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Ieremia v Ieremia [2024] WSSC 126 (20 December 2024)

IN THE SUPREME COURT OF SAMOA
Ieremia v Ieremia & Ors [2024] WSSC 126 (20 December 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

MEKELI IEREMIA

Plaintiff

A N D:

LUAIVA IEREMIA and LUPE IEREMIA

First Respondents

A N D:

BOARD OF BANK OF SOUTH PACIFIC

Second Respondent

Counsel: S Wulf for Plaintiff
A Faasau for the Second Name First Respondent
G Latu & B. Heather-Latu for the Second Respondent

Hearing: 19, 20, 21 March 2024
Judgment: 20 December 2024

RESERVED JUDGMENT OF PERESE CJ

INTRODUCTION

1. The Plaintiff, Mekeli Ieremia (“Mekeli”), brings this claim to recover freehold land at Alafua (“the land”). Mekeli purchased the land in 1986 for the sum of ST14,000.00, and had it conveyed to himself and his retired missionary parents Ieremia Luatau, Lola Ieremia, as joint tenants. Mekeli built a home on it for Ieremia and Lola, and his parents the property until their deaths in 2001 and 2003 respectively; they are buried on the land.
2. Sometime in the year 2000 Mekeli stood trial for and found guilty of dishonesty offences. He was sentenced to imprisonment in a Texas Corrections Facility in the United States of America (“USA”), and paroled in 2006.
3. In early 2005, whilst incarcerated, Mekeli signed a power of attorney appointing Luaiva Ieremia (“Luaiva”) his brother, as his attorney (“the POA”). Luaiva is the first named First Respondent. Mekeli says he appointed Luaiva to “look after” his land at Alafua. The reasons he gave the Court for appointing Luaiva was that jail was a dangerous place where he feared for his safety and well-being, and he wanted to appoint his brother to look after his land because he trusted him.^[1]
4. The use to which the POA was put was far from passive. Shortly after receiving the POA in April or May 2005, Luaiva relying on it applied for transmission of the ownership of the land to Mekeli by way of survivorship. Later in the same month, again relying on the POA, Luaiva now caused Mekeli to transfer the land to himself and the second named First Respondent, his then wife Lupe Ieremia (”Lupe”), as joint tenants by way of gift. In 2015, following their divorce in 2013, Luaiva conveyed his interest in the land to Lupe as a part of their separation and divorce arrangements. The transfer of this interest was registered in Lupe’s favour in 2017.
5. The nub of Mekeli’s claim is that Luaiva’s gifting of his land to himself and his wife Lupe, and subsequent transfer by Luaiva to Lupe, were not authorised by a Power of Attorney, which Mekeli says was limited to Luaiva looking after the land. The unauthorised transfer Luaiva and Lupe was fraudulent.
6. Lupe denies the allegation of fraud. She says the transfer to Luaiva and her in 2005 was to enable the refinancing of a debt owed to the ANZ Bank, which was incurred by Mekeli and was secured by a registered mortgage over the land. The refinancing was through the Westpac Bank, which became the Bank of the South Pacific (“BSP”) – the second respondent.
7. The issue of fraud is very much front and centre in this dispute.

BACKGROUND

8. The freehold land is described on the Land Register as follows:
   • ALL that piece or parcel of land containing an area of One rood twenty five perches (0ac.1r.20.5p) more or less, situated at Alafua in the District of Tuamasaga, described as Parcel 712, Flur V, Upolu and being part of Parcel 26 and being all of the land now registered in VOLUME 13 FOLIO 65 of the Land Register of Western Samoa as the same is more particularly delineated on Plan 3270L. deposited in the Office of the Director of Lands at Apia.

The ANZ loan and mortgage

Emails between the ANZ Bank and Lupe

9. In late 2003, Lupe and ANZ exchanged email correspondence between 12 and 21 November that are relevant to gaining a better understanding of the position with ANZ Bank. The first email in the email trail is from Lupe to Mr Mark Roberton of the ANZ Bank; it is undated. In this email, Lupe informs the bank of the progress she and her husband, Luaiva, were making to bring the loan account into order, but she asks if she could get a better interest rate than 13.75%? In response, Mr Mark Roberton advised Lupe that the queries she raised would require “some background research”. Then in his further email Mr Roberton says:
   • “Lupe
   • The information below has been gleaned from file held here-
   • The name of the account is Lola Ieremia (grandmother) and Temukisa (granddaughter – daughter of Mekeli – Lola’ son). Lola & Temukisa had a joint account with us which was opened in 1994. Account was funded mainly from the USA as well as Temikisa’s salary. Lola receives pension (75 years of age) and Temukisa was employed as secretary at Wesley College at a salary of $360.00 pm. Lola’s son Mekeli (father of Temukisa) funded all the family developments in Samoa and assists in supporting of his aged parents. Mekeli resides in the USA. Mekeli request to borrow under his mother & daughter’s name to establish a credit record for them. Original facility of $100k was granted in 1998.
   • Query No. 1 – The facility was granted under Lola Ieremia & Temukisa’s name and the servicing of the loan was based on the satisfactory operation of the account as well as frequent remittances from Mekeli. Also, previous arrange arrangement of $50k granted was fully paid up.
   • No 2 – Mortgage was taken by Patrick Fepuleai over the land and house. Land is under the names of Mekeli and his parents (Lola & Luafutue). A gtee of $200k was given by Mekeli supported by the said property. Also the mortgage was signed by the parents.
   • The loan repayments defaulted when Mekeli was in jail somewhere in the USA. Then his brother Rocky and sister-in-law Lupe called in May & June 2000 to discuss the account and offered to assist with the loan repayments as they wished to keep the property.
   • Up to date Lupe is helping out in meeting loan repayments and this will give you a credit rating. sic”
10. The content of Mr Roberton’s email appears to derive from the ANZ Bank’s records. I am satisfied the evidence is admissible in that the requirements of Part 2 of the Evidence Act 2015, Subdivision A relating to hearsay evidence, are satisfied:
    • (a) Mr Roberton’s email purports to be written on the basis that it is a review of the ANZ’s file on Loan account 2270135. The court is satisfied that there is no evidence which might affect the court being reasonably assured that Mr Roberton’s account of those records is reliable.
    • (b) Service of the affidavit containing the hearsay, was given with sufficient notice to the Applicant and the Second Respondent, with the affidavit served on or about 29 March 2023, over a year before the hearing.
    • (c) The court is satisfied that (1) given there was no objection to the evidence, (2) the difficulties in securing a fixture, and that (3) Mr Wulf had the opportunity to cross-examine Lupe on the evidence,^[2] there would be have been undue delay in pausing the hearing to locate Mr Roberton to give evidence. I also note some of Mr Roberton’s statements are capable of being verified by reference to other bank records. As an example of this, the ANZ FNS Transaction records,^[3] show a loan to Miss Temukisa Ieremia in the sum of ST201,614.71 was advanced on 5 January 2000.
11. I draw from Mr Roberton’s emails the following inferences:
    • (a) A facility had been established by the ANZ in 1998 on loan account number 2270135. This appears to have predated the mortgage signed on or about 23 March 1999.
    • (b) Mekeli requested to borrow under his mother and daughter’s names to establish a credit record for them.
    • (c) The initial facility was for ST$100,000.00, but the loan account has an opening balance in January 2000 of ST$202,612.47. An advance was made to Temukisa’s account. There is a possibility that the loan was taken in Temukisa’s name, but the funds were used by others.
    • (d) The Plaintiff funded the facility, however, when after he was jailed the loan payments defaulted.
    • (e) Lupe and Rocky approached the bank in May and June 2000 to discuss the account and they offered to assist with loan payments as they wished to keep the property. I note from other evidence that both the Plaintiff’s parents were still alive at this time and living on the property.
    • (f) A mortgage was taken by Patrick Fepuleai over the property. The Plaintiff gave a guarantee of ST$200,000 supported by the property. This is the same Patrick Fepuleai who wrote to the Bank on 9 January 2003, as noted earlier in this judgment.
12. Mr Roberton’s evidence is compelling, and determinative.
13. Mekeli on the other hand says he did not know anything about the ANZ loan or the mortgage because in the period between 1999/2000 he was in the United States preparing to defend fraud charges he was facing in the USA. However, no other evidence was offered to corroborate Mekeli’s assertion. By this I mean evidence from a passport, records of appointments with Mekeli’s lawyer, or correspondence with the lawyer directly, or an affidavit from the lawyer involved, which could place Mekeli in the USA during the relevant period.
14. There was also no explanation given of how the ST$200,000 was used. It is a significant amount of money. Though it is unnecessary for me to resolve this issue, the answer might have assisted in determining whether the money was used to assist Mekeli for legal fees, which would then place Mekeli in the awkward position of denying knowledge of the existence of the loan but having his legal fees being met by the ANZ loan funds. It is noteworthy that Temukisa, whose bank account was credited with the loan proceeds, was not made a party to this proceeding responding to a charge of unjust enrichment or conversion.

