Reid v Reid Junior [2015] WSSC 245 (24 December 2015)

IN THE SUPREME COURT OF SAMOA
Reid v Reid Junior [2015] WSSC 245

Case name:	Reid v Reid Junior
Citation:	[2015] WSSC 245
Decision date:	24 December 2015
Parties:	LOUISE REID also known as LOUISE ANTOINETTE AZARAND suing on behalf of the estate of Blanche Reid. (First Plaintiff) AND GEORGE HENRY CHARLES JUNIOR REID and EUGENE REID Businessmen of Pago Pago in American Samoa suing for themselves as direct Beneficiaries. (Second Plaintiff) AND MAUDE THERESA PAUL, of Vailima in Samoa, appointed as Administrator of the Estate of the late Richard Reid. (Third Plaintiff) AND LORAINE MARIE FONOTI REID, of Malaeloa in American Samoa, appointed as Administrator of the Estate of the late Cecil Walter Reid. (Fourth Plaintiff) ANDLEALAIFUANEA PETER REID JUNIOR, on behalf of the estate of Peter E Reid. . (First Defendant) AND LEALAIFUANEA PETER REID JUNIOR, on behalf of the Reid’s Children Trust at Apia. (Second Defendant)
Hearing date(s):	-
File number(s):	CP 54/11
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	R V Papalii for plaintiffs F P Fepuleai for defendants
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:	Risale v Kolhase
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

LOUISE REID also known as LOUISE ANTOINETTE AZARAND suing on behalf of the estate of Blanche Reid.
First Plaintiff

AND:

GEORGE HENRY CHARLES JUNIOR REID and EUGENE REID Businessmen of Pago Pago in American Samoa suing for themselves as direct Beneficiaries.
Second Plaintiff

AND:

MAUDE THERESA PAUL, of Vailima in Samoa, appointed as Administrator of the Estate of the late Richard Reid.
Third Plaintiff

AND:

LORAINE MARIE FONOTI REID, of Malaeloa in American Samoa, appointed as Administrator of the Estate of the late Cecil Walter Reid.
Fourth Plaintiff

AND:

LEALAIFUANEA PETER REID JUNIOR, on behalf of the estate of Peter E Reid.
First Defendant

AND:

LEALAIFUANEA PETER REID JUNIOR, on behalf of the Reid’s Children Trust at Apia.
Second Defendant

Counsel: R V Papalii or plaintiffs
F P Fepuleai for defendants

Decision: 24 December 2015

RULING OF NELSON J

1. In relation to the strike out motion, the law for strike out motions is very clear. Jurisdiction to strike out will only be exercised where it is plain and obvious the claim is so untenable that it cannot possibly succeed.
2. Onus of establishing the claim is so untenable is on the applicant. It is not sufficient for an applicant to argue that the plaintiffs claim “is unlikely to succeed.” In my view the applicant has failed to do that for these reasons.
3. Firstly there is a conflict in the affidavits filed as to the nature of the American Samoan proceedings. But assuming as I must do by law that the plaintiffs allegations are capable of proof it would appear that the subject matter of the plaintiffs Amended Statement of Claim namely lands in Matautu in Apia, were not specifically made a part of the American Samoan proceedings which were from what I can determine actions of an accounting and fiduciary duty nature. The current proceedings cannot therefore be said to be estopped by the litigation settlements and releases that were entered into as a consequence of the American Samoan proceedings. The defendants may have an argument based on delay but in the absence of a Statement of Defence, the court should not speculate as to what issues the defendant can legitimately raise.
4. Even if I were to proceed on the basis of the affidavits filed it would seem to me the affidavit of the first plaintiff who was a party to the American Samoan proceedings should be preferred to that of the defendants. That would lead to the same result as above. Accordingly the Motion to Strike Out is declined and that application is dismissed.
5. As to the application for security for costs the plaintiffs apart from the third plaintiff are co-owners of the property in Samoa. It is conceded they are apart from third plaintiff resident out of jurisdiction and they appear to have no business or other interests in this jurisdiction. It is therefore in my view quite appropriate security be ordered in the event the defendants are successful.
6. I propose to follow what my brother judge Vaai J did recently in Risale v Kolhase and others and charge the plaintiffs lands with the appropriate order up to a sum of $100,000. The parties are to discuss and agree upon a form of registrable order following the Risale format which may be a useful precedent for future such applications. If counsels have problems obtaining access to a copy of the Risale documentation I am sure the Registrar can happily oblige.
7. These proceedings are accordingly returned to the mention list to be called on 25 January for that to be done. As I have some familiarity with the file I would be happy to hear the matter in due course. However I should disclose that the third plaintiff is my wifes cousin. That does not create any conflict of interest in my mind but it should nevertheless be disclosed to the parties.
   

JUSTICE NELSON