IN THE SUPREME COURT OF SAMOA
ALCC Brown Enterprises Ltd v Mulitalo [2024] WSSC 7 (27 February 2024)

Case name: 	ALCC Brown Enterprises Ltd v Mulitalo	
		
Citation: 	[2024] WSSC 7	
		
Decision date: 	27 February 2024	
		
Parties: 	ALCC BROWN ENTERPRISES LIMITED (Plaintiff) v PAU MULITALO (Defendant)	
		
Hearing date(s): 	Hearing: 3rd & 4th October 2023
Closing submissions: 03rd November 2023	
		
File number(s): 		
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Leiataualesa Daryl Michael Clarke 	
		
On appeal from:		
		
Order:	Judgment for the plaintiff by way of nominal damages in the sum $200.00 is awarded to the plaintiff.

The defendant’s counter claim is dismissed in its entirety.

Costs in these circumstances should follow the event in favour the plaintiff. Parties are to agree as to costs failing which, the plaintiff is to file Memorandum as to Costs within 14 days and the defendant to file his response within a further 7 days.	
		
Representation: 	M. Lui for the Plaintiff
T. Tufuga for the Defendant	
		
Catchwords: 	Tort of conversion – detinue – trespass to goods – trespass to chattels – breach of contract – negligence – measure of damages – compensatory damages 	
		
Words and phrases:		
		
Legislation cited:	Limitations Act 1976, s. 26;
Supreme Court (Civil Procedure) Rules 1980, r. 13.	
		
Cases cited:	Belcher v Brown [2019] WSSC 19 (3 May 2019);
Bigyard Holdings Ltd (in receivership) v 
Tasmandairy Ltd [2017] NZHC 1918;
Clerk & Lindsell on Torts (1975) Fourteenth ed by Sir Arthur L Armitage et al (Sweet & Maxwell) London;
E E McCurdy Ltd (in liq) v Postmaster-General [1959] NZLR 553;
Hartley v Moxham (1842) 3 QB 701;
Kuwait Airways Corp v Iraqi Airways Co (Nos 4 & 5) [2002] UKHL 19; [2002] 2 AC 883;
Law of Torts in New Zealand (2009) 5th ed by Stephen Todd et al 12.4.08;
Matautia v Schuster [1993] WSSC 15;
McGregor on Damages (15th Edition Sweet and Maxwell London 1988);
Sadcas Pty Ltd v Business and Professional Finance Pty Ltd [2011] NSWCA 267 (12 September 2011);
The Laws of New Zealand (online looseleaf edn, Lexis Nexis) Wrongful interference with Goods: Conversion and Detinue;
X and Y v Chief Executive of Oranga Tamariki [2022] NZCA 622; [2023] 2 NZLR 261 at [24].	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

ALCC BROWN ENTERPRISES LIMITED, a duly registered company having its place of business at Vaivase.

Plaintiff

A N D:

PAU MULITALO, male of Lalovaea

Defendant

Counsel:	M. Lui for Plaintiff
T. Tufuga for Defendant

Hearing:	3rd and 4th October 2023
Closing Submissions:	3 November 2023
Judgment:	27 February 2024

