IN THE DISTRICT COURT OF SAMOA
Plumb Tech Samoa Ltd v Nissan Samoa Ltd & Anor [2022] WSDC 4 (02 September 2022)

Case name: 	Plumb Tech Samoa Ltd v Nissan Samoa Ltd & Anor 	
		
Citation: 	[2022] WSDC 4	
		
Decision date: 	02 September 2022	
		
Parties: 	PLUMB TECH Samoa LTD (Plaintiff) v NISSAN SAMOA LTD & MORRY SU’A (Defendants)	
		
Hearing date(s): 	18th May 2022	
		
File number(s): 	DC/OS 527/20	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	District Court of Samoa, Mulinuu	
		
Judge(s): 	Judge Mata’utia Raymond Schuster 	
		
On appeal from:		
		
Order:	Given that the First Defendant has conceded and settled invoice 491, that matter is struck out. 
Judgment for the plaintiff against the Second Defendant. Parties are given the opportunity to salvage some sense of their relationship by filing an agreed measure of damages proportionate to the liability of the Second Defendant so far as to the balances remaining on invoices 291, 377 and 425 given the conclusion and reasons arrived at above. This is to be done within ten (10) working days from the date of this judgment. If no agreement is reached, parties are to file memorandums of damages and costs prior to the expiration of the ten (10) days stipulated.	
		
Representation: 	A. Su’a for the Plaintiff
N. Schuster for the Defendants	
		
Catchwords: 	Breach of contract – unjust enrichment 	
		
Words and phrases:		
		
Legislation cited:	Apia Quality Meats v Westfield Holdings Ltd [2009] WSCA 2 (1 May 2009);
Aumua v Faimalo [2022] WSDC 3 (26 July 2022);
Esera v Samoa Realty & Investments Ltd [2007] WSSC 26;
Fleming v Beevers [1994] 1 NZLR 385 (CA);
Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand Ltd [2002] 2 NZLR 433 (CA);
Hansard v Hansard [2015] 2 NZLR 158;
John Burrows, Jeremy Finn and Stephen Todd Law of Contract in New Zealand (5th ed, LexisNexis, Wellington, 2016);
Meates v Attorney-General [1983] NZLR 308 (CA);
Morgan and Banks New Zealand v Electric Power Corporation [2019] WSSC 34 (18 July 2019);
Stanley v Vito [2010] WSCA 2 (7 May 2010);
Stowers v Stowers [2010] WSSC 30 (14 June 2010);
Vitale v Alii and Faipule of Gagaifolevao Lefaga [2017] WSSC 12;
Wilmot v Johnson [2003] 1 NZLR 649 (CA).	
		
Cases cited:		
		
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

PLUMB TECH SAMOA LTD a duly registered company having its registered office at Taufusi, Apia, Samoa

Plaintiff

AND:

NISSAN SAMOA LIMITED a duly registered company having its registered office at Vailoa, Apia, Samoa

First Defendant

AND:

MORRY SU’A a businesswoman of Vaitele and Vailoa

Second Defendant

Hearing:		18th May 2022
Decision:		2nd September 2022
For Plaintiff:		Mr Alexander Su’a
For Defendants:	Ms Natasha Schuster

