Felauai v Anesone [2016] WSSC 22 (12 February 2016)

SUPREME COURT OF SAMOA
Felauai & others v Anesone [2016] WSSC 22

Case name:	Felauai & others v Anesone
Citation:	[2016] WSSC 22
Decision date:	12 February 2016
Parties:	SALAMINA FELAUAI, FALETAUSALA PASA, TAEGA PAULO, FITI VAATOFU and GA’I PASA (plaintiffs) and FILIPAINA ANESONE and FILIPAINA ANESONE on behalf of the Estate of Elisapeta Anesone (Deceased) (defendant).
Hearing date(s):	-
File number(s):
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa
Judge(s):	Justice Vaai
On appeal from:
Order:	(1) The application seeking an order for security of costs is refused. (2) Costs are reserved. (3) The defendant is ordered to file and serve a statement of defence by the 23rd February 2016 and this proceeding is to be listed for mention on the 29th February 2016.
Representation:	O Woodroffe for plaintiffs K Kruse for defendant
Catchwords:	Security for costs
Words and phrases:
Legislation cited:
Cases cited:	Trinity Christian Centre of Santa Ana v Graceland Broadcasting Network (2008) WSSC 20 Sharayne Risale and Ponamu Risale v Leslie Maria Kohlhase & others (Unreported Sup Court Samoa 9/10/2015)
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

SALAMINA FELAUAI, FALETAUSALA PASA, TAEGA PAULO, FITI VAATOFU, GA’I PASA
Plaintiffs

AND:

FILIPAINA ANESONE and FILIPAINA ANESONE on behalf of the Estate of Elisapeta Anesone (Deceased)
Defendant

Counsel:
O Woodroffe for plaintiff
K Kruse for defendant

Decision: 12 February 2016

DECISION OF THE COURT

Introduction

1. This is an application by the defendant, Filipaina Anesone, for an order requiring the plaintiffs to give security for the defendant’s costs of this proceeding in the event the plaintiffs are unsuccessful in their claim against the defendant.
2. A sum of $40,000 is sought as security. Both counsels estimate trial time to be two days.
3. Grounds upon which the order is sought are:
   • (a) the plaintiffs (except one) are resident out of the jurisdiction.
   • (b) the plaintiffs have no known assets in Samoa.
   • (c) any award of costs in favour of the defendant should the plaintiffs be unsuccessful would be rendered nugatory unless the plaintiffs pay into court the amount sought to facilitate recovery of any such judgment in the defendant’s favour.
   • (d) it is just and equitable that the orders sought be made in the particular circumstances of the case.
   • (e) upon the further grounds contained in the affidavit of the defendant.
4. The defendant also resides in New Zealand. He, not only intend to defend the claim, he also intend to file a counterclaim, and will be obliged to obtain leave from his work and to make arrangement for the care of his three children to enable him to travel to Samoa for the two day hearing. His wife, the sister of the plaintiffs, passed away in August 2014.

The plaintiffs

5. The plaintiffs oppose the application principally on the ground that the plaintiffs will be able to meet an order for costs if they are unsuccessful. One of the plaintiffs, Fiti Vaatofu, is resident in Samoa, and is the owner of a quarter acre parcel of land, together with her husband, as tenants in common. That land was valued in May 2015 at $106,000 and the mortgage balance as at January 2016 is about $53,000.

Submission by Defendant

6. At paragraph 4.3 of her written submission, counsel for the defendant contended:
   • “The fact of land ownership, either in Samoa or New Zealand it is respectfully submitted, does not satisfy the requirement for security for costs. Most of the plaintiffs are still resident overseas, and in terms of enforcing payment of any costs awarded to the defendant, the defendant would still incur time, trouble and expense to try and realise any money out of the land asset here at Vaitele-uta. Security for costs as provided by Rule 30 requires the overseas resident plaintiff “to deposit any sum of money”. It is therefore submitted the security envisaged by rule 30, as it expressly states, is an actual sum of money.

Discussion

7. Both counsels in their written submissions are in agreement with the principles which govern the exercise of the court’s discretion when considering the question of security for costs. Amongst the number of cases mutually cited by both counsels they also cited from the judgment of this court in Trinity Christian Centre of Santa Ana v Graceland Broadcasting Network (2008) WSSC 20 the rationale for making of an order for security for costs against a plaintiff (at para 9):
   • “The rationale for making an order for security for costs against a plaintiff outside the jurisdiction of the court is that a successful defendant ought not to be put to the time, trouble, and expense of enforcing a judgment for costs out of the jurisdiction.”
8. Both counsels also agree that the threshold test (Ms Woodroffe’s submissions paragraph 4 (1)), or the first step (paragraph 3.3 (a) Kruse’s submissions) which must be met is whether the court is able to conclude that a plaintiff will be unable to meet the costs of the defendant if the plaintiff is unsuccessful.
9. Ms Kruse for the defendant, as pointed out in paragraph 6 above acknowledged that one of the plaintiffs has land at Vaitele, but she argued that the defendant, if successful, would still incur time, trouble and expense, to enforce judgment against the land at Vaitele. The submission is contrary to the rationale for making an order for security for costs which both counsels cited from Trinity Christian Centre of Santa Ana v Graceland Broadcasting Network. In Sharayne Risale and Ponamu Risale v Leslie Maria Kohlhase & others (Unreported Sup Court Samoa 9/10/2015) it was said at paragraph 10:
   • “It is common ground that if the plaintiffs had tangible assets or property in Samoa, the question of security of costs would not have arisen, simply because there would be no need for the defendants to enforce any adverse order for costs overseas. ... After all, those assets would protect the defendants, by making it unnecessary for them to go through the trouble and expense of enforcing cost orders overseas.”
10. It follows the plaintiffs are able to meet an adverse order for costs within the jurisdiction.

Result

(1) The application seeking an order for security of costs is refused.
(2) Costs are reserved.
(3) The defendant is ordered to file and serve a statement of defence by the 23^rd February 2016 and this proceeding is to be listed for mention on the 29^th February 2016.

JUSTICE VAAI