Public Trustee v Faalogo [2026] WSSC 6 (3 March 2026)

IN THE SUPREME COURT OF SAMOA
Public Trustee v Faalogo & Anor [2026] WSSC 6 (2 March 2026)

Case name:	Public Trustee v Faalogo & Anor
Citation:	[2026] WSSC 6
Decision date:	2 March 2026`
Parties:	THE PUBLIC TRUSTEE (Plaintiff) v ALEXANDER SAMAU FAALOGO and SAMAU SOLITAMALII SAMAU (Defendants)
Hearing date(s):	10 October 2025
File number(s):	2023-02304
Jurisdiction:	Supreme Court – CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	Accordingly, for the foregoing reasons: (a) the defendant is granted leave to issue and serve third party notice and third party Statement of Claim on the third parties; (b) leave is granted to serve Diana Ainuu overseas; and (c) costs reserved.
Representation:	S. Wulf for the Plaintiff RJB Fowler KC and TJ Lamb for the Defendants
Catchwords:
Words and phrases:	“serve a third party notice” – “serve third party notice outside of Samoa (overseas)”
Legislation cited:	Supreme Court (Civil Procedure) Rules 1980, r. 43(1); 43(1)(a); 43(1)(d); 43(2); 44(1)(b).
Cases cited:	Hotchin v New Zealand Guardian Trust Company Ltd, [2016] NZSC 24; Master Hansen, HC Dunedin CP148/88, 26 February 1991; Precast NZ Ltd v Anystep Ltd [2015] NZHC 2375; [2015] NZAR 1574; Turpin v Direct Transport Ltd [1975] 2 NZLR 172; Whitford Properties Ltd v Bruce [2016] NZHC 58.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE PUBLIC TRUSTEE, as the administrator of the Estate of Samau Upuse

Plaintiff

AND:

ALEXANDRA SAMAU FAALOGO, of Matautu, Business woman

Defendant 1

AND:

SAMAU SOLITAMALII SAMAU, of Matautu, Businessman

Defendant 2

Counsels: S. Wulf for the Plaintiff
RJB Fowler KC and TJ Lamb for the Defendants
Hearing: 10^th October 2025
Decision: 3^rd March 2026

RULING
(THIRD PARTY NOTICE APPLICATION)

1. On 11 December 2023, the Defendants filed a Notice of Motion for Leave to issue and serve Third Party Notices on Diana Ainuu, Lupesiliva Ainuu, Iakopo Liusafune and Aleaga Ainuu.[1] Two issues arise:
   • (a) whether leave should be granted to issue the third party notices; and
   • (b) whether leave be granted to serve them (if issued) in New Zealand, and therefore, out of Samoa
2. Following the hearing, defendant’s counsel filed a memorandum dated 16 October 2025 outlining the proposed basis of the claim against the third parties and suggesting further steps. Attached was the proposed Statement of Claim against the third parties. Serving a Third Party Notice with a Statement of Claim follows New Zealand practice, ensuring the third parties are informed of the claims and issues relevant to them.

Background

3. Before addressing the application, it is necessary to outline the background. The dispute concerns the Estate of Samau Upuese and Lot 1 plan 10038 at Matautu-tai, known as Malavai comprising approximately 10,517m² (“the land”). The date of Samau Upuese’s death is unclear, though he is said to have purchased the land in 1897 and his will published in the Savali in 1914. He died intestate, and in 1977 the Public Trustee was appointed Administrator.
4. These proceedings began as an eviction action from the land by the plaintiff against the defendants. However, the defendants expanded the dispute to broader questions of entitlement to the land, namely:
   • (a) whether Samau Upuese held the land on a constructive or resulting trust for himself and his siblings, Leupolu Timani and Uele; and
   • (b) who therefore has an interest in the land.
5. The parties seem to agree the land is registered to Samau Upuese. The Public Trustee contends it belongs to his estate, with beneficiaries limited to descendants of his daughter, Utulaina. By Statement of Claim dated 2 August 2023, the plaintiff therefore seeks eviction of the defendants, asserting they have no legal interest or right of occupation to the land.
6. The defendants dispute Utulaina’s status aas Samau Upuese’s daughter or adopted child,^[2] and deny she was the child of his wife Ifolefua.^[3] They admit building houses and businesses on the land but argue the land was jointly purchased by Samau Upuese and his siblings, held by him on constructive or resulting trust for himself, his siblings and their heirs. They claim entitlement as descendants of Uele.

