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Alnima Motors Enterprises Ltd v Singapore Motors Enterprises Ltd [2011] WSSC 55 (24 June 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


ALNIMA MOTORS LIMITED
a duly incorporated company having its registered office at Lepea.
Plaintiff


AND:


FAREED ARSHED of Lepea near Apia.
First Defendant


AND:


SINGAPORE MOTORS ENTERPRISES LIMITED a duly incorporated company having its registered office at Savalalo.
Second Defendant


AND:


LAULU DAN STANLEY of Vaiusu near Apia.
Third Defendant


Presiding Judge: Justice Slicer


Counsel: S Hazelman and K Kwan for the plaintiff
S Leung Wai for the defendants


Hearing: 14 – 18 March 2011
Written Submissions: 21 April 2011
Judgment: 24 June 2011


JUDGMENT OF THE COURT


  1. The Plaintiff ("Alnima Motors") is a Samoan corporation carrying on business as a secondhand vehicle dealership at Lepea. It imports new and secondhand vehicles primarily from Singapore and Japan.
  2. The First Defendant ("Fareed") had originally been employed by Alnima Motors as its local Manager and Representative. Alnima Motors had been incorporated on 19 August 2008 with Nooduddin Panjwani ("Panjwani") named as the Principal Director. The second Director was Sheraly Moosa ("Moosa"), Panjwani's brother who controlled the Dubai operations.
  3. On 22 December 2008, Fareed was granted a temporary 'residence permit under employment' to stay and work with Alnima Motors for three years up to 30 November 2011. Conditions were attached to the permit which provided that he:

"1. Must hold a valid passport during employment in Samoa.

2. Must remain in good mental and physical health.

3. Must remain as a good character and abide by the laws of Samoa.

4. Shall leave at completion / termination of the grant of entry.

5. Activities must remain consistent with the purpose approved by this permit."


  1. Fareed lived in Siusega on premises from which Alnima Motors carried on its business. Alnima Motors was responsible for Fareed's rent.
  2. The Ministry of the Prime Minister and Cabinet did not regard a work permit as appropriate for Panjwani since 'he will not be based in Samoa permanently as he will only travel on regular business visits.' He was granted an entry permit as 'a temporary residence permit for conduct of business for (him) to travel and enter Samoa for three (3) years up to 30th November 2011.'
  3. The different permits and conditions confirm that it was Fareed who would conduct the day to day operations of the Company as an employee responsible to Panjwani.
  4. On 4 June 2009, the Second Respondent Singapore Motors Enterprises Limited ("Singapore Motors") was incorporated in accordance with Samoan law. Its Directors were stated as Laulu Dan Stanley ("Stanley"), the Third Respondent and its second Director as Fareed. Both had given P.O. Box 19, Apia as the Director's postal address.
  5. Stanley had been, at some stage, the Accountant for Alnima Motors and was employed in the same capacity for Singapore Motors.
  6. Singapore Motors and Stanley were not the original Defendants but were added as such in the First Amended Statement of Claim dated 9 April 2010. Stanley is also listed as a Director of Pasefika Japanese Imports Limited, another importer of vehicles and a competitor with the Plaintiff.
  7. The essence of the Plaintiff's case is:

The Pleadings


  1. The Plaintiff's case of action against Fareed is for breach of contract of employment, breach of fiduciary duty, conversion and unjust enrichment. Those against Singapore Motors are for conversion, wrongful use of money and unjust enrichment. The Plaintiff claims that it had employed Stanley as a contractor who had failed to properly record and audit the Company's financial dealings and, in setting up a competitive company using knowledge and resources gained through his contract, breached both his contract of services and fiduciary duty and unjust enrichment.
  2. Fareed claims that his real employer was Kuldip Singh ("Singh") the Director of a Singaporean company, Balwin Exports Pty Limited ("Balwin Exports") which was the primary exporter of South East Asian vehicles to Samoa. He further claims that he had resigned from the Plaintiff's company before setting up Singapore Motors and legal title to vehicles cosigned to Alnima Motors were lawfully transferred to Singapore Motors at the direction of Singh.
  3. Singapore Motors denies the Plaintiff's allegations generally and further pleads that Alnima Motors had consented to the transfer of any unsold vehicles supplied by Balwin Exports to Singapore Motors.
  4. Stanley denies any 'written employment contract' with Alnima Motors but claims that his unpaid fees for accounting services ought be paid by Alnima Motors. He denies any unprofessional conduct and joins with the other Defendants claiming that Alnima Motors, through Panjwani, had consented to the transfer of unsold vehicles to Singapore Motors. He denies any suggestion of unjust enrichment.
  5. In its Amended Statement of Claim the Plaintiff alleged:

"(a) During the course of his employment and without the Plaintiff's knowledge, the First Defendant incorporated a company that carries out the same business as the Plaintiff and is in direct competition with the Plaintiff.


(b) During the course of his employment and without the Plaintiff's knowledge, the First Defendant removed files, accounts, receipt books belonging to the Plaintiff from the Plaintiff's place of business and has failed to return all of the accounts and receipt books belonging to the Plaintiff.

(c) During the course of his employment and without the Plaintiff's knowledge the First Defendant removed some of the vehicles which were shipped into Samoa for the sale for the Plaintiff from the Plaintiff's place of business to the Second Defendant's place of business and the profits made were not credited to the Plaintiff.


(d) The First Defendant has failed to provide proper accounts for the sale of a number of vehicles shipped by the Plaintiff for the period January 2009 to February 2010.


(e) The First Defendant has failed to account for the sale of all he vehicles shipped by the Plaintiff from Japan for the period January 2009 to February 2010.


(f) During the course of his employment and without the Plaintiff's knowledge the First Defendant transferred the Plaintiff's phone lines into the name of the Second Defendant.


(g) The First Defendant had not resigned from his job as Office Manager for the Plaintiff yet he was operating a business and therefore neglecting and not performing his duties and responsibilities to the Plaintiff.


(h) During the course of his employment the First Defendant made various payments using the Plaintiff's cheques but which benefited the Second Defendant.


(i) During the course of his employment the First Defendant failed to properly account for expenses and receipts for the Plaintiff.


(j) An application for a work permit was lodged on his behalf by the Second Defendant without the knowledge and consent of the Plaintiff.

(k) Without the knowledge and consent of the Plaintiff, the First Defendant over paid Balwin Exports Limited by some SGD$90,219.00 for the supply of vehicles from Singapore for the sale of the Plaintiff."


Similar allegations were made against Stanley.


