SUPREME COURT OF SAMOA
Westfield Holdings Limited v Siva Afi Designs Limited [2019] WSSC 25

Case name: 	Westfield Holdings Limited v Siva Afi Designs Limited	
		
Citation: 	[2019] WSSC 25

Decision date: 	4 July 2019	
		
Parties: 	Westfield Holdings Limited v Siva Afi Designs Limited	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Civil 	
	-	
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Patu F M Sapolu (Former Chief Justice, Temporary Justice of the Supreme Court)	
		
On appeal from:		
		
Order:		
		
Representation: 	K C Drake for plaintiff
F P Meredith for defendant 	
		
Catchwords: 	head lease – landlord – lease – motion to strike out –  sub-lease –monthly tenant –– statement of claim – no reasonable cause of action –tenant –	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Reupena v Senara [2015] WSSC 53	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

WESTFIELD HOLDINGS LIMITED a duly incorporated company having its registered office at Apia.
Plaintiff

A N D

SIVA AFI DESIGNS LIMITED a duly incorporated company having its registered office c/- Richard’s Law Firm, Apia, Samoa.
Defendant

Counsel:	
K C Drake for plaintiff
F P Meredith for defendant

Judgment:	4 July 2019

JUDGMENT OF SAPOLU J
TEMPORARY JUSTICE OF THE SUPREME COURT
AND FORMER CHIEF JUSTICE
Introduction 
1. 	The plaintiff and the defendant are two separate companies with registered offices in Apia.  The defendant brought a motion to strike out the plaintiff’s statement of claim on the grounds that: (a) the statement of claim discloses no reasonable cause of action against the defendant, (b) the plaintiff is not the registered proprietor of the premises that was the subject of the lease agreement between the defendant and the company called Maja Holdings Ltd (Maja), (c) the plaintiff had acknowledged in writing that it has no privity of contract with the defendant and therefore the plaintiff cannot claim rental arrears under the lease agreement between the defendant and Maja, and (d) the plaintiff admitted in its statement of claim that it had no head lease with Maja despite its earlier advices in writing of the existence of such a head lease.
2. 	The approach applied by the Samoan Courts to a motion to strike out a statement of claim for disclosing no reasonable cause of action is now well established. For example, in the recent case of Reupena v Senara [2015] WSSC 53, paras 9-12, this Court stated: 
	9. “The approach taken by the Samoan Courts to a motion to strike out a statement of claim for disclosing no reasonable cause of action is well established, for example, see Peter Meredith & Co Ltd v Drake solicitors Nominee Co Ltd [2001] WSSC 32; Chan Tung v Attorney General [2005] WSSC 24; Bluesky Communications Ltd v Attorney General [2007] WSSC 58; Apia Quality Meats Ltd v Westfield Holdings Ltd [2009] WSSC 1, [5] – [11].
	10. In Chan Tung v Attorney General [2005] WSSC 24, this Court said:
	“Essentially, the approach that the Samoan Courts have adopted to a motion to strike out a statement of claim as disclosing no reasonable cause of action is that the summary jurisdiction to strike out is to be sparingly exercised. It is to be exercised only in a plain and obvious case where it appears from the material before the Court that the plaintiff’s claim is so clearly untenable that it cannot possibly succeed or is certain to fail: see, for example, Peter Meredith & Co Ltd v Drake Solicitors Nominee Co Ltd [2001] WSSC 32.
	“For the purpose of the exercise of the summary jurisdiction to strike out a claim as not disclosing a reasonable cause of action, the Court proceeds on the assumption that the facts pleaded in the statement of claim are true, that is, capable of being proved’.
	11.  The assumption that the facts pleaded in the statement of claim are true is only an assumption. It can be rebutted if it appears clear from the undisputed material placed before the Court that an allegation of fact pleaded in a cause of action cannot be supported. This approach is reflected from Attorney General v McVeagh [1995] 1 NZLR 558,566 where the New Zealand Court of Appeal said:
	“The Court is entitled to receive affidavit evidence on a strike out application, and will do so in a proper case. It will not attempt to resolve genuinely disputed issues of fact and therefore will generally limit evidence to that which is undisputed. Normally it will not consider evidence inconsistent with the pleading, for a striking out application is dealt with on the footing that the pleaded facts can be proved; see Electricity Corporation Ltd v Gutherm Energy [1992] 2 NZLR 641, 645-646; Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53, 62-63, per Cooke P. But there may be a case where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further’.
	12.  Furthermore, a statement of claim should not be struck out if the pleadings are capable of amendment and the defendant can be adequately compensated with an award of costs.”
Plaintiff’s statement of claim 