Third Party Notice Application

7. Rule 43 of the Supreme Court (Civil Procedure) Rules 1980 governs the issuing of third party notices. It provides that:
   • “43. Third-party Notice - (1) Where a defendant claims as against any person not already a party to the action (in this Part called the third party):
     1. That he is entitled to contribution or indemnity; or
     2. That he is entitled to any relief or remedy relating to or connected with the original subject-matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or
     100. That any question or issue in the action should properly be determined not only as between the plaintiff and the defendant, but also as between the plaintiff the defendant, and the third party, or as between any or either of them; or
     4. That any question or issue relating to or connected with the said subject-matter in substantially the same as some question or issue arising between the plaintiff and the defendant, and should properly be determined as aforesaid;
     5. the defendant may move the Court on notice for leave to issue and serve a third party notice, and shall attach a copy of the proposed third party notice to the motion.
        relief or remedy claimed....” (emphasis added).
8. The present application arises from competing claims over Malavai. The plaintiff contends that the third parties are the rightful heirs entitled to occupy the land. The defendants deny this, asserting Samau Upuese had no heirs and that they themselves hold a beneficial interest through a constructive or resulting trust. They further allege that the third parties have erected buildings on the land, interfering with their quiet enjoyment and depriving them of its use and benefit. The defendants maintain that the third parties would gain substantially if the plaintiff’s claim succeeds
9. Mr Fowler for the defendants submitted that the third party notice is maintainable under each of the four limbs of rule 43(1). It is therefore necessary to examine the application against all four sub-paragraphs. In determining whether leave should be granted, I must first consider whether one of the grounds in rule 43(1) is established, and second, whether it is appropriate to exercise the discretion to join the third party.[4]

Discussion

Rule 43.

10. In their Statement of Defence and Amended Counter Claim dated 12th July 2024, the defendants allege that the plaintiff’s actions amount to a breach of the constructive trust and resulting trust, thereby unjustly enriching the plaintiff.[5] The proposed third party seeks substantial mesne profits, damages, and orders for eviction against the intended third parties. Mr Fowler submitted that the “unjust enrichment aspect” of the defendants claim is “an issue of contribution or indemnity that the defendants could raise vis-a-viz the third parties.” I do not agree for the reasons that follow.
11. Rule 43(1) (a) addresses circumstances where a defendant, facing a claim by the plaintiff, seeks “contribution” or an “indemnity” from a third party for that claim. Contribution and indemnity are distinct legal concepts, arising in specific contexts, such as joint tortfeasors or contractual relationships. They generally apply where parties may share a common liability for the same damage upon which a plaintiff sues. As Elias CJ acknowledged in terms of contribution:[6]
    • “The policy of the law is that it is unfair that someone liable in common with another to a plaintiff for the same damage should have to carry the entire burden. Where the plaintiff chooses to proceed against one defendant alone rather than another liable in respect of the same damage, contribution is equally available between the potential defendants. Any other result would, ... .be unjust.”
12. Indemnity and contribution are distinct from restitutionary claims for unjust enrichment, which rest on reversing an unjust benefit received by one party at the expense of another. Rule 43(1) (a) has no application.
13. I am also not satisfied that leave should be granted to issue third party notices pursuant to subrule 44(1)(b). Authorities show two requirements:
    • (i) an entitlement to relief or a remedy “relating to or connected
    • (ii) with the subject matter of the proceeding”; and that “the relief or remedy is substantially the same as that claimed by the plaintiff against the defendant”.^[7]

14. The defendants assert entitlement to relief connected to the land in dispute, satisfying the first limb. The second limb is less clear. While both parties seek eviction orders, similarity of relief alone is insufficient. In McAllister v Peat Marwick Management Consultants Ltd, the New Zealand High Court explained:[8]

• “In relation to common relief, the defendant's submissions seem to me to fall into a common trap and that is the simple equation of the damages claimed by plaintiff against defendant with what the defendant claims against the proposed third party. That, of course, in itself is not sufficient. There must be similarity of facts, and the third party claim must be designed to determine whether the defendant or the third party should ultimately bear the plaintiff's loss...”

