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Bon Pacific Trading Ltd v Mapex International Ltd [2003] WSSC 27 (20 March 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

BON PACIFIC TRADING LIMITED
a company having its registered office at
Level 4, 149 Parnell Rise, Parnell, Auckland, New Zealand
PLAINTIFF

AND:

MAPEX INTERNATIONAL LIMITED
a company registered in American Samoa but conducting business in and through Apia, Samoa
Defendant

Counsel: Ms S. Hazelman for the Plaintiff
Mr T.K. Enari for the Defendant

Date of Ruling: 20 March 2003

DECISION OF VAAI J

On the 30th January 2003 the plaintiff withdrew its claim against the defendant on the basis that the defendant company does not exist in the jurisdiction. The statement of claim was served on Mr Meredith in Apia. Mr Meredith is a principal of the defendant company and he filed a statement of defence and counterclaim pointing out that the defendant company does not exist in Samoa. In fact the statement of defence specifically says that the defendant is a company registered in American Samoa. Judgments entered in Samoa cannot be enforced in American Samoa and vice versa.

The plaintiff however elected to pursue its claim in Samoa. It is true that the defendant filed a counterclaim against the plaintiff but that was obviously the normal step for the defendant to take in the event the court rules that it has jurisdiction to hear the plaintiff’s claim. In preparation for the trial parties were engaged in interlocutory matters. On the day of the trial the plaintiff withdrew its claim and the defendant sought costs. Both counsels have filed written memorandums and both agree on the general principle to be adopted by the court : see Marx v Attorney General (1974) 2 NZLR 372 and Kenderdine & Another v Robert Raymond & Another (1975) NZLR 300.

The plaintiff withdrew its claim because the defendant does not exist in the jurisdiction, or even if judgment was obtained here against the defendant the same judgment cannot be obtained in American Samoa. But the defendant has been ringing the warning bells when it filed its statement of defence and counterclaim in August 2001 and the plaintiff dented to ignore the warning. The defendant is entitled to costs based on the claim for US$12,264.88. The plaintiff is ordered to pay costs of US$846.56.

JUSTICE VAAI