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

Case name: 	Atuaia & Ors v Burgess	
		
Citation: 	[2025] WSSC 103	
		
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
7. 	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. 
8. 	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.     
9. 	Over the following years Mr Burgess and his family continued to live on the land, and he built two buildings on the land:  
(a) 	The first building was constructed in around 2001/2002.  It is a 2-storey house built on the location of the family homestead, which in turn was relocated, in Mr Burgess’ words to “the back behind the 2-storey building”. Mrs Alofipo acknowledges that Mr Burgess sought permission to build a house.  However, she says she expressly gave permission to Mr Burgess to “build on a small portion of land towards the rear”.  She also said that she specifically instructed Mr Burgess not to touch the family home but she only later discovered Mr Burgess relocated it behind the 2-storey building he built.
(b) 	The second building was constructed in about 2009/2010.  Mr Burgess said he wanted to build something that could be used for accommodation for the family when they visited Samoa.  Mrs Alofipo confirms the purpose behind the building, but says she only gave permission for Mr Burgess to build a “garage”. Mr Burgess built what is now known as the Lodge, which is a substantial building; it has been mainly used as commercial accommodation since 2012, although, family members visiting Samoa have been allowed to use it from time to time.  
10. 	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
11. 	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
12. 	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:
	Wit: 	Yes, since moving to Utah in 2015 I saw Mom every day. We made food for her and 1 gave her food every day; and then she got to the point where she had the stroke and that was when things changed for her like her mobility was greatly affected and then it followed with her falling and breaking her hip so that made things worse for her so I eventually had to take care of Mama. So my routine with her was every morning wake up early in the morning, fix breakfast, drive over to her house, help her out of bed, help her dress, take her downstairs, fix her meals (breakfast and lunch) and then I would go to work. Then after work I would return to her house, make sure that she had her dinner, take her upstairs to bed and then I would return home and then I would repeat that every day. Sometimes if I didn’t have enough time in the morning to fix lunch I would take a break from lunch to take lunch to her. 
	Kruse: 	Thank you Ms. Atuaia. So you’re seeing her on a daily basis and twice a day? 
	Wit: 	Yes sometimes three times a day.
13. 	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”.  
14. 	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.	I do not want to speak ill of my mother as she has now passed away but some of the comments in her affidavit has come as a complete shock to me as these were things that were never raised with me before.
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
15. 	Mrs Alofipo’s assertion seems direct, clear and unambiguous:
	When I spoke with him face to face about him demolishing my family home, he informed me that the two storey house he had built would belong to me, which I then accepted. I considered this appropriate and fair, given he had removed my one storey house without my knowledge or permission and against my express wishes.
16. 	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.  
17. 	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:
	Wit:  Because I had a conversation directly with my brother Davis when I visited him on my second family reunion with my husband’s side. We went to pick up a speaker and we sat with him outside, him and my husband, him and his younger son at that moment we sat outside on that open balcony looking towards where the chapel was completed and, you know, I was looking down where Mama’s house used to be and I looked at him and I said, “Why did you take down Mom and Dad’s house? Where are they going to live when they come here?” And he said, “This is Mom and Dad’s house, this is our family house.” So from then on – and he also mentioned that not just to me but also various siblings. From that moment Mom understood that that house was her house, it was built for the family.
	(emphasis added)
18. 	Mr Burgess denies giving the house to Mrs Alofipo.  He says:
	I did not dismantle the old homestead as alleged as I merely re-located it to the back.  At no time did I inform my mother that the 2 storey building belonged to her.  I built this building for myself and my family to lie and as my mother and my siblings were all resident in the United States, they would have a nice place to come and stay when they visit Samoa.
	(emphasis added)
19. 	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: 
	Kruse:	So how do you explain your siblings tackling you basically after they discovered the two storey house and letting you know that your Mum is very upset with you because that seems to contradict what you’re saying your Mum agreed to.
	Wit:  	No it doesn’t contradict. What I’m saying is the feelings 20 years ago is different from the feelings now. Right after I built that house everybody was happy, they were all proud of me. It’s a different feeling from what we’re feeling today.
