Fa'Afuata v Amituana'i
[2016] NZHC 2727
•15 November 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-2160 [2016] NZHC 2727
BETWEEN ALAIMOANA ALOFA FAʼAFUATA,
SAUVAO VAʼALELE APULU AND
SALANI KARAPANI First Applicants
AND
REVEREND PAULO IERIKO Second Applicant
AND
REVEREND VII AMITUANAʼI
Respondent
Hearing: 1 November 2016 Appearances:
O Woodroffe for the Applicants
E Telle for the RespondentJudgment:
15 November 2016
JUDGMENT OF THOMAS J
This judgment was delivered by me on 15 November 2016 at 11am pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Woodroffe Lawyers, Auckland. Neilsons Lawyers, Auckland.
FAʼAFUATA & ORS v AMITUANA’I[2016] NZHC 2727 [15 November 2016]
Introduction
[1] The first applicants are representatives of some members of the Evangelical Samoan Wesleyan Otahuhu Methodist Church (the Otahuhu Church) which falls under the umbrella of the Evangelical Samoan Wesleyan Methodist Church New Zealand (the NZ Church). The second applicant is the president of the NZ Church (the President).
[2] The applicants seek injunctive relief to allow them to use the manse at 2
Kingsford Place, Otara (the Manse) which is currently occupied by the respondent, Reverend Vii, and his family, and is being used by him and the other members of the Otahuhu Church for their church services.
[3] The Manse is owned by the board of trustees of the Otahuhu Church (the
Board) which is a charitable trust registered pursuant to the Charitable Trusts Act
1957 (the Act).
[4] The applicants claim that Reverend Vii was the Minister of the Otahuhu
Church until his position was terminated by the NZ Church by a decision taken on
26 April 2016. They say that Reverend Vii refuses to accept his dismissal from the Church, however instead of challenging the decision by due process, he has instead denied that he has been dismissed and remained at the Manse contrary to the best interests of the Otahuhu Church and the purpose for which the Manse is held by the Board.
[5] Reverend Vii opposes the application for injunctive relief.
Background
[6] In early 2000, Reverend Vii became a minister of the NZ Church and in early
2001, was made the minister of the Otahuhu Church.
[7] In February 2003, at a meeting of representatives of the NZ Church and the
Otahuhu Church congregation, the purchase of a manse for the Otahuhu Church was
discussed. It was determined that they should form their own charitable trust for that purpose and in October 2003, the Otahuhu Church incorporated a charitable trust (the Trust) and appointed the Board. Six trustees were appointed including Reverend Vii, Alaimoana Fa’afuata (the first named first applicant) and four others.
[8] In 24 March 2008, the Board met to appoint new trustees as some of the original trustees had passed away or retired. Reverend Vii and Mr Fa’afuata remained on the Board and six new trustees were appointed.
[9] The applicants say at a meeting on 12 April 2014, trustees were appointed and removed. Reverend Vii denies that such meeting ever took place and says, even if it did, any alleged resolution was invalid.
[10] The applicants believe that in February 2016, Reverend Vii met with representatives from a different denomination and that Reverend Vii was preparing to leave the NZ Church. Reverend Vii denies this. However, on 10 March 2016, the first applicants and five other members of the congregation attended the Manse and accused Reverend Vii of taking steps to arrange for the Otahuhu Church to become part of the Samoan United Methodist Church.
[11] On 29 March 2016, the President and eight members of the Otahuhu Church congregation met to discuss the allegations. On the same day, the President wrote to the ANZ bank, the Otahuhu Church’s banker, and purported to cancel Reverend Vii’s bank mandate.
[12] In mid to late April 2016, a meeting of all ministers of the NZ Church took place. Reverend Vii was not informed of the purpose of the meeting. On 24 April
2016, there was another meeting of all ministers to discuss Reverend Vii’s removal as minister of the Otahuhu Church. Reverend Vii had no prior warning of this. A document was produced, allegedly on behalf of the entire congregation of the Otahuhu Church, seeking his removal as minister in light of the allegations referred to above.
[13] On 25 April 2016, Reverend Vii met with members of the congregation who supported him. Fourteen members attended and signed a letter to the President saying there were no grounds for Reverend Vii’s dismissal and confirming their support for him.
