Allen v Board of Trustees of the Congregational Church of American Samoa in New Zealand (Porirua) Trust Board HC Wellington CIV-2004-485-2265

[2005] NZHC 1752

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2004-485-2265

UNDER  The Charitable Trusts Act 1957

BETWEEN  GUSTAV ISIDORE ALLEN

Plaintiff

ANDTHE BOARD OF TRUSTEES OF THE CONGREGATIONAL CHURCH OF AMERICAN SAMOA IN NEW ZEALAND (PORIRUA) TRUST BOARD

Defendant

Hearing:         30 March 2005 Appearances: S.J. Brown for Plaintiff

W. Bevan for Defendant Judgment:     13 May 2005

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Introduction

[1]    The Congregational Christian Church of American Samoa in New Zealand (“the Church”) established its operations in Porirua in about 1985. The plaintiff, the Reverend Gustav Allen, became Minister of the Church in Porirua in December 1992.

[2]    On 22 December 1994 the Church in Porirua was incorporated under the Charitable Trusts Act 1957 as The Congregational Christian Church of American Samoa in New Zealand (Porirua) Trust Board (“the Trust Board”). The defendant in this proceeding, although described as “The Board of Trustees of the Congregational Christian Church of American Samoa in New Zealand (Porirua) Trust”, is effectively the Trust Board.

ALLEN V THE BOARD OF TRUSTEES OF THE CONGREGATIONAL CHURCH OF AMERICAN SAMOA IN NEW ZEALAND (PORIRUA) TRUST BOARD HC WN CIV-2004-485-2265 [13 May 2005]

[3]    Before the Court is an application by the plaintiff as Minister of the Porirua Church for an order placing the defendant Trust Board into liquidation pursuant to s25 Charitable Trusts Act 1957. The application is opposed.

Background Facts

[4]    This application is part of a long-standing and ongoing dispute between two groups involved with the Porirua Church which dates back to around August 1999.

[5]    Prior to that time, the Porirua Church appeared to function without problem and:

a)In July 1992 the Porirua Church purchased a house for its Minister at 3 Arahura Crescent, Porirua, for $65,000.00. Title was taken in the name of the previous incorporated society which ran the Church.

b)In December 1992 the plaintiff Reverend Gustav Allen came to Porirua from American Samoa and, as I have noted, became Minister of the Porirua Church.

c)In the latter part of 1994 the Porirua Church built a double-sized garage next to the Church house at 3 Arahura Crescent, Porirua, to accommodate Church services and other activities.

d)In about January 1995 the Trust Board purchased a large section of land on Broken Hill in Porirua for a future church building, and preliminary plans were drawn up. This land is registered in the name of the defendant Trust Board.

[6]    Subsequently, difficulties arose however, and in August 1999 a majority of the congregation of the Porirua Church purported to dismiss the plaintiff as its Minister. The plaintiff rejected the right of those members of the congregation to dismiss him and at the time, steps were taken to exclude that group (which the plaintiff acknowledges at paragraph 89 of his 24 February 2005 affidavit constituted

the majority of the Porirua Church) from involvement in the affairs of the Church, or access to its property. Trespass Notices were issued. The Porirua Church unfortunately had effectively split into two congregations. The difficulties  continued.

[7]    Coming forward to 2004, in a decision given in this Court in Apineru v The Board of the Congregational Christian Church of American Samoa in New Zealand (Porirua) Inc (WN HC, 16 September 2004, CIV-2003-485-713) on an application for a declaration as to who remained as members of the defendant’s Board and thus controlled its property and operations, Justice Wild recognised the authority of four previously excluded members of the Trust Board who, together with the Plaintiff Minister were to form the Board and direct the affairs of the defendant in accordance with provisions in its constitution document.

[8]    From that time on the Board of the defendant has met on a regular basis, in an effort to make the necessary decisions to control the affairs of the Porirua Church.

[9]    Since the 16 September 2004 decision of this Court, there have been two factions on the Board, however. The first is the plaintiff Minister and the second is made up of the remaining members Messrs Apineru, Kisona, Logologo and Kirifi (“the Apineru faction”), original Board and church members who were excluded earlier. The Apineru faction who (even after the recent death of Mr Logologo) make up a majority on the Board, state that they have been frustrated in running the affairs of the Porirua Church by the actions of the plaintiff at every opportunity, and that meetings have been made extremely difficult by his actions.

