Ngan Woo v Ngan Woo [2025] WSSC 83 (25 June 2025)

IN THE SUPREME COURT OF SAMOA
Ngan Woo v Ngan Woo [2025] WSSC 83 (25 June 2025)

Case name:	Ngan Woo v Ngan Woo
Citation:	WSSC 83
Decision date:	25 June 2025
Parties:	Reverend Feleti Ngan Woo, of Salelologa, California USA, Kapisi Ngan Woo, of Auckland New Zealand, Mele Ngan Woo, of Auckland New Zealand, Aso Joseph Ngan Woo, of Auckland New Zealand, John Ngan Woo, of Auckland New Zealand, Oliula Frank Ngan Woo, of Auckland New Zealand, Lale Aukusitino Ngan Woo, of Auckland New Zealand, Ah Voo Junior Ngan Woo, of Victoria Australia (Plaintiffs) v Faimasasa Michael Ngan Woo, of Melbourne Australia, as Administrator of the Estate of the late ELISA CHILAI otherwise known as SAUTOAI AH VOO or SAUTOAI NGAN WOO, (First Defendant) AND Katalina Asoleaga May, of Canberra Australia (Second Defendant)
Hearing date(s):	10 April 2025
File number(s):
Jurisdiction:	Supreme Court – CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	- For the foregoing reasons: - the first defendant’s application strike out for want of prosecution is dismissed; and - costs reserved.
Representation:	M Lui for Plaintiffs R Khan and S Chan Chui for First Defendant
	No appearance for Second Defendant
Catchwords:
Words and phrases:	application by the first defendant to strike out the plaintiff’s Statement of Claim for non-prosecution.
Legislation cited:	rule 23 of the Supreme Court (Civil Procedure) Rules 1980.
Cases cited:	Development Bank of Samoa v Manono-uta Primary School [2003] WSSC 10 (23 May 2003), Birkett v James [1977] 2 All ER 801 at pp 804 – 805, Allen v McAlpine, Horner v Rankin [2018] NICh 6 (28 February 2018) where McBride J stated at [21], BNZ v Savril Contractors Ltd CA12/03 (12 February 2004), New Zealand Court of Appeal in BNZ v Savril Contractors Ltd.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

REVERED FELETI NGAN WOO, of Salelologa, California USA, KAPISI NGAN WOO, of Auckland New Zealand, MELE NGAN WOO, of Auckland New Zealand, ASO JOSEPH NGAN WOO, of Auckland New Zealand, JOHN NGAN WOO, of Auckland New Zealand, OLIULA FRANK NGAN WOO, of Auckland New Zealand, LALE AUKUSITINO NGAN WOO, of Auckland New Zealand, and AH VOO JUNIOR NGAN WOO, of Victoria Australia.

Plaintiffs

A N D:

FAIMASASA MICHAEL NGAN WOO, of Melbourne Australia, as Administrator of the Estate of the late ELISA CHILAI otherwise known as SAUTOAI AH VOO or SAUTOAI NGAN WOO.

First Defendants

A N D:

KATALINA ASOLEAGA MAY, of Canberra Australia.

Second Defendant

Representation: M Lui for Plaintiffs

R Khan and S Chan Chui for First Defendant

No appearance for Second Defendant

Judgment: 25^th June 2025

RESERVED JUDGMENT (MOTION TO STRIKE OUT)

INTRODUCTION:

1. These proceedings concern an application by the first defendant to strike out the plaintiff’s Statement of Claim for non-prosecution.
2. The key grounds of the first defendant’s application to strike out the Statement of Claim are that:
   • (i) he is the executor and trustee of the estate of Elisa Chilai;
   • (ii) the pleadings were completed in 2015;
   • (iii) in 2019, there was a change of counsel from Ms Vaai-Hoglund to Mrs Woodroffe;
   • (iv) that there has been inexcusable and inordinate delay of nearly 11 years since the matter was filed and 5 years since there has been a change in counsel but still the plaintiffs have done nothing to pursue their claim;
   • (v) the estate is at a standstill and this delay has prejudiced the beneficiaries; and
   • (vi) the plaintiffs rely on the inherent jurisdiction of this Honourable Court to strike out the first defendant’s claim for non-prosecution.
3. In support of the strike out motion, the first defendant has filed a sworn affidavit.
4. The plaintiffs oppose the application to strike out on the grounds that:
   • (i) the strike out motion is defective as a Statement of Defence has been filed;
   • (ii) any delay has not been unreasonable and cannot solely be attributed to the plaintiffs;
   • (iii) if there have been any delays, it cannot be attributed to the plaintiffs personally as they relied on previous legal counsel to navigate the proceedings on their behalf and therefore, any stay would unfairly penalize the plaintiffs and deny them their rights of access to the courts; and
   • (iv) the plaintiffs claim is serious in nature and requires determination by the court.
5. In support of the plaintiffs’ opposition to the strike out application, the plaintiffs have filed voluminous affidavits from Oliula Frank Ngan Woo (“Oliula”) and Feleti Ngan Woo (“Feleti”).