[14] On 26 April 2016, the President sought a meeting with the congregation at the Manse. Reverend Vii did not agree to this on the basis that he considered such a meeting had already occurred.
[15] By letter dated 27 April 2016, the President purported to remove Reverend Vii as minister of the Otahuhu Church on the basis of agreement from the other ministers of the NZ Church. The letter was not couriered to Reverend Vii until
19 May 2016. Revered Vii had already written to the NZ Church seeking to resolve the issues between the congregation of the Otahuhu Church on 15 May 2016.
[16] In May 2016, Reverend Vii called a meeting of the Board where the first and third named first applicants were purportedly removed as Trustees and new Trustees purportedly appointed.
[17] Conversely, on 24 June 2016, the first applicants purported to hold a Board meeting where Reverend Vii was removed from the Board.
Application
[18] The applicants apply for orders that:
(a) Reverend Vii and his family vacate the Manse;
(b) Reverend Vii return all the church equipment belonging to the
Otahuhu Church;
(c) Reverend Vii, and any persons acting under his authority, be prohibited from operating the Otahuhu Church’s bank accounts.
[19] The grounds on which each order is sought are:
(a) There is a serious question to be tried because:
(i) The Manse is owned by the Board. Its purpose is to
accommodate the minister of the Otahuhu Church. Reverend
Vii has been removed as the minister of Otahuhu Church. (ii)
Pursuant to the Deed of Trust dated 6 October 2003 establishing the Board (the Trust Deed), the Board has full
control and management over Trust property. The first
applicants are the majority Trustees of the Board and on 18
May 2016 decided Reverend Vii was to vacate the Manse.
Reverend Vii has failed to vacate the Manse as directed and
has changed the locks. The first applicants require the Manse
to be vacated so that they can undertake refurbishments for the
new minister appointed to the Otahuhu Church. (iii)
Reverend Vii and/or his supporters have removed church
equipment from the Otahuhu Church and are storing it at the
Manse.
(iv)
Reverend Vii and his supporters purported to dismiss the first applicants as Trustees of the Board and elect new Trustees but
the election was invalid. Despite this, Reverend Vii and the
purported newly elected Trustees have taken control as
signatories over the bank accounts of the Board and/or
Otahuhu Church.
(b)
The appli
balance of convenience favours the orders sought by the cants being granted as:
(i)
The applicants and the members of their congregation are continuing the Otahuhu Church and require the Manse to
accommodate a new minister.
(ii) The first applicants and the members of the Otahuhu Church
are currently financially funding the Manse and cannot afford
to pay for alternative accommodation for a new minister. (iii)
The respondent is currently dissipating funds belonging to the
Otahuhu Church and/or Board for his own personal benefit.
[20]
There was
extensive affidavit evidence in this case. Essentially, the
applicants rely on the decision of the Board to remove Reverend Vii on 24 June 2016 and the legitimacy of the Board elected on 12 April 2014.
[21] Reverend Vii’s case is that, pursuant to Trust Deed, it is only the Board who has the power to remove the minister and there has been no such decision by the validly appointed Board.
Preliminary issues
[22] The applicants were given leave to file affidavits out of time provided that occurred by 28 October 2016. On 31 October 2016, in the late afternoon of the day before the hearing, the second plaintiff filed a fourth affidavit. This related to the date of the constitution of the NZ Church in force at the relevant time, discussed in more detail below. In the circumstances, I gave leave for the respondent to file an affidavit in reply.
[23] Since the close of the hearing, the applicants have filed yet another affidavit, the fifth from the President. In the circumstances, I decline leave for the filing of any further affidavits.
[24] The respondent filed an amended notice of opposition late in the piece adding a further ground of opposition being that the second plaintiff did not have standing. Given this was filed the day before the hearing, leave should have been sought for this amendment and was not. In any event, Mr Telle, appearing for Reverend Vii, dealt with this point in submissions.
Legal principles
[25] The Court of Appeal has described the purpose of an interim injunction as follows:1
The object of an interim injunction is to protect the plaintiff from harm occasioned by any breach of rights, that is the subject of current litigation, for which the plaintiff might not be adequately is by an award of damages by the court, if successful at the trial. Against that object it is necessary to weigh the consequences to defendants of preventing them from acting in ways which the trial may determine are in accordance with their rights.