RESERVED JUDGMENT
Background
1. 	At the beginning of May 2015, the defendant (a lawyer) engaged the plaintiff to construct a small single story “shop”, measuring internally some 5.9 metres x 6.0 metres plus patios. It was a relationship not to last long. By the end of May 2015, the plaintiff and the defendant had a dispute and the defendant terminated the purported contract to construct the “shop”.
2. 	In words immortalized by the iconic Australian band ‘Paul Kelly and the Messengers’, “From Little Things Big Things Grow”. Following termination, the defendant withheld tools and items belonging to the plaintiff. The plaintiff lodged a police complaint and the defendant was then charged and ultimately convicted of obtaining by deception. The plaintiff now brings these proceedings to recover damages allegedly arising from the defendant withholding tools belonging to the plaintiff. The defendant counterclaims for breach of contract and negligence.
The Competing Claims
3. 	The plaintiff sues the defendant for “rent” of machinery and equipment allegedly withheld by the defendant in the sum of $733,100.00.  The causes of action pleaded are:
(a) 	rent/conversion;
(b) 	detinue; and
(c) 	trespass to goods
4. 	The plaintiff does not persist with the claim for unjust enrichment.
5. 	The defendant counterclaims against the plaintiff seeking “compensatory damages” for breach of contract; “remedial and reconstruction costs”; and “negligence and contributory negligence”. The defendant claims against the plaintiff $1,100,000.00 damages.
6. 	A ground pleaded in the Statement of Defence and Counter-claim is that the plaintiff’s tortious claims are statute barred by virtue of section 26 of the Limitations Act 1976. Appropriately, that ground was withdrawn by the defendant.
The Parties
7. 	I begin by addressing a preliminary issue. The parties to this dispute shown in the Statement of Claim dated 17 December 2020 are the plaintiff “ALCC Brown Enterprises Limited” and the defendant “Pa’u Mulitalo of Lalovaea.” By Statement of Defence dated 26th April 2021, the defendant’s intitulement then refers to the parties as “Albert Brown, Director of the ALCC Brown Enterprises Ltd” as “First Applicant” and “ALCC Brown Enterprises Limited” as the “Second Applicant”. 
8. 	No leave was granted for the joinder of Albert Brown (“Mr Brown”) as a party to these proceedings personally nor did Mr Brown consent to being joined as a plaintiff. Mr Brown is not a party to these proceedings in his personal capacity as leave has not been granted. Further, on perusal of the defendant’s counter-claim, there is no pleaded basis or evidence that Mr Brown could properly be joined as a party to these proceedings nor a remedy sought against him personally. 
9. 	Further, for some unknown reason, the defendant refers to the plaintiff and Mr Brown as the “Applicants”. In proceedings brought by way of action, the parties are referred to as “plaintiff” and “defendant”. The joinder of parties together with correctly referencing the parties are simple procedural matters. It is concerning that counsel of many years legal experience continue to appear before the Court with seemingly little regard to or understanding of the Supreme Court (Civil Procedure) Rules 1980. As I have reiterated on a number of earlier occasions, there is an important role for the Samoa Law Society to fulfill in the delivery of Continuing Legal Education training, particularly in terms of pleadings, civil procedure and legal advocacy.
The Law:
Conversion / Rent
10. 	In Belcher v Brown [2019] WSSC 19 (3 May 2019), Sapolu J as he then was at [53] citing from Kuwait Airways Corp v Iraqi Airways Co (Nos 4 & 5)[2002] UKHL 19 stated the law on the tort of conversion as follows:
	“[39] Conversion of goods can occur in so many different circumstances that forming a precise definition of universal application is well nigh impossible. In general, the basic features of the tort are threefold. First, the defendant’s conduct was inconsistent with the rights of the owner (or other person entitled to possession). Second, the conduct was deliberate, not accidental. Third, the conduct was so extensive an encroachment on the rights of the owner as to exclude him from use and possession of the goods. The contrast is with lesser acts of interference. If these cause damage they may give rise to claims for trespass or in negligence, but they do not constitute conversion.
	…
	[42] Similarly, mere unauthorised retention of another’s goods is not conversion of them. Mere possession of another’s good without title is not necessarily inconsistent with the rights of the owner. To constitute conversion, detention must be adverse to the owner, excluding him from the goods. It must be accompanied by an intention to keep the goods. Whether the existence of this intention can properly be inferred depends on the circumstances of the case. A demand and refusal to deliver up the goods are the usual way of providing an intention to keep goods adverse to the owner, but this is not the only way.”
11. 	Sapolu J also referred to Bigyard Holdings Ltd (in receivership) v Tasmandairy Ltd [2017] NZHC 1918 where Moore J went on to say in terms of the essential features of conversion:
	“[53] Importantly, the right to sue in conversion is a consequence of the right of possession, rather than that of ownership: Stephen Todd ed The Law of Torts in New Zealand (7th ed, Thomson Reuters Wellington, 2016) at [12.3.03] citing Harris v Lombard New Zealand [1974] 2 NZLR 161 (SC). In the context of conversion, possession is not just evidence in support of ownership; rather, a possessory title is as good as ownership against all the world except for one who can demonstrate a superior right: The Law of Torts in New Zealand at [12.3.03] citing Flack v Chairperson, National Crime Authority (1997) 80 FCR 137 FCA at 141”.
12. 	The mere misuse of goods by a person such as a bailee in breach of the terms of bailment “is not necessarily conversion, but may be so where the act of misuse is calculated to impair the plaintiff's rights of possession or to deprive the plaintiff of possession.” Conversion may also be committed where the goods are withheld by a defendant such as to amount to an active denial of the owner’s right to immediate possession.
Detinue
13. 	Detinue is a species of conversion, the essence of which is the unlawful failure to deliver up goods when demanded. In E E McCurdy Ltd (in liq) v Postmaster-General [1959] NZLR 553 at 556, McGregor J stated:
	“It is the essence of detinue that the detention should be adverse. This is ordinarily established by proof of a demand for the return of the goods followed by the defendant’s refusal.”
14. 	In Bigyard Holdings Ltd, the distinction between conversion and detinue was explained in this way:
	“…the crucial difference between conversion and detinue is that conversion is a single wrongful act and the cause of action arises at the date of the conversion. Detinue, on the other hand, is a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods and continues until the goods are delivered up or judgment is obtained.”
15. 	In Clerk & Lindsell on Torts (1975) Fourteenth ed by Sir Arthur L Armitage et al (Sweet & Maxwell) London at [1179], the learned authors stated:
	“Though detinue and conversion frequently occur on the same facts, some important differences exist. So if the defendant who has received a chattel from the plaintiff is unable to return it and that failure is due to the defendant’s having negligently lost it, that is detinue, but it is not conversion, for conversion requires a wrongful “dealing” or at least a wilful refusal by the defendant to hand back the chattel which he has. Moreover, the differences which exist between the remedies appropriate to detinue and conversion are of great practical significance.”
16. 	Detinue does not provide a remedy where a bailee returns goods in a damaged condition or where he or she misuses goods without causing loss or destruction. Further, in the Law of Torts in New Zealand (2009) 5th ed by Stephen Todd et al 12.4.08 at 580 cited in Belcher (supra), the learned authors noted:
	“[The] essential element of detinue that the detention be adverse to the owner also amounts to a denial of the owner’s rights of a kind which is required to constitute conversion. For this reason, detinue is often regarded as being but one form of conversion, that is, conversion by keeping. In consequence, detinue no longer exists as a separate tort in the UK”.
Trespass to Goods
17. 	The tort of trespass to goods was explained by the learned authors in the Laws of New Zealand as follows:
	“The tort of trespass to goods is an act committed without lawful justification which directly and immediately interferes with goods in the possession of another person. Thus it is trespass wrongfully to seize goods, to remove them from one place to another, to damage or destroy them, to use them, and perhaps even deliberately to touch them without causing damage. Trespass does not lie where the interference is indirect: thus to lock the room containing the plaintiff's goods is not trespass, although it may be detinue.” (emphasis mine)
18. 	In Clerk & Lindsell on Torts at [1181] - [1182], the learned authors express the tort in the following way:
	“The action of trespass to chattels, de bonis asportatis, has always been concerned with the direct, immediate interference with the plaintiff’s possession of a chattel. Though asportation suggests what is perhaps the most common feature of this form of trespass, that is, the taking away or removal out of the plaintiff’s possession, the wrong of trespass includes any unpermitted contact with or impact upon another’s chattel…
	[1182] The plaintiff’s possession. Though the right to possession without possession, may enable a plaintiff in trover to maintain a claim, in trespass the plaintiff must be in possession at the time of interference…”
19. 	The defendant’s counter-claim asserts breach of contract and negligence. In order to succeed on the tort of negligence, the defendant will need to establish the following elements on balance of probabilities:
(a) 	The existence of a duty of care;
(b) 	breach of that duty of care;
(c) 	damage to the plaintiff caused by the breach; and 
(d) 	that the damage is sufficiently proximate.
The Evidence
20. 	Three witnesses gave evidence. For the plaintiff, Albert Brown and Sailini Iopu gave evidence. Their affidavits were tendered respectively as exhibits P1 and P2. The defendant was the sole witness for the defence.
21. 	Mr Brown is a director and manager of the plaintiff company. On or about the 5th May 2015, he says that an oral agreement was reached for the plaintiff to carry out works for the defendant. The work involved the demolition of an existing building and the construction of a new building, the dimensions and description of which had been told to him by the defendant. He told the defendant that the work would cost not less than $100,000.00. The defendant asked if it could be completed for $30,000.00 to which Mr Brown said he did not agree. Mr Brown says the defendant then agreed to the $100,000.00. The defendant was to draw up a contract. Mr Brown rejected the suggestion that he told the defendant to spend $75,000.00 on the work.
22. 	After this meeting, Mr Brown says that he again met with the defendant and a written contract was given to him. The contract however had different terms to which they had discussed and he refused to sign. Mr Brown’s evidence was that:
	“Wit: Ua ou malamalama e tatau ona fai e tatau ona fai se contract. Lona lua e mafai e a’u ona fai se galuega seiloga ua fai se contract lea na sau loa Pa’u ma le contract ae ou fai atu ai e leai alu e vaai se isi e fai ae manao a e fai tago a ia sasae ae faimai e fai pea le ma galuega, aumai loa ma le $20,000 e amata ai.”
23. 	In his evidence, Mr Brown rejected agreeing to a contract price of $30,000.00 and that in terms of the defendant tearing up the written contract: “E leai se $30,000 a lea na sau a Pa’u toe sasae lana $30,000 lea na sau ma ia.”
24. 	In his evidence, the defendant said that Mr Brown had been his client. It was on the 3rd May 2015 that he discussed with Mr Brown the construction of a shop / office on his land which the defendant said should cost around $30,000.00. The defendant’s evidence is that Mr Brown suggested spending $75,000.00 on the project but to secure a loan of $100,000.00. In his oral evidence, he said he told Mr Brown that his budget was $25,000.00 to $30,000.00. In his evidence, the defendant said:
	“Ma omai loa i luma i le mea lea e iai le faleapa lea sa ta’ua i lana molimau ananafi ou fai atu loa e alu la i lalo le faleapa lea e manaia le faaaoga o le foundation lena e – ae faimai loa ua lelei amata la ta’ua taeao Monday lea le Aso 4 Me 2015. Ou fai atu loa o lea o le a ou tago e draft le written contract a ta’ua ae ta meet i lo’u ofisa lea sa galue faaloia ai ia Faaolesa Ainuu Law firm ta meet ai iina poo le ta o le 8 taeao…”
25. 	On the next day, Mr Brown read the contract and according to the defendant then said:
	“ete iloa oe Pa’u leai oute le saini i se konekarate. E manaia le alu oral o le ta galuega. Ou fai atu loa afai la ete finagalo malie i le tulaga lena, o le tau lena o le ta galuega. Ae o le a la le umi? Faimai loa Alapati o la’u kamupani is a company I can bring workers. Give me 2 weeks or 3 weeks and I’ll complete the job.”
26. 	The defendant confirmed that the contract price in the written contract was $30,000.00. When pointed out to him that Mr Brown did not sign the agreement because of the $30,000.00 contract price, the defendant stated:
	“No I disagree because verbally we talked about and then I put it into writing and then he read through the whole contract he then said I prefer not to sign. Aua le sainia ia mea ka alu ai pea verbal.”