Background:

6. The parties are siblings. Not all siblings are party to these proceedings, there being some 15 biological siblings in total. Their late mother Elisa Chilai (“Elisa”) died in 1993 leaving a will. Their late father Ah Voo Ngan Woo (“Ah Voo”) passed away in 1976. The first defendant is the executor of Elisa’s will and although the second defendant was also named executor, she declined appointment.
7. Part of Elisa’s estate includes two substantial parcels of land at Tanumalala which is 48½ acres in size (the Tanumalala land). The plaintiffs allege in the Statement of Claim that the Tanumalala land was originally leased by Elisa and Ah Voo from the Western Samoa Trusts Estates Corporation. An option to buy the land was extended in 1980, which was accepted.
8. The Tanumalala land was purchased over many years by contributions by Elisa and a number of the older siblings. According to the plaintiffs, these older siblings were a number of them, Kapisi, Mele, Feleti, Aso and Mercy who contributed first to lease payments and then later, the deposit and purchase of the Tanumalala land. These contributions allegedly continued after Elisa passed away in 1992. In 1995, the first defendant then allegedly paid off the rest of the balance owing on the purchase price. In 2000, the first defendant registered the Tanumalala land in his name as executor. The first defendant however disputes the payments, who contributed and the quantum of payments allegedly paid.
9. In Elisa’s will, it is pleaded that the Tanumalala land is to be divided up as follows:
   • “1. As to that proportion that is the same as the proportion that the monies contributed by her bore to the total purchase price, to her adopted children Annie and Luni in equal shares; and
   • 2. As to the balance, for such of her children as had contributed to the purchase in such shares as contributed by them (or if her children had died during her lifetime, to their children in equal shares).”
10. The substantive dispute in this litigation therefore primarily concerns entitlements to the Tanumalala land under Elisa’s will between the siblings, to be determined it appears on their respective payments and contributions towards the Tanumalala land. As a result, a caveat was lodged against the Tanumalala land. By June 2013, the matter came before the Supreme Court when then counsel Ms Vaai-Hoglund filed an application for extension of that caveat followed by a motion for interim injunction in October on behalf of the plaintiffs. On 27th October 2013, the Statement of Claim was also then filed. Between October 2013 and August 2015, various interlocutory matters were raised and dealt with. In his decision dated 17th August 2015, L R Vaai J joined the second defendant to these proceedings and ordered that the Statement of Claim be served on the other siblings not a party to these proceedings, namely, “Mercy, Paka, Frieda, Annie and Luni.”
11. From August 2015, Oliula and Feleti depose in their affidavits that efforts were then made to serve the other siblings as directed by Vaai J. All siblings except for Luni were able to be served by 2016. Extensive efforts are said to have been made to serve Luni who to this day has not been served. As a result of those challenges, Ms Vaai-Hoglund withdrew as counsel in about November 2018. In about March 2019, Mrs Olinda Woodroffe was engaged as counsel.^[1] Oliula deposes that on 2nd September 2019, Mrs Woodroffe filed a motion to remove the first defendant as administrator. This application remains on foot and was last mentioned and adjourned on the 25th July 2022 due to then plaintiff counsel Mrs Woodroffe’s ill health.
12. Following the adjournment, an effort at reconciliation with the defendants was sought by the plaintiffs. The last record of Mrs Woodroffe’s involvement according to Oliula is from February 2022 when discussions were held to confirm who remained clients of Mrs Woodroffe as “Feleti had walked out, and Lale and Aso no longer wanted to participate as plaintiffs...”^[2] Mrs Woodroffe was to see if reconciliation was possible and revert further. The plaintiffs however heard nothing further from Mrs Woodroffe until 23rd August 2024 when Mrs Woodroffe sent through the strike out motion and informed the plaintiffs she could no longer act for them as she would be retiring in September 2024. An email was sent to Mrs Woodroffe to follow up where the matter on 25th August 2024 and request their files but according to Oliula in his affidavit dated 1st April 2025, that email has not been responded to.