	Kruse:	Mr. Burgess when some of your siblings raised with you that your mother was upset at the time you had built your two storey house; did you not feel you should take steps to protect yourself?
	Wit: 	I do not feel that because like I said, there was no opposition then, they were all happy that I made this improvement in Samoa and as far as I know none of them wanted to return and everything I was doing was for the family.
	Kruse:	So you do agree that everything you were doing was for the family, the family at large?
	Wit:  	Yeah.
	Kruse:	You and your siblings?
	Wit:  	Of course.
	Kruse: 	Your parents?
	Wit:   	That’s the main reason all Samoans do these things.
The Lodge
20. 	Mrs Alofipo says at that paragraph 13 of her affidavit:
	“Davis in or around 2009/2010 then asked me if he could build a second building which he told me was a “garage”.  I did agree to him doing that and I instructed him where to build this “garage”. Davis had put to me that our family would be able to use this building as accommodation when we would visit Samoa.”
21. 	However, at paragraph 15 of her affidavit:
	“I subsequently learned that the “garage” Davis had built was in fact an accommodation business called Sal’s Village Lodge from which he was earning income. This again caused me great distress, because this was yet another occasion on which my own son had gone against my express instructions and dismantled and damaged buildings which belonged to me.”
22. 	Mr Shakespeare Alofipo said he heard Mr Burgess ask his mother if he could build a garage to store his cars. 
23. 	In relation to where the Lodge was built,  Mrs Alofipo’s affidavit says:
	On one of Davis’s visits to Utah, I expressly instructed him (and again later over the telephone) not to touch the Chapel and office buildings.  The family would be able to use those buildings to stay in when they came to Samoa so they would not inconvenience Davis and his family.  However, I subsequently discovered he again demolished without my knowledge or permission, the temporary Chapel and the two huts and had built the “garage” in their place.   
24. 	Mr Burgess says in reply in his affidavit:
	14. IN June 2009, I went with my children for my mother’s 80th birthday. On that trip, I asked my mother for permission to build the second building which would be used for accommodation. At the time, I was the only one of my siblings and step siblings who was living in Samoa. I told her that if we have a family reunion or if any of the family members visit, they have somewhere to stay. My mother gave her permission as stated in paragraph 13 of her affidavit.
	15. THIS second building was also built a completely financed by me. I gave this to my wife to operate it as a business and my wife operated her “Sai’s Village Lodge” (the lodge”) there. Some of my step brothers like David and Shakespeare have stayed at the lodge free of charge as I had promised my mother.
	16. THAT I did dismantle the temporary building that was used for our church services and the concrete floor was part where the lodge was built. I also had to reclaim this part of the Lam before the lodge was built. The lodge was completed around 2011 and has been used as accommodation since that time. None of these issues about the removal of the temporary buildings were raised until recently.
25. 	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.  
26. 	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:
	I am extremely disappointed and concerned that despite Davis dismantling my one storey home against my wishes and telling me that the 2 storey house he built and its place was mine, he now remarkably wants me to compensate him. Likewise despite again dismantling the Chapel and giving away the furnishings against my wishes and building the Inn, again telling me it was for me and the family, Davis now wants compensation. I informed him through my solicitors around June last year that he must vacate lot 232 and remove the two storey house and Lodge building.
27. 	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: 
	We understand Sophronia had already conveyed her instructions to you to vacate her land when she spoke to you on or about 5 March 2022.  Please ensure all keys to the house and the Inn are handed to Saolotoga Alofipo on or before 18 April 2022.  
28. 	Mr Burgess says he was shocked to receive the lawyer’s letter. 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. 
29. 	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”.  
30. 	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.  
31. 	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:
	Fepuleai:	Well you inherited – you are going to get a two storey building that was solely financed by Davis which was built with your mother’s permission and although there is dispute on the permission given to build the lodge, Davis will give evidence that your Mom did give permission that’s why he built the lodge.
	Wit:   	There is no evidence of that. Mom up to the time she died said she never gave permission to build that.
	Fepuleai:	The only two people that can verify that is your mother and Davis.
	Wit:   	That's correct except that she conversed with all of us telling us her intention and she was not a crazy woman.
