and acted on the basis of their conveyance. The required statutory consent would ordinarily have been obtained as a matter of course if it had been sought in time by the plaintiffs past solicitor. That consent has now been obtained even though some five years after the deed of conveyance was executed. In my view, if the vendor, before the required consent was obtained, had committed any act inconsistent with the deed of conveyance, the plaintiffs would have been entitled in equity to seek an injunction or lodge a caveat to protect their interest in the land. It would have been inequitable and unconscionable if, for instance, the vendor were free to resell or damage the land pending receipt of the required consent which would have been readily obtainable as a matter of course, but the purchasers cannot seek an injunction, lodge a caveat or seek some other equitable relief on the basis of an equitable interest in the land. I am therefore of the view that even before the consent of the Head of State was given to the plaintiffs conveyance, an equitable interest in the land had already passed to them..

It is also to be borne in mind that in Bevin v Smith and Merbank Corporation the New Zealand Courts were there dealing with contracts for the sale and purchase of farmland in respect of which the required statutory consent had not been sought within the specified time. The contracts were therefore unlawful and of no effect in terms of the provisions of s.25 of the Land Settlement Promotion and Land acquisition Act 1952 (NZ) which are similar to the provisions of s6 of our Alienation of Freehold Land Act 1972. The Courts in those cases, however, in effect held that an equitable interest had passed to the purchasers notwithstanding the contracts at that time had not been validated under the Illegal Contracts Act 1970 (NZ).

Section 6(5) which provides that a transaction “shall not have any effect” unless the Head of State consents to it will, in my view, prevent the passing of the legal title or estate pending receipt of the consent. That is further shown by s59(1) which requires the Registrar of Lands not to register any dealing to give effect to any contract for sale unless the Head of State has given his consent. However, in this case s6(5) does not prevent the passing of an equitable interest in the land to the plaintiffs prior to that consent being given: again see Bevin v Smith [1994] 3 NZLR 648 per Gault J; Merbank Corporation Ltd v Carter [1978-1982] 1 NZ CPR 279 per Casey J; Sale of Land (2000) 2^nd ed paras 10.02, 10.03 by McMorland; Equity and Trusts in Australia and New Zealand (2000) 2^nd ed by Dal Pont and Chalmers at pp980 – 981.

I have not overlooked to consider the Australian cases that were cited to the Court on the issue of illegality in the course of the argument. These are Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd [1978] HCA 42; [1978] 139 CLR 410; Nelson v Nelson [1995] 132 ALR 133; Fitzgerald v Leonhardt Pty Ltd [1997] HCA 17; [1997] 189 CLR 215. Even though those cases do deal with the issue of contractual illegality, their facts and the issues of illegality they deal with are quite unrelated to the particular issue of illegality I have had to deal with in this case. For those reasons, I have not applied the principles discussed in those cases to the present case. However, in fairness to counsel for the plaintiffs, Bevin v Smith was one of the authorities she submitted to the Court.

That brings me to the tort of trespass to land upon which the plaintiffs' cause of action is founded.

PART C
Trespass to land

The tort of trespass to land is primarily concerned with the protection of possessory rights to land rather than with the protection of rights of ownership to land. The Law of Torts in New Zealand (1996) 2^nd ed by Todd et al in para 8.4 pp 466-467 the learned authors state:

“The action for trespass to land is primarily intended to protect possessory rights, “rather than rights of ownership. Accordingly, the person prima facie entitled to sue “is the person who had possession of the land at the time of the trespass. Actual “possession is a question of fact, which consists of two elements: the intention to “possess the land and the exercise of control over it to the exclusion of other persons. “In the case of land which has been built on, possession may be evidenced by “occupation of the building. If the building is vacant, possession may be indicated by “possession of the key or other method of obtaining entry. In the case of land which “has not been built on, possession may be evidenced by acts done in relation to it. “Even in the absence of such acts, possession may be presumed from proof of “ownership in the absence of evidence that another is in possession.”

