IN THE SUPREME COURT OF SAMOA
Kingsun Development v A’i & Anor [2025] WSSC 8 (4 April 2025)

Case name: 	Kingsun Development v A’i & Anor	
		
Citation: 	[2025] WSSC 8	
		
Decision date: 	4 April 2025	
		
Parties: 	KINGSUN DEVELOPMENT (Plaintiff) v FUATINO A’I (First Defendant) & PETRONELLA FEPULEAI (Second Defendant)	
		
Hearing date(s): 	20 February 2025	
		
File number(s): 	CP29/22	
		
Jurisdiction: 	Supreme Court – CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu 	
		
Judge(s): 	Chief Justice Perese	
		
On appeal from:		
		
Order:		
		
Representation: 	A. Su’a for the Plaintiff 
J. Fuimaono-Sapolu for the First and Second Defendants	
		
Catchwords: 	Guarantors – arrears – contract of guarantee. 	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Andrews and Millett Law of Guarantees (4th ed, Sweet & Maxwell, London);
Antaios Compania Naviera S.A. v Salen Rederierna A.B. [1985] AC 191, 201 D;
Attorney General for England and Wales v R [2002] 2 NZLR;
Eastwood v Kenyon (1840) 11 Ad & E 482, QB;
Investors Compensation Scheme Ltd v West Bromwich Building Society [1988] 1 All ER 94;
Martin v Short [2012] NZHC 2664;
Samoa Commercial Bank Limited v Palm Island Traders [2009] WSSC 4.	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

KINGSUN DEVELOPMENT

Plaintiff

A N D:

FUATINO A’I

First Defendant

A N D:

PETRONELLA FEPULEAI

Second Defendant

Counsel:	A. Su’a for the Plaintiff 
		J. Fuimaono-Sapolu for the First and Second Defendants
		
Hearing:	20 February 2025

Judgment:	4 April 2025

RESERVED JUDGMENT OF PERESE CJ
1. 	The Plaintiff, Kingsun Development Industries (”Kingsun”), issued these proceedings to enforce guarantees allegedly given by the defendants Fuatino A’i (“Ms A’i”) and Petronella Fepuleai (“Ms Fepuleai”).  The guarantees relate to substantial rental arrears owed by Temukisa Apulu (“Ms Apulu”), who is not a party in this proceeding.  
The issues
2. 	This case involves the interpretation of the two documents that allegedly record guarantees given by Ms A’i and Ms Fepuleai for rental arrears.  One is signed by both Ms A’i and Ms Fepuleai, and the other is signed only by Ms Fepuleai.  Two questions that require determination are:  
(a) 	Did the Defendants give guarantees to the Plaintiff under one or both documents?
(b) 	If there are guarantees, are they supported by fresh or new consideration and therefore enforceable against the Defendants?
Background
3. 	Anufesaina Mary Grace Chan Mow (“Ms Chan Mow”) an Account Manager of Kingsun Development Ltd, helpfully sets out the background as follows: 
	3. THAT this claim is in relation to a former tenant of the Plaintiff, namely, Ms Temukisa Apulu (“Temukisa”) who was renting a rental unit of the Plaintiff at Lotemau Centre since 2012. In December 2014, Temukisa was in serious default of her rental arrears to the sum of $55,527.16. The Plaintiff then attended to recoveries which resulted in committing Temukisa into prison for failure to comply with order on judgement summons (sic) in May 2016.
	4. THAT in July 2016, the defendant and Ms. Tima Leavai came into the said transaction as guarantors in consideration for the release of Temukisa from her committal at prison. This was when and where the Defendants attended to my office personally requesting a special arrangement for the release of Temukisa.
	5. THAT around 8 July 2016, I received a visit from the First Defendant (she is Temukisa’s sister-in-law) seeking the Plaintiff’s reconsideration of a release of Temukisa while offering herself as a guarantor to assist Temukisa with her judgement debt owing to the Plaintiff. Her main concern for Temukisa was because there was no one to look after Temukisa’s newborn baby. I recall very well the First Defendant saying that it was unhealthy for Temukisa’s baby to be taken to prison daily for breastfeeding, among other concerns.
4. 	Ms Apulu appears to have rented the premises for about two years, and she fell into serious arrears to the tune of $55,527.16 by late 2014. This is when Kingsun, understandably, re-entered the lease.  A copy of the lease between Kingsun and Ms Apulu was not placed before the court.  