[26] The law around interim injunctions is well settled. First, the applicant must establish that there is a serious question to be tried or, put another way, that the claim is not vexatious or frivolous.2
[27] In showing there is a serious question to be tried, the plaintiff must “adduce sufficiently precise factual evidence to satisfy the court that he has a real prospect of succeeding in his claim for a permanent injunction at the trial”.3
[28] Secondly, the balance of convenience must be considered. Wild J stated in Wellington International Airport Ltd v Air New Zealand Ltd that the task involves balancing the injustice which will be caused to the applicant if an interim injunction is refused and the applicant’s case ultimately succeeds, against the injustice to the respondent which will result if the interim injunction is granted but then discharged in the substantive judgment. Wild J proffered a four-step test for assessing this:4
1. Would damages adequately compensate the plaintiff if an interim injunction were denied and it succeeded at trial, or whether damages would adequately compensate the defendant if an interim injunction were granted and the plaintiff failed at trial.
2. Consideration of the preservation of the status quo, as opposed to the recent change to it that has caused the dispute;
1 Roseneath Holdings Ltd v Grieve [2004] 2 NZLR 168 (CA) at [35].
2 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA) and recently reasserted in NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90, (2013) 13 TCLR 531 at [12].
3 Re Lord Cable (dec’d) [1977] 1 WLR 7 (Ch D) at 19.
4 Wellington International Airport Ltd v Air New Zealand Ltd HC Wellington CIV-2007-485-1756,
30 July 2008 at [4]-[14].
3. Consideration of the uncompensatable disadvantages to each party, dependent on whether an interim injunction is granted or refused; and
4. The relative strength of each party’s case as revealed by the affidavit
evidence.
[29] Finally, an assessment of the overall justice of the position is required as a check.5 McGechan J has stated:6
The ultimate and controlling requirement is overall justice. Usually, attainment of overall justice will be served by adopting the relatively low threshold of a mere serious question to be tried… The appropriate test, in the end, is the threshold test which best serves the interests of overall justice in the particular circumstances of the individual case. Commonly that will be the so called serious question threshold, but the common should not be elevated to the invariable.
Interim mandatory injunctions
[30] The Courts are much more reluctant to grant mandatory interim injunctions which force a party to do a particular act or thing rather than simply requiring them to refrain from doing something. In Soft-Tech International Pty Ltd v Ball Eichelbaum CJ emphasised the difficulty in securing mandatory injunctions:7
Mandatory injunctions are relatively uncommon, interim mandatory injunctions are rare indeed, and interim mandatory injunctions having the effect of a final order and involving the payment of a sum of money which normally would be described as a debt, in my experience are completely novel.
[31] The law is summarised in McGechan on Procedure:8
A mandatory injunction ought to be granted on an interlocutory application only in special circumstances, and then only in clear cases either where the Court thinks that the matter ought to be decided immediately or where the injunction is directed at a simple and summary act, which could be easily remedied or where the defendant has attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the Court has to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than is required for a prohibitory injunction: Locabail International Finance Ltd v Agroexport [1986] 1 All ER 901 (CA).
5 NZ Tax Refunds Ltd v Brooks Homes Ltd, above n 2, at [12].
6 E R Squibb & Sons NZ (Ltd) v ICI New Zealand Ltd (1988) 3 TCLR 296 (HC) at 310.
7 Soft-Tech International Pty Ltd v Ball (1990) 3 PRNZ 683 (HC) at 684.
8 Andrew Beck McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HRPt
7.53.23(2)], cited in Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd [2014] NZHC
1708 at [43].
Jurisdiction
[32] Although not raised by the parties, I will first consider the question of whether this Court has jurisdiction, given the ecclesiastical context and employment
– related issues.
[33] In a recent UK Supreme Court case, Moore v President of the Methodist Conference, the UK Supreme Court held that whether a minister of religion serves under a contract of employment was not simply a question of whether or not the minister held an office or was employed.9 There was no presumption against there
being an employment contract but the question was on the facts:10
The primary considerations are the manner in which the minister was engaged, and the character of the rules or terms governing his or her service. But, as with all exercises in contractual construction, these documents and any other admissible evidence on the parties’ intentions fall to be construed against their factual background. Part of that background is the fundamentally spiritual purpose of the functions of a minister of religion.