This definition of trespass to land does not apply to the circumstances of this case. The plaintiffs have been residing in American Samoa where they had found employment. When they purchased the land, which was then bush land, in 1997 they were still residing in American Samoa. Up to now they are still residing in American Samoa even though they intend to return to Samoa sometime in the future and build a home on the land. The plaintiffs may have an intention to possess the land. But that intention seems to relate to possession of the land at some time in the future. Clearly they were not exercising any control over the land to the exclusion of others while residing in American Samoa. It was not until August 2001 when they found out that the defendants were in occupation of the land that they made a temporary entry upon the land and complained to the defendants for being in occupation and for causing damage to “their land”. The plaintiffs then went back again to American Samoa. At that time they did not have legal ownership of the land because they had not obtained the consent of the Head of State under the Alienation of Freehold Land Act 1972 to their conveyance. What they had was only an equitable interest under a conditional conveyance. In those circumstances, I am of the view that the plaintiffs were not in possession of the land at the time of the trespass.

I have also considered the principle of trespass by relation and whether it applies to the circumstances of this case. In The Law of Torts in New Zealand (1996) 2^nd by Todd et al para 8.44 at p471 the learned authors state:

“There is undoubtedly one true exception to the general principle that only the person who had possession of the land at the time of the trespass can sue. A person who had at the time of the trespass a right to the immediate possession of the land may sue in respect of that trespass, provided that before so suing, he or she has acquired actual possession by entry upon any part of the land. This is often called trespass by relation because the plaintiff’s possession, by means of a legal fiction, is deemed to relate back to the time when he or she first acquired the right to the possession.”

See also The Law of Torts (1992) 20^th ed p53 by Salmond & Heuston; The Law of Torts (1992) 8^th ed p44 by Fleming. In determining whether the principle of trespass by relation applies to the circumstances of this case, two matters have to be considered: firstly, whether the plaintiffs had a right to immediate possession of the land at the time of the trespass and, secondly, whether the plaintiffs have acquired possession by entry on any part of the land before suing the defendants. As it will appear later in this judgment, the equitable interest of the plaintiffs under their conditional conveyance does not give them a right to immediate possession. That will only occur when the condition to which the conveyance is subject has been fulfilled. The plaintiffs' conveyance was conditional upon the consent of the Head of State. That consent was not obtained until 14 November 2002. Thus between October 2000 and October 2001 when the alleged tortious acts were committed, the plaintiffs had no right to immediate possession of the land. I have also held that the temporary entry by the plaintiffs upon the land in August 2001 to make their complaint to the defendants about their wrongful occupation of the land was not sufficient to give the plaintiffs possession of the land. Accordingly, the principle of trespass by relation does not assist the plaintiffs in this case.

I turn now to consider the situation where a person who is not in possession of land and does not have a right to immediate possession at the time of the trespass may still bring an action for trespass, where permanent injury or physical damage has been done to land. Under English law, the traditional position has been that a person who is not in possession of land and does not have an immediate right of possession may bring an action on the case, but not in trespass, against a person who has caused permanent injury or physical damage to land. Nowadays, the action on the case for physical damage to land has been assimilated into the modern tort of trespass: Lockwood Buildings Ltd v Trust Bank Canterbury Ltd [1995] 1 NZLR 22 at p34; The Law of Torts in New Zealand (1996) 2^nd ed by Todd et al at pp468-469.