[10]   At recent meetings, the Board has purported to pass a resolution confirming the 1999 decision of the congregation to dismiss the plaintiff as Minister. Indeed, recently the Board has again endeavoured to give the plaintiff notice of the decision to terminate his Ministry.

[11]   The plaintiff has repeatedly disputed any ability on the part of the Board to remove him from his position as Minister of the Porirua Church. He has challenged

the authority of the Board throughout and also the validity of casual appointments purported to be made to the Board.

[12]   On 26 November 2004 the plaintiff lodged a personal grievance with the Employment Relations Authority, alleging his purported dismissal as Minister was unjustified and claiming outstanding wages. This was one calendar month after his present application to wind up the defendant Board.

[13]   On 9 March 2005 the Employment Relations Authority gave its decision and made a determination that no employee/employer relationship existed between the parties, and that any claim for wages or compensation based on an employment relationship failed.

[14]   I set out these matters at some length to briefly touch upon the recent historical background to the current application before the Court. It bears some resemblance to a situation which prevailed in proceedings before the Court of Appeal in August 1984 in Misa v Congregational Christian Church of Samoa (Wainuiomata) Trust Board [1984] 2 NZLR 461.

[15]   In that case, which admittedly involved only a question of standing to bring a winding-up petition, a dispute between two groups within the Congregational Christian Church of Samoa in Wainuiomata had resulted in the petitioner and over half the congregation forming a new congregation. The petitioner and the group he represented comprised a majority of the original trustees of the Church’s Trust Board, and they wished to obtain a share of the assets vested in the Trust Board for their new congregation. There, on an application for leave to bring a petition under s25 Charitable Trusts Act 1957 to place the Trust Board into liquidation, the Court held that the petitioner had a genuine interest in the administration and disposal of the assets of the Trust Board, and ought to be allowed to be place before the Court the evidence on which he and those he represented sought the making of the winding-up order. Leave was granted.

[16]   Giving the judgment of the Court of Appeal, McMullin J. in Misa said (at page 465):

There can be little doubt that the appellant has locus standi…he was a member of the church and may well still be a trustee of its Board. The members of his group occupy like positions. One of the functions of the Board is to administer its assets. The dispute between the two groups is a dispute over the ownership of assets. One group wants to retain all the assets of the Board, including the ownership of the houses in Wainuiomata; the other disputes its right to do so. The dispute between these groups cannot be resolved on the present affidavit evidence. There are factual issues to be resolved which may require viva voce evidence. Both groups sincerely  regret the dispute and any attendant publicity. But the further publicity resulting from the advertising of the winding-up petition and the hearing of the petition, detrimental though it may be to the local church and the church as a whole in New Zealand, cannot stand in the way of the appellant’s right to present a winding-up petition if he can show that it is proper that, in terms of s25(2)(f), he should now make the application.

Counsel’s Arguments and My Decision

[17]   Here, the plaintiff’s application is made under s25 Charitable Trusts Act 1957. This provides as follows:

25.Liquidation of a Board by Court – (1) A Board may be put into liquidation by the appointment by the Court as liquidator of a named person or an Official Assignee for a named district if the Court is satisfied that it is just and equitable that the Board should be put into liquidation.

(2)Any application to the Court to put a Board into liquidation may be presented by-

(a) The Attorney-General; or (b)The Board; or

(c)A member; or (d)A creditor; or (e)The Registrar; or

(f) Any other person who, in the opinion of the Court,  should make the application.

(3)All costs incurred by the Attorney-General or the Registrar in making the application shall, unless the Court otherwise orders, be a first charge on the assets of the Board.

(4)Subject to this Act and to any regulations made under this Act, Parts XVI and XVII of the Companies Act 1993 shall apply, with such modifications as may be necessary, -

(a) To the application for the appointment of a liquidator as if the application was an application under section 241(2)(c) of that Act; and

(b) To the liquidation as if the liquidator had been appointed under section 241(2)(c) of that Act.

Standing

[18]   The plaintiff’s Statement of Claim specifically stipulates that he brings this proceeding under s25(2)(c) as a member of the Board, or alternatively under s25(2)(d) as a creditor of the defendant. Before me, however, the plaintiff widened these grounds to include s25(2)(f). This was on the basis that he was claiming also  to come within the definition of “any other person who in the opinion of the Court should make this application”.