[34] Cases in New Zealand involving “employment” type disputes between ministers or other religious leaders and their parishes or church boards have come to the High Court. This is the case even when the ultimate entitlements turn on analysis of “contracts” between the religious leader and the Church which might be seen as in the nature of an employment agreement. For example, in Te Hui Amorangi Ki Te Tai Tokerau Trust Board v Urquhart, Canon Urquhart of the Anglican Church refused to leave a manse owned by the church despite his retirement as the vicar, and orders
were sought for possession of the property.11 Allan J said that although the Court was
reluctant to determine ecclesiastical disputes when matters of faith or doctrine are at issue, it would intervene where civil or property rights are involved and to the extent the dispute was over the contract and agreement governing the Canon’s status, the Court was competent to look into the matter.12 His Honour analysed the terms of the Constitution and Canons of the Church to determine the position. There was no
question of an employment contract arising.
9 Moore v President of the Methodist Conference [2013] UKSC 29, [2013] 2 AC 163.
10 At [10].
11 Te Hui Amorangi Ki Te Tai Tokerau Trust Board v Urquhart HC Whangarei CIV-2004-488-580,
12 February 2007.
12 At [45] and [46].
[35] In Presbyterian Church Property Trustees Ltd v Fuimaono, a similar question arose following a dispute in which the Presbyterian Church purported to dissolve the “pastoral tie” between the Reverend and his Parish, and sought orders that he be restrained from entering or remaining upon the Church and manse properties.13 The Court considered the question of whether the General Assembly of the Church had correctly followed orders in observing its own rules and the rules of natural justice.
In that case, the orders were refused on the basis that the decision to remove the Reverend had not met the standards of natural justice. This was brought in the High Court as a judicial review and for declarations; however, before the proceeding Tompkins J had granted an interim injunction pending resolution of the substantive proceedings, restraining Mr Fuimaono from entering on the Church premises or harassing or obstructing the Commissioners, subject to the conditions that the Church continue to allow Mr Fuimaono the use of his manse and pay his usual stipend and allowances. This decision focused primarily on the General Assembly’s decision-making in a judicial review context, but it too was brought in the High Court.
[36] Following the approach of these cases, I conclude, on a preliminary basis, that the Court is competent to consider the application.
Standing
[37] The respondent has raised a preliminary issue of standing. Reverend Vii says that the President has no place in these proceedings, as he is part of the NZ Church and is not a Trustee of the Otahuhu Church. Reverend Vii says the President therefore has no standing to bring the causes of action raised, which relate to Otahuhu Church property and Board issues.
[38] Mrs Woodroffe, appearing for the applicants, emphasised that the Otahuhu Church is a branch of the NZ Church. The applicants have standing to represent both the NZ Church by the second applicant and the Otahuhu Church and Board by
the first applicants, she said.
13 Presbyterian Church Property Trustees Ltd v Fuimaono HC Auckland A1595/85, 16 October
1986.
[39] After discussion as to the role of the NZ Church, Mr Telle accepted it was arguable that the second applicant had standing as the President of the NZ Church but said, if he did, an amendment to the pleadings would be required. The point was consequently not taken any further.
[40] Other than that, the main issue is whether Reverend Vii is still the minister of the Otahuhu Church and therefore entitled to occupy the Manse.
Is there a serious question to be tried?
The Trust
[41] The Trustees were incorporated as a board under the Act, which provides that the trustees of any trust exclusively or principally for charitable purposes may apply for incorporation as a board.14 From the date of incorporation, the board is a body corporate consisting of the trustees (as relevant to this case).15 The effect of incorporation is that the board is capable of holding real and personal property and of doing all things bodies corporate may lawfully do.16 All property held by the
trustees vests in the board.17 The Act sets out powers in respect of property.18 Part 1
of the Act deals with the vesting of property in trustees, relevantly providing:
3 Property to vest in trustees or their successors
(1) Where any real or personal property has been or is hereafter acquired by or on behalf of any religious denomination, congregation, or society, or any body of persons associated for any charitable purpose, and the conveyance or other assurance of that property has been or is taken to or in favour of trustees to be from time to time appointed, or any parties named in the conveyance or other assurance, or subject to any trust for any such denomination or congregation or society or body of persons, or for the individuals comprising the same, the conveyance or other assurance shall not only vest the property thereby conveyed or otherwise assured in the parties named therein, but shall also effectually vest the same in their successors in office for the time being and the continuing trustees (if any) jointly, or if there are no such continuing trustees, then in their successors in office for the time being chosen and appointed in the manner provided or referred to in the conveyance or other assurance, or in any separate deed or instrument, declaring the trusts thereof; or if no mode of appointment is therein provided