3. 	The plaintiff’s cause of action against the defendant is for unpaid rent.  As pleaded in the statement of claim, the plaintiff is the registered proprietor of certain lands and buildings at Saleufi in Apia.  The plaintiff entered into discussions and negotiations with the company Maja to lease the plaintiff’s premises.  While those discussions and negotiations were ongoing, and before any lease agreement was reached, Maja entered into a sub-lease agreement with the defendant.  This was about December 1999.
4. 	When the plaintiff and Maja could not reach agreement on a lease, the plaintiff rescinded all previous arrangements with Maja on 27 May 2002 and notified the defendant that any continued occupation of the plaintiff’s premises would be as a monthly tenant.  The defendant continued to occupy the plaintiff’s premises on that basis from June 2002 to July 2003 at the rate of $3,012.90 per month.
5. 	The plaintiff alleged that the defendant did not pay any rent.  As a result, it gives notice to the defendant to quit its premises which the defendant did in July 2003.  After several unsuccessful requests to the defendant for payment of its outstanding rent, the plaintiff brought these proceedings seeking $42,180.60 for unpaid rent. 
Response from the defendant and counter response from the plaintiff
6. 	Ms Clare Pienaar, a director of the defendant, filed affidavit evidence in support of the defendant’s motion to strike out.  She deposed that while there was a lease between Maja and the defendant, there was no reference in that lease to a head lease between Maja and the plaintiff. The plaintiff has also admitted in its statement of claim that it did not have a head lease with Maja.  With respect, I do not find this to be relevant.  The action by the plaintiff was not brought against the defendant pursuant to any head lease between the plaintiff and Maja or any sub-lease between Maja and the defendant.  The plaintiff’s action was brought directly against the defendant as a monthly tenant of the plaintiff.  The relationship between the plaintiff and the defendant, as shown from the statement of claim, was a direct landlord and tenant relationship.
7. 	s Pienaar also pointed out in her affidavit evidence that the solicitor for the plaintiff in his letter of 9 October 2003 to the solicitors for the defendant confirmed that there was a head lease between the plaintiff and Maja.  However, it appears from the statement of claim that no head lease was ever concluded between the plaintiff and Maja.  So there is a direct conflict between what has been pleaded by the plaintiff in its statement of claim and what was said by its solicitor in his letter of 9 October 2003 to the solicitors for the defendant.  For the purposes of a strike out motion, I will have to assume that the facts pleaded in the statement of claim are true in the sense that they are capable of being proved.  Anyway, it appears from the affidavit of Mr Murray Drake, the solicitor for the plaintiff, that the correct position was that no head lease was ever concluded between Maja and the plaintiff.  So what was said in the letter of 9 October 2003 of the plaintiff’s solicitor was incorrect. There is, therefore, no need here for this matter to be further adjourned in order for the statement of claim to be amended.
8. 	Ms Pienaar in her affidavit evidence also pointed out that the plaintiff was not the registered owner of the premises in question.  Presumably, this would mean that the plaintiff had no standing to grant a monthly tenancy of the premises to the defendant. The plaintiff’s solicitor explained in is affidavit that the name shown in the land register was that of the plaintiff’s predecessor. However, on 7 March 1997 the plaintiff had registered with the registrar of companies a change of name of the company that owns the premises in question to that of the plaintiff from that of its predecessor. Documentary evidence was produced to confirm that was done.  The solicitor for the plaintiff also deposed in his affidavit that he would take up with the land registrar the question of correcting the land register in order to show the name of the plaintiff as the new owner. In the circumstances, there is no need to further adjourn for the statement of claim to be amended. What needs to be done is for the land register to be corrected.
Discussion 
9. 	Bearing in mind the requirements of the current approach to a strike out motion, I am not satisfied from the material before me that the plaintiff’s claim is so clearly untenable that it cannot possibly succeed or is certain to fail. In other words, I am not satisfied that the claim is so hopeless that it will be a waste of the Court’s time and resources to allow it to carry on. The summary jurisdiction to strike out is also to be sparingly exercised.  In consequence, I am of the respectful view that the strike out motion should be dismissed.
Conclusions 
10. 	(1)  The strike out motion is dismissed.
(2)   The defendant to file and serve a statement of defence by 18 July 2019 at 12 noon when this matter will be re-mentioned before me.
(3)   Costs reserved. 
Patu F M Sapolu
Former Chief Justice 
Temporary Justice of the Supreme Court