RESERVED DECISION OF DCJ SCHUSTER
Proceedings 
1. 	The Plaintiff has brought proceedings against the First and Second Defendants for breach of contract and unjust enrichment relating to plumbing works allegedly carried out by the Plaintiff on two separate properties owned and/or managed by the First and Second Defendants. The original claim filed on 26th October 2020 and first mentioned on 9th February 2021 included a “JOSHUA NEWTON” as a First Named Second Defendant. Ms Brenda Latu applied to remove “JOSHUA NEWTON” from the proceedings and a joint Memorandum of Discontinuance was filed by the Plaintiff and the First Named Second Defendant dated 26th March 2021. The joint memorandum was granted by DCJ Kerslake on 13th April 2021 without objections from the First and Second Defendants.
2. 	The Plaintiff in its Statement of Claim stated that the agreement was formed upon the submission of a “Job Card” following completion of the works for the Second Defendant to review. The signature of the client is satisfactory acceptance of the contents of the Job Card relating to the works done. A Job Card is a daily work sheet that records the work description, materials used and manpower, quantity of materials and/or labour time and costs.
3. 	The Second Defendant in her statement of defense paragraph 5 says it was Joshua Newton who ordered the plumbing works with the Plaintiff. She played no part in engaging the Plaintiff and the Plaintiff should take up the matter with Mr Newton who ordered the works.
Facts 
4. 	The facts appear to be straight forward. The Plaintiff’s claim against the First Defendant has been conceded by the First Defendant but for costs asserted by the Plaintiff subsequent to commencing proceedings. I will therefore only discuss the First Defendant when it comes to the issue of costs. 
5. 	So far as the Second Defendant Ms Su’a is concerned, the Plaintiff alleges that sometime in the months of September 2018 and in January and March of 2019, Mr Brook Belcher who is the Plaintiff’s Managing Director, carried out plumbing works for Ms Su’a at properties owned or managed by the Ms Su’a at Vaitele. Exhibit P1 which is the sworn affidavit of Mr Belcher annexure “C” is a true copy of the Computer Folio Certificate of the alleged property registered under the name of “Peka Su’a”. Ms Su’a by her own testimony confirmed that “Peka Su’a” is her mother.
6. 	Mr Belcher alleges that it was Ms Su’a who contacted and instructed him to do the works. It was also Ms Su’a who followed up and inspected the works as she was living in one of the buildings that required plumbing work. He further attests that all three Job Cards were signed by Mr Newton as Ms Su’a could never be located. Mr Belcher relied on the fact, whether mistakenly or not, that since Mr Newton and Ms Su’a were in a de facto relationship, it sufficed therefore that Mr Newton sign for and on behalf of Ms Su’a. Moreover, Ms Su’a herself made part payment towards invoice numbers 291 and 377. 
7. 	Ms Su’a does not deny in paragraph 5 of her statement of defense that works were done but that it was Mr Newton who ordered Mr Belcher to do the plumbing works. She merely denies that she had no part in the agreement and arrangments. This is repeated in paragraph 4 of Ms Su’a’s affidavit produced as Exhibit D1.
8. 	In her oral testimony, Ms Su’a stated that at the relevant time, she was employed at Hyundai Services where Mr Newton was Managing Director and her de facto partner. They had a construction project out at Vaitele of which they obtained a loan from a local bank. They had a cheque account which paid for all the expenses of the project and Mr Newton was responsible for making all the payments. Their relationship ended about June 2019. At that time Ms Su’a was then managing her own car dealership business, Nissan Samoa Limited. 
9. 	Ms Su’a testified that just under a year later sometime in April 2021, she was surprised to receive the alleged invoices from the Plaintiff via email. Ms Su’a testified that she had no understanding or knowledge about these invoices and that Mr Newton dealt with Mr Belcher all the time as they were very good friends. She asserts that Mr Belcher, in order to save his friendship with Mr Newton, is now putting the liability on her given that she is no longer with Mr Newton. This is despite the fact that she denies having had any knowledge or anything to do with the Plaintiff and the works alleged.
10. 	Mr Belcher is aggrieved that Ms Su’a is now benefiting from alleged works at the expense of the Plaintiff.
The Law 
(i) Breach of Contract
11. 	This is a claim for breach of contract and unjust enrichment. The law of contract is well settled in Samoa and requires:
(a) 	the making of an offer;
(b) 	the fact of acceptance of that offer;
(c) 	the communication of that acceptance;
(d) 	the requirement of certainty of a contractual bargain; and
(e) 	whether the agreement was subject to conditions as to the creation of continuance of legal obligations.
12. 	Whether a contract has been formed is to be objectively ascertained from the point of view of reasonable persons on both sides. In order for a contract to be formed, there must be an intention to be immediately bound and an agreement (either express or implied) as to essential terms. No particular form of words is required to evidence a willingness to be bound:
	“Few contracts of any complexity are actually made by an initial offer which is accepted without further negotiation. It will be much more common for contracts to arise from a series of communications between the parties which eventually result in an agreement.”
Certainty of terms
13. 	For a contract to be enforceable, there must be certainty as to terms. These terms include:
(a) 	the parties to the contract;
(b) 	the subject matter of the contract;
(c) 	the consideration (price) for the subject matter;