[19]   Before me, counsel for the defendant suggested that the plaintiff does not have standing to bring this application. This argument, however, in my view, is quickly disposed of.

[20]   In paragraph (3) of the Statement of Defence filed in this proceeding, the defendant although disputing that the plaintiff is a creditor of the defendant, admits that he is a member of the Board of the defendant.

[21]   As a member of the Porirua Church and the defendant Board, it seems to me that the plaintiff here does have standing to bring this application under s25(2)(c). I find accordingly. There is, however, no evidence before this Court to establish that the plaintiff is a creditor of the defendant in terms of s25(2)(d). And although I need make no decision in terms of s25(2)(f) here, in all the circumstances surrounding this matter, on the authority of the Misa decision I take the view that the plaintiff, as Minister of the Porirua Church, would be an appropriate person to make this application in terms of that provision.

Substantive Proceeding

[22]I turn now to the substance of the application.

[23]   The issue before this Court is therefore whether “the Court is satisfied that it is just and equitable that the (defendant) Board should be put into liquidation” – s25(1) Charitable Trusts Act 1957. This is the only specified ground for a Board to be put into liquidation.

[24]   In considering what circumstances may assist the Court in reaching the conclusion that it is just and equitable for the defendant Board to be wound up, some guidance can be obtained from the decision of Ongley J in Re Wellington Regional Housing Trustees [1982] NZLR 14. In that decision at page 19 Ongley J stated:

It is neither necessary nor desirable at this stage of the history of the section under examination (s25(1)) to generalise as to the kind of situation in which the Court will exercise its discretion in favour of a petitioner. Each case will depend upon its own facts and it will be for the petitioner in a particular case to show that he is so affected by the continued existence of a trust board that in justice to him its life should be terminated. Winding up is a drastic step and is one which in relation to limited liability companies has been said to be a remedy of last resort.

(Emphasis added).

[25]   In Southern Lights Floral Exports Ltd v Ngati Kahu Trust Board 1994  MCLR 264 at page 271 Master Towle in considering an application by an unpaid creditor to wind up a charitable trust stated:

Although the non-compliance with the notice issued under s218 of the Companies Act within 21 days does raise a statutory presumption of insolvency, I do not believe that is the case in dealing with an application under the Charitable Trusts Act. Nonetheless, solvency is all important to help the Court determine whether it is just and equitable that a winding-up should be made.

[26]   And in Wehipeihana v Tokoroa High School Old Boys RFC (HC Rotorua, 19 March 2003) Master Lang, as he then was, in relation to an equivalent winding-up application made under s25 Incorporated Societies Act 1908, said at paragraph [34]:

…I therefore propose to approach the matter on the basis that the enquiry which the Court needs to make under both sub-sections is whether or not it is just and equitable that the Club be placed in liquidation. Consideration of this question requires the Court to embark upon a wide-ranging enquiry relating to the events which have occurred within the Club in the past, the Club’s current circumstances and future prospects. …

[27]   Turning now to the plaintiff’s Statement of Claim here, he sets out the following broad grounds in support of his application to place the defendant Board into liquidation:

(4)The defendant Trust Board controls the assets, as trustee, of the Congregational Christian Church of American Samoa in New Zealand at Porirua (“the Church”).

(5)As found by Justice Wild in Apineru v The Board of Trustees of the Congregational Christian Church of American Samoa in New Zealand (Porirua) Trust Board, Wellington High Court, 16 September 2004, CIV 2003-485- 713, the Church has split into two congregations.

(6)The defendant Trust Board is now controlled by parties who are members of the Tokelauan Christian Church in Porirua, a separate trust board incorporated under the Charitable Trusts Act 1957.

(7)The defendant Trust Board is acting in the interests of the Tokelauan Christian Church in Porirua against the interests of the Church.