The Agreements
5. 	The relevant documents are an Acknowledgement of Payment for Rental Arrears Agreement (“APRA”), and a Guarantee Agreement (“GA”). The APRA bears the date of 8 July 2016; the GA is undated, but I can infer from the text of the document that it likely to have been formed at around the same time as the APRA.   
6. 	Strangely, the Statement of Claim, the APRA, and the GA refer to different amounts of indebtedness.  The APRA refers to the “outstanding balance” of ST65,474.46 payable in monthly instalments of ST200; the indebtedness in the GA is expressed as ST57,736.02 with monthly instalments of ST250.00.  The Statement of Claim seeks recovery of yet another sum - ST96,906.86.  For the purposes of this proceeding, I am satisfied the various iterations of the sum due represents the unpaid debt Ms Apulu owed.
7. 	Ms Chan Mow placed before the Court the APRA and the GA. The APRA provides:
	ACKNOWLEDGMENT OF PAYMENT FOR RENTAL ARREARS
	FUATINO A’I … of TUANAIMATO 
	Trading under the name of GUARANTEE FOR RELEASE OF TEMUKISA APULU FROM TAFAIGATA PRISON
	HEREBY ACKNOWLEDGE and AGREE to accept personal responsibility for the payment of RENTAL ARREARS (“Account”) for UNIT 22 at AMAU APARTMENTS and MALL (“A-AM”) / SALEUFI MALL / LOTEMAU CENTRE formerly / presently occupied by 
	LAINOTHY SALON 	with
	CHAN MOW & COMPANY LTD / KINGSUN DEVELOPMENTS LTD (“Company”) on the following Terms and Conditions:
(i) 	For the outstanding balance of $65,474.46 as of 01 July 2016, including continuing compound interest;
(ii) 	To make instalment payments to the Company of $200 per month / week commencing on 31 July 2016 until full settlement of the Account;
(iii) 	To pay compound interest at 0.67% per month chargeable on the outstanding balance at the end of each and every month until full settlement of the Account and,
(iv) 	To pay and is responsible for any legal recovery or collection costs and expenses that may be incurred in the course of attempt to collect the Account. 
	I, CERTIFY that before the EXECUTION of the said ACKNOWLEDGMENT, I have thoroughly READ and UNDERSTAND and AGREE to the same and therefore voluntarily affix my signature hereto: 
	Dated at Apia on this 08th day of July 2014 2016
	SIGNED by the said FUATINO A’I (Name) (Ph# 7754922)
	For and on behalf of TEMUKISA APULU (Trading name), LAINOTHY SALON
	[Signature](Signature) 7754922
	(Vaitele Uta) Ph# 7235306
	Patronella Fepulea’i [Signature] 13/7/16
	In the presence of:
	SAINA ADAM (Name)
	[Signature] (Signature)
8. 	The parts of the text that have been italicised are handwritten.  
9. 	The GA provides:
	DEED OF GUARANTEE
	