27. 	It is not in dispute that a deposit of $20,000.00 was paid and work then commenced. However, it was not to last. After Mr Brown requested a further $20,000.00 deposit on the 28th May 2015, the defendant then terminated their contract ‘forthwith’ the next day by letter on the 29th May and warned:
	“Please refrain from entering my property on trespass order against you. A breach of this order will disadvantage you in further legal proceedings in court over this matter. The machines you own at my property will stay there until my money is refunded by next week.” 
28. 	The defendant complained about the cost and quality of the works as the basis for termination. Mr Brown requested the return of the plaintiff’s machinery and equipment, Mr Brown’s evidence is that he was threatened by the defendant that if he enters the property, action in trespass would be taken against him and that the defendant had said he had a “court order for the keeping of my equipment and tools.” In his report the contents of which were confirmed in his oral evidence, the defendant is also alleged to have told Police on or about the 29th September 2015 that he had a Court order to withhold the plaintiff’s equipment. In his oral evidence, the defendant denied that he had claimed to have obtained Court orders to withhold the plaintiff’s equipment. However, in his affidavit exhibit D2 at paragraph 11, he states to the contrary that “[w]hen I told First Plaintiff I had a court over (sic) over the tools at my place…”
29. 	It is clear on the evidence that in the very short period of time work had been carried out, the scope of works changed and issues arose in relation to the construction apparently infringing on the neighbouring property. None of the changes were documented nor did either the plaintiff or defendant obtain a building permit or development consent from the Planning and Urban Management Unit (“PUMA”) of the Ministry of Natural Resources and Environment (“MNRE”), which I discuss further below. 
30. 	A significant amount of the evidence focused on what tools were retained by the defendant, what were returned and when. In his affidavit (exhibit P1), Mr Brown says that after he was terminated, he was told by the defendant that the defendant would be renting the equipment out to recover his money and that his equipment was used by the new builder to complete the work. Mr Brown also states that he usually rented out his equipment to other businesses and contractors. He lists the equipment allegedly retained by the defendant and when they were returned together with the per day rental cost for each item. The first set of items allegedly returned on the 29th September 2015 through Police were:
MACHINERY AND EQUIPMENT Returned 29/9/15	
Tool Names	Quantity	Per Day	Days	Total	
Damage wheel barrows (cost $450)	1	$450.00	0	$450.00	
Portable concrete mixer	1	$80.00	102	$8,160.00	
Mechanical concrete mixer	1	$250.00	102	$25,500.00	
Pick	1	$10.00	102	$1,020.00	
Plate compactor (broken with missing tsnk)	1	$320.00	102	$32,640.00	
Set aluminium scaffolding (damage with 3 missing braces) 	1	$200.00	102	$20,400.00	
Concrete block cutter	1	$200.00	102	$20,400.00	
Steel bender	1	$200.00	102	$20,400.00	
SUB-TOTAL 
$128,970.00	
31. 	The second set of items were allegedly obtained by the Police on the 7th October 2015. These consisted of:
MACHINERY AND EQUIPMENT Returned 29/9/15	
Tool Names	Quantity	Per Day	Days	Total	
Large bolt cutter (yellow)	1	$10.00	110	$1,100.00	
Large drill (green colour)	1	$20.00	110	$2,200.00	
Large skillsaw ($25 per hour) = $200 per day	1	$200.00	110	$22,000.00	
SUB-TOTAL “B’
$25,300.00	
32. 	The third set of equipment set out in paragraph 26 of Mr Brown’s affidavit is a lengthier list of equipment claiming up to 9th December 2020. These were alleged to be:
Claim for Rent (Hire) of Machinery and Equipments withheld by Pa’u Mulitalo from 1st June 2015 to 9th December 2020 (6 work days include Saturday) = 1,346 days	
Tool Names	Quantity	Per Day	Days	Total	
Extension leads 30m each x $20 each per day	2	$20.00	1,437	$28,740.00	
Large square (each x$10 per day)	1	$10.00	1,437	$14,370.00	
Missing wheelbarrow (each x$20 per day)	1	$20.00	1,437	$28,740.00	
Sledge hammer	1	$10.00	1,437	$14,370.00	
Heavy duty bar (kolopa)	1	$10.00	1,437	$14,370.00	
B/Hammer ($40x each per day)	4	$40.00	1,437	$57,480.00	
Hacksaw & blades	1	$10.00	1,437	$14,370.00	
Trowel (alofilima $15 each per day)	3	$15.00	1,437	$21,555.00	
Splitlevel ($20 each per day)	2	$20.00	1,437	$28,740.00	
Scripers ($15 each per dsay)	3	$15.00	1,437	$21,555.00	
Small bolt cutter	1	$10.00	1,437	$14,370.00	
Small skill saw	1	$35.00	1,437	$50,295.00	
Picks (piki) $20 each per day	2	$20.00	1,437	$28,740.00	
Sharvel	3	$10.00	1,437	$14,370.00	
Plyers (long nose & standard $20 each per day)	2	$20.00	1,437	$28,740.00	
Pull float & aluminium handle	1	$20.00	1,437	$28,740.00	
Boxing timber to (replaced)	1			$2,200.00	
Bins bar	1	$5.00	1,437	$7,185.00	
SUB-TOTAL
$418.930.00	
33. 	The list of items deposed to by Mr Brown differs from that in the Statement of Claim. He explained in his affidavit exhibit P1 the reason for the differences in the list of items in his affidavit and the Statement of Claim as:
	“32. The table above differs from the table in our statement of claim as I have now had the opportunity to properly revise my dates and review my documentary evidence, and I realise I need to make the adjustments to the date when the equipment and tools were returned to me. Therefore, I confirm our claim is revised to the amounts contained here in my affidavit.”
34. 	In his evidence, the defendant said that the items retrieved by Police from him are shown in exhibit D1 page 2 “List of Return Tools and Equipment to Mr Albert Brown.” Page 3 of exhibit D1 beginning with “Taimi maea: 11.40am” signed by Sailini Iopu, Iakopo Leota and himself is a confirmation by Sailini Iopu of receipt of those items from him.
Discussion
35. 	Mr Brown and the defendant were both unsatisfactory witnesses. In terms of Mr Brown, his evidence was at times evasive, self-serving and not credible. He is a man of some 30 years of experience in the construction industry and by his own admission, is an experienced builder. He acknowledged that he would carry out work provided a written contract was in place. He also accepted that as a builder, he requires to sight the Ministry of Works, Transport and Infrastructure (“MWTI”) Building Permit and PUMA Development Consent before commencing work. 