In Lockwood Buildings Ltd v Trust Bank Canterbury Ltd [1995] 1 NZLR 22, the New Zealand Court of Appeal was dealing with an action for trespass by a mortgagee against the defendant who had removed a home that was on the mortgagor’s land which formed the mortgage security. The mortgagee was not in possession of the land at the time of the trespass and did not have a right to immediate possession. The mortgagee, however, succeeded in its action for trespass at the trial Court. On appeal to the New Zealand Court of Appeal, Tipping J by using the analogy of a reversioner or landlord who may sue for physical damage to his reversion even though he is out of possession at the time of the trespass and without a right to immediate possession, held that the mortgagee in that case was entitled to succeed in his action for trespass for physical damage to the mortgage security even though it was not in possession of the land at the time of the trespass and did not have a right to immediate possession. The home that was removed was held to be a fixture which formed part of the land that formed the mortgage security. The appeal was therefore dismissed. At p33 of his judgment, Tipping J says:

“It is clear that a reversioner, not being in possession and having no right to immediate possession, can sue in trespass for permanent damages to the reversion; see Clerk & Lindsell at paras 23-08 and 23-27 where it is said:

‘Reversioner: Although in general, the only person who can sue for a trespass is the person who was in possession....at the time of the trespass committed, yet where the trespass has caused a permanent injury to the land affecting the value of the inheritance, a person who is entitled in reversion may sue for a present injury to his interest, and he may do at once without waiting until his future estate falls into possession. Thus a reversioner may sue for cutting down timber trees, or destroying a building, or cutting and carrying away turf, or any similar act involving a partial destruction of the freehold. But for an ordinary continuing trespass, even though committed under a claim of a right of way, the reversioner cannot sue.’”

Tipping J at p34 then cites with approval from The Law of Torts in New Zealand (1991) 1^st ed by Todd et al by saying:

“The same position obtains in the case of a reversionary interest under a lease. The land lord, while not in possession and having no immediate right to possession, may sue for permanent damage to the reversion. As to that Todd says at p357:

‘Normally the landlord being out of possession, cannot sue in trespass, but there are cases which say that the landlord may sue in trespass where physical damage is caused to his or her property. Notwithstanding those cases there seems little doubt that technically the landlord’s action in those circumstances is not an action in trespass, but is rather an action on the case for damages for the injury done to his or her reversionary interest. Thus purists would argue that this exception to the general rule is no more ‘than an apparent exception.

‘It makes little difference today whether these actions are seen as actions in trespass or on the case. The need for some action is obvious: it would be absurd if the landlord was not able to seek damages, say, the cost of structural repairs necessitated by a defendant’s trespass until the end of the tenancy, by which the trespasser might have disappeared or gone bankrupt. If, however, the action is held to lie in trespass, then a further exception to normal principles must be recognized. Normally trespass is actionable per se. The landlord’s claim is not, but rather is dependent upon proof of permanent physical damage.’”

A little further on at p34 Tipping J says:

“The ability of a reversioner or a landlord to sue for trespass while having no right to immediate possession is supported by Mayfair Property Co v Johnston [1894] UKLawRpCh 17; [1894] 1 Ch 508 at 516 and by Jones v Llanrwst Urban District Council [1911] UKLawRpCh 9; [1911] 1 Ch 393 at p404. See also Salmond & Heuston at p51. It is important to note that the tort of trespass is not actionable per se at the suit of a reversioner or a landlord. Such a person can only sue if permanent damage to the reversion can be shown. As Salmond & Heuston say a landlord has no right of action for a ‘mere trespass.’ What must be established is a trespass which results in harm to the property and which causes permanent damage to the plaintiff’s reversionary interest therein.”

His Honour then goes on in pp34 – 35 to say in respect of a mortgagee’s ability to sue in trespass as follows:

“I regard the position of a mortgagee as being sufficiently analogous to that of a reversioner or a landlord to justify the same approach being taken. I recognize that a person with a reversionary interest has an interest which will ultimately ripen into a possessory interest. By contrast the interest of a mortgagee will not necessarily ripen into a right to possession. It will do so if there is a default by the mortgagor. Nevertheless the mortgagee’s contingent possessory interest can, in my view be equated, for present purposes, with that of a conventional reversioner provided the mortgagee can show loss. The ability of a mortgagee to sue, in a manner similar to a reversioner, for loss occasioned by a person who trespasses and causes injury to the security has been recognized in Canada, albeit as an action on the case: see Metropolitan Life Assurance Co v McQueen [1924] 2 DLR 942, 948 – 949 per Tweedie J in the Supreme Court of Alberta.