	I, TIMA LEAVAI, SOLICITOR, and PETRONELLA FEPULEA’I, PUBLIC SERVANT, (the Guarantors) acknowledge and agree to irrevocably and unconditionally GUARANTEE an UNDERTAKING by TEMUKISA APULU (the Debtor) in the sum of SAT$57,736.02 as at this date for monies we confirm she is indebted with, to CHAN MOW CO LTD (the Creditor).
	The Creditor has agreed to withdraw the warrant of execution against the Debtor provided the Debtor repays the indebtedness strictly as follows:-
1.	THAT the Debtor shall pay to the Creditor forthwith the amount of two hundred and fifty ($250) tala per month, first payment on the week commencing the 11 July 2016, until such time as the amount outstanding is to be paid in full, or any time sooner.
2.	THAT the Guarantors make sure that the Debtor continues to make the payments stated in clause 1. 
3.	THAT so long as the Debtor continues to make her monthly payments; the Creditor shall not proceed further with this matter to Court.
4.	IN the event of default, the Guarantors should make every effort to maintain the required monthly payment of $250.00 until full settlement of the outstanding balance.
5.	THAT payments will be made directly to Chan Mow Co Ltd office in Apia.
	IN WITNESS WHEREOF these presents have been executed the day and year first hereinbefore mentioned.
	SIGNED by TIMA LEAVAI & PETRONELLA FEPULEA’I  [Signature]
	in the presence of: [Signature]
	SIGNED by AUTHORISED AGENT OF CHAN MOW [Signature]
	in the presence of:
	DATED		day of 		2016
10. 	The italics indicate that the document was signed.
How did these documents come about?
11. 	Ms Chan Mow said she discussed the terms of the APRA with Ms A’i, who then signed.  Afterwards Ms A’i went to find someone else whom Ms Chan Mow said would act “as an additional guarantor with a reliable source of income.” When Ms A’i’s returned for a second visit she was accompanied by Ms Fepuleai, who before attending this meeting sought legal advice from Ms Aeau Tima Leavai. Ms Fepuleai took to the meeting the GA, which had apparently already been signed by Ms Leavai who did not attend the meeting.  Ms Chan Mow acknowledged in her oral evidence the GA was countersigned by the Financial Controller of Chan Mow Company Limited (“Chan Mow Ltd”).  
12. 	It is not clear how and why Chan Mow Company Limited (“Chan Mow Ltd”) is even named in the GA, let alone as the creditor.  Chan Mow Limited was not a party to the lease agreement giving rise to the debt.  It may be that there are intercompany arrangements between Kingsun and Chan Mow Ltd, but the court is not aware of when and how the debt might have been assigned to Chan Mow Ltd.  
13. 	The position is that Ms Apulu does not owe a debt on account or rental arrears to Chan Mow Limited.  It follows there is no debt capable of being the subject of a guarantee to Chan Mow Ltd.  In my view this is the end of the matter in so far as the GA is concerned. 
14. 	Both defendants it is claimed owe obligations under the APRA.  I will consider this shortly.  
Guarantee – the law
15. 	A contract of guarantee is a contract to perform the promise of, or to discharge the liability or obligation of a third person.   The learned authors of the Laws of New Zealand refer as follows:
	“In the common situation where the liability guaranteed is a debt, the debt is usually referred to as the “principal debt”, the person to whom the debt is owed is referred to as the “creditor” (or obligee), and the debtor is referred to as the “principal debtor”. The party liable under guarantee is the “guarantor” (or ‘surety’ or ‘obligor”).
16. 	The learned authors further say:
	In general, the principles of construction governing contracts apply equally to contracts of guarantee. ….The name given to the contract, for example, “Guarantee” or “Insurance”, is not conclusive as to its true nature.
17. 	His Honour Sapolu CJ. discussed the principles relating to the interpretation of contractual documents in Samoa Commercial Bank Limited v Palm Island Traders.  His Honour referred to decisions of the English House of Lords that discussed a shift from the strict construction of commercial instruments to purposive construction or a commercially sensible interpretation.  This means, as observed by Lord Diplock in Antaios Compania Naviera S.A. v Salen Rederierna A.B, the law favours a sensible commercially sensible interpretation because it is more likely to give effect to the intention of the parties.  His Lordship observed, “[w]ords are therefore to be interpreted in the way in which a reasonable commercial person would construe them”, avoiding a concern that if a detailed semantic and syntactical analysis of a word in a commercial contract is going to lead to a conclusion that “flouts business common sense” that this “must be made” to yield to business common sense’.  Sapolu CJ in Samoa Commercial Bank Limited v Palm Island Traders also referred to His Lordship Lord Hoffman’s summary of the principles of interpretation in Investors Compensation Scheme Ltd v West Bromwich Building Society:
a.	The document is to be given the meaning it conveys to a reasonable person having all the background knowledge which would reasonably have been available to the parties at the time of contract;
b.	The background includes Lord Wilberforce’s well known “matrix of fact” but it may also  include, subject to exception, anything which would have affected the way in which the language of the document would have been understood by a reasonable man (my emphasis);
c.	One of the exceptions is that the law excludes from admissible background evidence of previous negotiations and declarations of subjective intent.  They are only admissible for rectification.  The distinction is drawn for reasons of practical policy and, in this respect only legal interpretation differs from the way we would interpret utterances in ordinary life;
d.	The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words.  The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean;
e.	The ‘rule’ that words should be given their ‘natural and ordinary meaning’ reflects the common-sense proposition that we do not easily accept that people have made linguistic mistakes.  However, if, nevertheless a conclusion can be properly drawn that something has gone wrong, the law does not require judges to attribute to the parties an intention which they did not have.  
18. 	Turning to apply these principles to the APRA and GA.     
Analysis of the APRA
19. 	Ms Chan Mow’s said she was approached by the defendants seeking a special agreement for the release of Ms Apulu from prison so she could care for her new-born outside of the prison.  Ms Chan Mow says Kingsun’s Board ultimately came to the view that Ms Apulu could be released from her committal, upon the following conditions:
(a) 	Ms A’i, the First Defendant, could join Ms Apulu as an additional guarantor – “due to the financial commitments required of being a guarantor if Temukisa defaults again once she is released from her committal”;  
(b) 	If Ms A’i accepted to be an additional guarantor she would be required to sign “…the Plaintiff’s standard document for its debtors, namely, Acknowledgement of Debt Agreement…”  Kingsun also gave Ms A’i the chance to look for another person as an additional guarantor with a reliable source of income.  
Does the APRA record personal guarantees?
20. 	Both Ms A’i and Ms Fepuleai signed the APRA, which contained the terms that acknowledge and agree to accept personal responsibility for the payment of rental arrears.  Though there is no commercial benefit to Ms A’i or Ms Fepuleai, the lack of a benefit for a guarantor is not unusual, and therefore does not tell against the existence of a guarantee. Her Honour Justice Katz observed in Martin v Short: that consideration, in the context of a guarantee, does not usually lie in any direct benefit or advantage to the guarantor.  
21. 	Turning to the words of the APRA.  A guarantee is normally expressed as a guarantor’s promise to pay the debtors debt - if the debtor does not. Here, there is no such expression.  But that may be remedied by necessarily implying that important qualification.  Furthermore, a guarantee being a personal obligation owed by the guarantor to the creditor. However, the APRA states the defendants’ sign the APRA “[f]or and on behalf of” Ms Apulu.  An agency would clearly defeat the purpose of a personal obligation owed by the guarantor.  That is because the personal obligation to pay has been entered into on behalf of Ms Apulu, and therefore Ms Apulu is ultimately liable to pay, not Ms A’i or Ms Fepuleai.
22. 	Perhaps, to give effect to the parties’ intention to enter a guarantee, I can interpret the phrase ‘for and on behalf of’ as assuming no greater meaning than an indication from the defendants they are giving their guarantees in relation to Ms Apulu’s indebtedness for Unit 22 at 22 Lotemau Centre formerly Lainothy Salon.  That, if Ms Apulu’s fails to pay her debt, then their guarantees could be called on.  Respectfully, this is would be a common-sense commercial interpretation of the agreement.  