Servicing the ANZ Bank loan 2000 - 2004

15. The loan needed to be paid in monthly instalments of ST$3000.00. Between 2000 and 2003, some of the mortgage payments were met by rental income earned from time to time from the property.^[4] However, the burden during this period fell on Rocky and Lupe and their payments were also irregular. This changed in 2003, when Lupe began making payments by way of automatic payment from her wages.^[5]
16. Lupe produced a schedule of repayments for the ANZ loan covering the years 2000-2004, which she says was taken from ANZ Bank Statements.^[6] Copies of the ANZ Bank statements were not placed before the Court. Under cross examination, Lupe’s schedule was modified, and the corrected version shows Rocky made 6 payments in 2003 – on 10 January; 4 February; 17 February; 3 March; 23 and 24 April 2003; totalling ST$10,212.39. On the other hand, Lupe, made 7 payments in 2003 – on 23 April; 7 May; 5 June; 9 July; 3 Oct; 6 Nov; and 5 Dec 2003, totalling ST$25,820.62. The schedule also records that in 2004, Lupe made payments totalling ST$30,000.00, and this took contributions to the mortgage attributable to Lupe for 2003 and 2004 to just under ST$56,000.00. Lupe made other payments in 2000 – 2002.
17. The servicing of the ANZ loan was unsatisfactory at times from the Banks perspective. There were two instances where the ANZ Bank commenced recovery proceedings by way of mortgagee sale. The first was when the ANZ Bank wrote to Temukisa on or about 19 November 2002 advising the loan was in arrears in amount of ST$3,800; the then balance of the loan was ST$172,452.38. The second was in 2005 as I shall discuss at paragraph [30], below.
18. Temukisa, was informed the bank wanted to “continue with the mortgagee sale” of the property and she was given 14 days to pay the arrears or make alternative arrangements acceptable to the ANZ. To avoid the threatened mortgagee sale, Temukisa’s lawyer, Mr Patrick Fepuleai wrote to the ANZ on 9 January 2003 advising:^[7]
    • “As you may be aware the principal person responsible for the payment of the loan is Mekeli Ieremia. He has been in prison for a few years now and his brother Rocky Ieremia who resides in the United States has been making the payments. Unfortunately, as there is a downturn in the economy of the United States that he is struggling to make ends meet. He has been paying US $650 per month as is having a hard time meeting those commitments. He is requesting if this amount could be reduced to US $500 per month to be reviewed after a period of four months. His brother Mekeli Ieremia is scheduled to be released from prison sometime this year and the situation can be reviewed then. Mekeli should be able to resume increased payments then. Rocky has no legal obligation to this loan but he has made a moral commitment for the payment despite his own personal financial hardship. I would therefore be grateful if you could consider his request favourably.”
19. Mr Fepuleai’s suggestion that Mekeli would take over payments in 2003 was optimistic, at best. Mekeli remained in prison until 2006. But, in any event, Mr Fepuleai’s request was rejected. It is noteworthy that Mr Fepuleai confirms that Mekeli was principally responsible for the payment of the loan.
20. It is not clear why, but the threatened mortgagee sale at the end of 2002 did not proceed.

Did Mekeli know about the ANZ Bank loan and mortgage?

21. I consider Mekeli’s denials of knowledge of the ANZ loan and the granting of the all-obligations mortgage are implausible and accordingly his assertions are rejected. The assertions require me to accept the following inferences, which I am disinclined to do:
    • (a) that an unidentified person or persons forged Mekeli’s signature on a mortgage in front of a solicitor. Other than his bare denial, there was no other effort by Mekeli to demonstrate his claim that the signature was not his signature. And, there was no evidence from a handwriting expert to support a suggestion the signature on the mortgage was not Mekeli’s.
    • (b) that a solicitor would dishonestly declare witnessing the signing of a mortgage document when in fact the parties or a party had not.
22. I accept Mr Roberton’s advice that Mekeli organised loan, and that it was Mekeli who would service the loan as he had done for other family matters.

The Power of Attorney[8]

23. Mekeli signed a power-of-attorney (“POA”), dated 3 January 2005; it was prepared for him by someone at the Correctional Institution’s office in Texas.^[9] A standard form POA^[10] with opt in options provided to suit individual circumstances. The POA was of limited duration - expiring in 2007, though no specific date is given.
24. A preliminary notice on the first page of the document relevantly provides the following explanation:
    • NOTICE: THIS IS AN IMPORTANT DOCUMENT. BEFORE SIGNING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS. THE PURPOSE OF THIS POWER-OF-ATTORNEY IS TO GIVE THE PERSON WHOM YOU (YOUR “AGENT”) BROAD POWERS TO HANDLE YOUR PROPERTY, WHICH MAY INCLUDE POWERS TO PLEDGE, SELL OR OTHERWISE DISPOSE OF ANY REAL OR PERSONAL PROPERTY WITHOUT ADVANCE NOTICE TO YOU OR APPROVAL BY YOU.... YOU MAY REVOKE THIS POWER-OF-ATTORNEY IF YOU LATER WISH TO DO SO.
    • (emphasis added)
25. Mekeli authorised his agent to act in his name, place and stead in any way that he could do if he were personally present with respect to each of the 13 subdivisions, which are initialled by him on page one of the POA; these included entering into “Real Estate Transactions” and the catch all category “all other matters”.
26. The POA further provides:
    • My attorney-in-fact hereby accepts this appointment subject to the terms and agrees to act and perform said fiduciary capacity consistent with my best interests as he/she in his/her best discretion deems advisable, and I affirm and ratify acts so undertaken.
    • (emphasis added)

Why was there a need for a POA?

27. There are three possible explanations as to why the POA was signed in early 2005, when Mekeli was paroled in 2006. Whichever of the options is considered, Mekeli’s evidence is said he had not spoken to his brother Luaiva before or after he signed the POA.^[11]
28. The first explanation to consider is Mekeli’s evidence that he was told by his wife to provide a POA. In other words, Mekeli only provided the POA “because my wife at that time told me to do a power of attorney...”^[12] Mekeli’s wife did not give evidence nor did Mekeli expand on his evidence about why his wife asked him to provide a POA.
29. The second explanation of the three is that which Mekeli discussed in cross examination:^[13]
    • “I understand, I was giving my powers to my brother Luaiva to handle my land which handle authority may include power to pledge, cell or otherwise dispose of my land. Immediately I say handle here as I understood it then meant I was asking him to look after the land, care for it and not to allow anyone to trust us on it or anyone to build or live and unlawfully on it. I meant for him to handle my land and keeping it tidy and clean and not to allow weeds, scrubs et cetera to grow over and within and around it especially our parents are buried on the land, I mean it’s in the Samoan way o le fanua o lo’u uso. Therefore, handle it as I had done before I was jailed, “was” and “is” to look and care for it. The (in audible) to include power to pledge, sell or otherwise dispose. I understand imposing a discretionary responsibility on my brother that though he may handle the property for some other purposes for which he may want without advanced notice or approval by me in the context that I own the land, that was in jail and that our parents are buried on it and of our Samoan way o le fanua o lo’u uso. I propose that he may use his discretion to keep the land as it were or make it better but not to take it as his own and transfer it to his wife". (sic)
    • (emphasis added – the part in bold I will refer as Mekeli’s prohibition)
30. The third explanation is that the POA was signed so Luaiva could carry out the transactions described below to save the land from the second mortgagee sale notice from ANZ Bank.
    • (a) Luaiva transferred the property by way of survivorship to the Mekeli, on 4 May 2005.^[14] There is no complaint about this transaction.
    • (b) This transfer to Mekeli then made it possible for Luaiva, as Mekeli’s attorney, to transfer the property to himself and Lupe, later that month, on 30 May 2005.^[15]
    • (c) Luaiva and Lupe granted a mortgage over the property to secure the loan to Westpac, the proceeds of which were used to pay off the ANZ loan, and to repay personal loans from family members, which Lupe used to meet the ANZ mortgage payments.
31. Mekeli’s claim of fraud relies on his claim that any transfer by Luaiva into his own name is not permitted under the POA. I will discuss this further below at [84] – [87].