(2) Breach of Fiduciary Duty by Fareed and Stanley in that:

"24. The First Defendant was brought specifically into Samoa by the Plaintiff to manage its operations.


25. The First Defendant therefore had a fiduciary duty to the Plaintiff to be loyal and not to act for his own benefit or for the benefit of a third party without the informed consent of the Plaintiff.


26. The First Defendant breached his fiduciary duty in that:


(a) He did not act in good faith;

(b) He profited out of the Plaintiff's trust placed upon him;

(c) His duty to the Plaintiff clearly conflicted with his self interests;

(d) He acted for his sole benefit;

(e) He acted for the benefit of a third party, namely the Second Defendant, without the informed consent of the Plaintiff;

(f) He failed to properly account and or keep filed details of expenses and receipts for the Plaintiff which resulted in the Plaintiff not being able to properly account to a total of ST$86,864.89 being unaccounted spending for 2009 to 29 January 2010.

27. The Third Defendant's services were employed by the Plaintiff to prepare and provide monthly accounts for the Plaintiff.


28. The Third Defendant therefore had a fiduciary duty to the Plaintiff to be loyal and not act for the benefit of either himself or a third party without the informed consent of the Plaintiff.


29. The Third Defendant breached his fiduciary duty in that:


(a) He did not act in good faith;

(b) He profited out of the Plaintiff's trust placed upon him;

(c) His duty to the Plaintiff clearly conflicted with his self interests;

(d) He acted for his sole benefit;

(e) He acted for the benefit of a third party, namely the Second Defendant, without the informed consent of the Plaintiff;

(f) Without the Plaintiff's knowledge and consent the Third Defendant used the Plaintiff's letterhead and company stamp to write to the Immigration authorities to revoke the First Defendant's work permit with the Plaintiff."

(3) Conversion.

"30. The First Defendant's actions constitute conversion in that:


(a) Without the Plaintiff's knowledge and consent, the First Defendant removed files, accounts, invoices, receipt books belonging to the Plaintiff from the Plaintiff's place of business and has failed to return them back to the Plaintiff.

(b) Without the Plaintiff's knowledge and consent the First Defendant removed the Plaintiff's computer, printer, fax machine and stationary needed for the operation of the Plaintiff's business.

(c) Without the Plaintiff's knowledge and consent the First Defendant removed some of the vehicles which were shipped into Samoa for the sale for the Plaintiff from the Plaintiff's place of business to the Second Defendant's place of business and the profits made were not credited to the Plaintiff.

(d) Despite requests made to the First Defendant to account for the sales of all of the vehicles shipped by the Plaintiff from Japan to Samoa for sale for the Plaintiff, the First Defendant has failed to do so.

(e) Without the Plaintiff's knowledge and consent the First Defendant transferred the Plaintiff's phone lines into the names of the Second Defendant.

31. The Second Defendant's actions constitute conversion in that:


(a) Without the consent of the Plaintiff, the Second Defendant has used the Plaintiff's computer, printer, fax machine and stationary which the First Defendant took from the Plaintiff's place of business for its own operation.


(b) Without the consent of the Plaintiff, the Second Defendant has displayed and sold some of the vehicles which were shipped into Samoa for the sale for the Plaintiff and has made profits made from such sales.


(c) The Second Defendant has benefited from the Plaintiff's phone line which the First Defendant transferred into the name of the Second Defendant without the Plaintiff's knowledge and consent.


(d) Without the Plaintiff's knowledge and consent the Second Defendant has enjoyed the First Defendant signing cheques belonging to the Plaintiff for goods and/or services obtained by the Second Defendant."


(4) A general claim of unjust enrichment.
  1. The Plaintiff claimed damages well in excess of ST$1 million.
  2. The Defendants deny the allegations and primarily claim that it was another man, Kuldip Singh of Balwin Exports Pty Limited, who was the real owner and controller of the Plaintiff and authorised the actions carried out by the Defendants.
  3. Fareed also claimed that vehicles shipped to Samoa by Balwin Exports had not been paid for by Alnima Motors which deprived the Plaintiff of any title to ownership or possession.
  4. Singapore Motors basically repeats the defences pleaded by Fareed.
  5. Stanley did not admit or deny the Plaintiff's Statement of Claim and stated that he had only provided minimal services on contract based on material furnished by Fareed. He denied any breach of a fiduciary duty.

General Background


  1. Panjwani operated his business interests from Japan and imported Japanese cars into Samoa. That part of the arrangement is not the subject of the dispute in these proceedings. Panjwani had other business interests in the Middle East, a matter which indirectly touches on this action.
  2. Panjwani also had dealings with Balwin Exports, the company controlled by Singh. Panjwani, Singh and Moosa had common business interests in Asia and Dubai, over an extended period. Singh is shown as a Director of Singapore Motors, appointed on 2 February 2010, eight months after its incorporation and some few days before the commencement of these proceedings. Singh was in Apia some few days before the commencement of the hearing which commenced on 14 March 2011. He did not appear as a witness and, for reasons unexplained to the Court, left Samoa shortly before trial.
  3. Panjwani was interested in extending his business operations to Samoa. Since Alnima Motors' shareholders and directors were foreigners they were required to obtain a Foreign Investment Certificate which was issued on 4 September 2008.
  4. Fareed had previously worked for Singh at Balwin Exports. Panjwani sought Singh's advice on a suitable person to manage the Samoan operations. He accepted Singh's advice and engaged Fareed as the Company's Office Manager and Sales Representative. Alnima Motors sponsored Fareed in his obtaining a temporary work permit issued on 8 December 2008.
  5. Fareed's claim at trial that it was Singh who was the real, but concealed Director and controller of Alnima Motors is rejected. His further claim that Singh was his real employer is likewise rejected. All of the documentation shows that Fareed was a sponsored employee of Alnima Motors whose Directors were Panjwani and Moosa.
  6. Some 80 vehicles were shipped from Japan between September 2008 and April 2009 with a further number from Singapore in separate batches. These transactions are only relevant to the case to show the volume of the trade engaged in by the Plaintiff.
  7. The records show that some 82 vehicles were shipped from Singapore between September 2008 and April 2009. Those records show:
  8. Panjwani and his brother made periodic trips to Samoa to check on the business. They relied on Fareed and required regular reports on the operation and progress. Initially Alnima Motors engaged the services of Richard Schultz to provide a monthly report on expenses, sales and the like. His fee of ST$1,000 per month was regarded as excessive so Stanley, himself an accountant, was appointed in May 2009 to supervise the financial records of the Company.
  9. There were discrepancies in the financial records concerning the number of vehicles imported from Singapore and the records of sales and receipts for those vehicles in Samoa. In July 2009, Moosa, as a Director traveled to Apia and had discussed with Fareed the questions of the discrepancies and in particular why Alnima Motors vehicles were on display at another car yard. He was told they had been moved to a better site for display purposes only and to enhance their prospects for sale.
  10. Panjwani become more concerned about the lack of sales and/or financial returns in August – September 2009 and made repeated requests for sales and financial reports. Most of the contact was by telephone. No satisfactory accounts were provided by Fareed.
  11. In November 2009, Panjwani told Fareed that he intended to come to Apia in early 2010. Fareed requested the appointment of new staff as he wished to return to Pakistan to be with his family. This response belies the claim, later made by Fareed that he had resigned as Manager in June/July 2009.
  12. Panjwani arrived in Samoa on 8 February 2010, a date verified by his passport. Events following his arrival will be considered later in these Reasons for Judgment.