(d) 	the conduct constituting performance; and
(e) 	the time within which performance is to occur.
14. 	I would adopt the Court of Appeals simple but practical approach to assessing cases actionable under contract law. In paragraph 26, the court recited in verbatim a High Court of New Zealand case Macmillan v Covic [2004] 2 NZLR 106:
	[22] The law of contract imputes to the parties an intention to contract in the manner an objective bystander, familiar with the facts known to both, would take them to intend. When the issue of intention to contract at all is in dispute a high standard of specificity of intent to contract is required: see Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand Ltd [2002] 2 NZLR 433. But when the contract is undeniably complete the issue becomes one of construction and the parties will be taken to intend the consequences the notional informed bystander would reasonably infer.
	[23] It is a fact of life that commercial parties...will quite frequently contract in a manner that does not deal precisely with the problem that later emerges...The law’s task is to give effect to freely accepted mutual obligations; it is therefore the Courts’ responsibility to identify and find means of giving practical and just effect to those obligations even if they have not been expressed meticulously. To get out of phase with what reasonable commercial parties would make of a transaction would turn the process upside down: the law exists to give effect to such obligations, not to defeat them.
	The judgment continued to note that the Courts have distinguished between the primary obligations assumed by the parties and subordinate terms intended to give effect to them. The principles were discussed by Cooke P in Money v Ven-Lu-Ree Ltd [1988] 2 NZLR 414 (CA) at 416-7:
	It is elementary law that the Court cannot add implied terms to make a contract for the parties: Aotearoa International Ltd v Scancarriers A/S [1985] 1 NZLR 513, 556. It is no less elementary that contracts are very often implied by the conduct of the parties or their correspondence objectively considered, in which event supplementary implied terms may arise by operation of law (for instance the Sale of Goods Act 1908) or by necessary implication on well-settled principles. Into which category a given case falls can be a difficult question. It may be seen as resolving into whether there is sufficient certainty in what has been agreed to warrant the Court in proceeding to the further stage of considering implications...
	In modern times the Courts have tended in the main to seek to give business efficacy to agreements apparently reached, provided that some standard or machinery can properly be found for supplying what is lacking in the express terms...
(ii) Unjust Enrichment
15. 	The law as to a claim of unjust enrichment is also settled in Samoa. There are three ingredients of a cause of action for unjust enrichment:
(i) 	a benefit enjoyed by the recipient 
(ii) 	a corresponding deprivation on the part of the claimant and 
(iii) 	the absence of any juristic reason for the recipient to retain the benefit.
Discussion
16. 	In this court’s decision of Sulivata Aumua v Solomona Faimalo, the principle to determine evidence especially when the evidence is conflicting was discussed as such and equally relevant in this case:
	27. I must consider the evidence on the balance of probabilities. This means that it is more likely than not that the alleged claim occurred. It means that it is probable, i.e., the probability that the event happened is more than 50%. Therefore, mathematically speaking, proof on a balance of probabilities is 50.1% likelihood of something having occurred. It would also follow that proof greater than that is not required. This is simply a balancing of both sides seeing which side has the stronger proof. The plaintiff must therefore prove that his facts tip the scale in his favor even if it is only a 51% probability that he is correct.
	28. As decider of fact, I must first determine whether or not the facts alleged happened or not. There is no room for a finding that it might have happened. If I am left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened. In my view, the only practical way in which to reach a factual conclusion in a civil case is to decide whether it is more likely than not that the event occurred.
	29. …………  I have looked at all the evidence with the aim of being objective, careful, impartial and dispassionate in my assessment of the evidence.  It has been necessary for me to consider the honesty, reliability and credibility of each witness.  I do not have to accept everything that a witness says or reject anything that a witness says.  I am entitled to accept and reject parts of what a witness said in their evidence. 
	30. I also emphasize that in reaching a decision in a Judge alone trial, it is neither necessary - nor am I required - to articulate findings about every item of the evidence.  My role is to determine whether the plaintiff has proven his case on the balance of probabilities.
17. 	The Plaintiff claims that the client was Ms Su’a. There is no direct documentary evidence linking Ms Su’a to a contract as alleged by the Plaintiff. The oral testimony and affidavit of Mr Belcher alleges that he dealt directly with Ms Su’a who instructed him as to what she wanted to be done. The clear suggestion from Mr Belcher’s evidence is that he never had any dealings with Mr Newton despite the fact that Mr Newton signed all three Job Cards. However, he then attests in his oral evidence that the fact Mr Newton and Ms Su’a were in a de facto relationship, they were jointly liable. Contrary to the latter assertion, the Plaintiff agreed to remove Mr Newton as a party in these proceedings upon Mr Newton’s request to the Plaintiff. I will come back to the significance of this point later in this judgment.
