Gray v Drake [2021] WSSC 18 (19 April 2021)

SUPREME COURT OF SAMOA
Gray v Drake [2021] WSSC 18

Case name:	Gray v Drake
Citation:	[2021] WSSC 18
Decision date:	19 April 2021
Parties:	CLARA AITELEA GRAY, as Administrator of the Estate of the late KIRITA MARIA-KOLOTITA PUNE and ELSA VAELUAGA as Administratrix of the Estate of LEILUA ALOSIO VAELUAGA, late of Alamagoto, Deceased (Plaintiffs) AND RUBY DRAKE Barrister and Solicitor of Apia, Samoa. (First Defendant) AND THE ATTORNEY GENERAL on behalf of THE MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT [Second Defendant] AND SAMOA BREWERIES LIMITED a registered company having its address for service at Vaitele Industrial Zone, Vaitele-Tai, Faleata Sisifo, Samoa. [Third Defendant] AND SAMOA STATIONERY AND BOOKS LIMITED a registered company having its address for service at SSAB Megastore, Togafuafua Road, Apia, Vaimauga Sisifo, Samoa. [Fourth Defendant]
Hearing date(s):	12 March 2021
File number(s):	CP172/02, CP114/14
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:
Representation:	O Woodroffe for plaintiffs K Drake-Kruse for first defendant S Ponifasio for second defendant C Vaai for third defendant F Ey for fourth defendant
Catchwords:	-costs on Strike Out Motion – Amended Statement of Claim – indemnity costs
Words and phrases:
Legislation cited:
Cases cited:	Bradbury v Westpac Banking Corp [2009] NZCA 234; [2009] 3 NZLR 400 Crownland International Co Ltd v Pioneer Freight Futures Co Ltd BVI [2009] WSSC 102 Gray v Drake [2020] WSSC 45 Lavea v Mulitalo [2017] WSSC 17 Letele v Filia [2011] WSCA 2 Pune v Vaeluaga [2016] WSSC 4 Tausaga v Electoral Commissioner [2020] WSSC 81
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:
Of the Land Titles Registration Act 2008 Section 55

BETWEEN:

CLARA AITELEA GRAY, as Administrator of the Estate of the late KIRITA MARIA-KOLOTITA PUNE and ELSA VAELUAGA as Administratrix of the Estate of LEILUA ALOSIO VAELUAGA, late of Alamagoto, Deceased
Plaintiffs

AND:

RUBY DRAKE Barrister and Solicitor of Apia, Samoa.
First Defendant

AND:

THE ATTORNEY GENERAL on behalf of THE MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT.
Second Defendant

AND:

SAMOA BREWERIES LIMITED a registered company having its address for service at Vaitele Industrial Zone, Vaitele-Tai, Faleata Sisifo, Samoa.
Third Defendant

AND:

SAMOA STATIONERY AND BOOKS LIMITED a registered company having its address for service at SSAB Megastore, Togafuafua Road, Apia, Vaimauga Sisifo, Samoa.
Fourth Defendant

Counsel:
O Woodroffe for plaintiffs
K Drake-Kruse for defendant
S Ponifasio for second defendant
C Vaai for third defendant
F Ey for fourth defendant

Hearing: 12 March 2021

Decision: 19 April 2021

DECISION OF THE COURT
(Costs on Strike Out Motion)

1. By judgment dated 14 August 2020 reported as Gray v Drake [2020] WSSC 45 the court struck out the plaintiffs claims as against the Third and Fourth Defendants. It also awarded costs to those defendants quantum to be determined by the Court failing agreement. There has been no agreement.
2. As all parties are aware these proceedings have a protracted history dating back to 2003. There has been a plethora of motions and applications since the Interim two sentence decision of 15 July 2014 of Chief Justice Sapolu and my subsequently assuming control of the file following the Court of Appeal decision in Pune v Vaeluaga [2016] WSSC 4 where the court stated:

“(a) The trial judge to give a reasoned decision arising from the 2003 hearing or direct a rehearing;

(b) The Supreme Court (whether the trial judge or some other judge) to give a reasoned decision if consequential remedies are to be further delayed or denied;

(c) Consideration be given in the Supreme Court to the question whether the original trial judge or some other judge should continue with responsibility for these proceedings;

(d) The appellants to decide, in the light of the observations above, what further steps they wish to pursue over joinder of parties in existing proceedings and/or the commencement of additional proceedings; and

(e) All present and future parties to consider whether the whole matter could be resolved by mediation either before, during, or after the above steps.”

