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Karene v Langkilde [2025] WSSC 9 (17 February 2025)

IN THE SUPREME COURT OF SAMOA
Karene v Langkilde [2025] WSSC 9 (17 February 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

RONA KARENE of Vaoala and Lotopa

Plaintiff

AND:

HECTOR LANGKILDE of Vaoala

Respondent

Counsel: A. Su’a for the Plaintiff
M. Lui for the Respondent

Hearing: 10 Februrary 2023
Judgment: 17 February 2025

JUDGMENT

Introduction

1. The applicant seeks to set aside consent orders granted on 11 July 2016 in a divorce settlement with the respondent.

Background

2. The parties were husband and wife. They married in June 1992 and divorced in 2013. As part of their settlement, they signed a Deed of Division of Matrimonial Properties on 27 March 2013. Three years later, the respondent filed against the applicant proceedings for failing to comply with terms of that agreement.
3. The proceedings were referred to mediation and by consent, the Supreme Court on 11 July 2016 ordered:
   • “(a) the defendant to pay $2000 per week commencing Friday 8 July 2016 during the plaintiff’s lifetime;
   • (b) to remove Jessica Samani – Langkilde from the shareholding of Advanced Security & Protection Services Limited, a registered company in Samoa;
   • (c) the defendant to continue to pay the mortgage 36910 with Samoa Commercial Bank secured on Lot 3, Plan 10072 at Vaoala;
   • (d) the Deed of Division of Matrimonial Properties dated 27 March 2013 and Variation dated 12 June 2013 are cancelled.”
4. In February 2022, almost 6 years after the consent orders, again for the applicant’s failure to comply with weekly payment of $2,000, the respondent sought enforcement by an application for an Order on judgment summons.

Application to set aside Consent Orders

5. The applicant’s response is by motion dated 11 April 2022 seeking to set aside orders (a) and (c) on the grounds that:
   • (a) the applicant’s consent was unduly influenced by the respondent’s indirect threats and unconscionably given;
   • (b) the orders were inequitable, unfairly oppressive and amount to a miscarriage of justice;
   • (c) the orders were a mistake of law;
   • (d) the orders were without consideration and the interests of justice require they be set aside.
6. She relies on her affidavit of 11 April 2022 and supplementary affidavit of 9 February 2023.
7. The respondent opposes the application. He filed an affidavit dated 12 May 2022 in reply.

Law

8. The Supreme Court has an inherent jurisdiction to set aside its own judgments or orders where ‘the interests of justice so require’. (Attorney General v. Leapai [2017] WSSC 105).
9. Where the orders are made by consent, the same principle has been applied in New Zealand. The case of Kiriwai Ltd v. Holmes [2013] NZHC 3290 cited by counsel for the applicant contains a helpful analysis of the authorities and principles. I refer to paragraphs 8 and 9:
   • “[8] Finally both Kain and Phillips were cited by the Court of Appeal in Butcher v. Finnigan [2012] NZCA 250 in support of the following statement:
   • This court views an application to set aside a consent order with considerable caution. It will only be prepared to disturb such order if the interests of justice require it and only if a good ground or grounds is established. Examples of such good grounds are an order that was not in fact made with the consent of the party challenging it or an order founded on an agreement vitiated by mistake.”
   • [9] Treating an agreement vitiated by mistake as merely an example of the circumstances in which a consent order may be set aside makes it clear that the jurisdiction is not limited to cases where a qualifying mistake can be shown but that it is the inherent jurisdiction, to be exercised where the interests of justice require it.”

Issue

10. The ultimate question is whether the interests of justice require that the orders be set aside.
11. I consider the grounds advanced in the applicant’s submissions:
    • (a) Was the applicant unduly influenced by the respondent to consent to the orders?
    • (b) Was the applicant’s consent given by unconscionable conduct of the respondent?
    • (c) Was the agreement that became consent orders without consideration and oppressively unfair on the applicant?