Method and Operation


  1. Singh, through Balwin Exports consigned vehicles to Samoa. He would fix a purchase price, payable in Singapore currency and arrange transportation FOB (free on board). Singapore Motors would pay freight, customs duty and GST tax or refund the transportation costs directly to Balwin Exports. The vehicles would be transferred to the Plaintiff's premises and sold. Balwin Exports would be paid the purchase cost of each vehicle and the amount paid by bank transfer in Singapore currency.
  2. Fareed was responsible for the receipt, sale and accounting for the transactions. Most of the vehicles were sold for cash or bank cheque in one transaction but there is some evidence that Fareed allowed payments by installments.
  3. Specific documentation identifying the make and year of the vehicle, its delivery date, the prices of purchases and sales and importantly the chassis number of each vehicle was recorded in documentation.

Fareed's Version


  1. In his affidavit dated 7 April 2010 Fareed claimed that he had resigned as the Manager of Alnima Motors in May 2009 and confirmed that he had incorporated Singapore Motors in June 2009, verified by a business licence issued on 7 June. He had failed in doing so to inform the relevant Samoan Ministry of his breach of the conditions imposed in his 'work and residence permit' granted in December 2008. He claimed to the Ministry of Commerce, Industry and Labour that his new business of Singapore Motors was:
  2. A Departure Prohibition Order was issued against him on 14 February 2010.
  3. Fareed told the Court that Singh was the real but undisclosed principal and owner of Alnima Motors. He claimed that in 2008 Singh told him that he wanted Fareed to protect Singh's business interests in Samoa and to ensure that he was paid for the vehicles sold to Panjwani.
  4. He claimed to have been present at a meeting between Singh and Panjwani when they agreed:

"(i) Mr Singh will supply Alnima Motors with secondhand cars from Singapore;


(ii) They will share the profits 50/50;


(iii) They will share the losses 50/50;


(iv) The expenses in the running of the business including my salary shared 50/50;


(v) Mr Singh first gets paid the cost of the cars when sold."


  1. He explained that he had never signed any written contract or agreement not to set up his own business. The Court, for reasons which will be later explained, does not accept him as a honest or reliable witness.
  2. His evidence can be summarised as:

Stanley's Version


  1. Stanley admits that he is a Director of Singapore Motors and Pasefika Japanese Imports Limited, both trading concerns in competition with Alnima Motors. He also concedes that Kuldip Singh is a Director of Singapore Motors.
  2. He disputes that he had any duty to report to Fareed or Alnima Motors yet pleads in his Defence paragraph 20 that his

"...accounting services had been provided to the Plaintiff and...must be paid accordingly."


  1. He maintains that 'all required accounting services had been provided to the Plaintiff...in a proper and professional manner" (Statement of Defence paragraphs 17, 20, 23).
  2. The essence of his Defence is contained in his Statement of Defence paragraphs 35 – 38 which states:

"35. The Third Defendant was only engaged to provide certain and limited accounting services such as the preparation of monthly reports setting out the expenses and income, VAGST and P6 returns and at all material times was not an employee of the Plaintiff.


36. The Third Defendant had carried out the said accounting services properly and to the requisite standards.


37. The Third Defendant at no time had entered into a written or otherwise restrictive of trade covenant or agreement with the Plaintiff.


38. The Third Defendant therefore did not owe the Plaintiff the said alleged duties and obligations."


  1. He agreed, in his affidavit of 16 March 2010 that he had provided accounting services for Alnima Motors to prepare profit and loss accounts, had uplifted files for that purpose but returned them in late February 2010 when he met with Panjwani who:

"...wanted me to prepare the accounts and file the tax returns of Alnima (but) was not able to provide any accounting services due to my other work commitments."


The February Meeting


  1. Panjwani arrived in Apia on 8 February 2010 and was met by Fareed. The following morning he went to the business premises and found few cars in the show area, little office equipment and no records. He rang Fareed who told him that they had been removed on the instructions of Kuldip Singh. Three attempts to contact Fareed were unsuccessful. The following day Fareed brought three boxes of documents to Alnima Motors' office and Panjwani commenced his investigation through examination of invoices, custom records, bank statements, corporate affairs records and the like.
  2. It was then that Fareed told Panjwani that he had resigned in the month of May 2009.
  3. Panjwani discovered some further files in a cabinet, which might have been returned during a night when Panjwani was absent from the office.
  4. Panjwani then examined shipping documents, bank transfers and attempted to obtain confirmation from Balwin Exports through Singh.
  5. Kuldip Singh was not a Director or shareholder of Alnima Motors. He remains a shadowy figure. According to Panjwani he was due to meet Singh on February 8 or 9. According to Fareed, Singh had left Apia the night before that planned meeting for no known reason. According to witnesses Singh was present in Apia some few days before the commencement of this trial. He was not called as a witness by any of the Defendants in support of their case. It was certainly possible to call Singh as a witness since his alleged role and the claimed ownership of the Company and power to give directions was central to the Defence. An unexplained failure to call a cogent and available witness permits a Court to make an inference that the uncalled evidence would not have assisted that party's case (Jones v Dunkell [1959] HCA 8; (1959) 101 CLR 298 and Jones v Multiple Sclerosis Society [1996] VicRp 35; [1996] 1 VR 499).
  6. The rule especially applies where a party is requested to explain or contradict significant matters or issues raised in the pleadings or arise in the course of the evidence (R v Burdette (1818 – 23) All ER 80; Jones v Dunkell (supra)). In Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657, Dawson J. applied the proposition stated in the earlier case of Tozer Kemsley v Collier's Interstate Transport Service Ltd [1956] HCA 6; (1956) 94 CLR 384, that the absence of an important witness can permit the trier of fact to resolve a doubt or ambiguity adversely to the party who did not call the witness.
  7. Here the Defendants claim that the real principal to the proceedings was Singh who was empowered to take decisions and authorise the transfer of property. If so, he should have been added by them as a third party.
  8. But even if he was not effectively a party the rule can be applied to a non party if it would be natural for the party to call the witness Singh or the Defendants might reasonably be expected to call that witness. As Glass JA stated in O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916 at 921:

"...is also described as existing where it will be natural for one party to produce that witness, or the witness would be expected to be available to one party rather than the other or where the circumstances excuse one party from calling the witness, but require the other party to call him, or where he might be regarded as in the camp of one party so to make it unrealistic for the other party to call him, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary."