14 Section 7.
15 Section 11(2).
16 Section 13.
17 Section 15.
18 Section 21.
or referred to, or if the power of appointment has lapsed, then in such manner as may be agreed upon by such denomination or by a body constituted to represent them, or by such congregation, society, or body of persons.
[42] The Trust Deed provides:
The Trustees shall have full power and authority:
To purchase, lease or otherwise acquire and hold any lands, buildings and real and/or personal estate in property of every description.
…
The Trustees shall have the government, control, direction and management of the said Trust and all property at any time affected by the Trusts [sic] for the sole purpose of furthering the charitable objects specified in this Trust Deed.
…
The power of appointing new Trustees of this Deed is vested in the Trustees
… PROVIDED HOWEVER that no person shall be appointed a Trustee hereunder except by the unanimous decision of the persons entitled to make such appointment.
The relationship of the Otahuhu Church and the NZ Church
[43] In Mrs Woodroffe’s submission, the Trust Deed together with the NZ Church’s consent to the Trustees’ application for incorporation under the Act, established a clear relationship between the Board and the NZ Church and an intention to connect the Trust to the NZ Church and its rules and procedures. Furthermore, it showed the purpose of the Trust was to hold assets of the Otahuhu Church affiliated to the NZ Church.
[44] The Manse is held pursuant to the Trust Deed. The applicants point out that the purpose of the Manse is to house the minister of the Otahuhu Church and hold church activities. In Mrs Woodroffe’s submission, the Manse is occupied by Reverend Vii contrary to the expectation of the Trust and the purpose for which it was purchased. That is, it is not being used by the recognised Otahuhu Church, which is the group which remains affiliated to the NZ Church. Instead, it is occupied and used by an individual who is no longer recognised as the minister of the Otahuhu
Church, and by a group of persons who are not recognised as the Otahuhu Church or as a congregation by the NZ Church.
[45] The respondent approaches this case on the basis that “although to some extent it has remained affiliated with the NZ Church”, in October 2003 the Otahuhu Church became its own separate entity through its incorporation under the Act. The argument is then, that the Trustees are the ones who have the power to remove the minister. Reverend Vii says that there has been no valid resolution of the Trustees to remove him as minster of the Otahuhu Church.
[46] The relationship of the Otahuhu Church and the NZ Church is really the first issue which would need to be determined in these proceedings. Although both the applicants and the respondent maintain the case is not about the dismissal of Reverend Vii as minister, that is at the heart of the case. Both sides accept that the right to live in the Manse is dependent upon the occupant being the minister of the Otahuhu Church.
[47] The substantive hearing will require a close analysis of the Trust Deed. The undisputed evidence is that, prior to the date of the Trust and incorporation under the Act, the Otahuhu Church was considering the purchase of the Manse and who would own it. The Otahuhu Church congregation decided it wanted some say in the management and control of the Manse and as a result, the Trust Deed was entered into and the Trustees registered as a board under the Act.
[48] This background, together with the apparent lack of a separate constitution for the Otahuhu Church and absence of certain matters in the Trust Deed, for example, appointment and removal of minsters, would support an interpretation that the Otahuhu Church remains subordinate to the NZ Church.
[49] Furthermore, the role of the NZ Church is referred to in cl 8 and schedule B of the Trust Deed. The Trustees acknowledge the “Law Book Procedure” in schedule B. Schedule B provides:
All future laws and regulations of the Evangelical Samoan Wesleyan
Methodist Church of Otahuhu shall be formulated and contained in a legally
constituted document to be approved according to such processes as shall be determined by the Annual Conference of the Evangelical Samoan Wesleyan Methodist Church of New Zealand.
[50] What this means and whether there have been any such approvals was not addressed in submissions or evidence. In any event, the relationship of the Otahuhu Church and the NZ Church is a question which will need to be addressed at the substantive trial.
