THE SUPREME COURT OF SAMOA
Sapolu v Board of Trustees of the Congregational Christina Church of Samoa (CCCS) [2023] WSSC 44

Case name: 	Sapolu v CCCS	
		
Citation: 	[2023] WSSC 44	
		
Decision date: 	24 August 2023	
Reasons:	14 August 2023 	
Parties: 	TUITAMA ILIGANOA SAPOLU v THE BOARD OF TRUSTEES OF THE CONGREGATIONAL CHRISTIAN CHURCH OF SAMOA

		
Hearing date(s): 	18 & 24 August 2023	
		
File number(s): 	CP113/19

Jurisdiction: 	Civil 	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	CHIEF JUSTICE PERESE	
		
On appeal from:		
		
Order:	-	(a) dismisses the application to strike out; and 
-	(b) the defendant to pay costs of $500 to the plaintiff;
-	(c) the matter is to be placed in the civil mentions list on 4 September 2023 for the allocation of a mediation or a judicial settlement conference, or a hearing date. 	
		
Representation: 	V Fa’asi’i for Applicant/Defendant
A Su’a for Respondent/Plaintiff	
		
Catchwords: 	Interlocutory order – strike out motion – Deed of Lease Agreement – term of lease – factual disputes	
		
Words and phrases:	-	interlocutory order to strike out the plaintiff’ statement of claim	
	-	A cause of action accrues in a contract
	
Legislation cited:	Limitation Act 1975Section 17 
Supreme Court (Civil Procedure Rules) 1980, Rule 70

Cases cited:	Able Ventures Limited v John Bolton [2011] NZHC 1957 at para [41] – [44]);
Cooke v Gill (1873) LR8 CP107 at p106.  
Godinet v Chan Mow & Co Ltd [2007] WSSC 65, 
Invercargill City Council v Hamlin [1994] 3 NZLR 513 at 536
Johns v Johns [2004] NZCA 42	
		
Summary of decision:		

IIN THE SUPREME COURT OF SAMOA
HELD ATU MULINUU

BETWEEN
TUITAMA ILIGANOA SAPOLU.
Applicant/Defendant

A  N  D
THE BOARD OF TRUSTEES OF THE CONGREGATIONAL CHRISTIAN CHURCH OF SAMOA
Respondent/Plaintiff
Counsel:
V Faasi’i for Applicant/Defendant 
A Su’a for Respondent/Plaintiff