  1. Here the credibility of Fareed and the strength of his case is weakened by the failure to call Singh, a man in Samoa shortly before the trial.
  2. Panjwani then commenced his investigation of the conduct and affairs of the Company. He was not assisted to any great degree by Fareed or Stanley. Those investigations and findings will be considered separately.

Power and Authority


  1. It is likely that Singh had given some advice on the setting up and economic model for the business. He had recommended Fareed as a possible choice as Manager and Sales Manager. But that was all. He was neither a shareholder nor Director of the Company. He was not a resident of Samoa. He had no power to authorise payments, hire staff, order goods or in any way direct the affairs of the Company. No party, even if believed, was entitled to rely on any order, suggestion or arrangement made by Singh. He was the supplier and importer of vehicles and his contracted relationship was with Alnima Motors.
  2. Fareed on the other hand had authority granted by the Company to sign cheques, order supplies, provides for the number and type of vehicles required and imported, sale and price and all matters concerning the operation of the Company. He could render his Company liable for misrepresentation or breach of contract. He was subject to a duty of care to his employer not to another contractor.
  3. Many employees can be regarded as having done all that is required of them if they work according to their ability for stipulated hours. Yet some employees, such as Fareed, usually in senior or management possession may be subject to a comparatively broader duty of fidelity, a duty which may, depending on the circumstances, assume a fiduciary duty (Green v Clara Pty Ltd v Bestobell Industries Pty Ltd 1982 WAR 1 and Reading v Attorney General [1951] UKHL 1; [1951] AC 507). The greater the latitude afforded to the employee by the employer, the greater the vulnerability of the employer to the potential misuse of that position of power by the employee (C & KA Flanagen Salmeters Pty Ltd v Walker 2002 NSWSC 1125).
  4. The principles relevant to the establishment and nature of a fiduciary relationship have been exhaustively stated in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, and apply to these proceedings. The case of Pavan v Ratnam 1996 23 ACSR relied on by the Defendants does not assist their case. Pavan considered the giving of advice by a tax agent not the falsification of accounts, conversion or unlawful transfers of money.
  5. Fareed was subject to a fiduciary relationship with Alnima Motors. The same may be said of Stanley. He was an accountant employed not as a financial adviser giving general advice but as one required to report in an impartial manner, especially so if there is a possible conflict of interest (Vita Health Co. (1995) Ltd v Toronto – Dominion Bank (1995) 118 DLR 4th 289). Some aspects of an auditor and client relationship may be fiduciary if, as here, it involves a duty not to enter into an engagement involving a conflict between interest and duty (State of South Australia v Peat Marwick Mitchell & Co. (1997) 24 ACSR 231). In this case Stanley's involvement with Singapore Motors involved such a conflict between duty and self interest and amounted to a breach of fiduciary duty. Further, failure to advise Panjwani of his relationship with Fareed and the setting up of Singapore Motors itself contributed a breach of fiduciary duty (Arthur Anderson & Co. v Gibson [2002] BCL 715 (NZ)). His use of information obtained whilst he was retained by the Plaintiff to enhance his or another's interest is a breach of that duty (SSC & B: Lintas NZ Ltd v Murphy [1986] 3 NZLR 436).
  6. Here Stanley was required:
  7. Both the First and Second Defendants were in breach of their respective fiduciary duties.

Books of Account


  1. The Account Book ("Exhibit 7.2") commences with an entry dated 22 September. The last entry recorded by date is 13 May 2009. Thereafter there are 43 undated entries, all of which were debits against the Alnima Motors accounts. Many of the entries were for vehicle spare parts, registration of vehicles, petrol and ordinary office costs. Seven of the undated debit entries were:

(1)
Transport of 4 units from the wharf to the yard
$260
(2)
Three vehicle registration payments amounting to
$1,480
(3)
Accounting fees and business consultants
$575
(4)
SamoaTel
$1,480
(5)
Insurance
$874
(6)
CSL office.net (sic)
$2,789
(7)
Cash in hand – Alnima Boss at airport
$140

  1. There are no credit entries in the journal subsequent to 13 May, the last entry recorded as 'cash advance RECE Stock B57'. The record also shows 10 debit payments for the employment of a 'watchman at Alnima Motors' totaling $6,250 between 30 May 2009 and 10 February 2010.
  2. The records themselves destroy the credibility of Fareed both as to his claimed resignation and his abuse of power and authority to use Alnima Motors' assets to enhance his own business of Singapore Motors.
  3. The only receipt book recovered by Fareed was one commencing on 22 September 2009. Singh was in Samoa in October 2009 and certain book entries were made by him between 1 October and 14 November which is consistent with his obtaining information and details of the operation of the business and its market share, prior to his becoming a Director of Singapore Motors in 2010. He had no legal right to interfere with or make his own entries into the Plaintiff's records.
  4. The records show payments of salary to Fareed in the months of June, July, August and September 2009.
  5. Tuaoitau Pupi ("Pupi") deposed that there were other receipt books kept by Fareed which remained in his possession. On occasions Pupi would enter the receipt when Fareed was absent from the premises. Fareed had control of the cheques, bank withdrawals, electronic money transfers and the responsibility for reconciling the receipt dockets with the general book records of the Company. When challenged by Pupi as to the missing receipt books Fareed initially told her that they were with an accountant. When later challenged on the same matter he told Pupi that he had sent it overseas. The Court does not accept either explanation. It accepts Tuaoitau Pupi as an honest and reliable witness. Fareed failed to do so as a trusted employee and fiduciary agent of the Plaintiff.
  6. Stanley claimed that there was a second red book which showed additional payments to Panjwani in Japan. No such book was produced at trial and neither Stanley nor Fareed could explain its absence. The Court accepts Panjwani's evidence that he found no such book in his search for documentation to 'repair the damage' and that no additional payments had been received at the Japanese office.

