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Netzler v Sapolu [2010] WSSC 75 (2 July 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

CP 125/09

BETWEEN:

LYNN NETZLER
of Motootua, Businesswoman for and on
behalf of the family members of Aualiitia Sofe
Plaintiff

AND:

BERNADETTE MARY SAPOLU,
(also known as) TITI SAPOLU
of Malifa, Widow
Defendant

Presiding Judge: Justice Slicer

Counsel: T S Toailoa for Plaintiff
S Hazelman for Defendant

Hearing: 3 June 2010
Judgment: 2 July 2010

JUDGMENT OF SLICER J

1. The Defendant ("Sapolu") seeks to strike out the Plaintiff's ("Netzler") action commenced in July 2009. The interlocutory proceedings involving Strike Out Motions, amendments to the Statement of Claim, Notice of Opposition and Discovery have impeded, not assisted, the resolution of these proceedings. This Court is to determine the question of standing. The cumbersome procedures, used by counsel, are not to the advantage of the parties and their respective causes.
   
2. The Plaintiff's First Amended Statement of Claim seeks orders:
   

1) Setting aside the registration of a Deed of Conveyance;

2) Directing the alteration of a common boundary;

3) Damages for unjust enrichment.

3. The original Statement of Claim did not seek an award for damages for unjust enrichment but instead a removal order affecting a building erected on the disputed land. The pleadings are misconceived. The action first requires the setting aside of a judgment of this Court delivered on 19 December 2003. In order to establish the eventual cause of action, the Plaintiff must first:
   

1) Establish by fresh evidence that such evidence, if admitted at trial, would clearly show that the judgment impugned could not have been made;

2) Show, without equivocation that the original judgment ought be set aside.

4. Then, and only then, can the Plaintiff proceed with her cause of action. The matter, as pleaded, is flawed. That flaw has resulted in protracted and unnecessary proceedings which include applications for injunctive and contempt remedies.
   
5. On 27 September 1994, the Court ordered Sione Peters to deliver up the impugned area of the land. Sione Peters died in 1996. In 2003, his widow Feiloaiga Peters sought to set aside the earlier judgment. This Court dismissed the application, following the hearing on 19 December 2003. In doing so, Vaai J rejected the documentary and oral testimony adduced by the Applicant and the evidence of Fausia Tolovae concerning the boundary between Parcels 3755 and 3754.
   
6. The Principal Surveyor completed a redefinition survey of the boundary on 9 May 2005. The survey field works showed that the old survey marks 'were found sound and proved reliable.' From those marks, the Principal Surveyor concluded that:
   

'...a Samoan guest house (faletalimalo) is encroaching on the western side of the reclamation which was reclaimed by Titi Sapolu. This encroachment is about 9 square meters.'

7. In July 2009, the Plaintiff receive a report dated 16 July from a land and engineering surveyor stating that in his opinion:
   
   1. There were two major variations of Lot 14 on Plan 1794 compared to Parcel 3754 on Plan 5155
      
   2. The road frontage of Lot 14 was less by 10 meters than Parcel 3754
      
   3. Lot 14 has lesser area than Parcel 3754
      
   4. There had been an error in description commencing from its eastern boundary with the road frontage.
      
8. This conclusion forms the basis of the Plaintiff's action in seeking to set aside the decision of 19 December 2003. It is said to be 'fresh evidence' not discoverable at trial, warranting the setting aside of the original judgment.
   
9. Thus there are competing opinions of description and boundary lines of the adjoining properties. It is the 10 meter difference which is the cause of description and was the subject of the 1994 and 2003 actions.
   