PARTICULRS (sic)

(a)    The defendant Trust Board has diverted the income of the Church to the Tokelauan Christian Church in Porirua;

(b)    The Minister of the Tokelauan Christian Church in Porirua now attends all meetings of the defendant Trust Board and other functions of the Church in a position of authority;

(c)    On 12 October 2004 at a Housie function to raise funds for the purposes of the Church, funds were not declared and were diverted to destination unknown;

(d)    The main fundraising activity of the Church is a Housie function held each Tuesday in the Mungavin Hall, Mungavin Avenue, Porirua. The defendant Trust Board has now usurped that function for the benefit of the Tokelauan Christian Church in Porirua, leaving the Church with no means of fund raising;

(e)    The defendant Trust Board has failed to pay the plaintiff, (“the Minister”), at all;

(f)     The defendant Trust Board has failed to pay the power bill for the supply of power to the Church House and Hall, leading to threat of disconnection;

(g)    The defendant Trust Board has indicated that it will not pay the outstanding rates accounts on the Church land;

(h)    The defendant Trust Board has indicated that it will sell Church assets, particularly motor vans, furniture and indeed the Church House provided for the use of the Minister and his family, to repay an alleged debt owed to one of its members, and fails to appreciate the conflict of interest therein;

(i)     The defendant Trust Board has threatened to unjustifiably dismiss the Minister.

(8)The defendant Trust Board refuses to acknowledge that any members may have joined the Church since the majority of the Board members left the Church in 1999.

(9)There is no roll of members of the Church that is accepted by both congregations, and consequently it will be impossible to hold a General Meeting, or to hold such a Meeting the result of which will be accepted as valid by both congregations.

(10)The defendant Trust Board is now in breach of its trust and it is just and equitable that the defendant Trust Board should be put into liquidation.

[28]   At the outset, counsel for the defendant submitted that the defendant is solvent and is able to pay its debts. He contended that it has substantial assets and owes no money to the plaintiff.

[29]   There is certainly no evidence to the contrary before the Court, nor does the plaintiff suggest that the defendant is in any way insolvent. Unlike the situation prevailing in Southern Lights Floral Exports and alluded to in Re Wellington Regional Housing Trustees, I find that the defendant here is solvent.

[30]   As I have said, the grounds the plaintiff must establish to succeed in this application is that in some other way it is “just and equitable” to wind-up the defendant and the affairs of the Porirua Church.

[31]   Effectively the plaintiff is alleging that the defendant is now in breach of trust, as it is “controlled by parties who are members of the Tokelauan Christian Church in Porirua” and “is acting against the interests of the Church”.

[32]   These allegations are denied by the defendant. The defendant does acknowledge that certain members belong to two separate organisations, and there is a majority of members of the Church who want to remove the plaintiff as its

Minister. It denies, however, that it is acting in any way to the exclusion of Samoan members of the Church. More than this, in submissions to this Court the defendant contends it has identified a list of 40 members that include both Tokelauan and Samoan persons who it accepts would be eligible for confirmation as members of the Porirua Church.

[33]   The defendant states that the Tokelauan Christian Church in Porirua was incorporated as a charitable trust by members of the congregation, only after they had been wrongfully excluded from the affairs of the Porirua Church by the plaintiff. A legal entity was needed so that the excluded members could enter into banking and other contractual arrangements to enable them to continue to worship as a congregation whilst they mounted their legal challenge against the actions of the plaintiff.

[34]   Affidavits filed on behalf of the defendant depose that once the majority of the congregation has effectively regained full legal control of the defendant Board, it will no longer be necessary to maintain the separate Tokelauan Christian Church legal entity which they were forced to establish earlier.

[35]   I see no difficulty with members of the Porirua Church also belonging currently to another organisation. The reasons why the Tokelauan Christian Church Charitable Trust was set up have been explained, and I accept them. Further, I am satisfied that there is nothing before the Court of any substance to indicate that the defendant is acting against the broad interests of the Porirua Church.

[36]I reject this ground put forward by the plaintiff.

[37]   Further specific complaints made by the plaintiff are that income and housie funds have been diverted to the Tokelauan Christian Church in Porirua and that the Church’s regular housie functions in Porirua have been “usurped” by the Tokelauan Christian Church in Porirua. As I see it, there is no corroborative evidence of this before the Court, and in any event, if established, these are matters for which remedies other than liquidation of the defendant would be appropriate.

[38]   In addition, the plaintiff complains that the defendant has failed to pay electricity and rating bills. These are matters of operational detail and again, I am satisfied that, if there was evidence before the Court to establish that this may be the case, other remedies short of liquidation are available.

[39]   A further complaint from the plaintiff relates to difficulties in establishing a roll of members of the Porirua Church. As to this, he points to a dispute between the two congregation factions in the Church as to who may be its members. Again, in my view, these are matters capable of resolution either within the rules of the defendant, or alternatively by appropriate application to the Court for assistance.

