Court dismisses Siva Afi strike out motion

By Matai'a Lanuola Tusani T - Ah Tong 27 July 2019, 12:00PM

A motion by Siva Afi Designs Limited to strike out a lawsuit claiming it owes more than $40,000 in alleged unpaid rent has been dismissed. 

The lawsuit, brought by retail real estate company Westfield Holdings Limited, seeks to claim unpaid rent from Siva Afi's premises rented from June 2002 to July 2003 with the total owing alleged to amount to $42,180

Westfield Holdings alleged that Siva Afi did not pay any rent over the period it was renting the store and so it gave notice to the defendant to quit its premises at Saleufi in July 2013. 

Alleging it made several unsuccessful requests to Siva Afi for payment of its outstanding rent, Westfield says it brought the proceedings seeking back-dated rent. 

In his judgement on the strike out motion, former Chief Justice, Patu Tiava’asue Falefatu Sapolu said he is not satisfied that the plaintiff’s claim is untenable and that it cannot possibly succeed. 

“In other words, I am not satisfied that the claim is so hopeless that it will be a waste of the Court’s time and resources to allow it to carry on,” said Justice Patu.

“The summary jurisdiction to strike out is also to be sparingly exercised.

“In consequence, I am of the respectful view that the strike out motion should be dismissed.”

In its motion to strike out the suit, Siva Afi's director, Clare Pinaar, filed  evidence arguing that the company had a lease with a third-party company, Maja, but not an overarching "head lease" with Westfield. 

Westfield Holdings is a registered proprietor of lands and buildings at Saleufi. But it entered into discussions and negotiations with a Maja to take over its premises.

While those discussions and negotiations were ongoing, and before any lease agreement was reached, Maja entered into a sub-lease agreement with Siva Afi in 1999.

When Westfield Holdings and Maja could not reach agreement on a broader lease, Westfield rescinded all previous arrangements with Maja in May 2002.

The company then notified Siva Afi that any continued occupation of its premises would be as a monthly tenant at the rate of $3,012.90 per month.

Westfield's statement of claim acknowledges it did not have a head lease with Maja.  

In considering the evidence before the Court, Justice Patu said he does not find it relevant that there was no head lease.

“The action by the plaintiff was not brought against the defendant pursuant to any head lease between the plaintiff and Maja or any sub-lease between Maja and the defendant,” he said.

“The plaintiff’s action was brought directly against the defendant as a monthly tenant of the plaintiff.  

“The relationship between the plaintiff and the defendant, as shown from the statement of claim, was a direct landlord and tenant relationship.”

Ms. Pienaar also pointed out in her affidavit evidence that the solicitor for Westfield, in an October 2003 letter, to lawyers for Siva Afi stated that there was a head lease between the plaintiff and Maja.   

However, Justice Patu said it appears from the statement of claim that no head lease was ever concluded between the plaintiff and Maja:

“So there is a direct conflict between what has been pleaded by the plaintiff in its statement of claim and what was said by its solicitor in his letter of 9 October 2003 to the solicitors for the defendant.

“For the purposes of a strike out motion, I will have to assume that the facts pleaded in the statement of claim are true in the sense that they are capable of being proved.  

“It appears from the affidavit of Mr Murray Drake, the solicitor for the plaintiff, that the correct position was that no head lease was ever concluded between Maja and the plaintiff.

“So what was said in the letter of 9 October 2003 of the plaintiff’s solicitor was incorrect.”

Justice Patu concluded there is no need here for this matter to be further adjourned in order for the statement of claim to be amended.

The matter was referred to civil mention for a hearing date.

  • A picture that was published with this story stated that it was connected to the court proceedings. However, the Samoa Observer understands that the building in the picture is not connected to the court proceedings and apologises for the error.
By Matai'a Lanuola Tusani T - Ah Tong 27 July 2019, 12:00PM

Trending Stories

Samoa Observer

Upgrade to Premium

Subscribe to
Samoa Observer Online

Enjoy unlimited access to all our articles on any device + free trial to e-Edition. You can cancel anytime.