10. The principles governing the exercise by a Court of the power to set aside a previous judgment, other than by appeal, and to depart from the requirements of Res Judicata, have been stated by the Courts of the United Kingdom, Australia and New Zealand (Paper Reclaim Limited v Aotearoa International HC AK CIV 2004-404-4278; Wentworth v Rogers (No.5) [1986] 6 NSWLR 534; Shannon v Shannon [2008] NZCA 83). The reception of fresh evidence requires such evidence to be conclusive of the legal outcome in any test applied on a strike out motion. The test is whether, if such evidence is received at trial, it would inevitably produce an outcome to that reached in this judgment assailed. In Alexander Jennings v Ioane Onesemo (11 June 2010), this Court referred to the relevant principles stated in those cases as requiring:
    
    1. evidence newly discovered since trial;
       
    2. the evidence could not have been found at the time of the trial by due diligence;
       
    3. the evidence is material in the sense that it would probably have affected the outcome.
       
10. The action seeks three distinct remedies which depend on different principles of law namely;
    

1) The setting aside of a conveyance already completed and altering the title already transferred;

2) Directing an alteration to the description of title stated in Deed of Conveyance No.6029C;

3) Damages through the equity of unjust enrichment.

11. The New Zealand Courts have recently addressed the increasing number of attempts to set aside judgments and a form of collateral attacks through Court process (Erwood v Maxted & Glasgow as Trustees of the Estate of Edward Erwood and Anor [2010] NZCA 93). In that case, Justice Randerson criticized the overuse and repeated the strict critieria required in any recall of a judgment as stated in Horowhenua County v Nash (No.2) [1968] NZLR 632 and Unison Networks Ltd v Commerce Commission [2007] NZCA 49.
    

STANDING

12. The Defendant disputes the 'locus standi' of the Plaintiff in her right to commence and maintain the action. The Plaintiff maintains that she is a member of the family claiming 'communal property' in land allocated to Aualiitia Sofe and that title to the adjoining land Parcel 3754 is held by her. The argument concerns the 10 meter difference in the boundary line defining the two properties. The Plaintiff has an interest in the issue, sufficient to give her standing as a party (Australian Conservation Foundation v The Commonwealth of Australia (1980) 146 CLR 493).
    

TITLE AND DESCRIPTION

13. The Plaintiff seeks to set aside a Deed of Conveyance. Success is problematic by at least arguable. Depending on the evidence, the purchaser might be protected in her receipt of title. But that question ought not be determined at a strike out stage. A direction altering the description of the land transferred is, at least, a potential outcome of the action.
    
14. The Motion to Strike Out the action, in so far as it applies to paragraphs (a) and (b) of the Amended Statement of Claim, is dismissed.
    

UNJUST ENRICHMENT

15. The Plaintiff seeks damages as at the date of the filing of her Statement of Claim. At that time, the Defendant was entitled to rely on the judgment of this Court made on 19 December 2003. She was entitled to rely on the judgment of the Chief Justice made on 27 September 1994. An appeal against an earlier judgment of December 2003 was dismissed by the Court of Appeal on 20 November 2004. An appeal against the 2004 judgment has not been pursued by Feiloaiga Peters and would be inevitably dismissed for want of prosecution.
    
16. A Plaintiff must satisfy the Court that he or she is entitled to equitable relief either by grant of specific performance or by way of injunction. Otherwise recourse can only be had by the exercise of common law rights (Madden v Kevereski [1983] 1 NSWLR 305). Damages may be awarded if at the commencement of the suit the Plaintiff has made out the ingredients of a case for equitable relief even if discretionary defences such as laches or mistake later defeat the claim (Jaggard v Sawyer [1995] 2 All ER 189; Goldsborough Mort & Co Ltd v Quinn [1910] HCA 20; (1910) 10 CLR 674; Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672).
    
17. Here the primary proceedings require the setting aside of the judgment. Any suit may only be entertained after that is done.
    
18. The Plaintiff cannot succeed in showing unjust enrichment unless and until after she obtains judgment in these proceedings.
    
