IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

C.A. 16/10

BETWEEN: 

VINONA MENI FEAGAIMAALII (on behalf of her family).
Appellants

AND: 

THE PUBLIC TRUSTEE, a statutory body established by the Public Trust Office Act 1975 having his Office at Savalalo.
Respondent

Coram: Honourable Justice Baragwanath 
Honourable Justice Slicer
Honourable Justice Fisher 

Counsel: O Woodroffe for appellants
H Hoglund for respondent

Hearing: 22 September 2010

Judgment: 24 September 2010

JUDGMENT OF THE COURT

Introduction

[1]	The appellants appeal against a costs decision of the Nelson J given in the Supreme Court on 4 June 2010. Costs of $2,200 were awarded against the respondent ("the Public Trustee") in favour of the appellants. The appellants say that they should have been awarded more. 

Background

[2]	By order of 18 March 1980 the Land Titles Investigation Commission determined that title to the land now in dispute should be issued in the names of the heirs of Malaetolu and the heirs of Auafi. Both families thereafter occupied the land. When disputes arose between them over the use and occupation of the land the Supreme Court made orders for its partition on 15 March 1999 and again in 2003. 

[3]	When the families were unable to agree on the way in which the partition would be translated into a specific subdivision, the Public Trustee stepped in as administrator of the estate of Auafi Tauasa deceased. The Public Trustee arranged for a scheme plan of a proposed subdivision. The scheme plan was never agreed to by the heirs of Malaetolu and was never put before the Court for confirmation. Disputes between the two families continued.

[4]	In a misguided, but well-intentioned, attempt to bring matters to a head, the Public Trustee brought proceedings to evict the heirs of Malaetolu from that portion which the Public Trustee considered belonged to the heirs of Auafi. 

[5]	There were two problems with that. One was that the owners of the property were the heirs of Malaetolu and the heirs of Auafi, not their deceased estates. Consequently the Public Trustee had no standing to represent either party. Secondly, one co-owner can not bring proceedings to evict the other until a partition order has been converted into an actual subdivision and each portion allocated to a single owner. Only then is it possible to say that one of the former co-owners has the exclusive right to possess the portion allocated to him. 

[6]	The Public Trustee's action to evict the appellants was heard before Nelson J. In his judgment he found for the appellants on the two grounds just mentioned. Costs were reserved.

[7]	At a chambers hearing on 25 September 2009 the Judge pointed out that the status or lack of status of the Public Trustee was not the real issue. The real issue was the way in which the two families were to resolve the continuing differences over occupation of the property. He urged counsel to either challenge the partition orders or resolve the subdivision required to implement them. He directed that any proceedings challenging validity of title were to be filed forthwith. Again costs were reserved. 

[8]	The appellants filed a memorandum seeking costs of $37,965.24. In response the Judge issued the costs ruling now under appeal. He expressed disappointment that the parties had neither agreed on subdivision nor brought proceedings to challenge the title or the partition order. He pointed that if counsel were not careful the value of the property would be consumed in costs. He described the Public Trustee's proceedings as "an abortive but I accept genuine attempt ...to enforce the court's order." Local counsel could have been instructed. The appellants were awarded $2500 less $300 for formal proof steps taken by the Public Trustee when the appellants were tardy in filing a statement of defence. 

The appeal

[9]	In support of the appeal Mrs. Woodroffe's first broad submission was that the Public Trustee's claim against the appellants was "fundamentally flawed". She argued that the fundamental nature of the deficiencies in the claim put it into the hopeless category and that this was a reason for increasing the costs that would otherwise be payable. 

[10]	We accept that the fact that the claim failed meant that costs would normally follow the event. That is what occurred. However we question whether the flaws in the proceedings were as obvious from the outset as Mrs. Woodroffe now suggests. If they had been she should have moved to strike out the proceedings. The fact that she did not do so suggests that they were no more obvious to her than to anyone else at the time. 

[11]	Mrs. Woodroffe's second submission was that the Judge had failed to take into account the actual costs incurred and therefore the need to award a reasonable contribution towards them. We agree that the magnitude of the actual costs was relevant. However it is clear that the Judge was well aware of the sum claimed given his reference to the danger of consuming the value of the property in costs and his view that instructing local counsel would have sufficed. As we read the ruling, the Judge was critical of the appellants for taking no steps to implement the partition or challenge their opponents' title and took into account other considerations such as the fact that the Public Trustee's efforts had been well intended if abortive. It cannot be said that these considerations were irrelevant. 

[12]	 Mrs. Woodroffe's next submission was that the Judge should not have deducted $300 in respect of the formal proof proceedings. As we understand it this was intended to recognise that delay in filing a statement of defence on the appellants' part had caused unnecessary cost to the Public Trustee. We cannot say that this was an irrelevant consideration. 

[13]	Next Mrs. Woodroffe submitted that the Public Trustee had made assertions in the statement of claim that were not capable of proof by their own documents. We do not think that this adds anything substantial to the discussion earlier concerning the flaws in the Public Trustee's case. 

[14]	It is not necessary to traverse the authorities on appeals against costs rulings. They are well known. Appellate courts will not interfere with a costs ruling in the absence of major error on the original court's part. No such error has been shown in this case. On the contrary, we find the ruling at first instance entirely understandable. 

[15]	We would add only this. The energies devoted to challenging the status of the Public Trustee would have been better directed to resolving the dispute between the two families. That dispute has always needed resolution and is no closer to it. A partition order was made many years ago. It has never been challenged. It is the responsibility of all parties to implement that order. In the absence of agreement on the particulars of the subdivision required, one party or the other should forthwith put a proposal for subdivision to the Supreme Court for its approval, with or without modification. 

[16]	It is not easy to see how a claim to title based on adverse possession could arise between co-owners. However if there is such a claim, as Mrs. Woodroffe appeared to foreshadow, the only way to bring it to a head would be to issue the appropriate proceedings. We endorse Nelson J's concern at the mounting delay and costs. 

Result

[17]	The appeal is dismissed.

[18]	We were informed that the actual costs incurred by the Public Trustee on this appeal will be $7,500. In all the circumstances of this particular case we direct that the appellants pay the Public Trustee $5,000 in costs. 

Honourable Justice Baragwanath

Honourable Justice Slicer

Honourable Justice Fisher