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Atuaia v Burgess [2025] WSSC 103 (8 August 2025)

IN THE SUPREME COURT OF SAMOA
Atuaia & Ors v Burgess [2025] WSSC 103 (8 August 2025)


Case name:
Atuaia & Ors v Burgess


Citation:


Decision date:
8 August 2025


Parties:
AMY FAALETONU ATUAIA, DAVID LEAULA ALOFIPO, SHAKESPEARE STEPHEN ALOFIPO, SHEDERLAOMACH MARVIN ALOFIPO; SAOLOTOGA LEWIS ALOFIPO (Plaintiffs) v DAVIS DARLING BURGESS (Defendant)


Hearing date(s):
25th & 26th March 2025
Submissions: 3rd & 23rd July 2025
Site Inspection: 16th July 2025


File number(s):
CP9/23


Jurisdiction:
Supreme Court – CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Chief Justice Perese


On appeal from:


Order:
The plaintiffs claim in their prayers for relief (b) – (f) are dismissed. As for prayer for relief (a), an order of possession will be able to be made once the payment set out below has been paid to the defendant.

The plaintiffs are ordered:
(a) to pay within 1 month of the date of this judgment, the sum of SAT822,700.00 (“the Judgment sum”).
(b) Interest is to run on the judgment sum from the date of this judgment.
(c) The Plaintiffs are to pay the Defendant’s legal costs. The parties are invited to try to resolve the amount of costs payable by the Plaintiffs, and if they are unable to do so, the parties should provide me with memoranda.

The Plaintiffs may apply for a variation of this order [62] a. if further time is required for payment of the Judgement sum.
For the avoidance of doubt, Mr Burgess and his family may continue to live on the land and use the buildings, until further order of the Court following the payment of the Judgement sum. If he chooses to remain on the land, then Mr Burgess is liable to pay market rent. If agreement cannot be reached on the amount of rent, the parties are to refer the issue to three real estate companies that specialise in rental properties, for assessments to guide them. Rent is payable from the date of this judgment.


Representation:
K. Kruse for the Plaintiffs
P. Fepuleai & F. Ioane for the Defendant


Catchwords:
Land dispute – freehold land – ownership – involves siblings – constructive trusts – equitable interest in land


Words and phrases:
“buildings built on another’s land and intended to be part of the land” – “defendant erected buildings


Legislation cited:


Cases cited:
Auckland City Council v Ports of Auckland Limited [2000] NZCA 190;
Dive and Fly Samoa v Schmidt [2005] WSSC 40;
Fortex Holdings Ltd v MacIntosh [1998] 2 NZLR 171;
Hussey v Palmer [1972] EWCA Civ 1;
Ieremia v Ieremia [2024] WSSC 126;
Mackenzie v Richard Kidd Marketing Ltd [2007] WSSC 41;
TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49;
Wolfe v Wolfe [2021] NZHC 2878.


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


AMY FAALETONU ATUAIA & ORS


Plaintiffs


A N D:


DAVIS DARLING BURGESS


Defendant


Counsel: K. Kruse for the Plaintiffs
P. Fepuleai & F. Ioane for the Defendant

Hearing: 25 & 26 March 2025
Submissions: 3 July and 23 July 2025
Site Inspection: 16 July 2025.
Decision: 8 August 2025


RESERVED JUDGMENT OF THE COURT

INTRODUCTION

  1. The dispute in this matter concerns two buildings constructed by the Defendant on land now owned by the Plaintiffs at Vaitoloa (“land”). The land was owned by Sophronia May Alofipo (“Mrs Alofipo”); it was part of an inheritance from her father’s estate in 1960.
  2. Mrs Alofipo died in January 2024. Before her death, in December 2022, Mrs Alofipo transferred the land to the Plaintiffs by way of gift. The Defendant has lived on the land since 1993, with Mrs Alofipo’s permission. The Plaintiffs bring these proceedings to recover the land.
  3. The parties in the dispute are Mrs Alofipo’s children. The Plaintiffs are five of six children from Mrs Alofipo’s second marriage to Mr Saolotoga Alofipo. Excepting Mr David Alofipo, who has returned to Samoa and wishes to build his home on the land, all the Plaintiffs normally reside in the State of Utah, United States of America.
  4. The Defendant (“Mr Burgess”) is one of four of Mrs Alofipo’s children from her first marriage to Mr Robert Burgess.
  5. It is common ground that Mr Burgess constructed and financed the two buildings - a two-storey home, and an Accommodation Lodge. Mr Burgess claims that Mrs Alofipo gave him permission to build these buildings on her land. The Plaintiffs dispute this.
  6. The issue that needs to be determined is whether the Defendant is entitled to what he has termed “compensation” for the buildings he constructed on the land.