23. 	It should also be acknowledged that the interpretation is broadly consistent with the second obligation in the GA, which obliges the guarantor to “make sure [Ms Apulu] continues to make the payments state in clause 1”.  And, the fourth GA obligation, which provides that “[i]n the event of default, the Guarantors should make every effort to maintain the required monthly payment of $250.00 until full settlement of the outstanding balance”.
24. 	I am satisfied and find the APRA is a contract of guarantee, for the reasons discussed above. 
Is the guarantee supported by consideration?    
25. 	His Honour Sapolu CJ held in Samoa Commercial Bank; 
	“It is a well-established principle of contract law that past consideration is no consideration.  It follows that a guarantee given simply for past consideration will fail.”  
26. 	The present case involves past consideration.  The rent arrears were incurred between 2012 and 2014. What is meant by the term “consideration” is summarised by the learned authors in Andrew and Millet as follows:
	In most cases, consideration will consist entirely of some advantage given to or conferred on the principal by the creditor at the request of the surety, such as forbearance from suing him or the compromise of existing proceedings against him, loaning him money; supplying him with goods on credit; or in the case of a fidelity guarantee, taking him into the creditor’s service or employment. 
Notably, examples of the word consideration refer to “advantage” as financial advantage: namely, the forbearance to sue, compromise of an outstanding debt, supply of further goods on credit upon the promise of the guarantor, or employment of someone because of a fidelity guarantee are financial advantages.  Where these financial advantages are conferred on the debtor at the request of the guarantor, there can be little doubt that there is fresh consideration for taking on of past debt.
27. 	The types of financial advantage discussed above do not apply to the facts of this case, and it remains for us to consider whether there are any other types of financial advantage arising in this case that may give rise to a finding of sufficient consideration?  
What are the general principles of consideration?
28. 	I respectfully refer to His Honour Justice Tipping’s  discussion in Attorney General for England and Wales v R [2002] 2 NZLR:  
	Consideration – general principles
	[38] The classic theory of consideration rests on a mutual exchange of benefits. A provides a benefit to B in return for the benefit which B provides to A. If B incurs a detriment it may qualify as consideration provided it is incurred at A’s request or is otherwise of benefit to A. Detriment to B is often the logical corollary of the fact that B has conferred a benefit on A. By doing so B suffers the detriment of providing the benefit but receives in return the benefit of what A is providing under the contract.
	[39] Analysing consideration in terms of benefit and detriment is not always the most satisfactory way of addressing the topic. In this respect I agree with what Professor John Burrows says on the subject at para 4.1.3 of Cheshire and Fifoot’s Law of Contract 8th NZ ed, 1997 (Burrows, Finn and Todd). It is often easier to speak in terms of each party having to pay a price for what the contract requires of the other. The result will be the same as that reached by the benefit/detriment analysis, but the difficulties sometimes encountered with that analysis, particularly in the area of detriment, are lessened. Sir Frederick Pollock adopted a price-based approach in his work on contracts (13th ed at p 133). This was approved by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847 at p 855. Sir Frederick’s summary of consideration was in these terms:
	“‘An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable.’”
	[40] Benefits may be conferred or, as I would prefer to put it, the necessary price can be paid, either by a promise to do something or by actually doing it. Hence consideration may be provided either by a promise or by an act. A promise confers a benefit in law and an act provides a benefit in fact or a practical benefit, as it is sometimes called. An exchange of promises may provide consideration and so may the exchange of an act for a promise. In the latter case the act must be referable to or respond to the promise, otherwise it will not constitute consideration in law. An act already done without reference to a promise does not satisfy the concept of an exchange which underpins the law of consideration. That is why past consideration, ie the conferring of a benefit in the past, is no consideration in law. For an act to qualify as consideration for a promise it must necessarily follow the promise unless the promise and the act can be regarded as part of one and the same transaction in which case the sequence will not be critical. The normal situation in which an act can respond to or be referable to a promise is when the promissor expressly or implicitly requests the act as the price of the promise.