Resignation of Fareed


  1. Fareed claimed that he had resigned from the Company in May 2009, an event verified by Stanley. On their argument therefore each was entitled to register a new company, Singapore Motors, without reference to Alnima Motors.
  2. The claim is rejected on the basis of evidence. The records in the handwriting of Fareed show otherwise. They include:

'cash in hand – Alnima Boss at Airport'


an entry which could only refer to the visit by Panjwani in February 2010.


(2) Undated entries admitted to be in Fareed's handwriting of payments and expenditures on behalf of Alnima Motors between 13 May 2009 and February 2010 committed Alnima Motors to considerate expenditure. The amounts involved were considerable and only contracted by the First Defendant.

(3) The following exchange of e-mails between Panjwani and Fareed give a time picture of the continuing relationship of employer/employee and destroy any claim by the First Defendant that he had resigned from the Company.

"Sent: Thursday July 16, 2009 10:32 AM

Subject: morning


Hi,

Our sale report.


Hi Boss

Morning, how r u sir,


stock No B51
$37000
(invoice No 68)
stock No B73
$37000
(invoice No 69)
stock No B77
$20000
(invoice No 70)
stock No B92
$2650
(invoice No 71)
stock No B91
$9500 received balance $10500 within two months (invoice No 72)
stock No T63
$69500
(invoice No 73)
stock No A142
$15000
(invoice No 74)
stock No A143
$15000
(invoice No 75)
stock No A06
$24000
(invoice No 76)
stock No B88
$31000
(invoice No 77)

Today sale

stock No B101
$16000
(invoice No 78)
stock No B98
$18000
(invoice No 79)

Best Regards,

Babar."

"From: Alnima Motors

To: noor bhai

Sent: Saturday July 18, 2009 5:41 PM

Subject: pic


Hi Noor Boss

how r u sir, I hopefull r u fine, ok i m waiting some truck Pic, when next new cars coming please tell me advance and send me pic. and today main showroom place park japan stock. next parking place park Singapore stock part, I hopefull. now r u happy. Details.

main showroom place part japan stock 15 & other 3 Hilax. total park 18 cars. next parking place japan stock 3 cars and Singapore stock 17 cars. ok. anything u want more chang please send me mail. and


Keep and touch,


Best Regards,

Babar."


"From: "Alnima International Co. Ltd"

To: APIA Motors

Cc: BOBBY SINGAPORE

Sent: Monday, July 13, 2009 5:40:15 PM

Subject: ALNIMA JAPAN


AS SALAAM ALEIKUM

BABER BHAI SEND ME THE DETAILS OF THE CARS IN THREE LISTS.

LIST NO.1. CARS STAYING IN THE MAIN SHOW ROOMS.

LIST NO.2. CARS STAYING IN PARKING.

LIST NO.3. CARS IN WORKSHOP PARKING.


COMPLETE THIS LIST AND SEND ME TODAY.

THANKS

ALNIMA INT'L., CO. LTD."


"From: Alnima Motors

To: noor bhai

Sent: Wednesday, August 19, 2009 5:09 AM


Hi Sir,

how r u, ok ur shipment 10 days after no coming 27/08/09.

Best Regards,

Babar"


"From: Alnima Motors

To: Alnima International Co. Ltd

Sent: Monday, December 07, 2009 8:45 AM

Subject: welcome sir G


Hi Sir G

how r u, ok welcome here after 18 Dec start holiday, and when r u come in apia please u come with new staff, because next month i am going back pakistan, and i hand over you all account. thanks, because i miss my family.


Best REGARDS,

BABAR"


"From: Alnima International Co. Ltd

To: APIA Motors

Sent: Thu, December 3, 2009 11:36:15 PM

Subject: ALNIMA JAPAN


AS SALAAM ALEIKUM.

I HAD NOT RECEIVED YOUR MAIL OF ACCOUNTS.

I ASKED TAU ABOUT HOLIDAY IN APIA THERE IS HOLIDAY ON 24TH & 25TH DEC. AND FROM 31ST TO 4TH JAN.

I AM PLAINING TO VISIT APIA ON 26THY, DEC.

THREE UNITS FROM JAPAN REACHING APIA ON 18TH DEC.

THANKS

ALNIMA INT'L CO. LTD"


"To: Alnima International Co. Ltd

From BOBBY SINGAPORE

Sent: Wednesday, December 16, 2009 5:13 PM

Subject: Fw: Hi Sir


--- Original Message ---

From: Alnima Motors

To: noor bhai

Sent: Wednesday, December 16, 2009 3:40 PM

Subject: Hi Sir


Hi Sir G

how r u, ok please tell me when r u coming in apia, because 4 month before i am live with singapore motors people home. alnima motors not pay any rant home after august 09, please u tell me when r coming apia and i find how for u.


thanks,


Best Regards,

Babar."


"From Alnima Motors

To: noor bhai

Sent: Tuesday, January 12, 2010 6:30 AM

Subject: morning


Hi Sir,

how r u sir, here our net some problem, but now is ok, please tell me when r u coming in apia, here everything is ok, and happy new year.


Best Regards,

Babar."


(4) Continued permission was given by Fareed for persons to pay for the purchase of vehicles by installments rather than outright purchase. The document "Exhibit 7.2" shows the amount of credit granted by Fareed of the sale of vehicles by Alnima Motors for transactions involving the sale of vehicles by way of installments.

The above documents disclose that Fareed was an agent, employee and a person obliged to uphold his fiduciary duties between May 2009 and February 2010. He remained in that position as Manager and a person subject to fiduciary duty until February 2010.


Panjwani had attempted to obtain information from Fareed as many of the e-mails referred to show. The replies are not ones of resignation but attempts to deceive his employer.


(5) Fareed continued to draw income from the Plaintiff, an act inconsistent with resignation. His claim that he did so simply as recompense for 'tidying up' the affairs is belied by documentation, his own testimony and actions, and his own dishonest attempts to hide his misconduct.

