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Woodroffe v Mataia [2016] WSSC 209 (18 November 2016)

IN THE SUPREME COURT OF SAMOA
Woodroffe v Mataia [2016] WSSC 209


Case name:
Woodroffe v Mataia


Citation:


Decision date:
18 November 2016


Parties:
LEULUAIALII OLINDA WOODROFFE (First Plaintiff); COLIN JOHN WOODROFFE (Second Plaintiff) and ASIATA MATAIA (Defendant)


Hearing date(s):
27 October 2016


File number(s):



Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Mata Keli Tuatagaloa


On appeal from:


Order:
The court makes the following orders:
(i) The application to strike out counterclaim is denied.
(ii) The amended counterclaim is allowed.
(iii) The application for security for costs against defendant (plaintiff of counterclaim) is denied.
(iv) The parties to bear their own costs in relation to this application.


Representation:
L O Woodroffe for the First and Second Plaintiffs
S Wulf for the Defendant


Catchwords:



Words and phrases:
Strike out application – opposes filing of amended statement and counterclaim – seeking security for costs


Legislation cited:
Supreme Court (Civil Procedure Rules) 1980 Rule 17; Rule 30;
Limitation Act 1975 s 6(1)(a).


Cases cited:
Enosa v Samoa Observer Company Limited [2005] WSSC 6.
Malifa v Sapolu [1998] WSSC 2;
Wilex Cocoa and Coconut Products Ltd v EPC [2009] WSSC 35 (23 April 2009);
Tupu v Beta Multimedia Investment Co Ltd [2015] WSCA 1 (17 April 2015);

Metai v Drake [2000] WSSC 49 (2 November 2000).
Summary of decision:

IN THE SUPREME COURT OF SAMOA


HELD AT MULINUU


BETWEEN:


LEULUAIALII OLINDA WOODROFFE
First Plaintiff


A N D:


COLIN JOHN WOODROFFE
Second Plaintiff


A N D:


ASIATA MATAIA
Defendant


Presiding Judge: Justice Mata Keli Tuatagaloa


Counsel:
L O Woodroffe for the First and Second Plaintiffs
S Wulf for the Defendant


Date: 27 October 2016
Judgment: 18 November 2016


JUDGMENT OF TUATAGALOA J

Applications by the Plaintiffs:

  1. The plaintiffs filed an application to strike out the defendant’s counterclaim.
  2. The plaintiffs opposed the application by the defendant for leave to file an amended statement of defence and counterclaim.
  3. The plaintiffs seek security for costs against the defendant should the application to strike out fails. They also ask to stay the counterclaim until any security ordered is paid.

Application to strike out:

  1. The principles of strike out are well established referred to by the CJ Sapolu in Enosa v Samoa Observer Company Limited[1]

“The jurisdiction to strike out a statement of claim for disclosing no reasonable cause of action must be sparingly exercised. The factual allegations in support of the claim are assumed to be true and correct. The jurisdiction will only be exercised where it is plain and obvious that the plaintiff’s claim is so clearly untenable that it cannot possibly succeed.”

  1. The grounds of the application to strike out are:
  2. The applicants/plaintiffs argue that the counterclaim and proposed amended counterclaim do not disclose a tenable cause(s) of action. The counterclaim and proposed counterclaim comprise a ‘narrative of complaints and unsustainable allegations’.
  3. The counterclaim at paragraph [17] alludes to negligence which negligence is properly pleaded in the proposed amended counterclaim. It is well established that a statement of claim (in this case counterclaim) is not to be struck out if the pleadings are capable of amendment. In this case, the amendments are necessary to “more fully and accurately” state the position of the counterclaim. The amendments will not cause any prejudice to the Plaintiffs. Rule 17 of Supreme Court (Civil Procedure Rules) 1980 provides:

“A plaintiff may at any time before or after the trial amend his statement of claim with the leave of the court.”

  1. The strike out application fails on this ground. The amended counterclaim is allowed.
  2. The statement of defence and counterclaim was filed on 11 July 2014. Counsel for the plaintiffs, Mrs Woodroffe submits that the counterclaim is statute barred by virtue of s 6(1)(a) of the Limitation Act 1975 which limitation period is 6 years accruing from when the cause of action arises.
  3. The Limitation Act 1975 does not define when a cause of action accrues. It is a question of law to be determined from the facts pleaded in the statement of claim.
  4. Mrs Woodroffe advanced different dates as the dates which she said the defendant’s action accrued.
  5. Mr Wulf, counsel for the defendant said the counterclaim is not statute barred. He also gave two different dates.
  6. Either dates by counsel for the defendant do not place the claim out of time while the two dates provide by counsel for the plaintiffs, one would place the counterclaim out of time and the other does not.
  7. If the parties are unsure as to which date action accrues, the statement of claim (or counterclaim) should not be struck out but to allow to, go to trial where all issues of fact and law can be fully explored.