Hearing:   18 August 2023
Decision:   18 and 24 August 2023

DECISION AND REASONS OF PERESE CJ
1. 	The defendant seeks the making of an interlocutory order to strike out the plaintiff’ statement of claim dated 30 October 2019.
2. 	The matter was called for hearing on the 18th August 2023.  After hearing from Ms Faasi’i on behalf of the applicant/defendant, I dismissed the application for strike out; the reasons for my determination are as follows.
Background
3. 	The parties entered into a Deed of Lease Agreement on 30 August 2012, for premises at the Ioane Viliamu Building, corner of Main Beach Road and Falealili Street, Apia.  The term of the lease was 3 years and the annual rent set at $20,976.00. The defendant used the premises for her restaurant business known as Le Tiara Restaurant, Le Tiara Boutique. 
4. 	The defendant appears to have fallen into arrears with payment of the rent.  From the plaintiff’s evidence it appears that at the end of the lease in August 2015, the arrears were $71,901.00.  
5. 	The plaintiff responsibly placed before the Court evidence that the defendant during the term of the leased raised a number of concerns about the state and fitness of the premises. It appears the defendant’s concerns had merit; they were taken into account when the plaintiff reduced the amount of rental arrears payable from $71,901.00 to $30,000.00.  This is the sum which is sought in the statement of claim.  
6. 	The plaintiff pleads that the defendant acknowledged liability for the payment of rental arrears in a letter dated 17 August 2017.  Furthermore, the plaintiff pleads that on or about 17 November 2017 the defendant acknowledged liability for the unpaid rent and offered to pay weekly payments of ST$200 to repay the debt.  
7. 	The arrangements between the parties pre-dated the devastating economic effect of Covid 19 on small businesses not just in Samoa but worldwide, and so perhaps it is no surprise that there no weekly payments were made or received, towards the debt of $30,000.00. The defendant has also had to contend with very difficult personal circumstances over that time.
The application to strike out
8. 	Turning to the application.  The defendant’s motion to strike out pleads:
	1. The Respondent’s Statement of Claim be struck out in its entirety pursuant to:
(a) 	Rule 70 of the Supreme Court (Civil Procedure Rules) 1980; and/or
(b) 	In accordance with the inherent jurisdiction of this Honourable Court to strike out actions/motions for being frivolous, vexatious and abused of process; and
1.	The Respondent to pay the Applicant’s costs of and incidental to these proceedings including legal costs;
2.	Such further or other orders the Court deems appropriate;
UPON THE GROUNDS THAT:
1.	The Respondents Statement of Claim discloses no cause of action against the Defendant.  That is, that is plain and obvious that the claim is clearly untenable that it cannot possibly succeed; and
2.	The Respondents Statement of Claim fails to plead sufficient and specific facts and no amendment permitted can cure the deficiency in the pleadings; and
3.	The Plaintiff claim is statute barred by s.17 of the Limitations Act 1975 which expressly states that no action can be brought to recover rent after the expiration of 6 years from the date on which the arrears became due;
4.	Counsel also seeks for this Honourable Court to dispense with the requirement for an affidavit in support as the grounds raised and orders being sought are matters of legal interpretation.
9. 	Section 17 of the Limitation Act 1975 (“LA”) provides as follows:
	Limitation of actions to recover rent – No action shall be brought, or distress made, to recover arrears of rent or damages in respect thereof, after the expiration of 6 years from the date on which the arrears became due.
10. 	Ms Fa’asi’i submitted the “no cause of action” ground is based on the defendant’s position that no cause of action exists because such action is barred by the Limitation Act 1975 (“LA”).  Ms Fa’asi’i argued the lease was entered into in 2012, and as proceedings were issued in 2019, the proceedings were barred by the LA as being outside of the 6-year limitation period within which a cause of action may be pursued.  The submission however is flawed.  The focus in s.17 LA is on the expiration of 6 years from the date on which the arrears became due. Even if I were to accept that the deed was entered into in 2012, that would possibly only make irrecoverable rental arrears which became due in 2012, as being outside the 6-year limitation period.  In other words, whilst the rental arrears due in 2012 might be barred, the rental arrears which became due in 2013 – 2015 (inc) would not be barred by the 6-year limitation period.   The date of the deed is irrelevant, for the purposes of the LA, the time for recovery runs from when the arrears became due.  on or about 17 August 2017
11. 	The defendant in this proceeding is pursued for the lesser sum of $30,000.00.  This amount appears to have been agreed by the parties to be in settlement of all issues concerning the defendant’s liability for outstanding rent for the periods 2012 – 2015 (inc) (“the settlement agreement”).  By entering the settlement agreement, the plaintiff obtains the defendant’s acknowledgement of rental arrears dating back to 2012 (such acknowledgement has in law the effect of restarting the limitation clock: Able Ventures Limited v John Bolton [2011] NZHC 1957 at para [41] – [44]); and it limits its liability on account of its alleged breaches under the lease.  On the other hand, by accepting the $30,000.00 settlement amount, the defendant gives up the opportunity to challenge the value of the plaintiff’s breaches of the deed and whether she might be entitled to a greater discount, or perhaps complete release.  The parties are estopped from asserting their respective rights that existed under the deed because the settlement agreement settled the issues arising under the deed. The settlement agreement may therefore be enforced in its own right. 
12. 	The barring of a cause of action under the LA is a well-accepted basis upon which to apply to strike out a claim.  A cause of action is defined as meaning every fact which it will be necessary for the plaintiff to prove to support an asserted right to judgment: Cooke v Gill (1873) LR8 CP107 at p106.  A cause of action accrues in a contract as soon as there has been a breach of contract: Invercargill City Council v Hamlin [1994] 3 NZLR 513 at 536.  
13. 	Applying those principles to this case, an action on the settlement agreement made in August 2017 for the sum of $30,000.00, arises as soon there is breach - failure to pay rent.  This proceeding was filed in August 2019 and it is difficult to see how the plaintiff could possibly argue that the 6-year limitation applies.  The LA does not apply.  The proceedings are brought well within the 6-year time limitation which begins to run when the defendant fails or refuses to make payment of the agreed sum of $30,000.00, either in full or by installments amounts accepted by the plaintiff. 
14. 	Ms Fa’asi’i submitted the defendant takes issue with the circumstances behind the creation of the 17 August 2017 letter, implying that there may not have been an appropriate acceptance of the settlement sum.  In the absence of an affidavit from the defendant, counsel should refrain from trying to fill the gap in the evidence with evidence from the bar.  
15. 	In the context of interlocutory hearings, factual disputes which are material to the determination of a dispute should be addressed filed affidavit evidence.  The failure to address a factual allegation may lead to the court drawing an inference against the party who should have responded. However, having said that, counsel should note that rarely are disputes of fact able to be resolved on the papers.  Generally speaking, factual disputes of material issues need to be tested and determined at a hearing. 
16. 	The meaning the plaintiff contends for the 17 August 2017 letter is pleaded at paragraph 6 of the statement of claim.  In assessing the pleading, I am guided by His Honour Chief Justice Sapolu’s judgment in Godinet v Chan Mow & Co Ltd [2007] WSSC 65, which approved as good law for Samoa the principles discussed by the New Zealand Court of Appeal in Johns v Johns [2004] NZCA 42; namely, the facts upon which the Court must act are those alleged in the plaintiff’s pleadings, they are in strike out applications be taken as capable of proof.    It must therefore be taken as capable of proof that the defendant agreed that she was indebted to the plaintiff.  
17. 	Respectfully, the defendant’s application to strike out the claim can only be described as hopeless.  The pursuit of this course of action has resulted in unnecessary delay to the resolution of these proceedings.  I dismiss the application, and take the unusual step of awarding costs to the plaintiff.  Costs would be normally reserved and considered at the conclusion of the substantive hearing.  However, this strike out application is so clearly misconceived, it is unfair for the plaintiff to have been put to the cost of responding.  
The court’s orders
18. 	The court makes the following orders:
(c) 	dismisses the application to strike out; and 
(d) 	the defendant to pay costs of $500 to the plaintiff;
(e) 	the matter is to be placed in the civil mentions list on 4 September 2023 for the allocation of a mediation or a judicial settlement conference, or a hearing date. 
CHIEF JUSTICE