An Australian company alleging the Ministry of Customs and Revenue took one of its helicopters without its knowledge or consent has been given the green light to sue for damages. 

A motion to strike out a lawsuit filed by Red Balloon Helicopter and Choppair Helicopters Limited was rejected on recently by the Supreme Court. 

The Ministry of Customs and Revenue (M.C.R.) is also being sued for the unlawful seizure and sale of a helicopter which was sold in a public auction.

Supreme Court Justice Vui Clarence Nelson handed down his ruling on the motion on recently and refused the motion filed by the Ministry to dismiss the case.

Justice Vui also directed that Samoa Helicopters Limited – which the court established should be one of the plaintiffs in the proceedings – be served documents and asked to join the lawsuit.

Red Balloon Helicopter (first plaintiff), says it is the owner of the helicopter and Choppair Helicopters Limited (second plaintiff), which operated the AS350 Squirrel Eurocopter at the centre of the case.

In December 2015 the operating company rented the helicopter in question to a third party for use in the Kingdom of Tonga. 

But the plaintiffs alleged that without their knowledge and consent the M.C.R. then diverted the helicopter to Samoa where it was used to film the Samoa “Survivor” T.V. series. 

For these purposes the M.C.R. established and registered a company called Samoa Helicopter Limited (S.H.L.) which imported the helicopter into Samoa in April 2016.

According to the plaintiff’s statement of claim, the helicopter was initially assessed by the M.C.R. as liable to import duties exceeding $270,000. 

The plaintiffs claim that the decision was subsequently revoked because it was by law VAGST exempt. 

According to the M.C.R., this was because the importation was for a new development and tourism-related project, and the helicopter could be used to assist emergency services.

The helicopter was accordingly released to Samoa Helicopter Limited, which generated income by providing flight services to the crew filming a TV series. 

It was also pleaded that the lessee third party then absconded with money earned from the T.V. series and it appeared that he is now nowhere to be found.

In August 2016 the plaintiffs made arrangements to return the helicopter back to Australia.  

But that was blocked by the M.C.R. which asked for the full payment of the assessed VAGST contrary to their earlier decision. 

The M.C.R. took the view that the purpose for granting the exemption had been frustrated and accordingly revoked the exemption pursuant to relevant provisions of the Customs Act 2014.  

The Ministry also seized the helicopter claiming they were empowered by the Customs Act 2014. Various unsuccessful efforts were made by the plaintiffs to negotiate a settlement of the dispute between September 2016 to December 2018. 

Meanwhile, the helicopter was allegedly stored in a yard opposite Matautu wharf and became exposed to the elements. The M.C.R. is alleged to have resisted attempts to move the helicopter to a covered and secured storage hangar. 

The plaintiffs allege this caused considerable damage to the helicopter and they have incurred substantial costs in trying to resolve the matter. 

In or about December 2018 the helicopter was sold by M.C.R. at a public auction for $120,000. The plaintiffs say this was considerably less than its true value, which, in 2015, was AUD$950,000. 

The plaintiffs argue this has caused them a substantial loss for which they are seeking redress including for missing parts and loss of income from the M.C.R. and other kinds of damages claimed.

The plaintiffs by a second and alternative cause of action also assert a failure on the part of the defendant to pursue Samoa Helicopter Limited (S.H.L.) for the unpaid duty. That is said to have caused the seizure and sale of the aircraft to the detriment of the plaintiffs.

The Attorney-General’s Office, on behalf of M.C.R., later filed a strike-out motion that the plaintiff’s claim had no cause for action against the Ministry and it was frivolous, vexatious, and abuse of process.

Their argument is that the proper plaintiff is S.H.L. as the importer of the aircraft and that the causes of action in the plaintiff’s Statement of Claim arise from the actions of S.H.L. and therefore apply only to S.H.L.

Justice Vui Clarence Nelson, in his decision to the strikeout motion, agreed with the M.C.R. that the actions that give rise to the causes of action pleaded by the plaintiff are directly attributable to S.H.L. 

He pointed out that as such the proper plaintiff or at least one of the plaintiffs should be S.H.L. “But I am not certain that this operates to defeat or exclude a claim by the owner and operator of the helicopter,” said Justice Nelson. 

“Such a conclusion would require inter alia an examination of the relationship between the plaintiffs and S.H.L. noting that as pleaded in the Statement of Claim, a director of the plaintiffs was also a director of S.H.L.”

Justice Nelson said whatever the case may be, there is no doubt that at the end of the day it is the plaintiffs as the legal owner and operator of the helicopter that must bear the brunt of any loss. 

“The goods in this case the helicopter have long since passed from the control of the defendant [M.C.R.] and the plaintiff's action is for damage allegedly caused by the unlawful seizure and sale of the goods,” said Justice Nelson.

“The motion to strike out is denied. 

"There will in the circumstances issue an order pursuant to rule 32 of the Civil Procedure Rules for the joinder of Samoa Helicopters Limited as a third plaintiff, plaintiffs to effect service of the necessary documents on Samoa Helicopters Limited within 14 days hereof.”