MVOICE Pty Ltd v Roepke [2024] WSSC 42 (27 June 2024)

IN THE SUPREME COURT OF SAMOA
MVOICE Pty Ltd & Anor v Roepke & Ors [2024] WSSC 42 (27 June 2024)

Case name:	MVOICE Pty Ltd & Anor v Roepke & Ors
Citation:	[2024] WSSC 42
Decision date:	27 June 2024
Parties:	MVOICE PTY LTD (First Plaintiff) & CONTEXTUAL TECHNOLOGY PTY LIMITED (Second Plaintiff) v BRITTANIE PATRICIA LOUISE ROEPKE nee O’GRADY (First Defendant); KARL ROEPKE (Second Defendant) & SAMOA ALOFA RENTALS (Third Defendant)
Hearing date(s):	28 May 2024
File number(s):
Jurisdiction:	Supreme Court – CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Perese
On appeal from:
Order:	The Court makes the following orders granting the injunctions: a) An order of mandatory injunction that the defendants deliver up, at a time and date agreed with the First and Second Plaintiffs but no later than 48 hours after the delivery of this judgment, all the vehicles identified in paragraphs 19(b) and 19(c) above, to the Federal Pacific Compound (formerly known as Fun way Park) on Beach Road, Matautu-Tai, Apia Samoa. Copies of all keys for the vehicles are to be delivered to the plaintiffs’ solicitors, at the same time the vehicles are delivered. b) An order of injunction is made pursuant to paragraph 19(e) above, to restrain the defendants or their agents or servants, from disposing or dealing with any of the cars currently in the defendants’ custody or possession or control to any third party, including but not limited to offer for sale, sale of the cars, renting the cars (other than honouring contractual obligations entered into before the service of this interim injunction); or offering the cars as security for any loans or cash advances. The plaintiffs are awarded costs of SAT$5,000.
Representation:	G. Latu for the Plaintiffs S. Wulf for the Defendants
Catchwords:	Claims breach of contract – breach of trust – breach of fiduciary duty – unjust enrichment – supposed business arrangement/arrangement – rental car business – interim injunction.
Words and phrases:
Legislation cited:
Cases cited:	Lauano & Ors v Amosa & Ors [2024] WSSC 37 (09 April 2024).
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

MVOICE PTY LTD

First Plaintiff

A N D:

CONTEXTUAL TECHNOLOGY PTY LIMITED

Second Plaintiff

A N D:

BRITTANIE PATRICIA LOUISE ROEPKE nee O’GRADY

First Defendant

A N D:

KARL ROEPKE

Second Defendant

A N D:

SAMOA ALOFA RENTALS

Third Defendant

Counsel: G. Latu for the Plaintiffs
S. Wulf for the Defendants

Hearing: 28 May 2024
Judgment: 27 June 2024

RESERVED JUDGMENT OF PERESE CJ

1. This motion seeks, amongst other forms of relief, the making of orders granting the extraordinary remedies of mandatory and prohibitory injunction, against the defendants. The matter first came to me on a without notice, or ex parte, basis. Parties may proceed to seek these remedies on a without notice basis if delay, which would inevitably arise with proceeding on notice, might lead to irreparable harm or injury to the applicant. I considered there was no likelihood of irreparable harm or injury to the plaintiffs. And accordingly, the plaintiffs were required to serve their motion for the extensive orders they seek against the defendants. A hearing has now been held.
2. It is not appropriate that I make final determinations on factual matters in dispute in this interlocutory and summary hearing. The evidence is untested. The parties differ as to the terms of the arrangement between them. I cannot resolve this issue, in this particular case, by referring to the written affidavits. The dispute will proceed in time to a main hearing but there is the not-insignificant fact that pursuant to some yet to be determined arrangement, some dozens of cars have landed in Samoa. The Court is asked to determine what should happen to these cars, in the meantime.
3. The plaintiffs say that under a business arrangement between the parties they purchased 62 vehicles in Australia, which were shipped to Samoa, for the defendants to use to operate a rental car business. The plaintiffs funding of the purchase of the 62 cars is not in issue (imported cars), and nor is the fact of the defendants run a rental car business using the imported cars. But, what is in issue is the failure of the defendants to account to the plaintiffs; (1) the rental car income generated from the hire of the imported cars; (2) the sale proceeds from the disposal of 2 of the imported cars in the sum of SAT$120,000, or (3) the proceeds of the unauthorised sale of 2 other imported cars in the sum of SAT$120,000.
4. In their claim the plaintiffs plead breach of contract; breach of trust; breach of fiduciary duty; and unjust enrichment.
5. The defendants in their defence and counterclaim deny the existence of an agreement with the plaintiffs. Instead, they say they entered into an agreement with Mr Craig Lawrence who is not a party to this proceeding. Under this agreement, no money is payable until the rental car company turns a profit, and so there is no basis on which they are required to account to the plaintiffs or Mr Lawrence, yet.
6. These, in a nutshell, are the contentions of the parties. The main issue seems to centre on when it was agreed the defendants would begin paying back the plaintiffs significant capital investment. It is against this background that I must apply the legal principles relating to interim legal injunction.

The legal principles

7. As I explained in Lauano & Ors v Amosa & Ors [2024] WSSC 37 (09 April 2024):
   • An interim injunction is an equitable remedy, which lies in the inherent jurisdiction of the court. The applicable principles that are applied are well settled by the authorities: American Cyanamid Co v Ethicon Ltd; Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd; Tagaloa v Mataafa.
8. The Court applied a three-part analysis:
   • (a) Does the applicant have a serious question to be tried;
   • (b) Where does the balance of convenience lie; and
   • (c) Standing back we look at the overall justice.