36. 	Despite his extensive experience and his practice, he commenced the defendant’s work without a written contract. Having also accepted that full architectural drawings are needed for a building permit and there were no such full architectural drawings for the defendant’s work, he could not remember whether a building permit was obtained and confirmed he did not sight either a building permit or development consent. Further, he unconvincingly disowned any responsibility for obtaining a building permit from MWTI or lodging any variations to the building once such variations were carried out. He said these were the defendant’s responsibility. This is despite Mr Brown having been the person who engaged with and obtained from MWTI the single page drawing annexure “A” Floor Plan and Elevations to exhibit P1 which he then apparently used to build to. I am satisfied that Mr Brown was aware no approvals had been obtained for the work and proceeded with the work nevertheless.
37. 	The defendant was also an unreliable witness who by his own admission had misled Police in the course of their investigation to recover Mr Brown’s items in 2015. As a lawyer, he had told Police that he had a “court order” over Mr Brown’s tools when he possessed no such order. The defendant further deposed in his affidavit exhibit D2 that Mr Brown did not challenge or engage a lawyer to verify his assertion about the existence of a court order, seemingly, as some form of exoneration for his own false statement. In his oral evidence, he also categorically denied any discussions with Mr Brown about payment of $75,000.00 stating “leai oute le talia faamatalaga a Sili lea na fai. E le’i iai foi se discussion o le figure 75 e leai ma se mea faapena.” When questioned by the Court, the defendant’s own letter terminating the contract with Mr Brown showed his evidence to be wrong. The transcript reads:
	“HH: Sa fai atu la ia oe i se $75,000 pe $100,000 poo se mea faapena? 
	Wit: Leai ma se talanoaga i ia fuainumera lau afioga. 
	HH: Vaitaimi o Me leai ma se lua talanoaga i se $75,000? 
	Wit: Leai se mea e tasi. 
	HH: Se’i faamanino mai la le tusi lea e terminate ai le konekarate. Faitau atu iai i le parakarafa 3 faitau mai. It’s annexure B to the affidavit of Alapati Brown. 
	Wit: [witness read from the termination letter] 
	HH: Does that not indicate that he had told you at some point before 29th May about the $75,000.00? But it says there. You’ve written a letter to Alapati Brown you have said in your letter you’ve estimated the cost of the whole project to be at $75,000 minus or plus to complete the project. But you said quite clearly in your evidence and you’ve been asked a number of times by counsel and by myself about $30,000. 
	Wit: Faamalulu atu lau afioga ua fai si umi o le mataupu ae e sa’o 
	HH: Lea o le a sui lau mau? 
	Wit: Lea sa talanoa i le ma discussion ae ua 
	HH: You’ve been asked a number of times about that Mr Mulitalo. It’s your letter. 
	Wit: Yes. 
	HH: So you are now accepting the $75,000 plus or minus? 
	Wit: Yes.”
38. 	In his oral evidence, the defendant tendered exhibit D1. He explained that he had prepared the second page of exhibit D1, “List of Return Tools and Equipment to Mr Albert Brown”. In his evidence, he said that the third page is a receipt of delivery by Iopu Sailini of the items on page 2, “List of Return Tools and Equipment to Mr Albert Brown”. He said he also prepared the third page described as the receipt of delivery signed by Sailini Iopu and others.  This was defendant’s evidence it seemed so as to show that all the items claimed by the plaintiff had been returned by November 2015.
39. 	In his evidence, Mr Iopu categorically rejected signing the third page of exhibit D1 as a receipt of delivery of the items in page 2 and explained page 3 as follows:
	“O lea oute vaai atu o la’u saini ae oute le’i saini la i le faafoiga atu o lea e fou la’u vaai atu i le – o le itulau mulimuli lea e pei e foliga o se faamatalaga na matou faia ma leoleo lea e molimau ai, a lea ua aumai faapipii i tua o le lisi lea. Ae oute le’i saini i se lisi lea. O lea e ta’ua ai ii le taimi maea e foliga o se faamatalaga sa fai lea e iai le faamatalaga lea oute tusia ai ii ‘taimi maea’ aua e le o se faamatalaga le mea lenei o le lisi na avatu. Ana faapea o se faamatalaga na ou faia lea oute tusia ai le taimi maea ma saini ai ma le leoleo molimau. Lea la oute fai atu ai oute le’i sainia se pepa faapea i le lisi lea na avatu. Oute iloa o lea e iai le saini a Pa’u ii o se ma faamaumauga i le Ofisa o Leoleo i se ma faatalatalanoaga aua e tatau lava ona faamaumau. A lea la oute ta’ua oute le’i sainia se lisi lea na avatu e Pa’u ia te a’u.”
40. 	I reject the defendant’s evidence that page 3 was signed by Mr Iopu as a receipt of delivery of the items listed at page 2 of exhibit D1 “List of Return Tools and Equipment to Mr Albert Brown”. First, for the very reason given by My Iopu, page 3 has all the apparent hallmarks of a caution statement administered by Police well known to Judges and lawyers in this country. Second, although the defendant claims that he prepared page 3, that is not what is stated on the face of the document which states that it was Sailini Iopu that “Faamauina ma fesiligia e” the document. The words are also inconsistent with a receipt of delivery. Third, the fonts between pages 2 and 3 are different, see for example the letter “a” and “a”. Fourth, it refers to the defendant as the person charged (TAGATA MOLIA), when this was supposedly a confirmation of purported receipt of goods returned. Further, it makes no sense that Sailini Iopu would sign a delivery confirmation based on the defendant’s notes of the 19th and 29th of September and the 24th November 2015 at a later date. I view defendant’s evidence concerning the making of exhibit D1 and its signature by Mr Iopu of page 3 not only as unreliable and implausible but more concerningly, possibly intentionally false and misleading.
41. 	Now I turn to the items I accept were in the defendant’s possession. The items claimed by the plaintiff are set out in paragraph 26 of Mr Brown’s affidavit, exhibit P1. These cover the period 1st June 2015 – 9th December 2020. The total amount of ‘rent’ claimed by the plaintiff under “Sub-Total A” is $418,930.00.
42. 	In Mr Brown’s evidence, there was no evidence that either he or the plaintiff prepared a list of tools and items taken to the defendant’s property for the carrying out of the work. It appears from the evidence that the list of items allegedly kept by the defendant was arrived at on the basis that:
	“…Ae o mea lea na kiliva uma o mea ia lea na faatino ai le galuega lea sa fai. A leai mea na e le mafai ona fai le matou galuega lea sa fai. Toe tagai iai i le mea lea na faamatala atu o tools uma e faaaoga i le galuega lea na fai…”
43. 	The 4th June 2015 list of plaintiff’s items claimed by the plaintiff from the defendant (page 1, exhibit D1) under the ALCC Brown letter head is also largely replicated at paragraph 26 of exhibit P1. The only variation seems to be a claim for 2 skill saws yet only one is listed on page 1 of exhibit D1. In his affidavit however at paragraph 32, Mr Brown says that he has had the opportunity to “revise my dates” and “review my documentary evidence, and realise I need to make adjustments to the date when the equipment and tools were returned to me.” That “documentary evidence” was not tendered. In circumstances where a list of items and equipment were not made of the equipment taken to the defendant’s property, I do not accept Mr Brown’s evidence as reliable nor established to my satisfaction on balance of probabilities.