ALLEGED EMAILS BETWEEN LUPE AND MEKELI

32. This is an extremely important part of the evidence in the case as I discuss below. I preface the discussion by noting at the outset that Mekeli denies receiving or sending any email communications with Lupe. In my assessment, the contents of the email exchanges suggest that it is likely that Mekeli communicated by email with Lupe.
33. Lupe asked Mekeli for reimbursement of ST$194,285.00.^[16] She explained to Mekeli that the rate for the Westpac refinance was 12.75%, which was 1 percent lower than the ANZ Bank rate, meaning a reduction of monthly payments from ST$3,000.00 to ST$2,400.00. Lupe paid a weekly amount of ST$610 from her personal checking account.^[17] Moreover, she told Mekeli in this email:^[18]
    • The only reason I agreed to refinance the loan with Westpac was for lower interest, lower payments, and the Westpac bank will not refinance the loan from ANZ unless I put it in my name, since I was the only one that can afford the payments.
34. Mekeli denies receiving the email.^[19] In denying receipt of the email, Mekeli denies knowledge of the legal fees incurred and how they included a charge in relation to “power of attorney fee” which appears to be for the registration of the POA in Samoa; legal fees for instructions concerning transmission by way of survivorship, discharge ANZ and refinance at Westpac, stamping, mortgage document, deed of conveyance, disbursements.
35. If Mekeli did not send any emails to Lupe,^[20] then one can only wonder who would send the email below which contains quite personal information concerning the recognition of the emotional and physical welfare toll on Lupe:
    • Lupe, thank you for your email. You definitely do not sound selfish nor mean. I appreciate your honesty. I totally understand your point and I do apologize for not been there all these years to help you out. Please note that I do appreciate all that you have done for the house. Rest assured that I intent to reimburse you in full. As I have stated in my first e-mail, I am anticipating receiving funds within the next 3 to 4 months. Which puts it in the month of May 2007. You have every right to expect reimbursement of your hard earn money. I thank you for your tolerance thus far. I want you to know that I know that I do owe you a lot. Not only money but your emotional and physical welfare wear and tear throughout this ordeal. I do appreciate you for the love that you have shown through your work for Luaiva and me. Please accept my heartfelt thank you and much appreciation. I will make it up to you and Lu.
    • ...
    • Mekeli Ieremia.
36. There are two key points in this email. The first is Mekeli’s anticipation of being in being in funds within a matter of months – by May 2007 and that he would reimburse Lupe her hard-earned money. The second point is Mekeli’s acknowledgement of being indebted to Lupe in terms of money, but also the emotional physical welfare wear and tear throughout the ordeal. I do not discount the possibility that Lupe might be the author of self-serving emails; but telling against that are other purported exchanges between the two that get quite personal and involve conflict.
    • (a) This email from Lupe to Luaiva and Mekeli is undated,^[21] but it is likely circa late 2007 or early 2008, at a time Luaiva and Lupe had separated. Lupe refers to the house being put on the market for sale because no one was helping with the repayment of the loan. Lupe also raises the issue about the need to disinter Mekeli’s parents because of flooding.
      • Just a short note to let you know that I need to move your parents from Alafua. I never received a respond from either one of you when I wrote last year in August for some help here with the house, I guess that means no one gives a shit, but then what else is new. The house is now for sale, the graves has to be moved, your mom’s grave was flooded last week, when all the water from weeks of non-stop rain in the rivers nearby. I got some of the boys from work to patch it up with more cement for now. I will give you both three weeks to contact your brothers and sisters to decide where to move your parents to. I know the old man wanted to be buried with his dad at Manono Tai, so then that means your mom will have to be in Afega. If I do not hear from both of you by February 19^th, then I will go ahead and move them to be buried at Falelatai with my Dad. I will be living there permanently and your parents will be safe there with my Dad. Again, I am sorry that it has come to this after so many years of struggling to hang onto the house for your parent’s sake.
      • Thanks
      • Lupe
    • (b) Then in reply is this email from Mekeli to Lupe, dated 31 January 2008,^[22] in which he makes plain that he still considers the house as being owned by him.
      • Lupe,
      • Thank you for the information. However, the house is not for sale. No one can put that house up for sale without my written consent. No one will move my parent’s grave without my consent. I do not like the fact that you e-mail me and stated that the house is for sale without my say so and will move my parents. You have the nerve to tell me that I have three (3) weeks to let you know. Please spare me. You may dictate Lu and never ever dare to dictate me about my affairs. It is my house and I’ll do anything that I am well damn please. How dare you take over my family’s affair. It is my house. For your information, the power-of-attorney that I gave Lu to handle my affairs (my house in Alafua) not you Lupe. Lu is the only person that I gave the power of attorney. Also, read the power of attorney and it will tell you that the power of attorney is good for only six (6) months. I believe that the six months have expired and gone. Please note. THE HOUSE IS NOT FOR SALE WITHOUT MY WRITTEN CONSENT. YES, YOU BETTER HEAR ME LOUD AND CLEAR.
      • Mekeli
    • (c) A further email from Lupe to Mekeli,^[23] undated, is linked to the email at [36] above.
      • Mekeli,
      • Yes your highness, go ahead and do whatever you damn well please, I’m scare already... I will forward your note to the bank now and advise them of your wishes, make sure they hear you loud and clear. I would also have my weekly wages go to a different bank starting today, so the bank can no longer do their deductions of $758 weekly from my account for the mortgage of your house ... as for your parent’s grave, don’t worry about me moving them... if this rain keeps up... they might just float out to the street all on their own.
      • Lupe
    • (d) Finally, in this email conversation is this email, purportedly from Mekeli to Lupe:^[24] dated 1 February 2008, which is also linked to the email at [36] is undated.^[25]
      • Lupe
      • Regardless what I said. Please do not think or feel that I do not appreciate all that you have done for the family. All the credit goes to you. You have made possible to keep the house thus far. All the aches and pains specifically the stress and most sleepless nights that you have endure. Your family’s pressure on you as to why you put up with this mess. Nevertheless, you truly stand your ground. I thank you and you only. So don’t think that I do not take all into account. I am glad and most grateful of your kind and unselfishness heart. I again, I do honestly and felt the appreciation for you. IA MALIE LAVA LOU LOTO. Now let’s get back into making money. The house, please I need for you to see what kind of possibilities available for the house to be place on the market for sale. I know that you have invested a lot on this house. Let’s make sure that all the investment returning will be on our favor. What kind of price $ that we are looking for the house. How long would it take to sell the house. What is the amount oh to the bank and etc. It is my intention to sell the house and get our investment out of it. Please keep me informed throughout the sale process. We need to discuss and agreed on the price $ sale of the house. I will be open-minded and willing to hash this out for our benefit. You have invested a lot and needs to be reciprocated definitely. Again, IA MALIE LAVA LOU LOTO. Awaiting your response. Ia manuia lava le aso. I know for a fact that you want the best out of this. Let’s work towards that and gain as much as possible for all the headaches.
37. The last email appears to suggest that Mekeli:
    • (a) is appreciative of everything that Lupe had done for the family;
    • (b) Mekeli recognises that it was Lupe who made it possible to keep the house thus far;
    • (c) was interested in selling the property for their joint benefit (Mekeli and Lupe); and
    • (d) considered that Lupe’s contributions needed to be reciprocated.
38. Lupe said she tried to obtain a valuation but was told she could not get a good valuation with the graves in front of the house. She said that she conveyed this information to the Applicant, but he did not respond.^[26] I note that at the time of the Westpac refinancing, a valuation of the property appears to have been carried out. The valuation was ST$400,000.00. It is not clear how this valuation was prepared, and whether it was a valuation or a realtors estimate. As discussed above, the loan was for ST250,000.00.
39. If there was optimism from Mekeli’s advices that the payment of the mortgage was being addressed, then it was proved to be misplaced. In February 2008 Lupe emailed to Mekeli the loan account details, as he had asked in his last email. However, no funds were paid into the account, promised. Consequently, the loan repayments fell into arrears and Westpac served a default notice on or about 27 June 2008 on Lupe’s lawyer. Though Mekeli did not pay anything into the account, Lupe received receive USD300.00 Temukisa, and USD800.00 from Rocky, in August 2008. Other than these two payments there were no further payments made by Mekeli or else in his family towards the Westpac loan.