A serious issue?

9. This is a case involving an alleged breach of contract. It is a contract which involves a lot of money. There are two facts which are determinative in my decision:
   • (a) the plaintiffs own the imported cars.
   • (b) the defendants have not paid the plaintiffs any money earned from the rental car business (in which the cars were used), nor the authorised and unauthorised sale of some of the imported cars.
10. Mr Wulf, on behalf of the defendants, is correct to concede there is a serious issue to be tried.

Where does the balance of convenience lie?

11. Mr Wulf submits that granting an interim injunction would mean the defendants are unable to service outstanding Customs duties from rental car income. The duties are in the defendants’ names. Further, Mr Wulf submits the inability to pay outstanding duties means Mr Lawrence would be unable to recover his money spent purchasing and shipping the vehicles to Samoa.
12. The points Mr Wulf makes are not accepted. I am not even sure there is an outstanding debt to Customs; nor am I satisfied that the deck of cards will come tumbling down if the duty remains unpaid. The respondents produced in support of the alleged debt a spreadsheet, which they prepared. I am unable to verify the accuracy of the spreadsheet. Contrast this with the formality of copies of invoices issued by the Ministry of Revenue, which I can have regard to as a business record.
13. I have also had regard to the financial statements produced by E.L Wilson & Associates, Chartered Accounts, of Samoa Alofa Rental Limited. I am not satisfied the statements assist the respondents on the issue of balance of convenience. They do not record a heavily indebted company as would be expected if the respondents spent $1,427.957 WST on repairs before the imported cars could be used in their rental business. These accounts show the company made a net loss of only $7,003 from its operating activities for the 12 months ended 31 December 2023, the period in which it is suggested the respondents spent the WST$1.4 million on repairs.
14. I am satisfied that the balance of convenience favours the granting of an interim injunction.

Overall justice of the case

15. This part of the inquiry requires me to stand back to ask where the justice of the case lies.
16. In this regard, I am guided by two main factors. The first is that the defendants acknowledge they owe money to Mr Lawrence. It is recorded in the third defendant’s financial statements, that the third defendant owes a large sum of money to Mr Lawrence. Further, the defendants admit the allegations in paragraph 3 of the statement of claim, that Mr Lawrence has at all times been the sole director and shareholder of the first plaintiff. In light of this admission the Court would be able to join Mr Lawrence personally, so the court can effectually and completely adjudicate and settle all questions involved in this proceeding. Meaning, the Court can make a binding decision which will determine all the issues arising in this proceeding.
17. However, the second factor is that notwithstanding the fact the defendants owe the money to someone – they have not paid even a sene to Mr Lawrence, even as a sign of good faith that the rest of the debt will eventually be paid. That is a telling admission. The defendants have retained all of the rental income and proceeds of the sale of vehicles.
18. I consider that the interests of justice require the making of orders granting of the injunctions sought, to protect the further dissipation or diminution of the value of the imported vehicle stock.

The remedy sought

19. The plaintiffs’ in their application seek the following:
    • (a) An interim order that the plaintiffs own the 62 vehicles that are listed in the second plaintiff’s affidavit;
    • (b) An interim order the defendants deliver up and surrender possession to the custody and control of the plaintiffs of cars which:
      • (i) Are not currently required for the performance of any genuine rental car agreement between the third defendant and any third party entered before the service of an order for interim injunction; or
      • (ii) Have not previously been sold with the plaintiffs’ express consent.
    • (c) An interim order for the defendants to deliver up and surrender possession to the custody and control of the plaintiffs, cars that are currently required for the performance of any genuine rental car agreement between the third defendant and any third party entered before the service of the order for interim injunction, forthwith upon completion of such contraction obligations;
    • (d) For the purposes of b) and c) the vehicles are to be delivered to a named address;
    • (e) An injunction to restrain the defendants or their agents or servants, from disposing or dealing with any of the cars currently in the defendants’ custody or possession or control to any third party, including but not limited to offer for sale, sale of the cars, renting the cars (other than honouring contractual obligations entered before the service of the interim injunction); or offering the cars as security for any loans or cash advances.
20. The first relief sought is the making of a declaratory order, and not an application for an injunction. The final disposition of this issue, which will result in a declaration if appropriate, should be left for the hearing of the substantive matter, and that is what I do.
21. The injunction sought is both mandatory and prohibitory. It is mandatory in respect of the order that the vehicles be delivered to a named address – as it requires the defendants to do something. And it is prohibitory in that it restrains the defendants and their agents and servants from disposing or dealing with the vehicles. I am satisfied that both the injunctions sought should be granted.

Orders

22. The Court makes the following orders granting the injunctions:
    • (a) An order of mandatory injunction that the defendants deliver up, at a time and date agreed with the First and Second Plaintiffs but no later than 48 hours after the delivery of this judgment, all the vehicles identified in paragraphs 19(b) and 19(c) above, to the Federal Pacific Compound (formerly known as Fun way Park) on Beach Road, Matautu-Tai, Apia Samoa. Copies of all keys for the vehicles are to be delivered to the plaintiffs’ solicitors, at the same time the vehicles are delivered.
    • (b) An order of injunction is made pursuant to paragraph 19(e) above, to restrain the defendants or their agents or servants, from disposing or dealing with any of the cars currently in the defendants’ custody or possession or control to any third party, including but not limited to offer for sale, sale of the cars, renting the cars (other than honouring contractual obligations entered into before the service of this interim injunction); or offering the cars as security for any loans or cash advances.
23. The plaintiffs are awarded costs of SAT$5,000.

CHIEF JUSTICE