BACKGROUND

  1. The land is freehold, and it is therefore subject to the principles concerning freehold estates and the ownership of things such as buildings that are built on the land. The legal description of the land is Lot 232 in Plan 3676 at Vaitoloa, approximately ¾ acre. The parties lived together on the land until the Defendant moved to the United States in 1977. Mrs Alofipo and the Plaintiffs also moved to the United States, in 1982. On the land at that time was a family homestead, and the property was rented to third parties for a bit of extra income for Mrs Alofipo.
  2. Mr Burgess returned to Samoa in 1993, and with his mother’s permission Mr Burgess gave notice to the then tenants, moved onto the land, and proceeded to repair and renovate the by now thirty-year-old family homestead for himself and his family to use.
  3. Over the following years Mr Burgess and his family continued to live on the land, and he built two buildings on the land:
  4. I have had the opportunity to carry out a site inspection. Both buildings are firmly fixed to the land by way of concrete foundations and slab, on which the bottom floors are constructed with concrete bricks. There is no doubt that as these buildings are fixed to the land; the only way to remove them is by demolishing the structure and removing it bit by bit.

The evidence

  1. The Plaintiffs gave evidence as did the Defendant and a valuer called on behalf of the Defendant. These are events that occurred many years ago, and caution needs to be exercised. Much of the Plaintiffs evidence relied on their powers of recollection. The main evidence for the Plaintiff was in an affidavit that was prepared by Mrs Alofipo shortly before her death, and I begin my analysis of the evidence with this affidavit.

Mrs Alofipo’s January 2023 affidavit

  1. Mrs Alofipo was about 93 years old when she swore an affidavit on 17 January 2023 before a Notary Public in the State of Utah, the United States. It is material to note that Mrs Alofipo had serious health issues at the time, as explained by Ms Atuaia:[6]
  2. Mrs Alofipo was immobile and heavily reliant on her daughter for her daily needs. Mr Burgess referred to Mrs Alofipo suffering a “massive stroke around 2019/2020”.
  3. Mr Burgess, no doubt on advice, accepted that Mrs Alofipo’s affidavit was hearsay evidence that could be admitted on the basis that it was a sworn statement and therefore reasonably reliable, and because Mrs Alofipo was not able to give the evidence because she had died. In his own words Mr Burgess put his views in this way:[7]

Mr Burgess then proceeded in his affidavit to give his account of the exchanges with his mother. These responses will be interposed during the following discussion of Mrs Alofipo’s affidavit.

The two-storey house

  1. Mrs Alofipo’s assertion seems direct, clear and unambiguous:
  2. It is not clear when this conversation took place, but it must have happened after the two-storey house had been built and demonstrates Mrs Alofipo’s position that the two-storey house was given to her as compensation.
  3. Ms Atuaia gave evidence that was generally consistent with her mother’s assertions, on this point. She claims Mr Burgess said to her that the two-story house was his mother’s and stepfather’s house. Ms Atuaia says:[9]
  4. Mr Burgess denies giving the house to Mrs Alofipo. He says:[10]
  5. Mr Burgess in cross examination did not recall there being any opposition to the two-storey building and said that in his mind what he was doing was for the family in keeping with Samoan custom. Mr Burgess has been bestowed the Matai title of Alofipo. In the following section Mr Burgess answers questions about accountability to his siblings, from Ms Kruse:[11]