[40]   In particular, the Board is given power under Rule 3(h) of its Constitution to make:

rules, bylaws and regulations dealing with any of the matters comprised in the abovementioned objects and to take all such steps as shall be deemed necessary or advisable for enforcing such rules…

[41]   Further, Rule 4 of the Constitution relating to membership envisages a Board role in determining a list of members. Rule 4(d) specifically states:

In respect of any decision of the Board [as to membership], a simple majority shall be required.

[42]   In my view, therefore, the Board has the power and ability to establish and maintain a roll of Porirua Church members in accordance with its Rules.

[43]   A further major complaint of the plaintiff is the threat by the Trust Board to dismiss him as Minister. He has strongly resisted this in the past, and continues to  do so. But, under Rule 5 of the Constitution, the Board has power to “direct the Church” and in addition it seems to be specifically empowered to appoint one or more persons to the positions of Minister or Lay Preacher and Chairman under Rule 5(b). Implicit in this, bearing in mind the original appointment and acceptance of the plaintiff as their Minister, must be the ability of the Board and the Porirua Church to change its Minister and appoint new Ministers from time to time. If the plaintiff has some objection to the process relating to this then, in my view, there are alternative

remedies  available to him.    These are matters capable of resolution outside the drastic step of ordering a liquidation of the defendant Board.

[44]   In summary then, I am satisfied here that the plaintiff has been unable to show that it is just and equitable that the defendant Board should be placed into liquidation. His application must fail.

[45]   I am reinforced in this view, as I see it, by comments made in the 16 September 2004 judgment of Wild J. in Apineru v The Board of Trustees of the Congregational Christian Church of American Samoa in New Zealand (Porirua) Trust. As I have noted, there, Wild J against the opposition of the plaintiff Reverend Allen granted a declaration that:

(a)    The Reverend Gustav I. Allen, Aki Kisona, the plaintiff, Apineru Logologo and Marisa Kirifi (being the survivors of the persons named in clause 5(f) of the Constitution) are and have at all material times been the only lawfully appointed members of the Board of the defendant.

(b)    Such persons are lawfully entitled to control the funds and property of the defendant in accordance with the Constitution.

[46]In that decision at paragraph 59 Wild J. stated:

It is appropriate to reserve leave to all parties to apply for any further directions needed, whether in relation to any Special General Meeting of the Trust Board which is called, or generally.

[47]   Subsequent to that judgment of 16 September 2004, as I have noted above, various meetings of the new Board of the defendant took place. These included the plaintiff Reverend Allen as a member of the Board.

[48]   There seems little doubt that there was dissension and difficulty at those meetings. Notwithstanding that, it seems that the plaintiff here, Reverend Allen, chose not to avail himself of the leave reserved in the judgment of Wild J “to apply for any further directions needed, whether in relation to any Special General Meeting of the Trust Board which is called, or generally”. His response was to issue these winding-up proceedings almost immediately. The current application  was brought on 26 October 2004.

[49]   As I see it, the provision reserving leave for further application to this Court was helpfully designed to assist the parties in the very kind of events or impasse which appeared to have been occurring at Board meetings and generally since 16 September 2004.

[50]   That said, the decision of the plaintiff here, Reverend Allen, as Minister of the Porirua Church, to commence these liquidation proceedings just over one month after Wild J’s decision seems to me to be unfortunate. As Ongley J noted in Re Wellington Regional Housing Trustees, winding-up of a charitable trust board is a drastic step, and is to be a remedy of last resort. In my view, the plaintiff’s broad intentions here, in deciding not to approach this Court under the leave provision noted at paragraph [46] of this judgment as a sensible initial step, but instead to immediately commence these proceedings to wind up the defendant, might fairly be questioned.

[51]   I say this also bearing in mind a matter deposed to by Reverend Allen near the conclusion of his most recent second affidavit dated 24 February 2005 filed in this proceeding.

