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Ah Chong v Founder Investment Co Ltd [2025] WSSC 104 (3 November 2025)

IN THE SUPREME COURT OF SAMOA
Ah Chong & Anor v Founder Investment Company Limited & Anor [2025] WSSC 104 (3 November 2025)


Case name:
Ah Chong & Anor v Founder Investment Company Limited & Anor


Citation:


Decision date:
3 November 2025


Parties:
VAITOGA AH CHONG & METISA AH CHONG (Applicants) v FOUNDER INVESTMENT COMPANY LTD (First Respondent) & THE PLANNING AND URBAN MANAGEMENT AGENCY (Second Respondent)


Hearing date(s):
2 October 2025


File number(s):
2025-01141 DC/CU/UP


Jurisdiction:
Supreme Court – CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Tuatagaloa


On appeal from:


Order:
The application for interim injunction is granted, restraining the First Respondent from operating the factory located on Lot 1, Plan 10108 at Siusega, pending the resolution of:
  • The Applicants’ appeal before the Planning Tribunal; and/or
  • The substantive hearing of the matter.
  • Costs are reserved.


Representation:
K. Kruse for Applicant
K. Koria for First Respondent
F. Faanunu for the Second Respondent


Catchwords:
Planning Tribunal, consent granted, interim injunction, balance of convenience, nuisance, irrational and unreasonable, planning laws and procedural fairness.


Words and phrases:


Legislation cited:


Cases cited:
American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396;
Esera v National University of Samoa [2003] WSSC 12 (8 August 2003);
Far North District Council v Rightside Properties Ltd [2013] NZRMA 103;
Milford v Fidow [2008] WSSC 67( 7 August 2008);
Wellington International Airport Ltd v Air New Zealand Ltd HC Wellington CIV-2007-485-1756, 30 July 2008.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


VAITOGA AH CHONG, retired and METISA AH CHONG retired, both of Siusega


Applicants


AND:


FOUNDER INVESTMENT COMPANY LTD, a duly incorporated company with its registered office at Vaitele-uta


First Respondent


AND:


THE PLANNING AND URBAN MANAGEMENT AGENCY, an agency established under section 3 of the Planning and Urban Management Act 2004.


Second Respondent


Counsels: K Kruse for Applicants
K Koria for Respondent
F Faanunu for Second Respondent


Hearing: 2 October 2025


Decision: 3 November 2025


DECISION OF JUSTICE TUATAGALOA

Background

  1. The Applicants are long-term residents of Siusega, having built their home in 2009. In 2019, a warehouse-like structure was constructed on adjacent land and later modified into a noodle factory operated by the First Respondent. The land is owned by the son and wife of Mr Xiaoyi Fang, who owns the First Respondent company. PUMA is the statutory authority responsible for issuing development consents under the Planning and Urban Management Act 2004.

Proceedings

  1. The Applicants seek an interim injunction to restrain the First Respondent, its agents and servants, from operating any business or activity from the factory building situated on Lot 1, Plan 10108 at Siusega (“The Factory”) until one or more of the following are resolved:
  2. The First Respondent opposes the application asserting that its noodle factory is operating in compliance with all legal requirements and approvals since 11 July 2024.
  3. PUMA as Second Respondent did not file a response but advised that its Board would meet on 24 October to determine when the Planning Tribunal would convene to hear the appeals.

Chronological Summary of Events[1]

Legal principles for Interim Injunctions

  1. The granting of an interim injunction is a discretionary remedy. The Court must assess whether there is a serious question to be tried that warrants interim intervention. This involves weighing all relevant factors to determine whether such relief is appropriate in the circumstances.[2]
  2. The primary purpose of an interim injunction is to preserve the status quo or protect the applicant's position until the substantive issues in the case are resolved.
  3. The applicable principles to grant an interim injunction are well settled. [3] They are:
  4. The court, however, retains discretion to consider the overall justice of the case, taking into account all relevant circumstances, including the conduct of the parties and the public interest. The court aims to ensure that justice is served in the specific context of the case.

Is there a serious question to be tried?

  1. The threshold for interim relief is whether there is a serious question to be tried. This does not require the Court to determine the merits but to assess whether the claims are neither frivolous nor vexatious and warrant judicial consideration.
  2. The Applicants must demonstrate that there is a serious question to be tried, meaning the claim is not frivolous or vexatious. This requires showing that there is an arguable case with a tenable resolution of the legal and factual issues in the applicant's favour.[4]
  3. The First Respondent submits that there is no serious question to be tried because they have complied with the law as of 11 July 2024 and have been issued with a development consent valid for two years. In other words, their operation is legal. However, the validity of that consent is contested and forms part of the substantive proceedings.
  4. The 11 November 2022 development consent was granted after the factory had already been operating, and the Applicants argue there is no statutory basis for retrospective approval under the Planning and Urban Management Act 2004. This raises a legal question about the scope of PUMA’s powers and whether its actions were beyond jurisdiction.
  5. The timeline of consent and operation as follows suggests a pattern of retroactive regularization rather than proactive compliance, which is relevant in assessing whether PUMA’s actions align with statutory obligations under the Planning and Urban Management Act 2004:
  6. Under Part 5 of the Act all developments need consent unless provided otherwise under a Sustainable Management Plan or regulations (s34(1)). A development is not to be carried out unless a consent has been obtained and such development is carried out pursuant to the consent (s34(2)).
  7. The Applicants have raised a credible challenge to the legality of the First Respondent’s operations, particularly:
  8. Furthermore, the three causes of action as follows raise serious questions to be tried:

Nuisance

[16.1] The alleged interference with residential enjoyment due to noise and noxious smells emanating from the factory is a classic ground for private nuisance. The proximity of the factory to the Applicants’ home, and its operation during night hours, supports the claim that the harm is substantial and ongoing.

