Tunumafono v Nimalotoa [2018] WSSC 25 (2 February 2018)

IN THE DISTRICT COURT OF SAMOA
Tunumafono v Nimalota [2018] WSSC 27

Case name:	Tunumafono v Nimalota & Ors
Citation:	[2018] WSSC 27
Decision date:	2 February 2018
Parties:	FIU TUNUMAFONO SEVAO FONOTI of Liverpool Sydney, Australia (Plaintiff) and FIU NIMALOTA IETI MUAI PAPA, SUFIA SA, SUFIA FITI, AFITU FINAO, AFITU ENOKA, TIALINO TAVITA, FAASAO TAVITA Building Committee of the Congregational Christian Church of Samoa at Letui Savaii (First Respondents) and PEAUALA IETI, FIU NIMALOTA IETI, MUAI PAPA, SUFIA FITI, FUA SALA, MASIMALO FAOLUA, MASU LAFOVALE, TIUMALU TELESIA LAFOVALE, AFITU ARONA, FUA TASI, LEAIA SASI, TAATITI SENITOFO, MATASAVAII SETU, AFITU VAI, SUFIA SA, FAATOAFE AMANI, SUFIA KAPOTI, PEAUALA ALOFA Matais on behalf of the Ali’I and Faipule of Letui (Second Respondents)
Hearing date(s):	3 November 2017
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	- Accordingly: (a) the Amended Motion for Interim Injunction is dismissed; (b) the First Respondent is to ordered to comply with the Planning and Urban Management Act 2004 and all lawful directions issued by the Planning and Urban Management Agency in respect of the Church Building works; (c) the First Respondent is to obtain all regulatory, building and building occupancy approvals including as to any building variations as they apply to the Church Building prior to occupation and use of the Church Building at Letui; and (d) Costs reserved. -
Representation:	D Kerslake for the Plaintiff L Vaa-Tamati and T Lei Sam for the First and Second Respondents
Catchwords:
Words and phrases:	Motion for Security for Costs, Motion to Strike Out Statement of Claim, Motion for Interim Injunction is dismissed
Legislation cited:
Cases cited:	Dive & Fly Samoa Ltd v Schmidt [2005] WSSC 40, Mautofu v Selesele (unreported) 14th January 2008, Milford v Fidow [2008] WSSC 67 (7 August 2008)), Samoa Democratic United Party (SDUP) v Leiataua [2007] WSSC 15 (12 March 2007) His Honour Sapolu CJ, Esera v National University of Samoa [2003] WSSC 12 (8 August 2003) Sapolu CJ, Eteuati v National Provident Fund [2005] WSSC 14 (31 August 2005)).
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

FIU TUNUMAFONO SEVAO FONOTI of Liverpool Sydney, Australia

Plaintiff

AND:

FIU NIMALOTA IETI MUAI PAPA, SUFIA SA, SUFIA FITI, AFITU FINAO, AFITU ENOKA, TIALINO TAVITA, FAASAO TAVITA Building Committee of the Congregational Christian Church of Samoa at Letui Savaii

and PEAUALA IETI, FIU NIMALOTA IETI, MUAI PAPA, SUFIA FITI, FUA SALA, MASIMALO FAOLUA, MASU LAFOVALE, TIUMALU TELESIA LAFOVALE, AFITU ARONA, FUA TASI, LEAIA SASI, TAATITI SENITOFO, MATASAVAII SETU, AFITU VAI, SUFIA SA, FAATOAFE AMANI, SUFIA KAPOTI, PEAUALA ALOFA Matais on behalf of the Ali’I and Faipule of Letui
Respondents

Counsel:
D Kerslake for the Plaintiff
L Vaa-Tamati and T Lei Sam for the First and Second Respondents

RULING OF CLARKE J (ON MOTION FOR INTERIM INJUNCTION)

1. This matter was set down before me for the hearing of:

(a) Motion for Security for Costs against the Applicant;

(b) Motion to Strike Out Statement of Claim against Reverend Isaako Sefo; and

(c) the application for interim injunction.