3. The above Strike Out judgment relates to an Amended Statement of Claim dated 22 February 2015 filed by the plaintiffs joining the Third and Fourth Defendants as further amended on 16 September 2019. The causes of action as against the Third and Fourth defendants were determined to be defective and the Court held that:

“12. The action against the third defendant mortgagee as pleaded cannot succeed. They were not a bona fide purchaser for value, there has been no foundation laid for the damages and relief sought and the allegations of fraud/impropriety have been inadequately addressed.

13. In relation to the fourth defendant similar concerns prevail. Furthermore the equitable doctrine of bona fide purchaser for value without notice cannot be used as a basis for actionable relief. Again there is no prospect the action as pleaded can be in any manner sustained. This cannot be altered by allowing the plaintiffs to replead their case. The problem is not only one of underlying inference but a reliance on inapplicable facts.”

4. It was also relevant as argued by the Fourth Defendant that the Plaintiffs had ample opportunity since 2015 to remedy these defects. It failed to do so despite numerous callings and other mentions of the proceedings. The causes of action were accordingly Struck Out with costs to the successful parties.

Costs of the Third Defendant

5. The Third Defendant seeks indemnity costs of $44,562.50 as per their itemised bill of costs for the period June 2015 to 15 July 2020.
6. The difficulty is this account involves matters other than the Motion to Strike Out the Amended Statement of Claim of 16 September 2019. As noted there were numerous other interlocutory applications and issues on foot but the costs awarded relates only to the Strike Out Motion. Counsel is to reformulate his bill and submit for approval in due course.
7. In relation to the claim for indemnity costs this is an instance where in my view such ought to be granted. The law in this regard is clear. As noted in authorities such as Crownland International Co Ltd v Pioneer Freight Futures Co Ltd BVI [2009] WSSC 102 “the Court is not bound by the antediluvian scale of the Supreme Court Fees and Costs Rules 1971 and in appropriate cases can and has awarded costs on a party to party basis or indemnity basis.” Early examples are cited, a more recent matter is Tausaga v Electoral Commissioner [2020] WSSC 81. See also Lavea v Mulitalo [2017] WSSC 17 where relevant case-law was usefully discussed by Clarke, J.
8. The Court of Appeal in Letele v Filia [2011] WSCA 2 approved the approach in Bradbury v Westpac Banking Corp [2009] NZCA 234; [2009] 3 NZLR 400 observing that -

“Indemnity costs are appropriate only if the case advanced is hopeless or is pursued for improper purposes. They must also be shown to be reasonable. The Respondents bare assertion of what has been charged does not establish reasonableness.”

9. In this matter there was no sustainable cause of action pleaded as against the Third or Fourth Defendants. As stated in the Courts decision “This cannot be altered by allowing the plaintiffs to replead their case. The problem is not only one of underlying inference but a reliance on inapplicable facts.” In the terminology of Letele v Filia the case being pursued against the Third and Fourth Defendants was “hopeless,” it was bound to fail.

Costs of the Fourth Defendant

10. The Fourth Defendant claims as party to party costs the discounted sum of $24,770.36 including VAGST being 2/3 of their costs as per itemised statement of account submitted. Again I note the statement incorporates services required in relation to matters other than the Motion to Strike Out the Amended Statement of Claim dated 16 September 2019. I am however able to isolate those matters specifically the third, fourth and eighth items leaving a revised calculation of 46.9 hours x $450 = $21,105 x 2/3 = $14,070 plus disbursements of $993 = $15,063 plus VAGST. This is the amount approved as costs in this matter for the Fourth Defendant.
11. For completeness I add that I have considered the plaintiffs submissions dated 22 December 2020. None of the matters raised therein materially affect the above.

JUSTICE NELSON