Security for costs:

  1. The plaintiffs (defendants of counterclaim) are seeking security for costs from the defendant (plaintiff of counterclaim) in the amount of $20,000. Mrs Woodroffe in her submissions says that the plaintiff (counterclaim) is impecunious, that is, cannot afford to pay if unsuccessful. She asks to stay the counterclaim until any security ordered is paid.
  2. Rule 30 of Supreme Court (Civil Procedure) Rule 1980 refers to security for costs where plaintiffs reside outside of Samoa. The plaintiff of counterclaim resides in Samoa.
  3. The Court has inherent jurisdiction to order security for costs against plaintiffs residing overseas and those residing within Samoa: Malifa v Sapolu [1998] WSSC 2; Wilex Cocoa and Coconut Products Ltd v EPC [2009] WSSC 35 (23 April 2009) at paragraph [22].
  4. The threshold test is whether the Court is able to conclude there is reason to believe that a plaintiff will be unable to pay the costs of the defendants if the plaintiff is unsuccessful. To meet the threshold test the court considers the following: the ability to pay, the merits of the case and any other relevant circumstances.
  5. The plaintiffs say that they know the defendant will not be able to pay their costs if his counterclaim is unsuccessful but they provide no evidence of that belief. The plaintiffs submit that the defendant is impecunious.
  6. The Court where a plaintiff is silent on his financial position can draw inferences on ability or inability to pay or give due weight to the plaintiffs sworn assertions that they can pay without proof.
  7. However, the defendant has given an affidavit which says that he is the administrator of his late father’s estate which consists of 4acres of land at Vaiusu. The defendant lives on this land and had spent $135,000 building the house he currently lives. The defendant has not valued the land but with 4 acres at Vaiusu it will be safe that the estimated value will not be less than $100,000. He also receives the New Zealand pension fortnightly of NZD$805.06. The defendant making repayments to a New Zealand loan from his pension assisted by his daughter and at the same time paying for his lawyer’s fees.
  8. The merit of the case is a relevant factor to be considered by the Court. That is, merits of the plaintiff’s claim and the defendant’s defence.[2] In Tupu case, the Court of Appeal considered whether the appellant could afford to pay the security for costs ordered by the Court and found that (i) he has an arguable case against the defendant, and (ii) he was impecunious and the Court of Appeal quashed the security for costs ordered against him.
  9. Where the Court concludes that the plaintiff is unable to meet the defendant’s costs, the Court considers whether in exercising its discretion it is appropriate in all circumstances to make an order for security for costs.

“The discretion of the Court in awarding security for costs is unfettered. The Court must do a balancing act of the competing interests of justice. They are the interest of the defendant to be protected against the risks of a cost award that is of no value to the plaintiff if unsuccessful and the interest of justice of the plaintiff should not be denied access to the Courts by reason of an order for security for costs.”[3]

  1. The court echoes what Chief Justice Sapolu said in Metai v Drake [4]

“I am rather hesitant about making an order for security against a plaintiff who has no money or is given inadequate financial support, but has a meritorious claim, because the effect of an order for security will be to stifle a meritorious claim by reason of the plaintiff’s impecuniosity.”

In the present case there is merit in the counterclaim by the defendant.

  1. The defendant (plaintiff of counterclaim) is not impecunious. That is, he is not poor. He receives a pension fortnightly and is entitle to 4 acres freehold land at Vaiusu which land as I have mentioned will be estimated to value at $100,000 and more for all 4 acres. Therefore, the defendant has assets that he can liquidate to pay for any costs should he be unsuccessful.

Conclusion:

  1. The court makes the following orders:

JUSTICE TUATAGALOA

[1] [2005] WSSC 6 at p.5
[2]Tupu v Beta Multimedia Investment Co Ltd [2015] WSCA 1 (17 April 2015)
[3] Wilex Cocoa and Coconut Products Ltd v Electric Power Corporation [2009] WSSC 35 (23 April 2009) at para [33]
[4] [2000] WSSC 49 (2 November 2000)

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