	(emphasis added)
29. 	The learned authors Burrows, Finn and Todd in Law of Contract in New Zealand,   (7th ed) at 113 observe as follows:
	4.4 Sufficiency of consideration
	Consideration has been defined as the act or promise offered by the one party and accepted by the other as the price of that others promise. The question now arises whether any act and any promise, regardless of the content, will satisfy this definition….
	It is not easy to formulate a clear test for determining what acts and promises are, and what are not, capable of constituting consideration. Judges have been content to deny the name of consideration to certain acts or promises without attempting to generalise the grounds of their prohibition, and it may be that there is no single comprehensive test that can be adopted.  
	(emphasis added)
30. 	Applying the price-based approach requires a consideration of the price each party pays for what the contract requires of the other?  
What is the price Kingsun pays?
31. 	Kingsun agrees for Ms Apulu to be released from prison so she could tend to her newborn.  But, it is difficult to see how this agreement could be regarded as a price that Kingsun pays for the obtaining of the Defendants guarantees.  Ms Apulu’s committal to prison is a punishment for debtors, and serves no other purpose.  There is no discernible benefit to Kingsun, arising from Ms Apulu’s imprisonment, that it gives up, if Ms Apulu is released.   
32. 	On the contrary, Kingsun’s agreement facilitates a significant improvement of its position as creditor.  This happens when Ms Apulu begins making monthly payments again, after her release.  The evidence shows that Ms Apulu has made further payments since her release.  And, Kingsun’s position is vastly improved when it secures two new sureties (Ms A’i and Ms Fepuleai), guaranteeing the debt, which as these proceedings show are being relied on to recover an ever-increasing debt.  
33. 	I am not satisfied that Kingsun paid any price in its giving of its agreement for Ms Apulu to be released from prison.
•	
What is the price the Defendants pay?
34. 	As set out in the APRA, Ms A’i and Ms Fepuleai gave their personal guarantees to pay Ms Apulu’s debts.  These guarantees were a significant benefit for Kingsun, they could reasonably be described as a windfall.  That is because, Ms A’i and Ms Fepuleai gave their agreement to a financial burden that has no finite term.  The lack of a term may be for good reason, the debt is never able to be paid without a significant increase in the level of monthly instalments.
35. 	The accounting is as follows: (1) Ms A’i and Ms Fepuleai are required to make monthly payments of ST200.   If they did, they would pay an annual amount of ST2,400;  (2) however, at the end of every month until full settlement, the debt is subject to compound interest at a rate of 0.67, (which I take to mean 0.67 of 1%, rather than 67%).  This would mean that for a debt of  ST65,474.46, the compound interest charge would be around ST4,386.79; (3) the difference between the amount the Defendants are required to pay, and the sum of the compound interest charged over the same period, is almost ST2,000   
36. 	The debt cannot be paid unless Ms A’i and Ms Fepuleai doubled their monthly payments.  If they are unable to meet that level of servicing, they will have signed up to a debt for life.  If they were, for arguments sake, able to double the monthly instalments, it would take them about 27 years to pay off the debt.  
37. 	There is a further reason as to why I do not accept there is sufficient consideration for the guarantee.  That is because, Ms Apulu would have been released from prison in due course anyway.  The maximum period of a committal is 6 months: s. 6 Judgement Summons Act 1965 (“the JSA”).  One of Ms Apulu’s options, given she was clearly not in a position to pay the debt from prison, was to apply for voluntary adjudication, bankruptcy. The court, in the circumstances brought about by the newborn would grant urgency.  This would mean Ms Apulu might have been released at a point much earlier than the maximum period of 6 months: s. 18 JSA.   It was also possible for Ms Apulu to have sought a review of the committal warrant in the view of her circumstances, and obtained interim relief whilst that was going on.  In the light of Ms Apulu’s imminent release, Kingsun’s agreement was not determinative in any material way.  