44. 	The evidence I accept in terms of the items withheld by the defendant is that of Mr Iopu. He was a credible and reliable witness and had no personal interest in these proceedings. I accept that the items and equipment withheld by the defendant and established by the evidence were those items that were recovered by Police. In terms of the other matters reported to Police as withheld, the source of that information was either Mr Brown or the Plaintiff and I am not satisfied that such information was reliable. Accordingly, I accept that the following items were returned on the 29th September 2015:
(a) 	one (1) wheel barrow
(b) 	one (1) portable concrete mixer
(c) 	one (1) mechanic concrete mixer
(d) 	one (1) pick
(e) 	one (1) plate compactor
(f) 	one (1) set of aluminium scaffolding (damaged and three missing braces)
(g) 	one (1) concrete block cutter
(h) 	one (1) steel bender
45. 	Additional items recovered by Police and delivered to Mr Brown on behalf of the Plaintiff were those shown in the “Receipt of Delivery” dated 07th October 2015 (annexure “F” to exhibit P1). These were:
(a) 	one (1) large bolt cutter
(b) 	one small drill
(c) 	one (1) skill saw.
46. 	For the items recovered on the 29th September 2015 at paragraph [44] above, the plaintiff claims $128,970.00 as rental payments for those items 102 days. For the items returned to the plaintiff on the 7th October 2015, the plaintiff claims rental in the amount of $25,300.00. The items recovered on the 29th September and 7th October 2015 are hereafter referred to collectively as the “items recovered”.
Conversion
47. 	I now turn to the three causes of action advanced by the plaintiff. These rely on largely the same facts. Turning first to the cause of action for conversion, the evidence satisfies me on the balance of probabilities that the defendant’s withholding of the items recovered by Police (paragraphs [44] and [45] above) were (a) inconsistent with the plaintiff’s rights as owner of that equipment and items; (b) his conduct was deliberate and not accidental; and (c) his conduct was so extensive an encroachment on the plaintiff’s rights as owner as to exclude him from those goods. As the evidence shows, following the termination of the alleged agreement, the defendant withheld the plaintiff’s equipment on his property so the plaintiff could no longer access and use the equipment; threatened Mr Brown with legal consequences; and I am satisfied, told both Mr Brown and Police that he possessed a court order to withhold the plaintiff’s equipment. On the evidence, I am satisfied that conversion of the plaintiff’s items recovered by Police were committed by the defendant on and from the date of the defendant’s letter to Mr Brown on the 29th May 2015.
Detinue / Trespass to Goods
48. 	In terms of the plaintiff’s claim in detinue, I am also satisfied that this cause of action has been established. The plaintiff through Mr Brown requested the return of his equipment on or about the 29th May 2015. The defendant detained the plaintiff’s equipment on and from 29th May 2015 and he consciously did so in defiance of the plaintiff’s rights to possession as owner.
49. 	I am not however satisfied that the defendant is liable to the plaintiff in trespass to the plaintiff’s equipment. As the authorities show, in trespass, the plaintiff must be in possession at the time of interference. The plaintiff was not in possession of the equipment at the time, the equipment being in the possession of the defendant and locked on his property to which the plaintiff (or its representative Mr Brown) was prohibited from entering – akin to the circumstances in Hartley v Moxham. 
Measure of Damages
50. 	In an action for conversion, the normal measure of damages is the market value of goods converted. As Greer LJ stated in Hall v Barclay, “where you are dealing with goods which can be readily bought in the market, a man whose rights have been interfered with is never entitled to more than what he would have to pay to buy a similar article in the market.” Where goods are redelivered prior to the entry of judgment, it is not a bar to the action but goes towards the mitigation of the damages. As the learned author in McGregor on Damages states, “[t]hus the plaintiff may proceed for damages resulting from his being out of possession of the goods, and although he may succeed in recovering only nominal damages he is entitled at least to this.” (emphasis added)
51. 	In Kuwait Airways Corp v Iraqi Airways Co (Nos 4 & 5) [2002] UKHL 19 paras 69 - 70; [2002] UKHL 19; [2002] 2 AC 883, a case on conversion (applied in Belcher v Brown (supra)) , Lord Nicholls also said:
	“69. How then does one identify a plaintiff’s ‘true loss’ in cases of tort? This question has generated a vast amount of legal literature. I take as my starting point the commonly accepted approach that the extent of a defendant’s liability for the plaintiff’s loss calls for a twofold inquiry: whether the wrongful conduct causally contributed to the loss and, if it did, what is the extent of the loss for which the defendant ought to be held liable. The first of these inquiries, widely undertaken as a simple ‘but for’ test is predominantly a factual inquiry. The application of this test in cases of conversion is the matter now under consideration. I shall return to this in a moment.
	70. The second inquiry, although this is not always openly acknowledged by the Courts, involves a value judgment (‘ought to be held liable’). Written large the second inquiry concerns the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable (the epithets are unchangeable). To adapt the language of Jane Stapleton in her article ‘Unpacking Causation’ in Relating to Responsibility, ed Cane and Gardner (2001), p.168, the inquiry is whether the plaintiff’s harm or loss should be within the scope of the defendant’s liability, given the reasons why the law has recognised the cause of action in question. The law has to set a limit to the causally connected losses for which a defendant is held to be responsible. In the ordinary language of lawyers, losses outside the limit may bear one of several labels. They may be described as too remote because the wrongful conduct was not a substantial or proximate cause or because the loss was the product of an intervening cause. The defendant’s responsibility may be excluded because the plaintiff failed to mitigate his loss. Familiar principles, such as foreseeability, assist in promoting some consistency of general approach. These are guidelines, some more helpful than others, but they are never more than this” (emphasis added).