THE TRANSFER TO LUPE ALONE

40. Luaiva and Lupe separated in about 2007 when Luaiva left to live in the USA; they divorced on or about 16 July 2012.^[27] Up until that time they had a joint Westpac Bank account and were co-borrowers of the Westpac loan that was used to refinance the ANZ loan.
41. Following the dissolution of their marriage, Luaiva’s lawyers wrote to Westpac Bank Samoa on or about 23 October 2015 asking for Luaiva’s name to be taken off the joint account and loan account with Lupe.^[28] Luaiva appears to have signed a letter on 6 October 2015 in which he says:^[29]
    • To Whom It May Concern
    • I Luaiva Ieremia, give Lupe Ieremia permission to take my name off the Deed of the house in Alafua, Samoa. She’s been paying for the mortgage for the last ten plus years. It is my hope that this letter will help resolved (sic) this matter.
    • Sincerely
    • Luaiva Ieremia
42. The land had initially been transferred to Luaiva and Lupe as joint tenants. And a copy of the transfer from Luaiva and Lupe, to Lupe “BY WAY OF GIFT” was signed on 7 April 2017.^[30] Lupe subsequently granted a mortgage over the property to Bank of the South Pacific who took over from Westpac.^[31]
43. I cannot find any dishonesty around the transfer of Luaiva’s joint interest in the property to Lupe in 2015, and finally acted on in 2017. As Luaiva’s letter noted above at paragraph [41] provides, he merely wished to transfer his interest to Lupe because Lupe had been paying the mortgage for 10 plus years.
44. The significance of the letter is that it is the only evidence before the Court from Luaiva. The letter confirms:
    • (a) That from Luaiva’s perspective Lupe had been paying the mortgage for the last ten plus years. The period of payment covered the Westpac loan, which was taken out in 2005. For much of the period Luaiva and Lupe had been separated.
    • (b) No one else paid the mortgage.
45. In addition to the 6 October 2015 letter, his Utah Attorneys in the USA wrote to Westpac asking that them to remove Luaiva’s name from the joint bank account with Lupe Ieremia in both Samoa and New Zealand, and any bank accounts belonging to Lupe. The transfer of Luaiva’s interest in the property, though noted as a gift, was a re-organisation of Luaiva and Lupe’s rights and obligations following their divorce. For the purposes of this case it did not alter Lupe’s continuing liability to service the loan, but it did increase her exposure as she now was the sole registered proprietor of the house.
46. Mekeli says he did not know about the property being in Lupe’s name until he came to visit Samoa in 2017, the first time since his release from jail in 2006. However, if the assertion of knowledge were true the admission shows a disconnectedness from the land. Mekeli took no part at all in looking after and caring for what he claims is his freehold property between the time the POA expired in 2007 to 2017. Mekeli says once he found out about Lupe’s name on the property, he immediately lodged a caveat on the title, dated 24 August 2017,^[32] and issued these proceedings, alleging fraud against Luaiva and Lupe.

THE PLEADINGS

47. Mekeli claims the transfer of property to Luaiva and Lupe – as a gift - was fraudulent because it was outside the terms of the POA. The transfer was not a sale but a disposition of the land which he did not authorise. It will be necessary to discuss the principles concerning the meaning of fraud and those relating to the interpretation of powers of attorney.
48. The proceedings were not served on Luaiva Ieremia. This meant that at times I have had to draw inferences concerning Luaiva’s role, particularly in relation to the “gifting” of the land to himself and Lupe in 2005, and then the gifting of his share of the land to Lupe in 2013 that was registered in 2014.
49. Lupe filed a defence and amended counterclaim. Lupe’s claims involve the principles of proprietary estoppel; the principles constructive trust and unjust enrichment. All these legal principles need to be discussed.

LEGAL PRINCIPLES

Fraud

50. Mr Wulf relies on s.32 Land Titles Registration Act 2008 (“LTRA”), and by necessary implication on s.76 of the LTRA. Section 76 provides that no proceedings may be brought against the registered proprietor of land, except in certain circumstances, which include proceedings brought by a person deprived on land by fraud against (1) the person who is the registered proprietor through fraud; or (2) a person who derives from a person registered as a proprietor of land through fraud – except transferees who are a bona fide transferee for valuable consideration.
51. The LTRA does not define what is meant by the term fraud, as does other jurisdictions, as seen below at [56].
52. Mr Wulf submits indefeasibility of title by registration is subject to the exception of fraud. Counsel relied on McCarthy v Samoa National Provident Fund [2022] WSCA 2, citing paragraph 14 of that judgment; and Waimiha Sawmilling Company Lrd (in liq) v Wainone Timber Company Ltd [1925] NZPC 1. In McCarthy the Court of Appeal said:
    • In Boyd v Mayor of Wellington the majority of the New Zealand Court of Appeal held that under the New Zealand statutory equivalent of section 13(2) a local authority which had acquired land from the original owner under a void proclamation nevertheless obtained an indefeasible title to that land.
53. The Court of Appeal then went on to note:
    • In Frazer v Walker the Privy Council approved the principle of immediate indefeasibility applied in Boyd and expressly extended it to cases of deferred indefeasibility of title, to protect from attack a registered proprietor of land whose interest arose as a bona fide purchaser for value from a person who had knowingly acquired title under a defective instrument of transfer. This latter principle is enshrined in the provisions of the Land Titles Registration Act 2008. Section 32 confirms the paramountcy of the title of a registered proprietor other than in excepted cases which do not apply here.
54. There is then the following broad statement of principle:
    • As the Privy Council explained in Frazer v Walker, the concept of indefeasibility of title, whether immediate or deferred, is a convenient description of the immunity which a registered proprietor of land enjoys from an adverse attack by a third party claiming an interest in the same land: registration is the cornerstone of an owner’s statutory protection.
55. What then constitutes fraud – an exception to indefeasibility? Mr Wulf relies on Waimaha, and it may be helpful to set out a passage that aptly describes the relevant matters for inquiry:
    • “Now fraud clearly implies some act of dishonesty. Lord Lindley in The Assets Company, Limited v. Mere Roihi and others, 1905 Ap. Cas., p. 210, states that.-
      • “Fraud in these actions (i.e. actions seeking to affect a registered title) means actual fraud, dishonesty of some sort, not what is called constructive or equitable fraud, an unfortunate expression and one very apt to mislead but often used for want of a better term to denote transactions having consequences in equity similar to those which flow from fraud."
    • If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent, and so also fraud may be established by a deliberate and dishonest trick causing an interest not to be registered and thus fraudulently keeping the register clear. It is not, however, necessary or ways to give abstract illustrations of what may constitute fraud in hypothetical conditions for each case must depend upon its own circumstances. The act must be dishonest and dishonesty must not be assumed solely by reason of knowledge of an unregistered interest. [emphasis is Mr Wulf’s]
56. It is noteworthy that s. 6 of New Zealand Land Transfer Act 2017 defines fraud as meaning “forgery or other dishonest conduct by the registered owner or registered owners’ agent in acquiring a registered estate or interest in land.”
57. Ms Fa’asau, for Lupe, relied on the judgment of His Honour Chief Justice Sapolu in Godinet v Chan Mow Co Ltd [2007] WSSC 6. She sought to focus the litigation on the way in which an allegation of fraud is required to be pleaded; in her submission fraud is required to be pleaded, particularised and proven with cogent evidence on the higher end of the balance of probabilities.
58. Proving fraud is rigorous, perhaps summed up by His Lordship Millet LJ’s widely accepted observations in Paragon Finance Plc v DB Thakerar & Co (A Firm) 1998 EWCA 1249:
    • It is well established that fraud must be distinctly pleaded and as distinctly proved, and if the facts are consistent with innocence, it is not open to the Court to find fraud. An allegation that the defendant ‘knew or ought to have known’ is not a clear and unequivocal allegation of actual knowledge and will not support a finding of fraud even if the Court is satisfied that there was actual knowledge. An allegation that the defendant had actual knowledge of the existence of a fraud perpetrated by others and failed to disclose the fact to the victim is consistent with an inadvertent failure to make disclosure and is not a charge of fraud. It will not support a finding of fraud even if the Court is satisfied that the failure to disclose was deliberate and dishonest. Where it is expressly alleged that such failure was negligent and in breach of a contractual obligation of disclosure, but not that it was deliberate and dishonest, there is no room for treating it as an allegation of fraud.
59. The New Zealand Court of Appeal in Schmidt v Pepper New Zealand (Custodians) Limited [2010] NZCA 565, framed the principles of pleading and proof as follows:

[15] Allegations of fraud or dishonesty are very serious. They must be pleaded with care and particularity. As the authors of Bullen & Leake & Jacobs Precedents of Pleadings emphasise, counsel must not draft any originating process or pleading containing an allegation of fraud unless they have reasonably credible material which, as it stands, establishes a prima facie case of fraud – that is, material of such a character which would lead to the conclusion that serious allegations could properly be based upon it. Fraud cannot be left to be inferred from the facts – fraudulent conduct must be distinctly alleged and as distinctly proved. General allegations, however strong the words may be appear to be, are insufficient to amount to a proper allegation of fraud

60. An allegation of fraud is also directed to the Second Respondent. Mr Latu relies on Stowers v Stowers [2010] WSSC 36, as authority for the submission that in the Samoan law of real property there is an equitable defence of bona fide mortgagee for value without notice. As the Court held in Stowers:
    • This affords protection to a defendant who lends money and receives land as mortgage security from a non-owner borrower against the claim by the true owner of the land who holds a mere equity. But the defendant must be a bona fide mortgagee of the legal estate in the mortgage property for value without notice. If he is not, then he is not entitled to rely on this defence.
61. The defence of bona fide mortgagee for value without notice is also available where the registration of the title itself has been obtained through fraud. The Court in Stowers approved an observation in Land Law in New Zealand (2003) vol 1: Hinde, McMorland, and Sim at para 9.019, which passage has been updated in the 2024 edition of the same publication, where at para 9.017:
    • If registration has been obtained through the fraud of the registered owner or the fraud of the registered owner's agent, the registered owner no longer has the protection of s 51(1) of the Land Transfer Act 2017 and their estate or interest can be set aside at the suit of the person defrauded. For example, if a forger forges the signature of the registered owner of a parcel of land on a transfer of that land to the forger and then registers the transfer, the registered title is not indefeasible and the victim of the forgery (that is, the former registered owner) may recover possession of the land from the forger. But if the fraudulent person transfers or mortgages to a bona fide purchaser or mortgagee the registered title of that bona fide purchaser or mortgagee, is indefeasible and cannot be set aside.
62. These authorities provide us with a road map of the relevant principles concerning the allegations of fraud.

POWER OF ATTORNEY

63. Mr Wulf relied on Moors v Mortenson [2009] WSSC 103, and the authorities referred to His Honour the Chief Justice. Respectfully, the principles that may be crystalised are as follows:
    • (a) An attorney is appointed by another person to do something in that other person’s place.
    • (b) A power of attorney is executed by one person in favour of another. The person who gives the power is known as the donor or principal and the person who receives the power is often referred to as the donee. The donee is the attorney.
    • (c) The relationship that this formed is called and agency, and the law which is applicable is, largely, the law of principal and agent.
    • (d) Unless it is otherwise agreed, the authority to act as an agent includes only the authority to act for the benefit of the principal.
    • (e) The power of attorney must be strictly construed. That is to say that only actions which are permitted under the power of attorney may be carried out by the agent. An attorney may not without specific and unambiguous powers, deal with the principals’ property for the attorney’s own benefit to the exclusion of the principal.
64. I refer to one further formulation of principle which may assist with understanding the nature of a power of attorney. Justice Thomas in Powell v Thompson [1990] 1 NZLR 597 at 605 observed:
    • Powers of Attorney are specifically directed at the management of the principal’s affairs; it is not open to attorneys to either obtain an advantage for themselves of act in a way which is contrary to the interests of their principals.