38. 	However, standing back and looking at what happened, Kingsun’s agreement to release Ms Apulu for her newborn’s wellbeing is an act of decency and humanity.  It is the same type of moral obligation that led to the Plaintiff in the leading authority on past consideration being no consideration, Eastwood v Kenyon, to voluntarily pay the costs of raising the testator’s daughter until she was of age.  The Court considered Mr Eastwood’s act a moral obligation, which, not unexpectedly is unenforceable in contract law for want of consideration. The leading judgment of the Chief Justice, Lord Denham, on the question of consideration held: 
	Taking then the promise of the defendant, as stated on this record, to have been an express promise, we find that the consideration for it was past and executed long before, and yet it is not laid to have been at the request of the defendant, nor even of his wife while sole (though if it had, the case of Mitchinson v. Hewson (7 T. R. 348), shews that it would not have been sufficient), and the declaration really discloses nothing but a benefit voluntarily conferred by the plaintiff and received by the defendant, with an express promise by the defendant to pay money. 
	If the subsequent assent of the defendant could have amounted to a ratihabitio, the declaration should have stated the money to have been expended at his request, and the ratification should have been relied on as matter of evidence; but this was obviously impossible, because the defendant was in no way connected with the property or with the plaintiff, when the money was expended. If the ratification of the wife while sole were relied on, then a debt from her would have been shewn, and the defendant could not have been charged in his own right without some further consideration….
39. 	Kingsun’s agreement was also a moral obligation, founded on doing the right thing by a vulnerable member of society.  
Analysis of the GA
40. 	I have earlier expressed the view that the GA cannot be a guarantee because there is no evidence that Chan Mow Ltd has been assigned a debt, which is being pursued by Kingsun.  
41. 	I also note, for completeness, that although expressed to be a “Deed” – the document does not satisfy the formal requirements of a Deed.  None of the signatures have been witnessed, it was supposedly signed by Ms Leavai before the meeting, and Ms Leavai did not attend the meeting with the Chan Mow Agent. Moreover, Ms Leavai is not being pursued and one can only assume that Ms Leavai has been released from her obligations.  What is therefore expressed as a Deed of Guarantee, which if valid needs no new consideration, is rather a simple contract of guarantee.  As with the APRA, a contract of guarantee needs to be supported by new or fresh consideration.  In that regard, and assuming that Chan Mow Ltd is the correct creditor, the GA is set aside because there is no new consideration expressed anywhere in the text. Further, for the reasons noted earlier, the agreement to allow Ms Apulu to be released does not come at a cost to either Kingsun or Chan Mow Ltd. Therefore, they do not give fresh consideration for Ms A’i and Ms Fepuleai’s promises.
Decision
42. 	At the beginning I identified two questions:
(a) 	Did the Defendants give guarantees to the Plaintiff under one or both documents?
(b) 	If there are guarantees, are they supported by fresh or new consideration and therefore enforceable against the Defendants?
In answer to (a)
43. 	Ms A’i and Ms Fepuleai gave guarantees under the APRA.  However, Ms Fepulea’i did not give Kingsun under the GA.  Kingsun did not prove Ms Apulu was indebted to Chan Mow Ltd.  Without a primary debt upon which a guarantee could be given by Ms Fepuleai, the GA agreement is void and set aside.  
In answer to (b)
44. 	The guarantee under the APRA is not supported by consideration because the Plaintiff did not pay a price for its agreement to Ms Apulu’s release from prison.  In so far as the GA is concerned, as a simple agreement to give a guarantee for a past debt, the GA does not disclose new consideration for Ms Leavai and Ms Fepuleai’s promises, and it is therefore set aside for want of fresh or new consideration.  
45. 	Costs should follow the event and counsel are asked to discuss.  If no agreement can be reached, the parties are to file memoranda within 3 weeks of today’s date.  I confirm that the matter involved hearing time equivalent to half a day.  I also record that it was unnecessary for me to hear evidence from the defendants.
CHIEF JUSTICE