Crichton v Naseri - [2019] NZHC 546

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2115

[2019] NZHC 546

IN THE MATTER OF The Samoan Speaking Fellowship of the Avondale Union Parish

BETWEEN

PERELINI CRICHTON and VAAIMALU

SI’ITIA as representatives of the Samoan Speaking Fellowship at Avondale Union Parish

Proposed Plaintiffs/Applicants

AND

TALAOALI’I SAMOA NASERI

Proposed First Defendant/Respondent

MALIEGEGAOI AUMUA

Proposed Second Defendant/Respondent

OLINDA WOODROFFE and COLIN JOHN

WOODROFFE as partners of WOODROFFE LAW PARTNERSHIP

Proposed Third Defendants/Respondents

Hearing: 20 March 2019

Appearances:

M S P Pang for the Proposed Plaintiffs/Applicants I P Tongatule for the Proposed First and Second Defendants/Respondents

J Stafford for the Proposed Third Defendants/Respondents

Judgment:

26 March 2019

JUDGMENT OF POWELL J

[Redacted version]

This judgment was delivered by me on 26 March 2019 at 4 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CRICHTON & ANOR v NASERI & ORS [2019] NZHC 546 [26 March 2019]

[1] The proposed plaintiffs/applicants, Perelini Crichton and Vaaimalu Si’itia (“the applicants”), have applied for pre-commencement discovery from the proposed defendants/respondents (“the respondents”).

[2] The application arises out of earlier proceedings1 in which the issue was whether a particular group had left a particular church congregation by a particular time (December 2013). The second named applicant was a defendant in those proceedings, while the first and second respondents were part of the group found to have left the congregation at the relevant time, and who in the earlier proceedings were represented by the first named third respondent, Olinda Woodroffe of the Woodroffe Law Partnership.

[3]In his judgment on those earlier proceedings Moore J recorded:2

In or about August 2013 Mr Naseri approached Mr Tuia and requested that he sign an account signatory authorisation form to remove Mr Su’a as an authorised signatory and replace him with Mr Aumua. Mr Tuia, whose grasp of English and understanding of business matters is limited, said he signed the form because he trusted Mr Naseri. Up until that time he and Mr Naseri had been senior officers within the SSF [the Samoan Speaking Fellowship] and both had been strong and vocal critics of Rev Amosa. According to Mr Tuia, the week after Mr Naseri obtained Mr Tuia’s signature Mr Naseri “changed sides” and joined the plaintiffs’ group.

Mr Naseri denied any subterfuge or dishonest conduct in relation to this transaction. He said the removal of Mr Su’a as a signatory and replacing him with Mr Aumua was because Mr Su’a had been removed as Vice Secretary at the May Annual General Meeting. While I am not required to decide this issue the consequence of Mr Naseri and Mr Aumua being authorised signatories of the accounts is that the plaintiffs’ group has been able to control the accounts formerly operated by the SSF. Significantly the funds in these accounts included contributions made by the wider SSF which included members from both the plaintiffs’ and defendants’ groups. Any suggestion the funds in these accounts were derived solely from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Crichton v Naseri

Details

AGLC: Crichton v Naseri [2019] NZHC 546
Case: [2019] NZHC 546
Decision Date: 26 March 2019

CaseChat Overview and Summary

In the case of Crichton v Naseri, the applicants, Perelini Crichton and Vaaimalu Si’itia, sought pre-commencement discovery from the proposed defendants/respondents, Talaoali’i Samoa Naseri, Maliegagaoi Aumua, Olinda Woodroffe, and Colin John Woodroffe. The application arose from earlier proceedings concerning whether a particular group had left a church congregation by a particular time, December 2013. The applicants sought information about transactions in certain bank accounts, the origin of funds used to pay legal fees, and documentation relating to various chattels, including instruments belonging to the congregation’s brass band.

The legal issues before the Court included whether the applicants were entitled to relief against the respondents, whether it was impossible or impracticable for the applicants to formulate their claim without the sought documents, and whether there were grounds for belief that the documents were in the possession of the respondents. Powell J held that the application for particular discovery against the first and second respondents was appropriate, as there was a real probability of a claim against them, it was impossible or impractical to formulate the claim without the documents, and there were substantial grounds for belief that the respondents had the necessary documentation. The Court ordered the respondents to provide affidavits of documents and set a timeline for inspection.

However, the application for particular discovery against the third respondents was dismissed, as there was no factual foundation for the applicants' suggestions that the documents might be relevant. Powell J noted that the process should not be used as a fishing expedition and that the authorities required a basis for belief that the documents may exist and be in the possession of the respondents. The third respondents were awarded costs for their attendance in the application.

Orders