PROPRIETARY ESTOPPEL

65. Lupe raises this claim as both a sword and as a shield. It is a sword in that Lupe claims to have an equity in the property arising from all the direct and indirect contributions she has made to the property for more than 20 years, and the promises made to her that she would be reimbursed. It is a shield in the sense that Mekeli failed to reimburse her for the payments she had made up until 2006, when Mekeli was released from prison and he said he would pay her back. In fact, Mekeli has not made any reimbursement to Lupe, and Lupe says the breach of that promise means it is too late for Mekeli to ask for the land back.
66. Ms Fa’asau relied on Paul v Tuanai [1994] WSSC 15. His Honour Chief Justice Sapolu held:
    • Traditionally, proprietary estoppel arises by way of acts encouragement or by way of acquiescence on the part of the person against whom the estoppel is sought to be fixed. It gives rise to an equity in the disputed property in the person who is relying on proprietary estoppel if he succeeds. It is for the Courts to decide how that equity is to be satisfied in the circumstances of each particular case, whether it be by a way of a conveyance to the person who has successfully raised the estoppel, or by way of an equitable charge or lien, or whichever way the equity in the case requires: see for instance Chambers v Pardoe [1963] 3 ALL ER 552, 555.
67. The Supreme Court has not had occasion to more recently consider the principles of proprietary estoppel. Indeed, the law in this area may be in need of review in the light of approaches in other countries like New Zealand.
68. Specifically, for further consideration may be where the Court in Paul v Tuanai considered whether proprietary estoppel, estoppel by encouragement and estoppel by acquiescence are subsumed under a broader principle which is described as what is “unfair or unjust” or unconscionable” or inequitable” in the circumstances. Sapolu CJ noted:
    • “After saying all that, I come back to the question whether the doctrine of proprietary estoppel has been subsumed under a broader approach based on unconscionability. I think the answer must be no. Despite what Lord Denning MR says in Amalgamated Investment's case about proprietary estoppel and other forms of estoppel being merged into one general principle shorn of limitations, which he described as "what is unfair and unjust", it is clear from the majority of the cases that that is not what has happened. What has really happened is that the Courts have moved away from strict adherence to the five probanda expressed by Fry J in Willmott v Barber [1880] UKLawRpCh 183; [1880] 15 Ch D 96 as the basis for the operation of proprietary estoppel to a more broad and flexible test based on unconscionability for determining the application of the doctrine of proprietary estoppel. But the new test, although more broad and more flexible then the five probanda expressed by Fry J was not subsumed the doctrine of proprietary estoppel.”
69. These principles have been applied by His Honour Clarke J’s in Tokuma v Samoa Land Corporation where His Honour also observed that Sapolu CJ, applied the five probanda test to the facts in Lafaele v Talipeau [2014] WSSC 18.
70. For my part, I am greatly assisted by the clarity of Her Honour Justice Fitzgerald’s observations in the relatively recent case of Wolfe v Wolfe [2021] NZHC 2878. That dispute arose in a family context, as it does in this proceeding. The Defendant brought a counterclaim based on proprietary estoppel arising from a promise, and a claim of constructive trust in the alternative. The Defendant claimed his stepfather had promised him a share of the family home and in reliance on the promise made “more than minor contributions” to the home. The Defendant asked the Court to recognise him as the equitable owner of the property and he sought orders to have the title to the property transferred to him.
71. The Court discussed the principles of proprietary estoppel in the following way:
    • (a) The approach in New Zealand is to be less focussed on the historical and different forms of estoppel (estoppel by representation, promissory estoppel and proprietary estoppel) and instead recognise a unified doctrine of equitable estoppel based on unconscionability.^[33]
    • (b) The claim concerned an interest in land.
    • (c) Proprietary estoppel may be used as a cause of action, a sword, rather than a shield.
    • (d) The unified doctrine is framed by reference to three elements which are consistent with the elements of proprietary estoppel:
      • (i) there is a representation or assurance made to the claimant;
      • (ii) reliance on it by the claimant; and
      • (iii) detriment to the claimant in consequence of his or her (reasonable) reliance.
    • (e) The elements of proprietary estoppel and not “watertight compartments” and that:^[34]
      • ...the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round.
    • (f) The nature and clarity of the promise or assurance relied on in a family context is highly dependent on context. It must be “clear enough” rather than the more stringent standard of “clear and unambiguous” as might be the measure of precision expected in a commercial setting.
    • (g) The claimant must show actual reliance, generally shown through the claimant changing their conduct as a result. Ongoing reliance must also be reasonable.
    • (h) No estoppel will arise if the plaintiff has not or will not suffer detriment as a consequence of the other party resiling from the promise or assurance. The detriment may arise:
      • (i) where a party claiming estoppel may have spent time, effort, or money in reliance on the belief or expectation, which would not have been spent if the representation had not been made and which is rendered worthless if the belief or expectation is abandoned;
      • (ii) in reliance on the belief or expectation the party claiming may have foregone other opportunities to gain the benefit which will be lost if the belief or expectation is abandoned.
    • (i) As to remedy, Dunningham J in Carroll v Bates, following a review of earlier case law:^[35]
      • ... it is clear that the remedy will be what is required to reflect the representations given, and to remedy any unconscionability. In other words, the doctrine of proprietary estoppel can be applied so as to enable a property to be transferred where there has been a representation or assurance made to the plaintiff, reliance on it by the plaintiff and detriment to the plaintiff as a consequence of reasonable reliance. The remedy is discretionary and can respond to the particular circumstances of the case.
72. In my view there is much to commend a unified doctrine of equitable estoppel based on unconscionability, not the least of which is its ease of understanding and its application to everyday affairs.