2. By consent, the parties agreed to (a) payment of security for costs in the sum of $10,000.00; and (b) the striking out of proceedings against Reverend Isaako Sefo. Those orders were made by consent on 3 November 2017.
3. The remaining matter for determination by this Court is the application by the Applicant for the issue of an Interim Injunction prohibiting and/or restraining the First and Second Respondents together with their agents, servants, representatives, tenants and any other person acting under or by their authority from:
   • (i) Carrying out any further construction works or continuing to build the Church Building belonging to the Congregational Christian Church at Letui (“the Church building”) until this dispute is resolved;
   • (ii) Entering, occupying or carrying out any further activity in the Church Building until such time as determined by the Court; and
   • (iii) Any other action as deemed necessary by the Court.
4. The grounds of the application set out in the Applicants Amended Motion for Interim Injunction can be summarized as follows:
   • (i) The Applicant was engaged by the First Respondent to build the Church Building at Letui;
   • (ii) The First Respondent unlawfully or wrongfully terminated the services of the Applicant without providing valid grounds;
   • (iii) A lot of time and expense has been spent by the Applicant in trying to complete this project;
   • (iv) The First Respondents have engaged the Ninth (now eighth) named First Respondent who was under the supervision of the Applicant to complete the Church building;
   • (v) The Applicant is now concerned with the ongoing construction works as all the permits and approvals for the construction of the church were granted relying on his qualifications and experience;
   • (vi) To commence the works again without his supervision and without his plans is careless and a breach of the permits and approvals which were granted. This is also very dangerous and a real risk to the members of the church and general public who may access the church;
   • (vii) The Applicant wishes to continue to finish the works on the Church Building as it is his reputation as a Master Builder which will be affected if he is not allowed the chance to finish the project;
   • (viii) The Planning and Urban Management Agency had issued an order for the works on the Church Building to stop. The Defendants have not obeyed this order and this constitutes a breach of section 80 and 83 of the Planning and Urban Management Act 2004;
   • (ix) That it would be in the interests of justice that an interim injunction order ex parte be granted against the First and Second Respondents to prohibit or restrain them or their servants, representatives or agents from carrying out any further construction works or continuing to build the Church Building or entering, occupying or carrying out any further activity until the Court deems necessary or until the dispute is resolved.
5. The Applicant’s Statement of Claim against the First Respondent pleads unlawful and wrongful termination of agreement and seeks an injunction and damages. In respect of the Second Respondents, the Applicant pleads unlawful banishment and seeks an injunction and damages.

Background:

6. The Applicant’s Statement of Claim pleads that he is a Master Builder with vast experience in the building sector in Australia, New Zealand and Samoa. In approximately March 2014, he alleges that he entered into an oral agreement with the First Respondent to build a new Church at Letui. When he arrived in Samoa in August 2014, the Applicant offered to build the church as his ‘tautua’ on behalf of the Sa Fiu family as an offering of service (‘taulaga’) to the church. The First Respondents informed the Applicant that normal Samoan protocols of payment of taui would be observed. Construction ran in to several delays due to funding problems.
7. When three quarters of the church was completed, the First Respondents requested that the construction work stop until a Minister of the Church was selected. In May 2016, the Applicant was prohibited from returning to the village to continue the church. Despite being requested in October and December 2016 by Reverend Isaako Sefo to return to complete the Church, the Applicant discovered in February 2017 that his services had been terminated. The Applicant alleges that his termination was unlawful, wrongful, unfair and without any legal or proper ground.
8. The Applicant also seeks damages arising from his alleged banishment which he alleges occurred in 2016. His banishment was challenged in the Land and Titles Court and according to the Applicant, the Land and Titles Court ruled the banishment unlawful.
9. The crux of the Applicant’s proceedings against the First and Second Respondents therefore seeks orders for the Applicant to complete the building and damages arising from the unlawful termination of the alleged agreement and his banishment.
10. The Applicant also applies for an injunction to issue against the Respondents pursuant to section 80 and 83 of the Planning and Urban Management Act 2004. The Applicant alleges that the Respondents have contravened the Planning and Urban Management Act 2004 by: (a) not obtaining a Building Consent for the construction of the church building; and (b) breaching a Stop Work Notice issued in relation to the Church building on the 3^rd of August 2017 by PUMA.
11. Following the hearing of this Interim Injunction application, counsel for the Respondents filed a Development Consent issued by the Planning and Urban Management Agency on the 22 November 2017 (DCA 503/17). That Development Consent is not contested by the Applicant. Through counsel for the Applicant on the 19^th December 2017, Mr Kerslake confirms that the Applicant no longer persists with the ground of breach of the PUMA Act for the purposes of the Applicant’s interim injunction application.

Opposition to Interim Injunction:

12. The Respondents oppose the application for interim injunction on the grounds that:
    • (i) The Church building is now fully completed;
    • (ii) Damages may adequately address the Plaintiff’s concern in this matter;
    • (iii) The issues relating to permits and licenses can be dealt with by the relevant Government Authorities responsible for the issuing of such permits and licenses; and
    • (iv) The jurisdiction to issue injunctions on customary land is with the Land and Titles Court.

The Law:

13. The principles governing the grant of an interim injunction are well settled. It involves a two tier test. The first is to determine whether there is a serious question to be tried and if so, whether the balance of convenience favours the grant or refusal of interim relief (see: Dive & Fly Samoa Ltd v Schmidt [2005] WSSC 40; Mautofu v Selesele (unreported) 14th January 2008; Milford v Fidow [2008] WSSC 67 (7 August 2008)).
14. In Samoa Democratic United Party (SDUP) v Leiataua [2007] WSSC 15 (12 March 2007), His Honour Sapolu CJ stated:

“A serious question to be tried in this context means an issue that is triable in law. An issue that is frivolous or vexatious will not qualify as a serious question to be tried by the Court. The expression "balance of convenience" means the balance of the risk of doing an injustice at a very early stage of proceedings when not all the evidence is before the Court. This requires the Court, in assessing where the balance lies, to weigh the respective risks that an injustice may result from its deciding one way rather than the other when not all the evidence is before it.”