Ultra-Vires

[16.2] The Applicants contend that the development consent on 11 November 20222 was retrospective and therefore beyond the powers conferred by the Planning and Urban Management Act 2004. This raises a legal question as to the scope of PUMA’s authority under the Act.

Irrational and Unreasonable

[16.3] The Applicants argue that PUMA’s decisions were procedurally flawed and substantively unreasonable. The delay in hearing the Applicants’ appeal, the issuance of a new consent despite prior non-compliance, and the absence of a response from PUMA suggest a breakdown in procedural safeguards. These matters engage the principles of natural justice and administrative reasonableness.

  1. There was no development consent issued from 2019, nor was a building permit first obtained for the building when it was constructed in 2019. [5] The operation of the factory during periods without valid consent and permit may constitute a breach of the Planning and Urban Management Act 2004, strengthening the case for interim relief. PUMA in its meeting on 30 June 2023 referred to ongoing non-compliance with the original consent, DC519/22.[6]
  2. The harm alleged—interference with residential enjoyment and procedural rights—is not readily compensable by damages. The Applicants seek to vindicate statutory and common law rights, and interim relief is necessary to prevent irreparable harm.
  3. The public interest in upholding planning laws and procedural fairness weighs in favour of restraint.

Where does the balance of convenience lie?

  1. The next step is the "balance of convenience" - 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.[7]
  2. The Court must assess whether the inconvenience or harm to the Applicants if the injunction is not granted outweighs the inconvenience or harm to the Respondents if it is granted. This includes consideration of whether damages would be an adequate remedy for either party.[8]
  3. The Applicants have resided in Siusega since 2009 and have consistently objected to the operation of the factory. The factory has operated intermittently, including during periods when no valid development consent was in place. The continued operation risks further harm to the Applicants and undermines the statutory appeal process.
  4. The First Respondent has previously ceased operations for eleven months following a Stop Order indicating that temporary restraint would not cause disproportionate hardship.
  5. The Applicants allege ongoing interference with their residential enjoyment due to noise and odours from the factory. If the factory continues operation, particularly at night, the harm to the Applicants may not be adequately compensated for by damages.
  6. The Applicants seek only to pause operations until their statutory appeals and motion are heard—not a final determination. The balance of convenience favours preserving the status quo until the Applicants’ appeals and motion are heard.

Overall justice of the case

  1. The First Respondent asserts that it has complied with all relevant legal requirements. However, the evidence indicates that approvals were sought only after construction and operation had commenced. This reactive approach reflects a disregard for the statutory obligations under the Planning and Management Act 2004.
  2. The Applicants acted promptly upon discovering the building in 2019 by lodging a complaint with PUMA. The absence of any record of this original complaint raises concerns about PUMA’s complaint-handling procedures. If the complaint had been properly recorded, PUMA may have identified the building’s non-compliance earlier and taken appropriate action.
  3. Notably, PUMA by letter dated 23 November 2022 informed that no Sustainable Management Plan (SMP) had been prepared for the area. The absence of such a plan—intended to guide and limit land use in accordance with sustainable development principles—reflects a broader failure in anticipatory planning. Had an SMP been in place, the appropriateness of constructing and operating a factory in this location could have been properly assessed at the outset. The lack of forward planning and timely intervention has contributed to the present dispute.
  4. The Applicants have engaged with the planning system in good faith, lodging complaints and appeals through the prescribed channels. Yet their efforts have been met with administrative silence, delay, and apparent disregard for statutory safeguards. The continued operation of the factory—despite expired consents, a Stop Order, and unresolved appeals—risks rendering the Applicants’ rights illusory. Justice requires that the planning process be not only lawful but fair, transparent, and responsive.
  5. The overall justice of the case compels interim intervention ensuring that the Applicants’ grievances are heard before irreversible harm occurs.

Conclusion and Orders

  1. Having considered the evidence, the legal principles applicable to interim relief, and the overall justice of the case, the Court is satisfied that the Applicants have established a serious question to be tried. The balance of convenience favours the Applicants, and the public interest supports the enforcement of planning laws and procedural fairness.
  2. The interim injunction is not a final remedy but a safeguard to ensure that justice is not overtaken by inertia or administrative convenience.
  3. Accordingly, the Court makes the following orders:

JUSTICE LEUTELE M TUATAGALOA

[1] Affidavit of Sylvia Lafaialii-Fang dated 15th August 2025 and Submissions of the Applicants dated 24 September 2025
[2] Esera v National University ooa [2003] WSSC 12 (8 August 2003)
[3] American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 referred to in Far North District Council v Rightside Properties Ltd [2013] NZRMA 103; applied in Milford v Fidow [2008] WSSC 67( 7 August 2008); Esera v National University of Samoa [2003] WSSC 12 (8 August 2003)
[4] supra


[5] Letter from CEO Ministry of Works, Transport & Infrastructure dated 23 November 2022
in Affidavit of Vaitoga and Metisa Ah Chong dated 17th June 2025, Annexure ‘VAC-6’
[6] Letter by PUMA dated 2 August 2023 in Affidavit of Sylvia Lafaialii-Fang dated 15th August 2025, Annexure ‘B’
[7] Wellington International Airport Ltd v Air New Zealand Ltd HC Wellington CIV-2007-485-1756, 30 July 2008 at [4]
[8] Supra, note 1

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