“While trespass to realty was originally a cause of action available only to protect possessory rather than property rights, the tort has developed to meet the demands of justice and has thereby incorporated trespass by relation and trespass causing permanent damage to a reversionary interest. In neither case is the plaintiff actually in possession at the time of the trespass. It is not the plaintiff’s possessory interest which is harmed, rather his economic interest in the land. I would therefore hold that a mortgagee having no immediate right to possession may nevertheless sue in trespass for a loss suffered as the result of permanent damage to the security.”

On the basis of the principles discussed by Tipping J in Lockwood Buildings Ltd v Trust Bank Canterbury Ltd [1995] 1 NZLR 22, and the analogy drawn by His Honour between a mortgagee and a reversioner or landlord, I am of the opinion that a purchaser who is not in possession and has no right to immediate possession, but holds an equitable interest under a conditional contract for sale and purchase of land or a conditional deed of conveyance, has a cause of action in trespass and may sue for loss suffered as a result of permanent injury or physical damage to land. The position of such a purchaser is analogous to that of a mortgagee not in possession and having no right to immediate possession at the time of the trespass. The equitable interest of the purchaser will not transform into a possessory interest unless the condition to which the transaction is subject is fulfilled just as the interest of a mortgage will not ripen into a possessory interest unless there is default by the mortgagor. In an analogous position is the reversionary interest of a reversioner or landlond which will only transform into a possessory interest at a future time. As pointed out in Lockwood by Tipping J, the tort of trespass to land was originally available only to protect possessory rights. But it has developed to meet the demands of justice for the protection of property rights. In that way, a reversioner or landlord who is out of possession and without a right to immediate possession has been able to sue in trespass for loss which results from permanent injury or physical damage to his reversion. Lockwood has added the mortgagee out of possession and without a right to immediate possession to the same category. As a matter of principle and justice, a purchaser with an equitable interest under a conditional contract for sale and purchase of land or a conditional deed of conveyance should also have a cause of action in trespass and be able to sue for permanent injury or physical damage to property which has occasioned loss even if he is out of possession and has no right to immediate possession at the time of the trespass. I therefore hold that in the present case, the plaintiffs, who had acquired an equitable interest under their conditional deed of conveyance, have a cause of action in trespass and are able to sue the defendants for the physical damage to the land, notwithstanding that they were not in possession and had no right to immediate possession at the time of the trespass.

The plaintiffs are also suing the defendants for rent for the period of time they were in wrongful occupation of the land. Such a claim for ‘occupational rent’ does not arise from permanent injury or physical damage to land. It is based on wrongful occupation of the land. It is traditionally expressed as a claim for mesne profits. In the circumstances of this case, the plaintiffs have a cause of action for mesne profits for wrongful occupation or use of the land by the defendants. It is not necessary for the plaintiffs to have entered the land before they can bring their present action even though it is clear they have done so before this judgment.

PART D
Defendants motion to strike out

On 6 June 2002, the Court dealt with a motion by the defendants to strike out the plaintiffs' statement of claim as disclosing no cause of action which is maintainable in law. The grounds of the strike-out motion were that: (a) the defendant as originally sued does not exist in law, and (b) the plaintiffs were not the true owners of the land as the deed of conveyance by which they acquired title to the land was unlawful and of no effect as it was entered into without the consent of the Head of State as required under s.6 of the Alienation of Freehold Land Act 1972. After hearing the first set of submissions by both counsel for the plaintiffs and for the defendants, I called for further submissions. Subsequently, counsel for the plaintiffs moved for an amendment to the description of the defendant in the statement of claim. As a result of that amendment there are now two separate companies sued as defendants instead of a “joint venture company” as originally cited as a single defendant. The Court then heard further submissions from counsel on the strike-out motion. After hearing those further submissions, I decided that the statement of claim does disclose a cause of action in law and that the case should proceed to trial. I indicated to counsel that I will give my reasons for that ruling in a written decision to be given in due course. I was not satisfied at that stage that the claim by the plaintiffs was so plainly and obviously untenable in law that it stood no chance whatsoever of succeeding. I also had to bear in mind that the Court’s jurisdiction on a motion to strike out a statement of claim as disclosing no cause of action must be sparingly exercised.