Removal of Vehicles


  1. The Plaintiff claims that a number of its vehicles were removed from its premises to that of Singapore Motors for sale of its own. The Defendants claim:
  2. Removal and sale are clearly acts of conversion (Computer Services Limited v Ilaoa [1995] WSSC 2).
  3. Tuaoitau Pupi was the Manager of Alby Rentals which had leased Alnima
    Motors the premises from which it could conduct its operations. She was present on 8 March 2010 when the learned Chief Justice granted an injunction restraining in the movement of vehicles from Lepea until further orders. She also understood that Stanley was an owner of Pasefika Japanese Imports Limited. On 8 March 2010 she became aware of a sign board at the Savalalo premises which stated:

"Singapore Motors"


  1. She recognised some of the vehicles to have previously been at Almina Motors' car yard. Her husband Tuili Alifata was also a partner of Tuaoitau and was also the landlord of the Alnima Motors' premises. He came to the premises at 6 a.m. in July 2009 and realised that some of the Alnima Motors vehicles were missing from the yard. He asked Fareed for an explanation and was told that the vehicles were being transferred to Fugalei for sale. He saw the last selection of vehicles moved in February 2010. He spoke to Singh who told him that all vehicles from Singapore were to be taken to the new location. It was Tuili who identified the missing vehicles.
  2. Tuaoitau Pupi and Tuili Alifata are accepted as honest and reliable witnesses. Tuaoitau Pupi had helped Fareed with the day to day operations of the company and on many occasions had received money for the sale of vehicles and properly recorded the transactions. The conclusion drawn from the evidence is that:

Orders of Discovery


  1. On 24 February 2010, the Court made orders:
  2. On 16 March 2010, Alnima Motors' representatives visited the premises at Fugalei and Savalalo. They discovered:
  3. A total of 28 vehicles claimed by the Plaintiff were transferred from the its premises leaving 11 vehicles unaccounted for. Some of the 17 recovered vehicles required further repairs.
  4. Following the inspections and recover of the vehicles the Court made Consequential Orders on 19 March 2010 which relevantly state:

"(a) The First Respondent is to provide to the Applicant all of the Applicant's financial records, files, invoice books, receipt books and documents that are in the First Respondent's possession.


(b) The Third Respondent is to provide the Applicant all of the Applicant's financial reports including any documents filed and prepared by the Third Respondent for the Applicant and which are in the Third Respondent's possession.


(c) That in respect of the seventeen (17) vehicles referred to in Clause 1.4 above and which the Applicant claims ownership, an interest bearing bank account to be called the Singapore Motors / Alnima Motors Trust Account is to be opened with the Westpac Bank Samoa Limited with Counsels of both parties to be the joint signatories.


(d) All proceeds from the sale of the said seventeen (17) vehicles are to be paid into the Singapore Motors / Alnima Motors Trust Account.


(e) That at the end of each month, the Second Respondent is to provide to the Applicant through its Counsel a report noting any sales of the said vehicles being claimed by the Applicant. The report is to stipulate the following details:


  1. The model and chassis number of each vehicle sold;
  2. The amount for which it was sold for;
  3. Who the vehicle was sold to;
  4. That the funds have been deposited into the Singapore Motors / Alnima Motors Trust Account.

(f) The Second Respondent must attach to each aforementioned report, copies of relevant receipts relating to the sales and the deposit slips.


(g) That in respect of the eleven (11) vehicles referred to in Clause 1.5 above and which are unaccounted for, the Second Respondent is to provide a list of the said vehicles setting:


  1. The model;
  2. The chassis number; and
  3. That if a vehicle had been sold, details as to when it was sold, the amount it was sold for and to whom;
  4. That if a vehicle has not been sold, this is to be stated.

(h) That the aforementioned list is to be provided to the Applicant's Solicitor by next Friday 26 March 2010 and must be accompanied by copies of receipts for the sale of the said vehicles.


(i) That in respect of the vehicles referred to in Clause 1.6 above and which require spare parts in order to be in working condition, the Second Respondent will not undertake any repairs thereof until a further list is provided to the Applicant's Solicitor and is approved by the same for repair and such approval to be timely and not be unreasonably withheld. The further list will set out the following details:


i. The model and chassis numbers of the vehicles that require spare parts;

ii. The spare parts required for each vehicle;

iii. The cost of the spare part; and

iv. The cost of the repair of the said vehicle."


  1. The Plaintiff relied on the discovery of the vehicles and the information provided as a result of the above Orders in the furtherance of its case.

The Accounts


  1. On 26 March 2010, the Defendants' solicitor provided a list of 11 cars sold and the prices obtained for each sale. The letter disclosed sales amounting to $202,000 with a claimed amount of only $21,000 due to Alnima Motors. It also stated:

"Total Stock Alnima Motors Dispute = 28.

Available Stock Alnima Motors Dispute = 17

Total Stock Alnima Motors Dispute = 11"


  1. The Court does not accept the validity of the belated attempt by each Defendant to make recompense. The documentation relates to sales made between August 2009 and October 2010 and:
  2. On 30 November the First Defendant supplied a list of the disputed vehicles which remained unsold as at 30 November 2010, without accompanying market values.
  3. On 10 February 2011, the Plaintiff's solicitors provided a similar list of six disputed vehicles remained unsold, and later the same list of the same six vehicles as of 11 March 2011.
  4. The Court assumes that the documentation was provided as an attempt to mitigate damages. The Defendants appear to claim:
  5. An examination of the records (Court Book Tab 10) show, as an example, that the price paid for a vehicle in Singapore dollars was $5,500 and the cost of sales price in Tala, after taking into account freight duty, VAGST and incidental items was ST$20,361).
  6. The Court attaches as a valuable document a calculation of vehicles missing, unsold or recovered from the Second Defendant's premises. It cannot make precise calculations of the losses suffered by the Plaintiff caused by the conduct of the Defendants.
  7. The evidence from the documentation (consignment notes, customs payments, transfer payments, invoices and the like) show:
  8. The transaction recorded by the ANZ Bank as a deposit of $85,000 will be separately considered.
  9. A secondary assessment will be made against the Third Defendant in deference to his lesser involvement in the cause of damage. But there will be an overall assessment of damages as against the Defendants but a separate assessment for which Stanley would be responsible.

Defendants' Documents


  1. Singapore Motors claims ("Exhibit D4") to have paid Alnima Motors ST$180,000 on the following dates:
3 November 2009
$104,000
10 November 2009
$ 16,000
9 December 2009
$ 20,000
16 December 2009
$ 40,000
Total
$180 ,000

and, on its case, as such, should also be credited to the Defendants.