The Lodge

  1. Mrs Alofipo says at that paragraph 13 of her affidavit:
  2. However, at paragraph 15 of her affidavit:
  3. Mr Shakespeare Alofipo said he heard Mr Burgess ask his mother if he could build a garage to store his cars.[12]
  4. In relation to where the Lodge was built, Mrs Alofipo’s affidavit says:[13]
  5. Mr Burgess says in reply in his affidavit:[14]
  6. It is not possible to resolve the issue of what the parties meant by the phrase “garage”. The natural and ordinary meaning of the word would suggest a small structure used to store vehicles or equipment. Whilst one would hardly accommodate overseas visitors in a garage, what has been built is a large accommodation block that has 12 or more bedrooms, and a dining area.
  7. The conflict in relation to the two buildings – the two-storey home and the lodge accommodation, is something Mrs Alofipo refers to in paragraph 18 of her affidavit:
  8. Mrs Alofipo’s “acceptance” of ownership of the buildings likely explains why Mr Burgess was ordered to leave the land and hand the keys to one of the plaintiffs. The Plaintiffs’ Solicitor wrote to Mr Burgess and said:[15]
  9. Mr Burgess says he was shocked to receive the lawyer’s letter.[16] Through his lawyer, Mr Burgess then made a request for compensation for the buildings, but this was rejected, and Mr Burgess was again advised to vacate the property and hand the keys to Mr Saolotoga Alofipo.[17]
  10. Mrs Alofipo’s lawyers letter rejecting compensation was followed up by another letter from Mr Burgess lawyer, again asking for compensation. The further request was met with a letter from Mrs Alofipo’s lawyer advising that Mrs Alofipo “requires him and those under him to vacate her land and remove his buildings immediately”.[18]
  11. I accept Mr Burgess’ evidence that he did not give the buildings to his mother. A careful reading of Mrs Alofipo’s evidence suggests that she claimed the buildings as compensation for her son’s alleged defiance of her wishes and his demolition of her buildings (the family homestead she left when she went to the United States, and the Mormon Church buildings left as compensation for use of her land, which were removed to make way for the lodge). Her claim to own the replacement buildings is understandable. However, whilst Mr Burgess was challenged about the scope of the authority to build on the land, he was not directly challenged about the alleged gifting to his mother. I am not persuaded by the evidence led by the Plaintiffs or placed before the Court through cross examination that Mr Burgess gave his mother the buildings. He clearly and unequivocally denies giving her the buildings. Of course, had he given the buildings it would be unconscionable for him to now seek compensation for something he had given away.
  12. Ms Atuaia gave evidence that I consider provides an accurate sense of the Plaintiffs’ and wider family’s reaction to the buildings Mr Burgess constructed:[19]
  13. Ms Atuaia’s reference to “we” being very proud of Mr Burgess sits awkwardly alongside the pleading at paragraph 9 of the Plaintiffs’ statement of claim, that Mr Burgess’ refusal to remove his buildings and vacate Vaitoloa has caused much emotional distress to the Plaintiffs.
  14. The pleading also sits awkwardly alongside Ms Amy Atuaia’s evidence that tends to show during the period of construction, the relationship between her brothers was cooperative:[20]

The materials were for the building work.


LEGAL PRINCIPLES

  1. Mr Burgess has resolutely maintained that at all material times the land was owned by his mother (NOE page7- lines 19 – 22). The issue is whether Mr Burgess is entitled to compensation for the improvements or contributions he made to his mother’s land?
  2. In determining the issue of the whether compensation is payable for the two buildings, may I respectfully note my agreement with His Honour Sapolu CJ’s view that the following broad legal principles apply in Samoa, which observation was made in the context of a strike out application in the matter of Dive and Fly Samoa Limited v Schimdt [2005] WSSC 40:
  3. Respectfully, it might assist our understanding of the principles if I were to set out more fully the pertinent passages in His Lordship Lord Lloyd’s speech, with which the other Lords agreed. First, as to what is meant by the phrase “degree of annexation” (pg518):
  4. Further, Lord Lloyd discussed the meaning of the phrase “purpose with which the fixture was brought on the land” as follows (p 518 - 519):
  5. I also refer to the following passage in Lord Lloyd’s speech where His Lordship observes that in determining “intention”, (at 519):
  6. These important observations of high standing have been adopted in New Zealand: Auckland City Council v Ports of Auckland Limited [2000] NZCA 190 at [72] and 73], where His Honour McGrath J writing for the Court of Appeal, observed:
  7. The High Court of Australia in TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49, and highlight an Elitestone type approach, as set out in paragraphs [23] and [24]:
  8. His Honour Justice Conti then set out guidelines on how one might determine the purpose or object of annexation:
  9. In relation to the question of degree of annexation, Conti J identified the following factors:
  10. Finally, I refer to the discussions of the learned authors of Professors Hinde, McMorland, and Sim, Land Law New Zealand: LexisNexis NZ Practical Guidance; they comment as follows at 6.036:
  11. Further at 6.038:
  12. Mr Burgess seeks compensation for the buildings on the land from the Plaintiffs, which he says were constructed with the authority of the previous owner of the land. Mr Burgess relies on the remedy of unjust enrichment, which is well established in our jurisprudence. The Court is grateful for the authorities provided by Mr Fepuleai in this area of law, that in essence if the Court was to consider the remedy of unjust enrichments, it must be satisfied of these three features:

DISCUSSION

  1. It is apparent this case involves two substantial buildings which were built on and intended to be part of the land, this is objectively apparent because the buildings are permanent and cannot be moved, save by destruction. They were intended to be used for accommodation for Mr Burgess and his family and for members of Mr Burgess’ family visiting Samoa. The lodging business was a business for Mr Burgess and doubled up as lodging facilities for overseas family visitors.
  2. The authorities support the view that by operation of law the ownership of the buildings moved from the owner of the chattel, Mr Burgess, to the owner of the land who at the relevant time was Mrs Alofipo. Though Mr Burgess denies giving the buildings to Mrs Alofipo, the law provides that permanent structures such as those that are on this land belonged to Mrs Alofipo, and she has conveyed them to the Plaintiffs. Mr Burgess’ response below seems to demonstrate that he knew the improvements became part of the land (NOE pg 79 ln 24-28), and why his remedy lies in compensation:

(emphasis added)

  1. But there is more that the Court needs to consider. Mr Burgess said in his evidence that there was a time when Mrs Alofipo shared with him that all her land would be divided between all her children:
  2. It is also noteworthy that Mr Burgess spent a lot of money on the land because he thought that he had as much right to the land as anyone else:[22]
  3. Mr Burgess’ buildings improved the value of his mother’s land, and the Plaintiffs knew this to be the case, which is likely why they were proud of his work. In my view, the facts in this case give rise to an institutional constructive trust.
  4. In Ieremia v Ieremia [2024] WSSC 126, I discussed at some length the principles concerning constructive trusts. A constructive trust, in the institutional sense, arises “upon the happening of the events which bring it into being”: Fortex Holdings Ltd v MacIntosh [1998] 2 NZLR 171 and Mackenzie v Richard Kidd Marketing Ltd [2007] WSSC 41. Moreover, “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 principle of equity which can give rise to a constructive trust is where a trust is imposed by law whenever justice and good conscience require, which is the point made by Lord Denning in Hussey v Palmer [1972] EWCA Civ 1. I asked for and was provided further submissions on the principles discussed in Hussey v Palmer.
  5. As His Honour Justice Davidson observed in Mamat v Mamat [2018] NZHC 639; (2018) 19 NZCPR 331, relying on the observations of Justice Tipping in Fortex:
  6. This means the Court should declare an institutional constructive trust to prevent the Plaintiffs from making an unconscientious assertion of ownership in respect of property to which Mr Burgess has contributed. The Plaintiffs ask the Court to evict Mr Burgess, without compensating him the value of the improvements he made with the land owners’ consent. These are improvements Plaintiffs knew about before the land was gifted to them, which by operation of law was owned by their mother and transferred to them.
  7. It is not an answer for the Plaintiffs to say, as they do, that they do not want the buildings, and Mr Burgess can take them away. The buildings cannot be removed without being destroyed. In any event, Mr Burgess cannot take them away because he does not own them.
  8. The value of the improvements is assessed at SAT822,700.00. The Plaintiffs did not seek to introduce their own valuation.

DECISION

  1. The Defendant has an equitable interest in the land by virtue of the buildings he has contributed to the land being annexed by operation of law. The contribution gives rise to an equitable interest in the property, which is protected by the recognition of an institutional constructive trust, and I declare the existence of an institutional constructive trust. The Plaintiffs with knowledge of the Defendants uncompensated financial contributions to the land, hold the land as constructive trustees to the extent of the value of the improvements contributed by the Defendant.
  2. Respectfully, it would be contrary to justice and good conscience for Mr Burgess to not receive compensation for the improvements.
  3. The plaintiffs claim in their prayers for relief (b) – (f) are dismissed. As for prayer for relief (a), an order of possession will be able to be made once the payment set out below has been paid to the defendant.
  4. The plaintiffs are ordered:
  5. The Plaintiffs may apply for a variation of this order [62] a. if further time is required for payment of the Judgement sum.
  6. For the avoidance of doubt, Mr Burgess and his family may continue to live on the land and use the buildings, until further order of the Court following the payment of the Judgement sum. If he chooses to remain on the land, then Mr Burgess is liable to pay market rent. If agreement cannot be reached on the amount of rent, the parties are to refer the issue to three real estate companies that specialise in rental properties, for assessments to guide them. Rent is payable from the date of this judgment.
  7. The Court expresses its appreciation to counsel for their work and assistance.

CHIEF JUSTICE

[1] Davis Darling Burgess affidavit, dated 24 March 2025, para 8
[2] Sophronia Mary Alofipo affidavit, dated August 2023, para 7
[3] N 1 para 14
[4] N 2 para 13
[5] N 1 para 15

[6] Notes of Evidence (“NOE”) page 12
[7] N 1, para 7
[8] N 2 para 9
[9] NOE pg 20 ln 6 to pg 21 ln 6
[10] N1 para 9
[11] NOE 69-70, lines 29-16
[12] NOE p 56
[13] N2 para 14
[14] N1
[15] N1 Ex B at para 5
[16] N1 para 18
[17] N1 Ex D at para 7
[18] N1 Ex F at para 5
[19] NOE pgs 19-20, lines 9 – 8
[20] NOE pg 21 ln 12

[21] Refer also to Southland and Indoor Leisure Centre Charitable Trust v Invercargill City Council [2015] NHCA 1983, per Dunningham J. at 104

[22] NOE p 77

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