	Fepuleai:	Your mother had aged and I think if you read through her affidavit there’s a lot of things there that I think does confirm a lot of the matters that this was the person that had aged and wasn’t exactly clear in her thinking.
	Wit:   	Such as?
	Fepuleai:	Well she gave permission to build the building.
	Wit:   	And we confirm.
	Fepuleai:	Okay you confirm that. And she’s now complaining that Davis removed her building.
	Wit:   	She did tell him she was not happy with it when she arrived and saw it for the first time.
	Fepuleai:	But she came on various visits after that first building was built, stayed with Davis at that house and she was very proud of that building.
	Wit:   	We all were.
	Fepuleai:	And she never made any complaint to Davis as to why he dismantled and relocated her building, it’s only now in 2022 –
	HH	May I pause you there Mr. Fepuleai, what building are we talking about? The two 1 storey building? 
	Fepuleai: 	The two storey building.  
	HH: 	I just want you to be clear with the witness so she’s aware what building you’re talking about. You said that you were very proud of the building.  
	Wit: 	We were very proud of our brother Davis. 
	HH: 	Of which building?  
	Wit: 	Of everything that he put in that building, in that land.
	(My emphasis)	
32. 	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.  
33. 	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:
	Wit: 	Some of the brothers helped now and then when they travelled bringing materials that he asked for.
The materials were for the building work.  

LEGAL PRINCIPLES 
34. 	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? 
35. 	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:
	In classifying objects which are brought onto land, Lord Lloyd of Berwick in Elitestone Ltd v Morris [1997] 2 All ER 513 said at p. 517:
	“An object which is brought onto land may be classified under one of three broad heads. It may be (a) a chattel; (b) a fixture; or (c) part and parcel of the land itself. Objects in categories (b) and (c) are treated as being part of the land.”
	Buildings are to be considered under category (b) or (c) whether they are part of the land on which they stand. In making that consideration, the two criteria to be taken into account are: (a) the degree of annexation of the building to the land, and (b) the purpose of annexation.  
36. 	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):
	Degree of annexation
	The importance of the degree of annexation will vary from object to object. In the case of a large object, such as a house, the question does not often arise. Annexation goes without saying. So there is little recent authority on the point, and I do not get much help from the early cases in which wooden structures have been held not to form part of the realty, such as the wooden mill in R v Otley (Inhabitants) (1830) 1 B & Ad 161, 109 ER 747, the wooden barn in Wansbrough v Maton (1836) 4 Ad & E 884, 111 ER 1016 and the granary in Wiltshear v Cottrell (1853) 1 E & B 674, 118 ER 589. But there is a more recent decision of the High Court of Australia which is of greater assistance. In Reid v Smith (1905) 3 CLR 656 at 659 Griffith CJ stated the question as follows:
	‘The short point raised in this case is whether an ordinary dwelling-house, erected upon an ordinary town allotment in a large town, but not fastened to the soil, remains a chattel or becomes part of the freehold.’
	The Supreme Court of Queensland had held that the house remained a chattel. But the High Court reversed this decision, treating the answer as being almost a matter of common sense. The house in that case was made of wood, and rested by its own weight on brick piers. The house was not attached to the brick piers in any way. It was separated by iron plates placed on top of the piers, in order to prevent an invasion of white ants. There was an extensive citation of English and American authorities. It was held that the absence of any attachment did not prevent the house forming part of the realty. Two quotations from the American authorities may suffice. In Snedeker v Warring (1854) 12 NY 170 at 175 Parker J said:
	‘A thing may be as firmly affixed to the land by gravitation as by clamps or cement. Its character may depend much upon the object of its erection.’
	In Goff v O’Conner (1855) 16 Ill 421 at 423 the court said:
	‘Houses, in common intendment of the law, are not fixtures, but part of, the land … This does not depend, in the case of houses, so much upon the particular mode of attaching, or fixing and connecting them with the land upon which they stand or rest, as it does upon the uses and purposes for which they were erected and designed.’