CONSTRUCTIVE TRUST

73. The leading authority in Samoa is Mackenzie v Richard Kidd Marketing Ltd [2007] WSSC 41. In that case Chief Justice Sapolu applied the leading New Zealand authority of Fortex Holdings Ltd v MacIntosh [1998] 3 NZLR 171. In Fortex, His Honour Tipping J observed:
    • [The appeal] concerns the law of trusts; specifically the circumstances when express trusts and institutional constructive trusts come into existence and when remedial constructive trusts may be imposed. For present purposes, these three types of trust can be described as follows. An express trust is one which is deliberately established and which the trustee deliberately accepts. An institutional constructive trust is one which arises by operation of the principles of equity and whose existence the Court simply recognises in a declaratory way. A remedial constructive trust is one which is imposed by the Court as a remedy in circumstances where, before the order of the Court, no trust of any kind existed.
    • The difference between the two types of constructive trust, institutional and remedial, is that an institutional constructive trust arises upon the happening of the events which bring it into being. Its existence is not dependent on any Order of the Court. Such order simply recognises that it came into being at the earlier time and provides for its implementation in whatever way is appropriate. A remedial constructive trust depends for its very existence on the Order of the Court; such order being creative rather than simply confirmatory. This description should not be regarded as definitive or as precluding further developments in this area of the law when greater refinement may be necessary. It is used to reflect the submissions in this case and is sufficient for present purposes.
    • For reasons which will become apparent, this case does not call for any closer analysis of the underlying concepts or any final decision whether the distinction between institutional and remedial constructive trusts is a helpful one, or, indeed, whether the so-called remedial constructive trust should be confirmed as part of New Zealand law. For the purposes of this case we will assume that the distinction is valid and that both types of constructive trust exist.
    • (emphasis added)
74. Professor Jessica Palmer acknowledges the more common examples of institutional constructive trusts as follows:^[36]
    • (a) A fiduciary makes an improper profit from his or her fiduciary;
    • (b) An intended transfer of property is invalid because of defective formalities;
    • (c) A person makes an unconscientious assertion of ownership in respect of property to which another has contributed;
    • (d) An agreement has been made to execute mutual wills and after the death of one party the other revokes the will or acts inconsistently with it;
    • (e) A vendor has entered into a contract to sell land;
    • (f) Property has been obtained by fraud; and
    • (g) Property is acquired by killing.
75. There are aspects of the facts in this case that are reflected in the well-known English authority of Hussey v Palmer [1972] EWCA Civ 1. Mrs Hussey sold her house and moved in with her son-in-law and daughter, Mr and Mrs Palmer. An extension was built for Mrs Hussey, and Mrs Hussey paid for it. The arrangement became unsatisfactory, and Mrs Hussey moved out. A year or so later, Mrs Hussey, finding herself in financial difficulty wrote to Mr Palmer asking for a refund of the money she paid for the extension. Mr Palmer did not refund her payment. Mrs Hussey sued by way of a default summons. Mr Palmer argued that the payments she made were in effect a gift. He later added that the money was only repayable when the house was sold; and he said, as an alternative, the agreement was merely a family arrangement and was not intended to have legal consequences. Title to the property was in Mr and Mrs Palmer’s name throughout, and Mrs Hussey sought an equitable proprietary remedy, in other words a share in the property.
76. Lord Denning M.R. observed:
    • Although the plaintiff alleged that there was resulting trust, I should have thought that the trust in this case, if there was one, was more in the nature of a constructive trust: but this is more a pattern of words than anything else. The two run together. By whatever name it is described, it is a trust imposed by law whenever justice and good conscience require it. It is a liberal process, founded upon large principles of equity, to be applied in cases where the defendant cannot conscientiously keep the property for himself alone, but ought to allow another to have the property or a share in it. The trust may arise at the outset when the property is acquired, or later on, as the circumstances may require. It is an equitable remedy by which the Court can enable an aggrieved party to obtain restitution. It is comparable to the legal remedy of money had and received which, as Lord Mansfield said, is very beneficial and, therefore, much encouraged. Thus we have repeatedly held that, when one person contributes towards the purchase price of a house, the owner holds it on a constructive trust for him, proportionate to his contribution, even though there is no agreement between them, and no declaration of trust to be found, and no evidence of any intention to create a trust. Instances are numerous where a wife has contributed money to the initial purchase of a house or property; or later on to the payment of mortgage instalments; or has helped in a business – see Falconer v. Falconer (1970) 1 W.L.R. 1333; Heseltine v. Heseltine (1971) 1 W.L.R. 343; and In re Cummins (1971) 3 W.L.R. 560. Similarly, when a mistress has contributed money, or money's worth, to the building of a house, Cooke v. Head (1972) 1 W.L.R. 518. Very recently a purchaser has been held to hold on trust for an occupier - Binions v. Evans [1972] EWCA Civ 6; (1972) 2 WLR 729. In all those cases it would have been quite inequitable for the legal owner to take the property for himself and exclude the other from it. So the law imputed or imposed a trust for his or her benefit.
    • The present case is well within the principles of those cases. Just as a person, who pays part of the purchase price, acquires an equitable interest in the house, so also he does when he pays for an extension to he added to it.
    • (emphasis added)
77. His Honour Justice Deane in the leading Australian authority of Muchinski v Dodds [1985] HCA 78, provides a less expansive view of constructive trusts. His Honour says at paragraphs 8 and 9:
    • As an equitable remedy, it is available only when warranted by established equitable principles or by the legitimate processes of legal reasoning, by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles.... Viewed as a remedy, the function of the constructive trust is not to render superfluous, but to reflect and enforce, the principles of the law of equity.
    • Thus it is that there is no place in the law of this country for the notion of "a constructive trust of a new model" which, "(b)y whatever name it is described, ... is ... imposed by law whenever justice and good conscience" (in the sense of "fairness" or what "was fair") "require it" (per Lord Denning M.R., Eves v. Eves [1975] EWCA Civ 3; [1975] EWCA Civ 3; (1975) 1 WLR 1338, at pp 1341, 1342, [1975] EWCA Civ 3; [1975] EWCA Civ 3; (1975) 3 All ER 768, at pp 771, 772, and Hussey v. Palmer [1972] EWCA Civ 1; (1972) 1 WLR 1286, at pp 1289-1290[1972] EWCA Civ 1; , (1972) 3 All ER 744, at p 747). Under the law of this country - as, I venture to think... proprietary rights fall to be governed by principles of law and not by some mix of judicial discretion.... Long before Lord Seldon's anachronism. identifying the Chancellor's foot as the measure of Chancery relief, undefined notions of "justice" and what was "fair" had given way in the law of equity to the rule of ordered principle which is of the essence of any coherent system of rational law. The mere fact that it would be unjust or unfair in a situation of discord for the owner of a legal estate to assert his ownership against another provides, of itself, no mandate for a judicial declaration that the ownership in whole or in part lies, in equity, in that other.... Such equitable relief by way of constructive trust will only properly be available if applicable principles of the law of equity require that the person in whom the ownership of property is vested should hold it to the use or for the benefit of another. That is not to say that general notions of fairness and justice have become irrelevant to the content and application of equity. They remain relevant to the traditional equitable notion of unconscionable conduct which persists as an operative component of some fundamental rules or principles of modern equity.
    • (emphasis added)
78. Whilst there is general acceptance of institutional constructive trust law here in Samoa, beginning with Mackenzie v Kiwi Kidd Marketing Ltd, the position concerning remedial constructive trusts remains opaque by comparison.
79. The High Court of New Zealand in Mamat v Mamat [2018] NZHC 639; (2018) 19 NZCPR 331, a decision of His Honour Justice Davidson, sets out the tension. The matter concerned a dispute between two brothers. One who resided in Singapore and the other in Christchurch. Their names were on the title of a Christchurch property, and a dispute arose as to their relative shares in the property. One of the brothers lived in the property and he paid the mortgage, maintenance and outgoings; this brother sought an order that he owned not just his share of the property – but his brother’s share as well, based on an institutional constructive trust, or a resulting trust. The Learned Judge held:
    • [123] A remedial constructive trust differs from an institutional constructive trust in that it “depends for its very existence on the order of the Court; such order being creative rather than simply confirmatory” per Tipping J. Palmer describes it as “Given as a remedy in situations not already covered by institutional constructive trusts but in which Judges feel a proprietary remedy is necessary to achieve justice”. It is a remedy which excites debate, and there is no simple test to be applied.
    • [124] Glazebrook J’s discussion in [Commonwealth Reserves I v Chodar [2001] 2 NZLR 374 (HC)] Chodar is a comprehensive statement of principle:
    • [40] The Court of Appeal in Fortex left open the question of whether a remedial constructive trust should be “confirmed” as a part of New Zealand law. This would imply that the doctrine has at the least a foot in the door. What was made clear in that case, however, was that there must be a principled basis for the imposition of such a remedy.
    • [41] In Fortex at 175 Tipping J stated that there needs to be some asset or assets in the defendant’s hands upon of which the Court considers it appropriate to impress a trust. He says that this must be on a principled basis vis a vis both the person owning the assets and any third party who has an interest in the assets. He went on to say:
      • Equity intervenes to prevent those with rights at law from enforcing their rights when in the eyes of equity, it would be unconscionable for them to do so.
    • A similar caveat is discernible in Re Goldcorp Exchange Ltd (In Receivership); Kensington v Liggett [1994] 3 NZLR 385 at 404.
    • [42] The question for this case is what that principled basis is. There appears to be two potential triggers for the exercise of the Court’s discretion to grant a remedial constructive trust. One is unjust enrichment, the other unconscionability.
    • [43] The approach based on unjust enrichment is substantially that developed in Canada. There, a remedial constructive trust will be the normal response to an instance of unjust enrichment per Cory J. The remedial constructive trust as a response to unjust enrichment seems to be accepted in principle by Henry J in Fortex at 180, based on the leading case, the three elements of an unjust enrichment are: an enrichment of the defendant, to the detriment of the plaintiff, and in the absence of a juristic reason for the enrichment.
    • [44] The other trigger for a remedial constructive trust is unconscionability, as it is often characterised as “the formula through which the conscience of equity finds expression, cited with approval by Cooke P in Beatty v Guggenheim Exploration Co (1919) NY 380 at 386 per Cardozo J, cited with approval by Cooke P. In Elders Pastoral, Cooke P then went on to find that a constructive trust existed, based on the dictum of Bingham J in Neste Oy v Lloyds Bank Police [1983] 2 Lloyd’s Reparation 658 at 665–6. He stated at 186 that “[i]n short, I do not think that in conscience, the stock agent can retain this money.”
    • [45]. A fiduciary relationship does not appear to be necessary for a remedial constructive trust. In Elders Pastoral, Somers J said that there was a relationship which was “fiduciary in character”. It is unclear what this means: see Dixon, The Remedial Constructive Trust based on:25 However, Somers J cited similar statements to those reproduced from the judgement of Cooke P and can be taken as having at least accepted the possibility of a remedial constructive trust arising in the absence of a fiduciary relationship.
    • [46]. There is, however, a significant distinction between having jurisdiction to impose a remedial constructive trust, and choosing to exercise that discretion. It is apparent that a remedial constructive trust is potentially available as a remedy in cases of unconscionability and unjust enrichment. It is not inevitable that one will be awarded.
    • [47] Reliability and certainty are primary considerations of any system of property rights, and the unprovoked alteration of those rights is to be avoided where possible. This is all the more true in a commercial, rather than a domestic context. The Court must carefully examine the reasons why other forms of relief are inadequate, the interests of any third parties and the other circumstances of the case and consider whether proprietary relief can be justified.
80. Her Honour Justice Glazebrook highlighted the importance of a principled approach, which is achieved by the exercise of the court’s discretion being triggered by either unjust enrichment or unconscionability. Further, the recognition of a remedial constructive trust is very much a last resort and one which should, for the sake of reliability and certainty, be avoided. As was recognised by the NZ Court of Appeal in Almond v Read [2019] NZCA 26 at [70], the purpose of a constructive trust is generally not to create an ongoing trust relationship, but to force the disgorging of money or property by the constructive trustee. In this way, a constructive trust is a means to an end.

