Seabee Ah Yeung v Moe Jay To [2010] WSSC 40 (14 April 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP 111/09

BETWEEN:

SEABEE AH YEUNG and
NELE AH YEUNG
of 69 St. John's St. Woolston, Christchurch, New Zealand,
both Retirees
Plaintiffs

AND:

MOE JAY TO
also known as MOE JAY TO AH TO
of Tanumalala and Alafua, Planter
Defendant

Presiding Judge: Justice Slicer

Counsel: Mrs. R Drake for Plaintiffs
Mr. S Toailoa for Defendant

Hearing: 25, 26 and 29 March 2010
Reasons: 14 April 2010

REASONS OF THE COURT

1. On 24 June 2009 the Plaintiffs filed a Summons and Statement of Claim seeking an order that they were the true purchasers and owners of a parcel of land at Tanumalala described at Parcel 143 on Plan 2601. The Second Plaintiff and the Defendant were the children of the late Jay To Ah To. The Plaintiffs' claim was that for many years Jay To Ah To had leased land at Tanumalala which included Lots 142 and 143 on Plan 2602. They alleged that in November 1983 their father or father-in-law was offered the opportunity to purchase the land. Jay To Ah To traveled to New Zealand to seek financial assistance from his children to purchase the land. They alleged that between May 1984 and October 1988 they sent funds of NZD$7,500.00 to their father on trust for the purpose of paying the purchase price. They claimed that the agreement was that in return for their contribution they would receive ownership of Lot 143 and Moe Jay To would purchase Lot 142. In October 1990, Jay To Ah To visited the Plaintiffs in New Zealand to inform them that the lands had been fully paid for and that one Lot was for the Plaintiffs, they claim further that Jay To Ah To had instructed his solicitor to convey Lot 143 to them.
   
2. The Land Registry records indicate that the lands were conveyed from the National Provident Fund to Jay To Ah To in July 1991. In 2009 the Plaintiffs discovered that the land had been registered in the name of the Defendant since September 1991, two months after the initial conveyance to Jay To Ah To.
   
3. The basis for the Plaintiffs' claim is that the Defendant holds Parcel 143 on a Constructive Trust for the Plaintiffs. The second basis is that the conveyance Jay To Ah To to the Defendant was by way of gift and was done without the consent of the Plaintiffs. The pleading is capable of being construed as that of concealment and accordingly a breach of fiduciary duty.
   
4. The defence put in issue much of the Plaintiffs' claim and averred that any funds contributed by the Plaintiffs to their father or father-in-law were by way of gift. The Defendant further pleaded that he relied on an equitable document stated as "the equity does not assist a volunteer". The matter came before this Court on 20 July 2009, 3 August 2009 and 25 February 2010; in August it was allocated a date for hearing on 1 March 2010 and stated to be ready for hearing. On 25 February it was allocated for hearing on 5 March 2010 but because of the unavailability of the Court through another trial the matter adjourned back into the List for 15 March and on that day the Court was told that the matter was ready for hearing and that the issue was that of the existence or otherwise of a Constructive Trust. The matter came back before the Court for hearing on 25 March. On 23 March the Defendant made an Application to Strike-out the Statement of Claim and for the first time raised the question of the limitation period and therefore that the suit was statute barred. On 24 March he filed an Affidavit in Support of the Application. That Affidavit was not served until mid-afternoon on 24 March.
   
5. The Plaintiffs who reside in New Zealand had traveled to Samoa in order to give evidence at the hearing on 5 March; they delayed their return to New Zealand so as to be available for this hearing. It was the responsibility of the Defendant to give notice to the Plaintiffs and to this Court that there would be reliance on the limitation defence. It was the responsibility of the solicitors for the Defendant to give this Court notice at the Call-Over that there would be further pleadings or applications. Instead they led the Court to believe that the matter would proceed for hearing. The solicitors had a duty not to wait until the day before the hearing to attempt to Strike-out the Statement of Claim. The solicitors for the Defendant ought to have known that the Plaintiffs had traveled to Samoa in order to give evidence and did nothing to advice their solicitors of this Application until the last minute.
   