For the reasons already given in this judgment, the plaintiffs do have a cause of action in trespass to land. I believe I was right in not striking out the statement of claim but allow it to proceed to trial. My judgment on Parts A, B, C and D was delivered on 23 December 2002, but the question of damages and assessment thereof were left until physical inspection of the land by the Court and any further submissions by counsel.

PART E
Damages

The plaintiffs have made three claims for damages. The first claim is for the cost of reinstatement of the land; the second claim is for rent for wrongful occupation of the land, traditionally known as a claim for mesne profits; and the third claim is pleaded as a claim for special damages. I need not, at this stage, concern myself with the third claim but something needs to be said now about the law that applies to the first and the second claims.

In Roberts v Rodney District Council [2001] 2 NZLR 402, which was a case concerned with various claims for damages for trespass to land, Barker J said at pp405 – 406:

“In broad terms, damages for trespass to land may be nominal, exemplary or compensatory: Mayfair Ltd v Pears [1986] NZCA 476; [1987] 1 NZLR 459 (CA) at 465. This case is concerned with compensatory damages....There are two possible measures of compensatory damages. The first is, where there has been actual damage to the plaintiff’s land or the chattels thereon, the measure of damages is the cost of reinstatement: Mayfair Ltd v Pears at p465. In some circumstances, where reinstatement is not possible for example, the diminution in the value of the land may be awarded in lieu thereof. See Lockwood Buildings Ltd v Trust Bank Canterbury “Ltd [1995] 1 NZLR 22 (CA).

“The second measure of damages usually applies where there has been some wrongful use made of the plaintiff’s land. Where a trespasser has wrongfully made use of the plaintiff’s land, the plaintiff is entitled to receive by way of damages such sum as should reasonably be paid for that use: Laws NZ, Tort para 218. That this measure of damages is available to a victim of trespass to land is well established by English authority. See Penarth Dock Engineering Co Ltd v Pounds [1963] 1 Lloyd’s Rep 359; Bracewell v Appleby [1975] Ch 408; Swordheath Properties Ltd v Tabet [1979] 1 A11 ER 240; Ministry of Defence v Ashman [1993] 2 EGLR 102; Jaggard v Sawyer [1995] 2 A11 ER 189; Inveragie Investments Ltd v Hackett [1995] 3 A11 ER 841 (PC)....

“The distinction between these two measures of damages is to be found in the different form of injury to the victim’s land. The former measure applies where there is damage to the plaintiff’s land. The latter applies where there is wrongful use made of the plaintiff’s land....

“In my view, a plaintiff cannot recover under both measures of damages. Although the plaintiff may plead both measures in the alternative, he or she is put to an election before judgment. See the judgment of Hoffman LJ (as he then was) in Ministry of Defence v Ashman....

“I therefore hold that the plaintiff in a case of trespass to land must make an election of remedies, which election is binding upon her at the time of judgment. This rule corresponds with the rule in contract law, for example, requiring a plaintiff to choose between expectation damages and reliance damages.”

At pp407 – 408 of his judgment, Barker J goes on to say:

“Where there is actual damage to a person’s land, the award of the cost of reinstatement or diminution in value is based upon the compensation principle which requires that victim of a tort be placed in the same position as he or she would have been placed had the tort not been committed. Thus, the award is designed to compensate the plaintiff for the loss suffered at the hands of the tortfeasor.

“Damages for wrongful use, on the other hand, are sometimes said to rest upon a user principle: if one person has without leave of another been using that other’s land for his own purposes, he ought to pay for such user (Whitwham v Westminister Brymbo Coal and Coke Co [1896] UKLawRpCh 112; [1896] 2 Ch 538 at pp 541 – 542 per “Lindley LJ) See Salmond and Heuston on The Law of Torts (21^st ed, 1996) p50.