The Law:

13. The power to dismiss an action for want of prosecution is derived from the inherent jurisdiction of the Court. In Development Bank of Samoa v Manono-uta Primary School [2003] WSSC 10 (23 May 2003), Sapolu CJ adopted and applied what was stated by Lord Diplock in the House of Lords judgment in Birkett v James [1977] 2 All ER 801 at pp 804 – 805 where Lord Diplock stated:
    • "[In] the three leading cases which were heard together and which for brevity, I shall refer to as Allen v McAlpine [1968] 1 A11 ER 545, the Court of Appeal laid down the principles on which the jurisdiction has been exercised ever since. Those principles are set out, in my view accurately, in the note to RSC Ord 25, r 1, of the current White Book. The power should be exercised only where the Court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the Court or conduct amounting to an abuse of the process of the Court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party."
14. In Birkett v James (supra), the House of Lords also addressed a question left unresolved in Allen v McAlpine and relevant to these proceedings - whether the Judge ought to weigh up the plaintiff’s prospects of success in any remedy he might have against his solicitor if the action were dismissed, and, if so, how his estimate should affect the exercise of his discretion.[3] Lord Diplock answered this question in the negative, whether a remedy exists against the plaintiffs’ solicitors is an irrelevant consideration.
15. In Allen v McAlpine at p. 561, Salmon LJ also discussed the meaning of inordinate delay and stated:
    • “(1)...It would be highly undesirable and indeed impossible to attempt to lay down a tariff – so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend upon the facts of each particular case. These vary infinitely from case to case, but inordinate delay should not be too difficult to recognize when it occurs.”
16. In addition to establishing inordinate delay, a defendant must also establish that the delay is inexcusable. The question of what amounts to inexcusable delay was doscissed in Horner v Rankin [2018] NICh 6 [28 February 2018) where McBride J stated at [21]:
    • “In addition to proving inordinate delay the burden is upon the defendant to establish that the delay is also inexcusable. In determining whether the delay is inexcusable the court should consider this from the defendant's point of view. In considering whether delay is inexcusable the court will give reasonable allowance, for example, for delay caused by; illness, accidents, legal aid authorities, the defendant agreeing not to take certain steps and otherwise by difficulties created by the defendant. In Allen Salmon LJ, when considering whether delay is inexcusable stated at page 268 D as follows:
      • "(2) ... As a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable.”
17. In BNZ v Savril Contractors Ltd CA12/03 (12 February 2004), the New Zealand Court of Appeal in a judgment delivered by Glazebrook J referred to the discretionary nature of the power to dismiss for want of prosecution and stated:
    • “[88] Birkett v James has been accepted as authoritative in New Zealand. In Mead v Day [1985] 1 NZLR 100 this Court referred to it as the now leading English authority. At the same time it reiterated that the power to dismiss for want of prosecution is discretionary and that the Court, in terms of (what is now) r478, must make such order as may be just. The Court stressed that the overriding consideration is whether justice can be done despite the delay...
    • ...”

Discussion:

18. I accept that there has been inordinate and inexcusable delay in these proceedings. The action was initiated in October 2013, 10 years ago this year. In my assessment, inordinate and inexcusable delay involved two key periods. The first followed Vaai J’s order of 17 August 2015 to serve Luni to September 2019 when the application to remove the first defendant as administrator was filed. While I accept from the affidavit evidence that there were extraordinary challenges to locating and serving Luni, no application was made to dispense with personal service permitted by rule 23 of the Supreme Court (Civil Procedure) Rules 1980. Rule 23 provides:
    • “23. Court may dispense with personal service in certain cases - (1) If it appears to the Court that reasonable efforts have been made to effect service of the summons, and either that the summons has come to the knowledge of the defendant or that prompt personal service thereof cannot be effected, the Court may order that the plaintiff be at liberty to proceed as if personal service had been effected, subject to such conditions as the Court thinks fit to impose.
    • (2) ...”
19. Application should have been made by the plaintiffs to dispense with personal service after reasonable efforts had been made to locate and serve Luni. While I accept that some time was necessary to attempt service, it should have been patently clear after 1 year that prompt service could not be effected. As things stand, 10 years since Vaai J’s orders, Luni still has not been served. This first period of inexcusable delay was 3 years.
20. Between September 2019 and July 20022, the first defendant has failed to establish inexcusable delay during this period. Indeed, I accept that delay during this period was due to COVID 19. Set for hearing on the 4th May 2020, 7th June 2021, 7th February 2022 and 11th July 2022, COVID descended across the globe causing these hearing dates to be vacated. The proceedings were last mentioned on the 25th July 2022. At that mention, proceedings were then adjourned due to Mrs Woodroffe’s ill health and to obtain instructions.[4]
21. The second period of delay began from July 2022 to August 2024. Mrs Woodroffe recommended “reconciliation” during this period.[5] Seemingly half-hearted attempts at initiating settlement followed and were rebuffed by the defendants. Issues with instructions from the plaintiffs and the ill health of counsel also apparently delayed matters. The last meeting between the plaintiffs and Mrs Woodroffe was in February 2023. Counsel was to again seek reconciliation with the defendants.^[6] While the delay between July 2022 and the meeting with the plaintiffs in February 2023 might be excusable, alternative counsel should have been engaged if Mrs Woodroffe’s health continued to be an impediment to the prosecution of this claim thereafter.
22. After the meeting with the plaintiffs in February 2023, according to Oliula, the next communication from Mrs Woodroffe was on the 23rd August 2024 when Mrs Woodroffe forwarded this strike out application to the plaintiffs and informed the plaintiffs she could no longer act as she would be retiring the following month in September. I am satisfied that this second period of delay was of some further 1 ½ years from February 2023 to August 2024. Cumulatively, this is approximately 4 ½ years of inordinate and inexcusable delay attributable to the plaintiffs and their lawyers.