18. 	Ms Su’a denies that she never had any dealings with Mr Belcher and that it was Mr Newton who was responsible for arranging all the plumbing works.
19. 	The facts so far as contended by Mr Belcher suggest that the contract was formulated upon the signing of the Job Cards relating to invoices 291, 377 and 425. Mr Belcher’s evidence stated that the Plaintiff’s business practice is that the signing of the Job Card by the client constituted a contract. Mr Belcher accepts that a rejection by a client of all or some detail of the Job Card would mean that the contract is not yet finalized. However, once the client signs the Job Card, the contract is sealed.
20. 	This is peculiar given that Mr Belcher seems not to be of the view that the receipt of instructions to actually commence the works without requiring a quote or written contract was actually the agreement. That is, the Plaintiff and the client have agreed on the work required to be done to meet the “clients” purpose and cost was not an issue. This in fact was Mr Belcher’s testimony that Ms Su’a never asked for a quote or that a contract be drawn up but just instructed to go ahead. 
21. 	In Apia Quality Meats citing British Steel Corp v Cleveland Bridge and Engineering Co Ltd (Queen’s Bench Division 21 December 1981) Robert Goff J, later Lord Goff, held:
	“… there was no contract in circumstances where, at the request of the defendant contractor, the plaintiff manufacturer had made and supplied cast-steel products in anticipation of a contract being entered into but the parties were unable to agree on the contractual terms.”
22. 	British Steel Corp is distinguished in that at the alleged request of Ms Su’a, the Plaintiff undertook and completed the works. The Job Cards for each of the three (3) separate works were merely signing off that the works was satisfactorily completed and the associated cost. The material and substantial event in my view was the engagement of the Plaintiff and the instructions to attend to the specific works to meet the clients purpose. 
23. 	The first inquiry is whether there was a contract as Ms Su’a as Second Defendant disputes she never entered into a contract with the Plaintiff so far as the three invoices relate. As indicated earlier in this judgment, Ms Su’a does not dispute in her Statement of Defense and affidavit in support the fact that work had been done but she merely denies being a party to the discussions with the Plaintiff as undertaken by Mr Newton. This is consistent with Ms Schuster’s submissions at paragraph 23 “… Mr Newton would have ordered the works at the Vaitele property ….. that Mr Newton handled and dealt with all the works at the Vaitele property during the building”.
24. 	However, Ms Su’a in her oral testimony questioned whether any works was done at all which clearly contradicted her statement of defense and affidavit in support. When asked by the court, Ms Su’a confirmed that the water tank and water pump were not there before 2018 but only after the build. She accepts that it may very well have been part of the build but questions whether the Plaintiff did the installation as Mr Newton was in charge, she being unfamiliar with plumbing and electrical works.
25. 	Ms Schuster submits that the real party is Mr Newton and that Ms Su’a should not be liable at all for the intent and actions of Mr Newton in dealing with the Plaintiff even if they at the relevant time were in a de facto relationship. Assuming for the moment that Mr Newton entered into a contract with the Plaintiff, does that impute knowledge and intent on Ms Su’a? Counsel’s clearly differ on this point as the Plaintiff says yes and Ms Schuster submits it does not.
26. 	There is no law in Samoa as far as I am aware that makes a spouse legally liable for debts or contractual obligations entered into by the other. In certain instances where the spouse had a general understanding and knowledge of a contract even though not a party but consented or allowed the performance of the contract (home renovations, etc), may be found liable. In Lang v Southen HC Christchurch AP15/01, 24 July 2001, 
	“… Panckhurst J found that Mr Lang had left the day to day management of the building project that the trust was undertaking to his co-trustee. Panckhurst J also held that such sanction and approval was sufficient to authorise the earlier entry into the plumbing contract on Mr Lang’s behalf. This was therefore a case involving prospective approval of a class of decisions that would be made by the co-trustee in furtherance of the purpose of the trust.”
27. 	Eventhough Lang v Southen can be distinguished on the facts given the Appellants were trustee’s in a trust, the principle in my respectful view is also relevant in a de facto, marital, civil union or partner relationship entering into a contract for professional services. The law of contract imputes to the parties an intention to contract in the manner an objective bystander, familiar with the facts known to both, would take them to intend the consequences the notional informed bystander would reasonably infer.
28. 	On the question as to whether a contract exists, the Court of Appeal in Apia Quality Meats v Westfield Holdings stated in paragraph 27:
	“As was noted in Wilmott v Johnson [2003] 1 NZLR 649 (CA) at [37], it is conventional to determine whether a contract exists by assessing whether the Court is satisfied, on an objective appraisal, that an offer by one party has been accepted unconditionally by the other party in circumstances suggesting a common purpose of undertaking mutual commitment to be legally bound.”