  1. Stanley claimed to have reconstructed the affairs of Singapore Motors and Balwin Exports. His summary of calculations states:
"Total vehicles shipped to Alnima Motors:
87 units
S$465,069
Vehicles transferred to Singapore Motors Ltd:
28 units
S$102,696
Value receivable from Alnima Motors
59 units
S$350,019
Add spare parts supplied:
S$12,354
Total receivable from Alnima Motors (59 cars & spare parts):
S$362,373
Total payments received from Alnima Motors:
$319,131
Balance owing by Alnima Motors (receivable):
S$43,242"

  1. On his calculations Alnima Motors owes Balwin Exports $43,242.
  2. An exhibit, previously undisclosed, was produced by the Defendants at trial reaches the same exact conclusion namely, a debit by Alnima Motors to Balwin Exports of $43,242. The document contains no 'fax identification' markings or was not verified by any officer of Balwin Exports. Singh who had been in Samoa some few days before trial could easily have been called as a witness but was not. The general principles stated in Jones v Dunkell (supra) previously considered in these Reasons are relevant to the 'Balwin' document and the Stanley reconstruction.
  3. Further sets of documents were relied upon by the Defence. The first concerned the importation of 8 units of Toyota Hilux between 5 January 2009 and 16 March 2009 at a cost of $198,000. They are said to have been accounted for by four payments by telegraphic transfer itemised as:
Date
Description
Credit SGD
Balance SGD
26-02-09
TT Received
50,000
50,000
02-03-09
TT Received
50,000
100,000
05-11-09
TT Received
60,000
160,000
13-11-09
TT Received
30,500
190,500
Total
190,500
(Notation) Less Cost of vehicles
198,000

7,500

"Note Project of 8 units is with Alnima Motors"


  1. Stanley stated in his evidence that his reconstruction was based on information provided by Fareed and given the Court's view of Fareed's credibility and the paucity of proof of veracity for some of the documents relied upon they are given weight.
  2. The Court prefers the accuracy of the Plaintiff's documentation, verification and calculation matters in which are corroborated in part by the witnesses Tuaoitau Pupi and Tuili Alifata.
  3. A third explanation was provided for the discrepancies between moneys paid for purchase and import costs and sale returns.
  4. On 2 July 2009, a deposit of ST$85,000 was made by Fareed to the Plaintiff's ANZ Bank account. He withdrew the same amount in cash. He claimed, at trial that:
  5. There was no documentary evidence supporting the claim of payment of customs duty. When told that Moosa has not entered the country until 19 July, a proven fact, Fareed maintained his original account but was unable to explain why he had kept $50,000 in cash while awaiting Moosa's arrival.
  6. The First Defendant is to pay the sum of $85,000.

Remittances and Debts to Balwin Exports


  1. Fareed stated that he ceased going to Alnima Motors offices in November 2009 and had only gone there previously to 'clear things up'. Yet he continued to remit bank and telegraphic money due by Alnima Motors to Balwin Exports in December 2009 and January 2010, totaling SGD$101,000 and USD$21,000 respectively. It is not necessary to determine the exact nature of the January remittance since on any approach the money belonged to Alnima Motors. Whether it was payment of vehicles or as claimed a return of capital is irrelevant.

Balance of Payments and Transfer of Vehicles


  1. Neither Singh nor Balwin Exports are parties to this action. Any money claimed by Balwin Exports, as due or owing, is a matter between Balwin Exports and Alnima Motors. It was not for any of the Defendants to interfere or attempt to alter the contractual obligations of the non parties. The documentation shows that the vehicles were consigned 'FOB' (free on board). On a consignment FOB ownership in the property vests in the consignee. It no longer belonged to Singh or Balwin Exports (Wimble Sons & Co. v Rosenberg & Sons [1913] UKLawRpKQB 161; [1913] 3 K.B. 743), and neither Fareed nor his agents had power to move them.
  2. Fareed had no authority to remove items of equipment from Alnima Motors' premises or use it as his own or for the benefit of Singapore Motors.

Unjust Enrichment


  1. The Court does not consider it necessary to consider the question of damages for 'unjust enrichment'. There is insufficient evidence to assess the profits or benefits obtained by the First and Second Defendants. Compensation will be assessed on other grounds and it is not necessary to attempt 'double compensation' or proportionate assessments (see generally: Meredith v Manoa [2002] WSSC unrep. 11 October 2002; Liaga v Taleni [2010] WSSC 166 and Stanley v Vito [2010] WSCA 2.
  2. The claims for breach of fiduciary duty, often made through the equitable remedy of unjust enrichment, will be dealt with in the assessment of exemplary damages.

Damages


  1. The Plaintiff, by its Amended Statement of Claim, did not proceed with its claim for $488,418 being the claimed loss for the proceeds of sale of the Japanese vehicles. This concession reduced the claim for proceeds of sale of vehicles belonging to the Plaintiff and sold by Singapore Motors to $463,588. Varying claims for failure to account or vehicles unlawfully removed from the Plaintiff's premises were made. In addition it sought general and exemplary damages totaling $750,000.
  2. In its closing submissions Counsel for the Plaintiff particularized its claim in the following terms:

"a. SAT$243,000.00 being the total proceeds received by the Defendants for selling the Plaintiff's eleven (11) vehicles shipped from Singapore.


b. SAT$220,588.00 at this time determined as being the estimated amount of proceeds of sales of the vehicles shipped by the Plaintiff from Singapore that the Defendants removed from the Plaintiff's place of business without authorization.


c. SAT$86,864.89 being the total amount of expenditure for which the First Defendant has failed to properly account to the Plaintiff but were used as business expenses and sundries by the Defendants.


d. SAT$13,100.00 for the amount paid/taken by the First Defendant during the period June – November 2009 for supposed wages.


e. SAT$6,638.96 being compensation to the Plaintiff for travel expenses due to the Defendants' actions.

f. SGD$90,219.00 being the amount over paid by the First Defendant to Balwin Exports Pte Limited.


g. SAT$250,000.00 for general damages.


h. SAT$500,000.00 for exemplary damages.


i. An Order to recover all the Plaintiff's vehicles which have not already been accounted for in the Order of His Honour Justice Lesatele Rapi Vaai on 19th March 2010 but which are in the control of the First, Second or Third Defendants."


  1. The Plaintiff produced documentation which established the number of vehicles unaccounted for and discrepancies between receipts and payments.

Sale of Singapore Vehicles


  1. The Plaintiff has established that Singapore Motors sold 11 vehicles which had been received and paid for by Alnima Motors. The documentation shows that the total value of those vehicles to be ST$243,000.
  2. Neither the First nor Second Defendant has accounted for the proceeds of sale.
  3. Damages as against the Second Defendant are assessed in the sum of ST$243,000.