52. 	In this case however, the plaintiff is not seeking the normal measure of damages for the market value of goods converted or nominal damages for the converted goods returned. Instead, the plaintiff seeks damages solely on a “rental basis”. For the plaintiff’s items I accept the defendant withheld from the plaintiff, the plaintiff seeks $128,970.00 for the items recovered on the 29th September 2015 at paragraph [44] above and $25,300.00 as rental payments for those items returned to the plaintiff on the 7th October 2015.
53. 	The plaintiff’s claim for lost rental for the equipment converted by the defendant rests on a line of authorities starting with Strand Electric and Engineering Co. Ltd v Brisford Entertainment Ltd [1952] 1 All ER 796 at 800 – 801 where Denning LJ stated:
	“The question in this case is: What is the proper measure of damages for the wrongful detention of goods? Does it fall within the general rule that that the plaintiff only recovers for loss he has suffered, or within some other, and, if so, what, rule?  It is strange that there is no authority on this point in English law, but there is plenty on the analogous case of detention of land. The rule there is that a wrongdoer who keeps the owner out of his land must pay a fair rental value for it, even though the owner would not have been able to use it himself or let it to anyone else….I see no reason why the same principle should not apply to detention of goods. If a wrongdoer has made use of goods for his own purposes, then he must pay a reasonable hire for them even though the owner has, in fact, suffered no loss. It may be that the owner would not have used the goods himself, or that he had a substitute readily available which he used without extra costs to himself. Nevertheless, the owner is entitled to a reasonable hire…
	…I am here concerned with the cases where the owner has, in fact, suffered no loss, or less loss that is represented by a hiring charge. In such cases, if the wrongdoer has in fact used the goods, he must pay a reasonable hire for them. Nor do I mean to suggest that a wrongdoer who has merely detained the goods and not used them would have to pay a hiring charge. The damages recoverable for detention recoverable against a carrier or a warehouseman have never been measured by a hiring charge…the claim for a hiring charge is, therefore, not based on the loss to the plaintiff, but on the fact that the defendant has used the goods for his own purposes…” (emphasis added)
54. 	As Romer LJ summed up in a nutshell in Strand Electric and Engineering Co. Ltd (supra) at 801:
	“In my judgment, the three salient facts on which the assessment of damages in this case depends are, first, that the equipment of the plaintiffs that the defendants detained was profit-earning property; secondly, that the plaintiffs normally hired out the equipment in the course of their business; and thirdly, that the defendants during the period of wrongful detention applied the property to the furtherance of their own needs.”
55. 	In Sadcas Pty Ltd v Business and Professional Finance Pty Ltd [2011] NSWCA 267 (12 September 2011), the New South Wales Court of Appeal referring to Strand Electric and Engineering Co. Ltd per Giles JA stated at [78]:
	“If the defendant's conversion consists of the defendant itself using the goods as profit-earning goods, a basis of damages has been recognised in which the damages are the reasonable hire value to the defendant…” (emphasis added)
56. 	In his evidence, the defendant said that he was unaware that the plaintiff rented out his equipment. In his evidence, Mr Brown confirmed that he usually rents out his tools and equipment to other businesses and contractors. That the equipment withheld was rented out by the plaintiff was not challenged by the defendant during the cross-examination of Mr Brown.  The rental rates for each item of equipment set out in Mr Brown’s affidavit exhibit P1 was also not challenged in cross-examination nor was Mr Brown questioned by counsel on the replacement value of each of those items. Only limited evidence on the replacement value of items converted were given and arose from questions from the Court. Those questions and answers from Mr Brown suggest that the damages claimed on a rental basis as opposed to their replacement value by the plaintiff is grossly inflated. Of those limited items identified by the Court, Mr Brown’s evidence was as follows:
Item description	Claim	Replacement Value	Difference	
2 extension leads, 30 metres each.	$20 per day x 1,437 days = $28,740.00.	$50 - $60 = $100.00 - $120.00.	$28,620.00.	
1 wheel barrow	$20 per day x 1,437 days = $28,740.00.	$450 - $480.	$28,260.00.	
1 large bolt cutter	$10 per day x 110 days = $1,100.00.	$200.	$900.00.	
57. 	The key question to which the question of damages claimed by the plaintiff turns, it seems to me, is whether the defendant used the items whilst he detained them. For the avoidance of doubt, I accept that the plaintiff’s equipment was profit-earning. I also accept that the plaintiff normally hired out the equipment in the course of its business, when not being used by the plaintiff for its own construction work. The defendant’s evidence in terms of use of the equipment was that he had properly stored and kept the plaintiff’s items in his possession. He also told the carpenters who replaced the plaintiff that they were not to use the plaintiff’s tools.
58. 	Mr Brown for the plaintiff however claimed that the defendant told him that he would rent out the plaintiff’s equipment and that he understood that the defendant’s new builder “used all my equipment and tools.” While Sailini Iopu had said in his evidence that in the course of the Police investigation, there was evidence that the defendant hired out or rented the plaintiff’s equipment, that is hearsay and I place little weight on that evidence. I am not satisfied on the evidence before me that the defendant rented out any of the equipment nor was the equipment used to complete his work. The claim for damages based on rent must therefore fail. The defendant, in the words of Denning LJ had “merely detained the goods and not used them” and is not therefore liable “to pay a hiring charge.”
59. 	What then is the measure for damages? Ordinarily, it is the market value of goods converted. However, there is only limited evidence of only a general nature of the market value of only three items of equipment. There is no evidence to determine the market value of the tools and equipment at the time they were converted by the defendant and when they were returned to the plaintiff. There is therefore no evidence to ascertain any diminution in the value of the goods wrongfully detained by the defendant when they were returned to establish any damage. I decline the plaintiff’s invitation to find liability and adjourn for further evidence on the quantum of damages to be led. The plaintiff did not plead nor pursue damages in this way. The plaintiff elected to pursue damages on the basis of rental costs for the detained equipment. That is unsuccessful. I am however satisfied that a nominal damages award is warranted.
