Former M.P. residence query in Court
The Samoan residence of a former woman Member of Parliament, Fagafagamanualii Theresa McCarthy, was questioned in Court this week in a matter with the National Provident Fund.
Represented by New Zealand based lawyer, Leulua’iali’i Olinda Woodroffe, the former M.P’s residence has been questioned by N.P.F. who is seeking $40,000 for security of cost from her.
Fagafaga has taken N.P.F. to Court for a claim of $7.7 million for restitution for parcels of land in Fugalei with a 20 room hotel on that was allegedly unlawfully taken by the fund in 2015.
The hotel is called Blue Pacific Hotel Limited.
But before the trial is set down for hearing, N.P.F. is asking Fagafaga to pay security costs of $40,000 claiming she is no longer a residence of Samoa, but is permanently living in N.Z.
Under the Civil Procedures rules, the Supreme Court may require a plaintiff or applicant resident out of the jurisdiction of the Supreme Court to deposit any sum as security for costs.
N.P.F was represented by lawyer Semi Leung Wai and assisted by Ryan Masinalupe.
Justice Vui Clarence Nelson presided the hearing for security of cost this week.
Mr. Leung Wai said the plaintiff has been living in New Zealand since she was evicted by N.P.F. about 2015 from her place of residence at Fugalei.
This was after she was served with a writ of possession from the Court dated May 2013.
“The evidence in support of this application indicates that the plaintiff is a resident of New Zealand and there is no evidence before the Court which counters this argument about the plaintiff’s place of residence,” he said.
While a letter from village mayor of Faleasiu in support states that Fagafaga is matai of Satapuala, Mr. Leung Wai said this does not necessarily mean she ordinarily reside in Samoa.
“There appears to be no evidence to suggest that she has another place of residence registered under her name in Samoa,” he argued.
Given the evidence that the plaintiff is residing in New Zealand, Mr. Leung Wai said an order for security of costs would be just in all circumstances in this case.
But Leulua’iali’i disputed the claim from N.P.F. saying it was based on contentious assumption.
She pointed out that her client was a former M.P. of Samoa and she would not have been able to sit in chamber if she was not a resident.
The Court heard that Fagafaga is a dual citizen of Samoa and New Zealand and continues to receive her pension from New Zealand in Samoa.
The defence lawyer said her client’s constantly visits New Zealand claiming that her health was deteriorating and needed to go back and forth for medical checkups.
She also noted the elderly mother has a family home at Satapuala in which village council use for meetings but is currently living in Leuluaiali’I’s home in Vailima.
According to the lawyer this is for close proximity to the Moto’otua hospital.
“My client was unlawfully evicted from her 20 rooms Blue Pacific Hotel in 2015 on parcel 387 that was unlawfully taken and remain unlawfully taken by N.P.F.,” argued the lawyer.
But Justice Vui intervened reminding the defence lawyer that her claims are matters for hearing.
He told her to focus on the security of cost issue before the Court.
It was also the defendant’s claim that the former M.P. had failed to provide any evidence of her financial means and residence status overseas and can be inferred she is unable to meet adverse award for costs.
“The defendant (N.P.F.) will have to expend time and expense to enforce any judgment against the plaintiff for costs outside the jurisdiction,” said Mr. Leung Wai.
“These expenses would be at the expense of the members of the Fund which would be unfair to them.”
Leuluaialii said it is for the Court to exercise its discretion for the interest of justice and to protect the plaintiff from unjustified litigation.
The plaintiff seeks in full the amount of $7,709,655.63 from N.P.F.
But Mr. Leung Wai the plaintiff failed to identify how she arrived at the amount of $1.1 million for value of improvements to land which she alleges was unlawfully disposed from her
Furthermore, he questioned how she arrived at the amount of $40,000 for associated cost for unnecessary and incorrect legal actions, $5 million for restitution and compensatory damages.
In response, Leulua’iali’I said the case is continually being twisted by N.P.F.
She added the taking of the hotel built on the parcel was illegal and the lands were not part of any mortgages between N.P.F. and McCarthy.
Before the matter was adjourned Justice Vui reminded the plaintiff that if the Court does rule in favour of their motion to oppose security of cost, N.P.F. will likely appeal the matter.
He explained that the next appeal will be in May and the earliest that the case will go to trial is end of next year.
In addition, Justice Vui advised that should the parties involved wish to deal with the matter early they can discuss and agree on the security of cost issue so it can go to trial.
Leulua’iali’i acknowledged the Court’s consideration and said it is her intention that the matter is dealt with early because of her client’s deteriorating health.
The matter has been adjourned to 1st November for the Court to consider if the land offered by the plaintiff for security of cost is accepted after going through due diligence check.