15. Here, the defendants counter-claim and third party notice is not designed to determine “whether the defendant or the third party should ultimately bear the plaintiff's loss”, but to ultimately determine the beneficial entitlement to the land and its occupation. I am accordingly not satisfied that sub-rule 44(1)(b) applies.
16. I am however satisfied and accept that leave should be granted under rule 43(1) (c) and (d). First, sub-rule 43(1) (c). The plaintiff seeks eviction of the defendants on the basis that defendants lack entitlement. The defendants however claim: (a) an interest in the land via constructive or resulting trusts; and (b) that Utulaina’s descendants have no such entitlement. The central issue is who holds the beneficial interest.
17. The plaintiff opposes joinder on the basis that the Public Trustee has determined that the beneficiaries of the estate of Samau Upuese is his daughter Utulaina and her heirs and the Public Trustee will represent their interests.[9] I respectfully do not accept this approach.
18. First, the defendants directly challenge the third parties and Utulaina’s descendants entitlement to the land. Potentially, they may be deprived of their claimed interest to the land. Natural justice and article 9(1) of the Constitution considerations favour their joinder.
19. Second, there is a genuine dispute raised by the defendants to entitlement to the land. Although the Public Trustee submitted “that the beneficiaries of the estate of Samau Upuese is his daughter Utulaina and her heirs”, that misunderstands the defendants claim. The defendants do not claim an interest through Samau Upuese’s estate, but via constructive / resulting trust as Uele’s descendants. If such a trust exists, the Public Trustee holds the land subject to those obligations. The central question in these proceedings turns on who has an interest in the land. I am satisfied this is a question that should properly be determined not only between the plaintiff and the defendant, but also between the plaintiff the defendant and the third parties.
20. Under sub-rule 43(1) (d), I am also satisfied that there is plainly a question or issue connected with the land between the defendant and third party that is substantially the same as between the plaintiff and the defendants, concerning entitlement to and rightful occupation of the land. These issues should properly be determined together.

Discretion to Grant Leave

21. Third party procedure promotes judicial efficiency through the resolution of related claims within a single proceeding, avoiding the need for separate litigation and the risk of inconsistent judgments. As Courts have said on numerous occasions "the overriding object of the third party rules is to enable all issues to be dealt with in one action".[10] Where competing claims exist, the Public Trustee must act impartially to protect the interests of all beneficiaries and claimants and where necessary, seek judicial guidance. This case warrants such guidance.
22. Although rule 43(2) required the defendant to serve the plaintiff with the Notice of Motion within 10 days after the service of the summons, the plaintiff raised no objection to the delay. I also see no prejudice with the granting of leave.

RESULT:

23. Accordingly, for the foregoing reasons:
    • (a) the defendant is granted leave to issue and serve third party notice and third party Statement of Claim on the third parties;
    • (b) leave is granted to serve Diana Ainuu overseas; and
    • (c) costs reserved.

JUSTICE CLARKE

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^[1]Rule 43(1), Supreme Court (Civil Procedure) Rules 1980
^[2] Statement of Defence and Amended Counter Claim dated 12^th July 2024, at paras. [2] – [3].
^[3] Precast NZ Ltd v Anystep Ltd [2015] NZHC 2375; [2015] NZAR 1574 at [11]
^[4] Precast NZ Ltd v Anystep Ltd [2015] NZHC 2375; [2015] NZAR 1574 at [11].
^[5] At paragraph [35].
^[6] Hotchin v New Zealand Guardian Trust Company Ltd, [2016] NZSC 24, at [140] per Elias CJ.
^[7] Whitford Properties Ltd v Bruce [2016] NZHC 58.

^[8] Master Hansen, HC Dunedin CP148/88, 26 February 1991, at 6.
^[9] Submissions by the Plaintiff/Respondent for the Third Party Notices dated 1^st October 2025, at para. [6]
^[10] See: Turpin v Direct Transport Ltd [1975] 2 NZLR 172 per Cooke J at p 175.