[52]There, at paragraph 86 the plaintiff stated:

86. My wife and I are American Samoans, and our families  live  in American Samoa. We agreed to leave our homeland and come to New Zealand to minister to the needs of the congregation in Porirua, at their request and at their expense. When a Ministry ends in accordance with procedures of the CCCAS, it is obvious and it is basic common decency that the congregation which invited the Minister and his family to leave their homeland and a (sic) travel to a foreign country, should return them. It is the duty of the Porirua congregation, at the end of our ministry, to return us at their expense to our homeland. This Trust Board has made no attempt to carry out this obligation, and appears content to attempt to deprive us of our living and eject us from our house, with no provisions made for our welfare, and certainly no suggestion that they will return us to American Samoa. I believe that this callous attitude of the majority of the Trust Board to me and my family speaks volumes about their character.

Conclusion

[53]   It will be apparent from what I have said that the plaintiff’s application under s25(1) Charitable Trust Act 1957 for an order placing the defendant Board into

liquidation fails. Under the circumstances here it cannot be said that it is just and equitable for the defendant Trust Board to be wound up.

[54]   Viewed in a broad way, these winding-up proceedings are entirely premature. To meet the problems which have arisen here, there are a range of alternative remedies available to the plaintiff and the defendant short of liquidation, which have not been exhausted or even explored – see Re Wellington Regional Housing Trustees at p20.

[55]That said, some resolution in this unfortunate matter needs to be found.

[56]   In the opening paragraphs of his judgment of 16 September 2004 with respect to the current dispute between the factions involved here, Wild J stated:

[1]…The question in this case is who controls the Church’s Porirua assets. Those assets comprise largely the Minister’s house (“Church House”) and an adjoining temporary church building (actually a double garage), and a section of land destined as the site for a future church building.

[2]Ultimately, but beyond the reach of this proceeding, is the question of ownership of the Church’s assets. …

[57]It may well be that these are the real issues at stake here.

[58]   In my view, it is useful to repeat the comments of Wild J. at paragraphs [60] and [61] of that judgment, which I now do:

[60]      The situation confronting the parties is difficult and unfortunate. These salient points emerge:

[a]        Both the plaintiff’s group and the Reverend Allen and those supporting him wish to continue Christian worship, but due to past and seemingly now irreconcilable differences they need to do that as separate congregations.

[b]        Each congregation has contributed to the assets owned by the Trust Board.

[61]The obvious, and the fair, solution is that those assets be divided between the two congregations in shares which reflect as fairly and accurately as practicable the respective contributions of each. With some Christian goodwill on both sides and a recognition that any division can only be approximate, I would hope that a division could be agreed upon. Resort to an independent accountant for a binding

decision could be considered. It seems to me that the situation then would lend itself to an application under s32 of the Charitable Trust Act, based on the ‘inexpedient’ ground. One possibility would be  the continuation of the Trust Board by the Reverend Allen and his supporters, but after the transfer of the agreed or determined share of the Board’s assets to the Tokelauan Church. The proposal would obviously require the committing of each congregation’s share of the Trust Board’s assets to objects which were the same as or were closely similar to those spelt out in r2.

[59]   Whether the suggestions made by Wild J. are appropriate here or not is a matter for further consideration.

[60]   It could be that matters have now moved on to such an extent that these suggestions are not appropriate.

[61]   It may be that the Porirua Church will function and carry on its objectives based upon a membership (written records of which can now be finally established by its Board) which I understand is likely to comprise a majority of members (of both Tokelau and Samoan descent) who support the defendant in this proceeding. This might well include an arrangement for a reconciliation with or resignation or removal of the plaintiff as Minister and appointment of a new Minister upon some basis to be established.

[62]   Given that, as I am sure, all the parties involved in this litigation are genuine in their desire “to promote the Christian religion in Porirua” in accordance with Object 2(a) of the Board’s Constitution/Rules, then I would hope in the true spirit of Christian goodwill and understanding, that the outstanding issues might now be resolved amicably.

[63]These are matters for the future, however.

Result

[64]   Returning to the present application before me by the plaintiff for an order placing the defendant Trust Board into liquidation, as I have noted above, this application is unsuccessful and it is dismissed.

[65]   As to costs, these are reserved. If costs are an issue and counsel are unable to resolve this question between themselves, then appropriate memoranda may be filed and, in the absence of a request from either party to be heard on the issue, I will decide the question of costs upon the papers filed.

Associate Judge D.I. Gendall

Delivered at 10.30am on 13 May 2005.

Solicitors:

Stephen Brown Law Office, Wellington for Plaintiff Whitireia Community Law Centre, Porirua for Defendant