“See also McGregor on Damages (16^th ed, 1997) p1507.”

In the present case, the plaintiffs have claimed damages for both the cost of reinstatement and for wrongful occupation or use of the land. On the basis of Roberts v Rodney District Council, the plaintiffs cannot recover under both measures. They would have to make an election before judgment between the two measures of damages. As no such election has been made, the Court, in order to avoid further delay, will now have to make the election for the plaintiffs. The total amount claimed for the cost of reinstatement of the land is $52,690.42 and the total amount claimed for wrongful occupation of the land is $48,000. However, the evidence given for the plaintiffs by Selwyn Pal, a qualified valuer, shows that the annual occupational rent for this land would be about $4,000 or $5,500. This evidence came out during cross-examination. The report produced by David Stark of Tinai Gordon & Associates Ltd, a firm of civil and structural engineers, called by the plaintiffs shows that the annual occupational rent for the same land would be about $18,140. In view of this evidence, I would assume that if the plaintiffs had made a pre-judgment election between the two measures of damage, they would have elected to proceed with their claim for the cost of reinstatement of the land rather than with their claim for occupational rent. I will therefore proceed to consider only the claim for the cost of reinstatement of the land.

The plaintiffs' evidence as to the physical damage done to their land consists not only of the evidence of the plaintiffs themselves but also of the evidence given by Mr David Stark. As it appears from all of that evidence, the physical damage done by the defendants to the plaintiffs land is quite extensive. Trees that were on the land were cut down and some of them were uprooted by bulldozers to make it possible for the defendants to set up their construction camp on the land. About sixty two per cent of the land had its contours and ground level changed. That is part of the land which, according to the evidence for the plaintiffs, was where the topsoil had been scraped, damaged by the uprooting of trees, or dug up and removed. A few large holes varying from five and a half feet to three and a half feet deep in some parts and two and a half feet deep in other parts had been dug up on the land. Water drains of about two feet deep, two feet wide and twenty feet long had also been dug up on the land. Some parts of the land where the topsoil had been removed has been filled with imported fill which is not suitable to the land and would have to be removed and replaced. There is also damage to parts of the land where the defendants had built workshops and were used by their heavy trucks, heavy machines and equipment. There is also damage to those parts of the land where the defendants had stored transport containers, pvc pipes and electrical cables. Stacks of concrete blocks had been piled up to form a platform for storing the containers. All the damage which was done to that part of the land represents about sixty two per cent of its total area.

According to the evidence of the plaintiffs, another part of the land which represents about twenty nine percent of its total area is covered with a pile of cables, rocks, boulders, tree trunks and other rubbish. That pile is about eighteen to twenty feet high. This pile needs to be removed and cleared. So in terms of total area, about ninety one percent of the land has been damaged. This is most substantial if correct. Mr David Stark in his oral testimony and written report estimates the total cost of rehabilitating the land and restoring it to its original condition to be $52,690.52. This report is dated March 2002 and is based on the site inspection of the land by Mr Stark in the same month and the information and photographs given to him by the plaintiffs as to their observations of the condition of the land in 2001 whilst the defendants were still in occupation of the land. In his evidence, Mr Stark also said that he is a civil engineer and not a valuer.

Mr Stark and the plaintiff Mr Mortensen also gave evidence that some parts of the land were contaminated with spilt oil and chemicals. I accept that this contamination was caused by the defendants when they were in occupation of the land. Mr Stark estimates that the soil in those parts must have been contaminated to a depth of 300mm to 500mm. His estimate of the cost for removal of the contaminated soil and their replacement with suitable topsoil is $2,588.54.