Proceeds of Sale of Removed Vehicles


  1. The evidence establishes that the value of vehicles (including customs and VAGST) unlawfully removed from the Plaintiff's premises and either sold or retained was ST$220,588. The tort was that of conversion.
  2. Damages as against the Second Defendant are assessed in the sum of ST$220,588.

Unauthorised Expenditure Unaccounted For


  1. The Plaintiff claims the sum of $86,864 as moneys used and not accounted for. The Court is unable to determine a precise figure for this head of damage but it is satisfied that at least ST$50,000 was used, without authority, in the guise of business expenses and sundries not accounted for. Those moneys were used by the First Defendant.
  2. Damages against the First Defendant are assessed in the sum of ST$50,000.

Claim for Wages


  1. The Plaintiff claims the sum of $31,000 as paid to the First Defendant as 'supposed wages' for the period June – November 2009. The Court has found that Fareed remained an employee during that period and accordingly was entitled, in law and despite his breach of fiduciary duty, to be paid accordingly.
  2. No award will be made under this head of damages.

Compensation for Travel for Investigation and Discovery


  1. Consistent with the decision of this Court in Afele v Public Trustee [2010] WSSC 157, no award will be given. Portion of the claim may be allowed in any assessment of expenses incurred in the course of the proceedings.

Overpayment to Balwin Exports


  1. Whether the payment was made unlawfully or used to pay for vehicles ordered and delivered directly to Singapore Motors is irrelevant. On either approach the First and Second Defendants are equally liable.
  2. Damages as against the First and Second Defendants are assessed in the sum of $90,219.

General Damages


  1. The evidence suggests that there were more unlawful transactions which could not be proved, and this claim seeks to encompass a general loss.
  2. The Court is prepared to approach this claim in a different matter.
  3. Previous awards have been made against the Second Defendant as the corporation which benefited from the unlawful acts in contract, tort or both. A separate award will be made against the First Defendant under the heading 'exemplary damages'.
  4. Fareed was the controller of Singapore Motors and the Court has found that he breached his contractual and fiduciary duty to the Plaintiff. He ought not, in law or equity, be entitled to hide behind the corporate shield to avoid the payment of damages.
  5. General damages will be awarded against him personally which will be the sum of the amounts of awards assessed against the Second Defendant.
  6. This assessment is not to be used as a means of twice obtaining the amounts of damages. If the Plaintiff is unable to recover the specific awards made against the Second Defendant then it is entitled to claim the whole or remaining balance against the First Defendant personally under the heading of general damages.
  7. General damages are assessed as against the First Defendant in the sum of $460,588.

General Damages Against the Third Defendant


  1. His conduct damaged the Plaintiff generally. A separate assessment has been made under the heading 'exemplary damages'. An award of ST$10,000 is assessed as general damages against him personally.

Exemplary Damages


  1. The Australian Courts distinguish between awards of exemplary (special harm to the injured party) and punitive damages (often against large corporations to dissuade wrongful conduct or harm) (see: Uren v John Fairfax & Sons Pty Ltd [1966] 11 CLR 118 and Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; (2003) 56 NSWLR 298). New Zealand Courts have been the most willing to award exemplary damages for breaches of equitable obligations (Aquaculture Corporation v NZ Green Mussel Co. Ltd [1990] NZCA 360; [1990] 3 NZLR 299). The English position appears to have been more flexible merging the two into one award (Rookes v Bernard [1964] UKHL 1; [1964] AC 1129). Samoan Judges have historically treated exemplary and punitive damages as one concept. I will apply the Samoan practice.
  2. I will make a distinction between the first two Defendants and the Third Defendant in the assessment of exemplary damages. Ordinarily a judgment against multiple defendants is joint and several, with each responsible for the whole. Australia, New Zealand and Canada have developed a doctrine of proportionate liability in cases where if a defendant is only partially responsible for damage, they do not have to bear the whole loss. Much of this change has been a result of legislation

(See generally: Review of the Law of Negligence Report to the Australian Parliament 2002, paras. 12.1–12.9 <cwealthcopyright@finance.gov.au>).


  1. It is not necessary, under this hearing to consider proportionality.
  2. Each of the First and Third Defendants breached their fiduciary duty in different ways. Fareed was the more serious. He ought pay, personally, exemplary damages in the sum of $50,000.
  3. Stanley was an Accountant and as a professional responsible to his client in a special way. He certainly assisted Fareed in setting up a competitive business, facilitated the change in the residency status and could use his knowledge obtained through access to the books of account and trading figures of the Plaintiff. He was paid to advise and warn.
  4. His breach was over a lesser time. He should pay, personally, exemplary damages in the sum of $20,000.

Orders Made on March 19 2010


  1. The Plaintiff seeks:

"An Order to recover all of the Plaintiff's vehicles which have not already been accounted for in the Order of His Honour Justice Lesatele Rapi Vaai on 19th March 2010 but which are in the control of the First, Second or Third Defendants."


  1. The Court is unable, on the material before it, to properly formulate a precise Order in terms generally stated by Justice Vaai on 19 March 2010. It requests counsel to either provide the Court with an agreed or consent order or arrange for a further hearing on this matter.

Costs


  1. The Plaintiff will have its costs as against the three Defendants but there would need to be an apportionment as between the Defendants especially Stanley. The Court will give leave to counsel to made submissions on the issues of indemnity and appointment.

ORDERS


(1) Judgment is entered for the Plaintiff as against each Defendant.

(2) That the First Defendant is to pay the Plaintiff the sum of:

(3) That the Second Defendant pay to the Plaintiff the sum of:

(4) That the Third Defendant pay to the Plaintiff the sum of:

(5) Westpac Bank Samoa Limited is to pay to the Plaintiff all moneys held in the Trust Account ordered by the Court on 19 March 2010 referred to in these Reasons at paragraph 81 Item (d).

(6) That the Defendants pay the Plaintiff's costs of the action.

The Court requires further submissions on the issues of indemnity costs and the proportion, if any, each should pay or whether the Order ought be made jointly and severally against each Defendant.


(7) The Plaintiff's claim or Order (i) identified in paragraphs 110 and 138 of these Reasons be adjourned to enable counsel, by agreement or argument, to give effect to the general terms of the Order.

(8) Liberty to apply for Consequential Orders.

Annexed to this Judgment is "Exhibit P13" which is intended to assist in the understanding and interpretation of these Reasons for Judgment. The explanation of the various headings is best provided in the Plaintiff's written submissions paragraph 8.9 (i) to (viii) which accompanies the annexure.


___________________
JUSTICE SLICER

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