Discussion

Undue Influence

12. “Undue influence consists in the gaining of an unfair advantage by an unconscientious use of power by a stronger party against a weaker in the form of some unfair advantage and improper conduct, some coercion from outside, some form of cheating, and generally, though not always, some personal advantage obtained by the stronger party. It is directed at conduct within a relationship which justifies the conclusion that the disposition or agreement was not the result of free exercise of the disponer’s will. The doctrine is founded on the principle that equity will protect the party who is subject to the influence of another from victimization.” (Contractors Bonding Ltd v. Snee [1992] 2 NZLR 157)
13. Undue influence may be actual or presumed. In the case of actual undue influence, it is necessary for the claimant to prove affirmatively that another person exerted undue influence so as to induce him or her to enter into the transaction which is impugned. As regards presumed undue influence, the claimant has to show (i) that there was a special relationship of trust and confidence between the claimant and the other party and (ii) that the transaction was manifestly disadvantageous to the claimant. (Burrows Finn and Todd, 2002, 2nd Ed, Law of Contract in New Zealand, LexisNexis Butterworths, p375)
14. Presumed undue influence can be one of two types. Firstly, it is presumed as a matter of law, as in a solicitor / client, doctor / patient, parent / child relationship. Trust and confidence is presumed and does not need to be proved. Secondly it can be proven that a particular relationship involved trust and confidence, and there is no automatic presumption of undue influence, say, a husband and wife. (ibid, 375-376)
15. The applicant does not say if the alleged undue influence by the respondent was actual or presumed. Her claim is premised on the history of her relationship with the respondent as husband and wife, which she describes as violent and abusive, she being the victim. Counsel contended that this impacted her judgment and indirectly influenced the applicant to agree to the terms of the mediated agreement that became consent orders in 2016.
16. She relies on an affidavit filed in support of her divorce petition in the District Court in 2013, annexed as Exhibit A to her supplementary affidavit of 9 February 2023. I need not refer to its contents in detail. But she deposed of incidents in 1996, early 2000s and 2011 where during their marriage, she was subjected to violence and abuse by the applicant. She claims this led her to file for divorce in 2013.
17. I consider that the affidavit was for separate proceedings 10 years ago; and that the respondent did not have the opportunity to directly respond to those allegations in these proceedings.
18. The applicant further claims in her affidavit of 11 April 2022 that as a result of the violent and abusive relationship with the respondent, she suffers from anxiety and is unsettled at the mention of the respondent’s name. A letter of 7 February 2023 from Salvation Army confirms that she self referred for counselling on symptoms of anxiety, which she attributed to her marriage to the respondent.
19. As to the consent orders, she says the following:
    • “4. Since our divorce, he was still threatening me and would often say that if I do not agree with what he wanted, he would never leave Samoa nor leave me alone and make my life “hell”. His demands included me to pay for his phone bill, car petrol weekly as well as assisting with my two sons schooling here in Samoa plus ST$1,000 per week into his account. That agreement was cancelled by the court by our consent. However, we then agreed that I pay ST$2,000 per week into his account after so many confrontations with him.
    • 5. I sincerely thought that by agreeing to his demands, he would then leave me alone to live and move forward with my life ... At that time I was still vulnerable and scared of him ... ”
    • 11. ... However because I feared him so much due to his being an abusive and controlling husband to me, I felt that signing the mediated agreement on the terms of which the orders by consent sets out, was my quick subtle exit from him. But I was wrong. This is now coming back to haunt me in this matter.
    • 12. I depose herein that I am not in a position to pay him ST$2,000 per week according to the orders. I have now realised that if I was in my right frame of mind, I would not have signed or agreed to that part of the orders because he is not doing anything that is worth paying ST$2,000 for. He may excuse it for his caretaking our children but that is his moral and legal obligation to our children as their father.”
20. I have carefully considered the applicant’s claim and am not satisfied she was at an unfairly disadvantaged position than the respondent. I am also not satisfied their agreement was not the result of the free exercise of her will. Firstly, there is no satisfactory affirmative evidence that the respondent had cheated, coerced or improperly induced the applicant to agree to the orders. She simply asserts that since the divorce, the respondent threatened to make her life “hell” and not leave her alone if she did not agree with what he wanted, but provides no specific details as to time, place, nature of the threats and circumstances in which they were made.
21. Secondly, when the parties discussed and agreed to the terms of settlement in 2016, they were no longer husband and wife. They had been divorced for almost three and a half years and living separate from each other. The respondent had moved back to Australia in 2013 with their 2 young sons whilst the applicant remained here and was in a new relationship.
22. Thirdly, the respondent has always had the benefit of legal representation throughout the dispute. She had counsel when they signed the first Division of Matrimonial Properties Agreement of 27 March 2013. She did not comply with the terms of that agreement, causing the respondent to file for enforcement proceedings later determined by the consent orders.
23. She again had counsel in 2016 when they mediated and settled their dispute by consent orders. At that point and subsequent to the orders, there is nothing before the court to suggest that the applicant was at an unfairly disadvantaged position which the respondent improperly took advantage of. The mediation was conducted by an independent mediator and both parties had legal representation. In fact, the applicant never made issue of the orders and how they came about until 6 years later when the respondent sought enforcement for again her failure to comply.
24. It is further claimed by the applicant that because she feared the respondent for being an abusive and controlling husband, she agreed to the orders to provide closure from her relationship to the respondent. Even if that were so, it does not constitute good ground to justify setting aside the orders. Under the original Deed of Division of Matrimonial Properties cancelled by the consent orders, the respondent who was transferred ownership of the business were to pay to the respondent $1,500 per week. Her failure to comply led the respondent to seek enforcement. For her to then simply agree to pay $2,000 later to provide closure and expect to not comply is both unsatisfactory and insufficient.
25. As unreasonable an undertaking as it seems, it cannot justify setting aside the orders when she had independent legal advice; the agreement was mediated by an independent mediator; and she did not immediately seek to set aside the orders until after 6 years when the respondent filed for enforcement.
26. The applicant also raises her inability to make weekly payments of $2,000 and claims had she been in the right frame of mind, she would not have agreed to the orders. Be that as it may, it does not prove that she was unduly influenced, nor will it follow that the orders be set aside. Again, she had been divorced and living away from the respondent for over three years; she was in a new relationship; she had legal representation as she did in a previous divorce settlement in 2013, with which she also failed to comply; the mediation was conducted by an independent mediator; and she had her counsel for independent legal advice.
27. The applicant’s claim to set aside the orders for undue influence has not been made out. It is dismissed.