	(emphasis added)
37. 	Further, Lord Lloyd discussed the meaning of the phrase “purpose with which the fixture was brought on the land” as follows (p 518 - 519):
	Purpose of annexation
	Many different tests have been suggested, such as whether the object which has been fixed to the property has been so fixed for the better enjoyment of the object as a chattel, or whether it has been fixed with a view to effecting a permanent improvement of the freehold. This and similar tests are useful when one is considering an object such as a tapestry, which may or may not be fixed to a house so as to become part of the freehold: see Leigh v Taylor [1902] AC 157. These tests are less useful when one is considering the house itself. In the case of the house the answer is as much a matter of common sense as precise analysis. A house which is constructed in such a way so as to be removable, whether as a unit, or in sections, may well remain a chattel, even though it is connected temporarily to mains services such as water and electricity. But a house which is constructed in such a way that it cannot be removed at all, save by destruction, cannot have been intended to remain as a chattel. It must have been intended to form part of the realty. I know of no better analogy than the example given by Blackburn J. in Holland v Hodgson, L.R.7 C.P.P. 328, 335:
	"Thus blocks of stone placed one on the top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land, though the same stones, if deposited in a builder's yard and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels."
	(emphasis added)
38. 	I also refer to the following passage in Lord Lloyd’s speech where His Lordship observes that in determining “intention”, (at 519):
	…the intention of the parties is only relevant to the extent that it can be derived from the degree and object of the annexation. The subjective intention of the parties cannot affect the question whether the chattel has, in law, become part of the freehold, any more than the subjective intention of the parties can prevent what they have called a licence from taking effect as a tenancy, if that is what in law it is (see Street v Mountford [1985] 2 All ER 289, [1985] AC 809).
	(emphasis added)
39. 	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:
	[72]	Traditionally the test for whether a chattel has become part of the realty of the land it is situated on is expressed as being whether it is a “fixture”.  In the recent House of Lords decision in Elitestone Ltd v Morris & Anor [1997] 1 WLR 687, 691 [1997] 2 All ER 513,518 the House moved away from this formulation of the test.   The judgment of Lord Lloyd of Berwick expressed the test in a way which avoided use of the term “fixture”.  Lord Lloyd noted that the legal meaning of that term often did not bear resemblance to its ordinary meaning and that this had the potential to lead to confusion in the application of the test.  Instead he proposed a broader formulation namely whether the chattel could properly be said to have become part and parcel of the land.  The two main indicators of this will be the degree of annexation and the object of annexation.   His speech indicated that each case will depend on its particular facts and that a common sense approach, consistent with the broad test, must be taken in considering the indicators.  Lord Clyde, in a concurring speech affirmed this move away from technical analysis and application of the term “fixture” in favour of a return to the original principles of this part of the law.  The other members of the House of Lords who sat all agreed with both Lord Lloyd and Lord Clyde.  This indeed is the way the classic statement of the test was expressed by Blackburn J in Holland v Hodgson (1872) LR 7 CP 328,334. 
	[73]	The present case provides an instance of the value of the Elitestone approach.  It avoids the need to analyse whether a floating pontoon restrained by an embedded locating pile is a “fixture”.  In our view it is appropriate to apply Elitestone in New Zealand to establish whether a chattel has become part of realty.
	(emphasis added)
40. 	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]:
	[23]	Accordingly, some statement of basic principle is appropriate. In the seventh edition of Megarry and Wade’s The Law of Real Property, the following appears:
	The meaning of “real property” in law extends to a great deal more than “land” in everyday speech. It comprises, for instance, incorporeal hereditaments; and it includes certain physical objects which are treated as part of the land itself. The general rule is “quicquid plantatur solo, solo cedit” (whatever is attached to the soil becomes part of it). Thus if a building is erected on land and objects are permanently attached to the building, then the soil, the building and the objects affixed to it are all in law “land,” ie they are real property, not chattels. They will become the property of the owner of the land, unless otherwise granted or conveyed.
	[24]	To this may be added the statements by Conti J in National Australia Bank Ltd v Blacker.21 There, with reference to a number of decisions, including that of Walsh J in Anthony v Commonwealth,22 he said (at [10]):23
	There is a variety of general principles which should be considered in assessing whether an item of personal property has become attached to land in a manner designed to achieve a specific objective or a variety of objectives, such as to become a part of the realty and therefore, a fixture. Whether an item has become a fixture depends essentially upon the objective intention with which the item was put in place. The two considerations which are commonly regarded as relevant to determining the intention with which an item has been fixed to the land are first, the degree of annexation, and secondly, the object of annexation.