29. 	I am satisfied on the balance of probabilities that works were undertaken by the Plaintiff and that there was indeed a contract between the Plaintiff and Mr Newton when the Plaintiff was engaged to undertake the works. The pertinent question is whether Ms Su’a is liable given her assertion that she was not a party to the contract. Does the issue turn on what the state of her personal relationship was with Mr Newton at the relevant time? 
30. 	The answer is “yes”. Ms Su’a does not deny at the time she was in a de facto relationship with Mr Newton and jointly embarked on a building project on the Vaitele land. The land is registered under Ms Su’a’s mothers name. It appears Mr Newton, notwithstanding this fact, continued to invest in the joint venture even though on paper he carried an unsecured risk.
31. 	Notwithstanding and given Ms Su’a’s limited experience in plumbing and electrical works, Mr Newton was left in charge of these aspects of the project. Ms Su’a testified they obtained a loan from a local banking institution and operated a cheque account to cover expenses of the project. I accept Ms Su’a’s evidence that she had never discussed the works with Mr Belcher. However, she had a general understanding and left the ‘day to day management of the project’ to Mr Newton who was going to engage someone to complete the plumbing part of the project. In my assessment, this was a clear sanction and approval sufficient to authorize the earlier entry of Mr Newton into the plumbing contract for himself and on Ms Su’a’s behalf in furtherance of the purpose of the project on land where Ms Su’a had substantial vested interest.
32. 	I am therefore also satisfied on the balance of probabilities that at the relevant time, Mr Newton was acting for and on behalf of himself and Ms Su’a when engaging the services of the Plaintiff. It was fortunate for Mr Newton that the Plaintiff was amenable to release him as a party. It logically followed as the very reason for the delay in bringing the invoices to the attention of Ms Su’a in about April 2020 the Plaintiff having come to the realization that Ms Su’a and Mr Newton separated in June 2019. Although Mr Newton had little to gain and much to risk in this contract in anticipation of a long term, perhaps, permanent relationship, I would have also found him liable on the evidence of the Plaintiff and Ms Su’a. 
33. 	The Plaintiff insisted that Ms Su’a was liable by virtue of her de facto relationship with Mr Newton who signed the Job Cards and, mistakenly thought, sealed the contract. I do not agree and it does not necessarily follow that a de facto relationship where one of the two enters into a contract automatically imputes liability from one person to the other. However, the facts must clearly show in the absence of refutation that at the relevant time, persons in an intimate personal relationship, or even in a business partnership, were both of the intention to contract in the manner an objective bystander, familiar with the facts known to both, would take them to intend.
34. 	I accept that Ms Su’a was residing on the said land and must have been aware of the works being carried out. There was no evidence of opposition or objection to the carrying out of the works and this may be tantamount to her acceptance by acquiescence.
35. 	The facts allege that either before or after the project was completed (or maybe in both time periods), there were two payments by installment for invoices 291 ($1,100) and 377 ($1,900) made by Ms Su’a in cash and by Hyundai Services Company cheque. Ms Su’a rejects this evidence as that it was Mr Newton who may have made these payments given the cheque used as she was not authorized to sign.
36. 	It follows on the facts I have accepted leads to proof that there was a contract entered into by the Plaintiff and Ms Su’a via Mr Newton on the balance of probabilities. 
37. 	Given the determination I have arrived at, it is not necessary to consider the action on unjust enrichment for it desires for the same remedies.
38. 	The only other question remaining is what amount claimed for the works should be imputed to Ms Su’a’s portion of the agreement having entered into the contract at the time when she was in a de facto relationship with Mr Newton and involved in a joint project? It would be in my view disproportionate for Ms Su’a to be fully liable given the facts of this case yet substantial and significant given her beneficial interest in the improvement. The Plaintiff having removed Mr Newton as a party yet continuing to cite Mr Newton’s participation in the contract in their sworn oral testimony should have anticipated the possible outcome of failing to obtain a full award having relied on the strength of the original claim for joint liability given their de facto relationship. The Plaintiff must necessarily contemplate and lament the consequence of that decision unable to obtain full or reasonable damages from a party released from these proceedings but played a significant role.
39. 	For completeness, the Plaintiff though on paper have sought exemplary damages, have not actively pursued it so far as the evidence is concerned. Nevertheless, it is settled law in Samoa that exemplary damages is not available for cause of action brought under the head ‘breach of contract’ and say no more about that.
Conclusion 
40. 	Given that the First Defendant has conceded and settled invoice 491, that matter is struck out. 
41. 	Judgment for the plaintiff against the Second Defendant. Parties are given the opportunity to salvage some sense of their relationship by filing an agreed measure of damages proportionate to the liability of the Second Defendant so far as to the balances remaining on invoices 291, 377 and 425 given the conclusion and reasons arrived at above. This is to be done within ten (10) working days from the date of this judgment. If no agreement is reached, parties are to file memorandums of damages and costs prior to the expiration of the ten (10) days stipulated.
 
DCJ SCHUSTER