Risk to Fair Trial and/or Prejudice to Defendants

23. Having found the existence of inordinate and inexcusable delay, the next question is whether that delay on the part of the plaintiffs or their lawyers give rise to a substantial risk that it is now not possible to have a fair trial or the delay is likely to cause or to have caused serious prejudice to the defendants.
24. The first defendant prosecutes this application on the basis of prejudice to the first defendant caused by the delay. On this question, the first defendant in his affidavit dated 14th June 2024 says simply that:
    • “10. That the administration of our mother’s estate is at a standstill for over 11 years.”
25. While there has certainly been delay in prosecuting these proceedings, there is no evidence from the first defendant about how (a) the delay has impacted administration of the estate; or (b) the prejudice caused by the delay. There is no evidence that this delay will prejudice the conduct of a fair trial for the first defendant. There too is no evidence of prejudice to the first defendant beyond the trial, for example, to the estate’s beneficiaries.
26. The application to strike out therefore fails on the second limb of the test, the first defendant having failed to establish a substantial risk to a fair trial or prejudice caused by the delay.
27. For completeness, I wish to address oral submissions by Mr Khan concerning the use of pleadings as evidence of prejudice. In his oral submissions, Mr Khan referred to paragraphs 59, 61 and 62 in the first defendant Statement of Defence as evidence of financial prejudice. Mr Khan also referred to paragraph 48 of the second defendant’s Statement of Defence and Counter-claim in terms of pleaded allegations of loss of financial opportunities for the second defendant, as equally applicable to the first defendant.
28. Mr Khan was given an opportunity to file authorities to support the submission that pleadings can be taken into on the question of evidence of prejudice. Unhelpfully, no authorities have been filed. Pleadings are allegations of fact, and should not include evidentiary material.^[7] Pleadings do not constitute evidence and as such and does not assist the first defendant in terms of establishing the second limb of prejudice.
29. In the final analysis, the question for me as posed by the New Zealand Court of Appeal in BNZ v Savril Contractors Ltd (supra) is whether justice can be done despite the delay. To this question, I answer in the affirmative. The first defendant ostensibly brings this application as the executor of his mother Elisa’s estate and complains that the administration of the estate has been at a standstill. He brings the application alone, without the support of any other beneficiaries. In doing so, there is as I have said no evidence of any prejudice to the estate or its beneficiaries or how the delay impacts the conduct of a fair trial for him in that capacity. On that basis alone, I am satisfied that justice can still be achieved despite the delay.
30. With all this said, there is little doubt in my mind that there is a real and serious question concerning the plaintiffs’ entitlements to the estate that underpins their claim before the court. What is equally clear on the material before me is well-founded frustration on the part of the plaintiffs too with the delay experienced to date.
31. It is now important for the parties to expeditiously (a) address the question of service of the claim on Luni; (b) deal with the application to remove the first defendant as executor; and (c) proceed to substantive trial as soon as practicable.

Result:

32. For the foregoing reasons:
    • (i) the first defendant’s application strike out for want of prosecution is dismissed; and
    • (ii) costs reserved.

JUSTICE CLARKE

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^[1] Affidavit of Feleti Ngan Woo dated 2^nd April 2025 at [17].
^[2] Affidavit of Oliula Frank Ngan Woo dated 1^st April 2025 at [43].
^[3] Birkett v James at p 805.
^[4] Affidavit of Oliula Frank Ngan Woo dated 1^st April 2025 at [34].
^[5] Affidavit of Oliula Frank Ngan Woo dated 1^st April 2025 at [36].
^[6] Affidavit of Oliula Frank Ngan Woo dated 1^st April 2025 at [43].
^[7] Shore v Thomas [1949] NZGazLawRp 62; [1949] NZLR 696.