19. Any accrued right in favour of the Plaintiff could only be created upon the setting aside of the 2004 judgment. The proper date for assessment of equitable damages is at the date of which specific performance or an injunction could have been ordered, this date usually having the date of the judgment (See: Pont & Chalmers, Equity and Trusts in Australia (3rd ed. 32.75). Here no such order could be made until the judgment itself is set aside. There could be no remedy whilst the Defendant is protected by a judgment of this Court. Even if the Defendant's land is enhanced by the Plaintiff's building, that remains the problem of the Plaintiff
    
20. The Plaintiff sought the remedy of damages through unjust enrichment as an alternative to her principle claim for the setting aside of the conveyance or the alteration of a boundary. The origin of this grant of power is the enactment in the United Kingdom of the Lord Cairns' Act 1858. Here the grievance is with the earlier decision of this Court. Whilst damages may be awarded in addition to or in substitution for injunctive or equitable relief (Wentworth (supra); Jaggard (supra)) they cannot be awarded in respect of an invalid decision of a domestic tribunal (Attorney General (NZ) v Birkenhead Borough [1968] NZLR 383; Stininato v Auckland Boxing Association Inc [1978] 1 NZLR 1; Neville Nitschke Caravans v McEntee (1976) 15 SASR 330). Here the error is said to be of title and a decision of the Court. There are circumstances where damages may be awarded when specific performance is impossible (Johnson v Agnew 1980 AC 367) but not in the circumstances of this case.
    
21. The Applicant to the 'Strike Out Motion' has shown that there is no cause of action. The remedy sought in the Statement of Claim Order (c) is dismissed, and there be judgment for the Defendant on that cause.
    

STATUS OF ACTION

22. The action has survived the Strike Out Motion. In one sense it ought to be struck out in full since there has been no application to set aside the existing and binding judgment of 2003. It was open for the Defendant to plead by her defence the judgment and Res Judicata, and insisted that the matter go to hearing or to apply for summary judgment. No defence has been filed. Instead, the Defendant chose a Strike Out Motion. Different considerations arise as between the two sets of legal process. Had the Defendant filed a defence, it would have still remained open for the Plaintiff to file an application seeking to set aside the original judgment. The cycle of interlocutory proceedings could re-commence, to the disadvantage of the parties. I have decided the Strike Out Motion on the substantive matter as pleaded, identifying the defect in the pleadings and proceeded in an attempt to hasten the determination of the action. As previously stated, the solicitors for the parties had not assisted their respective causes. The action and Statement of Claim cannot proceed unless and until that judgment is set aside, and ought be stayed. Lest the Plaintiff believes that a stay entitles her to do nothing and preserve the status quo the stay order will be 'self executing' or as commonly referred to 'a hanging order'. If she complies with the 'self executing' order the action will still be conditional on her prompt pursuance of the evidentiary and procedural requirements for the trial. In order to expedite the resolution of the proceedings in their entirety that the application and action the Court will consider hearing both matters concurrently.
    

COSTS

23. It is the Plaintiff who seeks the indulgence of the Court in seeking to re-open proceedings despite her failure to pursue the 2004 appeal. It is the Plaintiff who has delayed the bringing of the action for a long period of time yet continued to occupy the land. It is the Plaintiff who failed to pursue her appeal. It is the Plaintiff who seeks to set aside a judgment regularity entered. The Defendant should not bear the costs of these proceedings to date.
    

ORDERS

1. The Motion to Strike Out in relation to the matters (a) and (b) pleaded in the Amended Statement of Claim is dismissed.
   
2. The Motion to Strike Out in relation to the matter (c) pleaded in Amended Statement of Claim is upheld, and the matter (c) dismissed.
   
3. The action and Statement of Claim are stayed until the judgment dated 27 September 2004 is set aside.
   
4. It is a condition of that suspension that the Plaintiff applies by motion supported by affidavit to set aside the judgments dated 27 September 1994 within 21 days of this Order. In default the Statement of Claim is struck out, the action dismissed and judgment be entered for the Defendant.
   
5. The Plaintiff pays the costs of the Strike Out Motions and of these proceedings to date, in any event. The costs are to be assessed on a party/party basis.
   

JUSTICE SLICER