60. 	The plaintiff’s claim for damages in detinue must for the same reasons also suffer the same fate as that for conversion. I am however satisfied that a nominal damages award is warranted which I fix at $200.00.
61. 	Although costs often do not necessarily follow the event where an award of nominal damages are made, given the conduct of the defendant, costs should follow the event in this case.
The Defendant’s Counter-Claim
62. 	I now turn to deal with the defendant’s counterclaim for $1,100,000.00 against the plaintiff for “compensatory damages” for breach of contract; “remedial and reconstruction costs”; and “negligence and contributory negligence”. The defendant’s counter-claim is bereft of supporting evidence and consequently, sensible argument. 
63. 	The defendant claims that a binding oral agreement was entered into with the plaintiff. The pleaded terms of that purported agreement included:
•	construction of a “small shop” at Lalovaea;
•	commencement 4th May – 25th May 2015;
•	contract price of $26,000.00 involving a ‘down payment’ of $1,000 on 6th May 2015; $20,000.00 on 8 May 2015; and $5,000.00 on 22 May 2015.
64. 	The defendant alleges that the plaintiff breached the agreement by failing to complete the work and carrying out the work in “very poor workmanship because it failed to comply with the structural and building plans issued by the Ministry of Works…” 
65. 	The plaintiff in response pleads that it does not dispute that a valid and binding oral agreement was reached but that the quoted price for the work was not less than $100,000.00 on the general specifications of the building and accepted by the defendant; no start or completion date was specified; and the drawings annexure “A” to exhibit P1 were not followed due to changes sought by the defendant. 
66. 	In order for the contract to be binding, there must be an express or implied agreement “or the means of an agreement, on every term that is essential in law or is regarded by the parties as essential. This intention is determined objectively. A purported contract may be regarded as incomplete on any of the following three broad grounds:
	“•that the parties have reserved matters for future agreement between themselves; 
	•the machinery provisions included in the agreement that were intended to establish terms in the future have proved defective; or
	•that, although the parties believe they have completed their agreement, the terms actually used are ambiguous or uncertain.”
67. 	Although the plaintiff concedes the existence of a valid and binding agreement with the defendant, I am not so satisfied. Although the parties believe they have completed their agreement, in my view, the agreement was incomplete due to the lack of certainty and ambiguity. Mr Brown and the defendant reached no agreement on the contract price for the work. On the evidence I accept, the defendant sought to complete the work for $30,000.00. The plaintiff had given a ballpark estimate of $100,00.00. They reached no agreement on the point with the plaintiff then rejecting to sign a written contract with a stipulated contract price of 30,000.00. They then nevertheless proceeded with starting the building with no agreement and no means of reaching an agreement – Mr Brown and the defendant both simply, in my assessment, expecting to get their way in due course, and to force the other into a concession. This did not occur and resulted in the arrangements being terminated just 4 or so weeks after work had commenced. 
68. 	I am also not satisfied that there was an agreement on the duration of the work and when it was to be complete and in fact, no particular certainty as to what was to be constructed. Both the defendant and the plaintiff through Mr Brown blundered into an arrangement that was it seems to me doomed from the start. Having found there to be no binding agreement, there can be no breach of agreement giving rise to liability on the part of the plaintiff. 
69. 	In the event that I am wrong on the non-existence of a valid and binding agreement, there is no reliable or credible evidence that establishes that the plaintiff had failed to construct the work to a good and workmanlike standard or indeed, any damage suffered by the defendant. The cause of action for breach of contract must accordingly be dismissed.
70. 	On the defendant’s ancillary point of the plaintiff purportedly breaching building permit specifications, “structural and plan”, the defendant pleads that the plaintiff was to carry out the works in accordance with the building permit and PUMA requirements. The defendant however tendered no building permit, PUMA consent or any regulatory or other requirements that the plaintiff was required to comply with – despite his pleading. Indeed, as I have found, both the plaintiff and the defendant both knowingly proceeded with the work knowing that no building permit or PUMA consent had been obtained. This was a job done on the cheap, as the defendant had sought, by cutting corners. There was no evidence to support the defendant’s pleaded allegations in paragraph 8 of the Statement of Defence.
71. 	In terms of the claim in negligence, the defendant has failed to satisfy me that the plaintiff breached any duty of care owed to the defendant, established any harm suffered by him nor that any such harm was sufficiently proximate to such alleged negligence or contributory negligence. In his letter terminating the purported agreement with the plaintiff dated 29 May 2015, the defendant refers to an assessment carried out by “a certified builder to assess the shop project” and which allegedly confirmed the quality of the “work is poor and costly”. The certified builder did not give evidence nor was such an “assessment” tendered, if it was written. There was also no evidence, except the defendant’s word, that the building was within 1.5 metres of the boundary – which I do not accept. Though the defendant pleads a number of allegations of fact, no evidence was led to support many of those. There is simply no merit to the defendant’s counter claim in negligence and contributory negligence.
Result
72. 	Judgment for the plaintiff by way of nominal damages in the sum $200.00 is awarded to the plaintiff.
73. 	The defendant’s counter claim is dismissed in its entirety.
74. 	Costs in these circumstances should follow the event in favour the plaintiff. Parties are to agree as to costs failing which, the plaintiff is to file Memorandum as to Costs within 14 days and the defendant to file his response within a further 7 days.
JUSTICE CLARKE