	(emphasis added)
41. 	His Honour Justice Conti then set out guidelines on how one might determine the purpose or object of annexation:
(a) 	Whether the attachment was for the better enjoyment of the property generally or for the better enjoyment of the land and/or buildings to which it was attached…
(b) 	The nature of the property the subject of affixation…
(c) 	Whether the item was to be in position either permanently or temporarily…
(d) 	The function to be served by the annexation of the item… (Citations omitted)
42. 	In relation to the question of degree of annexation, Conti J identified the following factors:
(a) 	Whether the removal would cause damage to the land or buildings to which the item is attached;
(b) 	The mode and structure of annexation.
(c) 	Whether removal would destroy or damage the attached item of property.
(d) 	Whether the cost of renewal would exceed the value of the attached property. (Citations omitted)
43. 	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:
	Broadly, a fixture is anything, once a chattel or personal property, that has become so attached to land as to form in law part of the land and to have become real property. The principle is expressed in the maxim quicquid plantatur solo, solo cedit — whatever is affixed to the soil, belongs to the soil.  It is very difficult to say with precision what constitutes an annexation sufficient for this purpose,  but the practical consequence of a chattel becoming a fixture is that property in the chattel will, by operation of law, pass from the owner of the chattel to the owner of the land. The word “fixture” in this context is often used to refer to buildings and substantial structures on land, as well as chattels and other items attached to those structures, or to the land itself.
	(emphasis added)
44. 	Further at 6.038:
	The most important element in deciding whether an item has become a fixture is the purpose with which it was brought on to the land. If it was for the permanent and substantial improvement of the land or building, the item is a fixture; but if it was for a temporary purpose or for the more complete enjoyment and use of it as a chattel, then it remains a chattel. The degree of annexation and the damage that would be caused to the land or building by the removal of the item may assist in determining the purpose of the annexation.
	(emphasis added)
45. 	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:
(a) 	a benefit enjoyed by the recipient;
(b) 	a corresponding deprivation on the part of the claimant; and
(c) 	the absence of any juristic reason for the recipient to retain the benefit.
DISCUSSION
46. 	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. 
47. 	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:
	Kruse:	And so you agree that the correct person that you ought to be claiming compensation from would be your mother because she’s the one that you apparently had these arrangements with.
	Wit: 	I see it as purchasing, everything includes, comes as a package. So after those buildings were built on it, wherever the land goes, so do the buildings.
(emphasis added)
48. 	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:
	17. MY mother suffered a massive stroke around 2019/2020. I know that her mind was affected by her stroke. During early times when she was well, we discussed that her Vaitoloa land would be divided equally between her children from her first marriage (which includes myself) and the children from her second marriage (which are the plaintiffs). When my mother who was in her 90s had her stroke, my step-sister AMY FAATONU ATUAI was her full-time caregiver. She had a big influence on my sick mother.
49. 	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: 
	Kruse:	I think I’m trying to understand why you would spend that much money on land you didn’t own? Why you would build so much on land that didn’t belong to you?
	Wit:	It’s family, this is my mother’s land just as they’re saying that it’s their land, I have just as much rights as they have.
50. 	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. 
51. 	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. 
52. 	As His Honour Justice Davidson observed in Mamat v Mamat (2018) 19 NZCPR 331, relying on the observations of Justice Tipping in Fortex:
	“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.”
53. 	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.  
54. 	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.  
55. 	The value of the improvements is assessed at SAT822,700.00.  The Plaintiffs did not seek to introduce their own valuation.
DECISION
56. 	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.  
57. 	Respectfully, it would be contrary to justice and good conscience for Mr Burgess to not receive compensation for the improvements.      
58. 	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.
59. 	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.  
60. 	The Plaintiffs may apply for a variation of this order [62] a. if further time is required for payment of the Judgement sum.  
61. 	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.
62. 	The Court expresses its appreciation to counsel for their work and assistance.  

CHIEF JUSTICE