6. The Application was not made in accordance with the Rules and the Court rejects the contention that limitation can be raised as a matter of law at any time without pleading. Such a contention is contrary to authority. The Court for the purpose of expediting the hearing allowed the Defendant to file his Affidavit of 24 March and did not require counsel for the Plaintiffs to cross examine on the Affidavit until the preliminary point of law had been determined. On 25 March, I dismissed the Application to Strike-out the Statement of Claim. These are my reasons for dismissing the Application:-
   

In the first instance, it could be said that the Defendant had not complied with the Supreme Court (Civil Procedures) Rules 1980. Failure to comply with the Rules permitted the Court to proceed with the hearing of the substantive action and to adjourn the strike-out proceedings.

The second is that the Statement of Claim, together with the agreement by the Defendant in his Affidavit of 24 March that the monies were in fact received, can be seen as either a pleading through fraud, by concealment, or be capable of amendments to make that question clear.

The third is that the limitation defence ought to be pleaded before trial and cannot except in the most exceptional cases be raised by a Notice to Strike-out. In Ronex Properties Ltd v John Laing Construction Ltd. and Others [1983] 1 Q.B. 398, the English Court of Appeal determined that strike-out proceedings could only properly be made where it was manifest that there was an answer immediately destructive of the claim. The Court held that a defence under the Limitations Acts barred the remedy and not the claim and that defence had to be pleaded and an Application to Strike-out would be misconceived except in special circumstances, Donaldson L.J. stated at p.405;

"where it is thought to be clear that there is a defence under the Limitations Act, the defendant can either plead that defence and seek the trial of a preliminary issue or, in a very clear case, he can seek to strike out the claim upon the ground that it is frivolous, vexatious and an abuse of the process of the Court and support his application with evidence. But in no circumstances can he seek to strike out on the ground that no cause of action is disclosed." (Ronex Properties v John Laing (C.A.)).

Ronex was followed by the New Zealand High Court in G v G. D. Searle and Co. 1 [1995] 1 NZLR 341. In that case, Gallen J. applied the principle stated in Ronex and considered that in the case before him the state of the evidence, knowledge of the Plaintiff and the nature of the proceedings did not 'give rise to the exceptional situation contemplated by the Court of Appeal in the Ronex case'.

7. The Supreme Court (Civil Procedure) Rules 1980 r. 70 provides;
   

"where in any proceedings no cause of action is disclosed the Judge may, on the application of the defendant the proceedings to be struck out".

Here the pleadings clearly establish a cause of action or claim for equitable remedy. It may be open for the Defendant to plead that the action or suit is statute barred, but that is a defence not a failure to show a cause of action. The defence might be established by evidence at trial but that is a separate issue.

8. The Defendant seeks to rely on inherent power of a Court to strike-out a claim which is 'frivolous or vexatious and an abuse of process' which gives rise to a discretionary exercise of power (Halsbury's Law of England (4th Edition) Vol. 37, paragraph 435), but that power ought be exercised sparingly and in exceptional cases (Lawrence v Lord Norreys [1980] 15 AC 210). That approach was adopted in this jurisdiction by Wilson J in Kneubuhl v Liugalua [2000] WSSC 27. Ronex was also applied by Sapolu C.J. in Public Trustee v Devoe (Supreme Court of Samoa unreported 8 September 2000) where he stated 'If a party intends to rely on the statute of limitation it must be pleaded. A limitation defence can not be effective to bar an action unless it is pleaded.' He determined that it could not be made orally.
   
9. The pleadings here, even when considered in the light of the Affidavit filed by the Defendant in support to strike-out application, do not show any abuse of process in the commencement of these proceedings.
   
10. It is for these reasons that I dismissed the strike-out application and proceeded to commence the hearing. However, that did not dispose of the limitation defence and I indicated that I would grant leave for an amendment to the defence and, if necessary, any consequential amendments sought by the Plaintiffs. The parties were then permitted to call evidence in support of their respective causes.
    

JUSTICE SLICER