15. In terms of the first tier of the test, Sapolu CJ in Esera v National University of Samoa [2003] WSSC 12 (8 August 2003) also stated:
    

“At the first stage the Court considers whether there is a serious question to be tried. This is often referred to as the threshold test. It must be stressed that this test is not simply whether there is a question to be tried, it is whether there is a serious question to be tried which would justify interim intervention by the Court. Sometimes, perhaps more often than it should have been, the word serious which qualifies the word question is either overlooked or not given due weight. To simply state that a question is a serious one without more is also not sufficient.”

16. The grant of an interim injunction is a discretionary equitable remedy (See: Eteuati v National Provident Fund [2005] WSSC 14 (31 August 2005)).

Discussion:

17. The Respondents say that they do not dispute that there is a serious question to be tried. At issue is the second limb of the test, namely, the balance of convenience.
18. The Applicant says that because he was the original builder, his reputation rests on completing the building. Furthermore, he is concerned about the risk to his reputation and potential liability personally if the building is completed in a substandard way by others, which he alleges to be the case.
19. In the Applicant’s submissions, it is submitted that while damages is a remedy which is available to him, there is also a serious and genuine concern as to whether the First Respondents will be able to pay any award of damages if awarded by the Court. Furthermore, in terms of the cause of action pleaded against the Second Respondents arising from the alleged unlawful banishment, the Applicant submits that it is unlikely that the Second Respondents will be able to pay an award of damages. This is despite the Applicant seeking, amongst other remedies, damages against the Second Respondent in the substantive claim. The Applicant therefore says that the balance of convenience favours the grant of the injunction.
20. The termination of a construction contract is not unusual. The question is whether the termination is lawful or not. In these proceedings, the Applicant alleges the existence of a building contract between the Applicant and First Respondent. The Respondents however contend that no building contract exists. The Respondents allege that the construction of the church building was the Applicant’s tautua to the village and there was no intention to enter into a legally binding agreement between them.
21. The determination of whether or not a building contract existed will be a matter to be determined at the substantive hearing and not in these interlocutory proceedings. Where it is however determined that a contract existed, the learned authors in Kennedy-Grant and Weatherall on Construction Law (online looseleaf edn, LexisNexis) at [260,710]) stated:
    

“The purported suspension or termination of a contract which is defective because it is not justified or because there has been a failure to follow the correct procedure does not necessarily constitute repudiation of the contract by the party purporting to terminate...

...Where the purported suspension or termination of a contract does not amount to repudiation of the contract, the normal remedy will be damages.

The weight of authority is against the granting of an injunction in favour of a contractor where a contract is wrongfully terminated. An injunction may be granted ordering the return of the contractor's plant and equipment if the employer has no right to retain it.” (emphasis added)

22. At [53,960], the learned authors further stated:
    

“In exceptional cases, as where the employer is unlikely to be able to pay the damages the contrawill suffer as a as a result of termination or there are no valid grounds for terminating and the court is satisfied that the parties will be able to work together harmoniously in the future, the court may still grant an injunction.”

23. The Applicant submits that damages are not an appropriate remedy because he has serious concerns as to whether or not the Respondents can meet a damages award against them if granted. He seeks an injunction pending final determination of his claim and seeks as part of his claim orders for specific performance for him to complete the church building and damages.
24. On the affidavit evidence, it appears that the building works for the church building may be largely, if not, fully completed. It also appears on the affidavit evidence that there has been a fundamental breakdown in the relationship between the Applicant and First Respondent. This breakdown resulted in the discontinuation of the Applicant’s role in the construction of the church building.
25. Firstly¸ and in the circumstances, I am not satisfied that the parties will be able to work together harmoniously in the future.
26. Secondly, in his substantive claim against the Respondents, the Applicant seeks (i) orders against the Respondent for specific performance for him to complete the church building and (ii) damages. If the Applicant is concerned that the Respondents will be unable to meet a damages award, it is unclear to me how an interim injunction would be appropriate where the remedies he seeks at the substantive includes specific performance for him to complete the church. If the Applicant is concerned about the Respondents ability to pay damages, there is also likely to be a material risk in those circumstances that the First Respondent would be unable to compensate him for his completing the church building.
27. Finally, for the First Respondent, they wish to complete the church building and proceed with its use. The First Respondent in facts says the building is largely, if not fully complete. The issuing of an interim injunction would result in a lengthy delay because of how long it will take to proceed to hearing. In my view, there is a greater risk of an injustice to the Respondents if the injunction is granted than to the Applicant if it is refused.
28. In assessing where the balance of convenience therefore lies, it rests with refusal of the application for interim injunction. Damages are an appropriate remedy. However, Orders will also be made to address certain matters raised by the Applicant.

Conclusion:

29. Accordingly:
    • (e) the Amended Motion for Interim Injunction is dismissed;
    • (f) the First Respondent is to ordered to comply with the Planning and Urban Management Act 2004 and all lawful directions issued by the Planning and Urban Management Agency in respect of the Church Building works;
    • (g) the First Respondent is to obtain all regulatory, building and building occupancy approvals including as to any building variations as they apply to the Church Building prior to occupation and use of the Church Building at Letui; and
    • (h) Costs reserved.

JUSTICE CLARKE