Unconscionable bargain

28. “Equity has jurisdiction to set aside transactions, including gifts, procured by unconscionable conduct. These may include for unconscionable bargains which the learned authors in the Laws of New Zealand (5) Defective or Unconscionable Transactions (online looseleaf edn, LexisNexis) at [145] explain as follows:
    • “Such unconscionable bargains ordinarily arise from the conjoining of three factors:
    • (1) a relationship between the parties within which, to the knowledge of the donee, the donor is at a special disadvantage;
    • (2) the donee’s unconscionable exploitation or taking advantage of the donor’s disadvantage; and
    • (3) the consequent impairment of the donor's judgmental capacity whereby the donor is unable to make a worthwhile and independent judgment as to what is in his or her best interests.”
    • (Toremana v Samoa Water Authority [2019] WSSC 16 (12 February 2019)
29. For the same reasons above, I am not satisfied the applicant was at a special disadvantaged position exploited by any unconscionable conduct of the respondent. I am also not satisfied that the applicant’s judgment was impaired to the extent that she was unable to make an independent judgment as to what was in her best interests.

Without consideration, Oppressive and Unfair

30. It was also submitted for the applicant that other than for the purpose of settlement, there was no reasonable and proper basis for her to pay the respondent $2,000 weekly during his lifetime. On top of the payment, she was to continue paying the SCB mortgage for the Vaoala property which was to be transferred to the respondent. The applicant argues that the orders were without consideration, inequitable, unfairly oppressive and placed her under undue hardship.
31. Whilst the grounds for setting aside contractual agreements may be relevant in setting aside consent orders, I accept the respondent’s submission that consideration is not a factor in this case. It is not uncommon in settlement of civil disputes that a party agrees to waive all his rights. It is no different in a divorce and matrimonial property dispute.
32. In any case, the applicant was not entirely left with nothing. She was given sole ownership of the business; from which she was expected to make payments to the respondent. Her ability to make those payments would have been a factor when settlement was discussed and reached. If at issue subsequently as the applicant now raises, it can appropriately be the subject of a separate inquiry into her means to satisfy the orders.
33. Whilst the obligation to make weekly payments of $2,000 for the respondent’s lifetime might seem unreasonable, the question is not whether the agreement was unfair or unreasonable. It is whether the orders were not in fact made with the consent of the applicant.

Conclusion

34. For the above reasons, I am not satisfied the orders were not in fact made with the applicant’s consent. I am further not satisfied the interests of justice require that they be set aside.

Orders

35. I make the following orders:
    • (i) The application to set aside consent orders is dismissed;
    • (ii) The respondent’s application for an Order on Judgment Summons will be recalled Monday 3 March 2025 at civil mentions;
    • (iii) Costs are reserved.
      

JUSTICE ROMA