The evidence for the defendants in relation to the damage they caused to the plaintiffs land was given by Dan Mua the defendants location manager, Gisli Enlendsson the defendants project manager, and Peseta Frank Fong an agricultural economist from the Ministry of Agriculture. Mr Mua and Mr Erlendsson respectively testified that the defendants occupied only sixty or fifty per cent of the plaintiffs land. Whilst they admitted that the defendants cleared the plaintiffs land by cutting down and uprooting trees on the land with the use of bulldozers, removing rocks and boulders also with the use of bulldozers, and clearing the vegetation that was on the land, they strongly denied that the damage to the land was as extensive as made out by the plaintiffs. They also said that the rocks, boulders and the trees that were cut down were pushed to one side of the land but were not removed from the land. They also testified that the topsoil which was removed in clearing the land was pushed and piled onto one side of the land. They denied that the defendants dug any holes on the land. They said that any holes that might have been on the land, must have been the result of the trees that were uprooted and rainwater flowing onto the land as the land is located at the bottom of a steep slope. However, those holes had been filled. Mr Mua also testified that the area of the land that was cleared followed the natural contours of the land and there was no excavation or levelling of the land. Mr Mua also testified that in October 2001 the defendants had started remedial work to the land but the defendants ordered the defendants out of the land. In any event, October 2001 was a rainy month and the mud was very slippery so that remedial work was delayed. If such work was to continue, it would have caused more damage to the land. The estimate of the total cost of rehabilitating the land to its original condition that was given by the defendants is $6,400.

As to the alleged soil contamination by spilt oil and chemicals, the evidence given by Mr Fong for the defendants denied there was any such contamination. This is in direct conflict with the evidence given by and for the plaintiffs.

After consideration of the evidence, I am of the view that the estimate of $6,400 given by the defendants as to the total cost of rehabilitating the land and restoring it to its original condition is far too low. I have decided to prefer the evidence for the plaintiffs on the total cost of rehabilitation subject to allowances being made for the remediation work done by the defendants and the fact that Mr Stark whose evidence formed the principal basis of the estimate given for the plaintiffs is a civil engineer and not a valuer. On that basis, I have decided to accept the plaintiffs' estimate of $52,690.42 for general rehabilitation less 20%. I will therefore award $42,152.34.

On the issue of soil contamination by spilt oil and chemicals, I have also decided to prefer the evidence for the plaintiffs to that for the defendants. I will award the sum of $2,588 claimed by the plaintiffs.

As to the total claim of $12,940 for special damages, it must be pointed out that the general rule of pleadings with regard to special damages is that such a claim must be specifically pleaded with sufficient particularity and must be specifically proved. Assuming that all of this claim for special damages has been correctly classified as such, I have to point that parts of this claim have not been specifically proved.

There is a claim for special damages of $3,270.10 for return airfares of the plaintiffs to Apia and back to American Samoa. This must be in relation to trips to Samoa made by the plaintiffs prior to the filing of their statement of claim and prior to the hearing of this case. This claim was not specifically proved. However, I would accept that the plaintiffs must have come over from American Samoa to Apia for the preparation and for the hearings of this case. At the rate of about $240 return airfare for one person for four trips to Apia in connection with this case, I will allow $1,000 to each plaintiff for return airfares. This means a total of $2,000 is allowed for this claim.

I will also allow the claim of $1,800 for the civil engineer’s report that was prepared for the plaintiffs for this case. However, I have difficulties with the claim for $7,000 for the engineer’s supervision of the rehabilitation of the land to its original condition. I do not see the necessity for this expense even from my inspection of the land. How the amount of this claim as one of special damages was arrived at was also not specifically proved. I will disallow this claim.

I will also allow the claim of $870 for the valuation report of the land.

PART F
Judgment

All in all then, judgment is given for the plaintiffs in the total sum of $49,410.34. I will also allow costs of $4,000 to the plaintiffs plus reasonable disbursements and witnesses expenses to be fixed by the registrar.

CHIEF JUSTICE

Solicitors:
Brunt Keli for plaintiffs
Leung Wai Law Firm for defendants
Kruse, Enari & Barlow Law Firm for Moors