UNJUST ENRICHMENT

81. For reasons which will become apparent, I do no more that set out a general framework of principles relating to unjust enrichment. These principles were first discussed in Samoa is the matter of Elisara v Elisara [1994] WSSC 14. His Honour Sapolu CJ cited the observations of Dickson J., as he was, who delivered the majority decision of the Supreme Court of Canada in the matter of Pettkus v Becker [1980] 2 SCR 834, at 847:
    • "The principle of unjust enrichment lies at the heart of the constructive trust. ‘Unjust enrichment' has played a role in Anglo-American legal writing for centuries. Lord Mansfield, in the case of Moses v Macferlan [1960], 2 Bur 1005 at p.1012[1760] EngR 713; , 97 ER 676, put the matter in these words: '.... the gist of this kind of action is, that the defendant upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money'. It would be undesirable and indeed impossible, to attempt to define all the circumstances in which an unjust enrichment might arise.... The great advantage of ancient principles of equity is their flexibility the judiciary is thus able to shape these malleable principles so as to accommodate the changing needs and mores of society, in order to achieve justice. The constructive trust has proven to be a useful tool in the judicial armoury... How then does one approach "the question of unjust enrichment" in matrimonial causes? In Rathwell I ventured to suggest there are three requirements to be satisfied before an unjust enrichment can-be said to exist an enrichment, a corresponding deprivation and absence of any juristic reason for the enrichment. This approach, it seems to me, is supported by general principles of equity that have been -fashioned by the Courts for centuries, though, admittedly, not in the context of matrimonial property controversies".
    • Emphasis added
82. Unjust enrichment requires the following three requirements be established
    • (a) an enrichment;
    • (b) a corresponding deprivation;
    • (c) the absence of any juristic reason for the enrichment:

The remedy of unjust enrichment is available in Samoa: refer Elisara itself (a case relating to the division of matrimonial property); Public Trustee v Brown (1995) (unreported judgment, 24 January 1995): Meredith v Manoo [2002] WSSC 51; Stanley v Vito [2010] WSCA 2; Tokuma v Samoa Land Corporation [2018] WSSC 81; and most recently McCarthy v Samoa National Provident Fund [2020] WSSC 41. Moreover,

83. Moreover, there is a possibility of unjust enrichment being relied on to trigger the exercise of the court’s discretion to order a remedial constructive trust: Chodar as a means by which to force the disgorging of money or property. Whilst there is general acceptance of institutional constructive trust law in Samoa, it is not clear whether remedial constructive trusts are generally available. The facts in this case do not lend themselves to deciding that issue.

DISCUSSION

84. Lupe is the Registered Proprietor of the land. To succeed in his claim, Mekeli must defeat Lupe’s indefeasible title by proving fraud, to a higher level than the normal civil standard of more likely than not, but lower than the criminal standard of beyond reasonable doubt. What Mekeli claims is fraudulent is merely the transfer of the land by way of gift to Luaiva and Lupe in 2005. Mekeli says the POA did not authorise this kind of transfer.
85. I am satisfied the transfer to Luaiva and Lupe was not fraudulent or a gift. The transfer was necessary to save the land from being sold by mortgagee sale to an independent third party. The transfer allowed Luaiva and Lupe to grant a mortgage to secure the lending from Westpac. This money was used to pay off the loan to ANZ Bank that was secured by Mekeli’s personal guarantee and registered mortgage granted by Mekeli and his late parents. Mekeli was himself to respond to the notice of mortgagee sale in 2005. Whilst there was no evidence that Mekeli would have been entitled to receive any surplus from the mortgagee sale had the ANZ loan not been repaid Mekeli would have lost any opportunity to recover the property. It may have been the case that Mekeli lost the property and still had to pay ANZ any shortfall. For Luaiva and Lupe’s perspective, they could have waited and purchased the property at mortgagee sale, which may have been less than the ST250,000 they loaned from Westpac Bank.
86. It is noteworthy that when Luaiva and Lupe became primary borrowers under the Westpac loan, they refinanced and took over Mekeli’s debt. It might be regarded by some that the transfer, though noted as a gift, was more like a poisoned chalice. Transferring the property to Luaiva and Lupe, according to Lupe, was a type of arrangement which gave Mekeli an option to get the property back. I am certain that the arrangements were made to benefit Mekeli. Lupe spoke about this in her evidence at trial:
    • 66. Finally, I have always said to Mekeli, Luaiva and other siblings, that all I want is for Mekeli to pay back my money like he promised, and he can have the house back.
    • 67. I never wanted to own this house. Painfully, I just kept on hanging on to it until I am able to get my money back with interests.
    • 68. This house has cost me my marriage and good consistent health and I have missed out on the important things in my children’s lives. It has caused so much hardship, heartaches and depression which are feelings. I do not wish on anyone. I’ve been to the hospital overseas twice, where I almost died.
    • 69. Mekeli’s promises of paying my money back, and not once he made a single payment to the bank, through his siblings and even via his emails to me. He had 14 years after coming out of prison to pay me something or at least pay the bank something, instead he arrived in the country and tried to take the land back without even so much as a thank you to me personally or at least discuss the house in person with me.
    • 70. Mekeli did the loan, he took the money and took off overseas. He never once paid a penny back to ANZ, Westpac, BSP or me. Yet he returns to Samoa 20 years later demanding the return of the house and land to him and has the audacity to accuse me of fraud? If it wasn’t for me and my family, ANZ would have sold the house back in 2001. I don’t get it and I have no more words on such a person. Just pay me back all of my money then take the house.
87. The arrangement, however altruistic, has well and truly come to an end. This happened when Mekeli filed this proceedings alleging fraud, and denouncing all knowledge of the ANZ Bank debt, mortgage, reason for the POA and email contacts which clearly note him acknowledging his financial and personal debt to Lupe for her paying the mortgage. I am unable to determine any dishonesty on the part of Luaiva and Lupe at any material time. If there be dishonesty, it may be in Mekeli’s denial of the arrangement that Lupe would transfer the land back once he repaid her contributions. For this reason, and although he has not asked for equity to intervene, Mekeli’s claim that he is entitled to the return of the property without reimbursing Lupe for her costs and contributions over many years, including the years whilst he was not in jail, might be a stunning example of unconscionable conduct.

RESULT

88. I am satisfied Lupe lawfully obtained title to a joint share in the property in 2005 and gained Luaiva’s share in 2017. The basis of her taking the title was altruistic, to help out a family member who was in no position to save the property being sold by mortgagee sale to a third party. Lupe has an indefeasible title that is good against the world, including Mekeli.
89. In the light of my findings, it is unnecessary to consider Lupe’s counterclaims.

Orders of the Court

90. The Plaintiff’s claim against both the Second Named First Respondent and the Second Respondent are dismissed.
91. I direct that the caveat which has been lodged by the Plaintiff on the property be discharged and removed forthwith.
92. I further order costs based on 85% recovery of reasonable solicitor and client costs, together with disbursements in relation to both the Second Named First Respondent and the Second Respondent. If there is an issue as to quantum, the parties are to give leave to ask the Court to finalise the amount payable.

CHIEF JUSTICE

^[1] Notes of Evidence (“NOE”) 95
^[2] NOE 121
^[3] Respondents Common Bundle (“RCB”) 319
^[4] It should be noted that the property has been rented out between 2003 to date, and that this income has gone towards payment of the loans to ANZ and Westpac/BSP, and maintenance costs and outgoings.
^[5] NOE 124 line 28
^[6] RCB 114 and 115.
^[7] RCB 315
^[8] RCB 69
^[9] NOE 87 and 88 lines 5 - 16
^[10] RCB 69
^[11] NOE 87
^[12] NOE 95 line 32
^[13] NOE 90
^[14] RCB 72
^[15] RCB 81
^[16] RCB 215 – 217 inc
^[17] RCB 216
^[18] RCB 218
^[19] NOE 44 line 8
^[20] RCB 228 “K-1”
^[21] RCB 232 “M-1”
^[22] RCB 232 “M-1”
^[23] RCB 231 “M-3”
^[24] RCB 231 “M-4”
^[25] RCB 232 “M-1”
^[26] RCB 104 at para 40
^[27] RCB 298
^[28] RCB 298
^[29] RCB 301
^[30] RCB 86
^[31] RCB 89
^[32] RCB 91
^[33] James Every-Palmer “Equitable Estoppel” in Andrew Butler (ed) Equity and Trusts in New Zealand (2^nd ed, Thomson Reuters, Wellington, 2009) at 19.1.3(1)
^[34] Thorner v Major [2009] UKHL 18 at [29]
^[35] Carroll v Bates [2018] NZHC 2463 at [74]
^[36] Jessica Palmer “Constructive Trusts” in Andrew Butler (ed) Equity and Trusts in New Zealand (2^nd ed, Thomson Reuters, Wellington, 2009) at 13.2.1.