[51] Once that relationship has been determined, then the rights and powers of the Board will need to be considered. The question will be whether the Trust Deed is to be interpreted in light of the relationship with the NZ Church or whether the Otahuhu Church is a standalone body.19
The composition of the Board
[52] Once the relationship of the Otahuhu Church and the NZ Church has been determined, the powers of the Board in relation to the appointment and dismissal of ministers can be considered. If the Board has any powers in this regard, then the composition of the Board at the time of the alleged resolution to dismiss Reverend Vii must be examined.
[53] The applicants acknowledge that the issue of who are the correct Trustees is highly contentious and will not be resolved at an interlocutory stage. They say, however, that there is a serious question to be tried as to the validity of the appointment of members of the Board, as alleged by the respondent to have occurred on 23 May 2016. The applicants’ case is that the Board comprises those appointed at the meeting on 12 April 2014. Mrs Woodroffe pointed to the affidavits of persons recorded as being present at that meeting, who have sworn the meeting did occur, they were present, and the persons who are recorded in the Minutes as being
appointed at that meeting, were in fact appointed as Board members at that meeting.
19 See for example, the case of Time v Fagalilo [2011] NZCA 402, (2011) 3 NZTR 21-030 which concerned a schism within a Church congregation and the interpretation of the Church’s trust deed in respect of powers to appoint trustees. The Court of Appeal at paragraph [40] decided that the determination of who should be trustees had to be managed in a way which conformed with the expectation of the trust deed.
[54] The applicants then say that at a meeting on 24 June 2016, Reverend Vii was removed as a member of the Board by a majority of those Trustees. They refer to cl
5.3 of the Trust Deed which permits Trustees to be dismissed if they "behave in such a manner which in the opinion of the majority of the Trustees is not in the interests of the Trust”. Whilst acknowledging procedural irregularities in connection with that meeting, Mrs Woodroffe said that “as a matter of practicality” it is clear a majority of Trustees have determined that Reverend Vii is no longer a member of the Otahuhu Church affiliated with NZ Church, is not acting in the best interests of the Trust, and should be removed as a member of the Board. Even if his removal as a member of the Board on 24 June 2016 was invalid, the applicants say that it is still an evident clear desire of the majority of the Board members appointed on 12 April 2014.
[55] The respondent’s case also relies on the makeup of the Board. He says that by 24 March 2008, because four trustees had either retired or ceased to hold office, the only remaining trustees were Reverend Vii and the first named first applicant, Mr Fa’afuata. Accordingly, on 24 March 2008 a meeting of the two remaining Trustees took place and six additional Trustees were appointed. Reverend Vii says the second named first applicant, Sauvao Apulu, was never appointed a Trustee at the
12 April 2014 meeting which was a fabrication. Furthermore, he says the purported meeting of the Board on 24 June 2016 was invalid because of procedural irregularities
[56] The respondent’s position is that any irregularities in the 23 May 2016 meeting, where the first and third named first applicants were purportedly removed as Trustees and replacements appointed, were, in any event, less serious than the irregularities involved in the applicants’ April 2016 meeting. For that reason, in the respondent’s submission, ultimately the only confidence the Court can have is that the Trustees are those appointed at the initial 2008 meeting, and of those eight members of the Board, five (or six) form part of Reverend Vii’s congregation and five have sworn affidavits in his support.
[57] There is force in the respondent’s submission, that for the purposes of this decision, the Court should look at the Board constituted in March 2008 as comprising the correctly appointed Trustees. If that is the case, then the first
applicants comprise two of eight Trustees. However, this issue cannot be resolved at this stage given the allegations in the affidavit evidence and issues of credibility involved.
The role of the NZ Church and its constitution
[58] The applicants say Reverend Vii was validly dismissed as minister of the Otahuhu Church by the disciplinary committee of the NZ Church known as the "special conference committee" (SCC) on 24 April 2016. While the constitution of the NZ Church provides a right of appeal, no such right was exercised by Reverend Vii with the effect that the decision dated 26 April 2016 is final, they say.
[59] The respondent’s position is that there has been no valid dismissal. Even if the NZ Church had authority to do so, he maintains there are significant questions around process, given evidence that the President advised the bank of Reverend Vii’s dismissal before the meeting called for that purpose and that the views of the congregation of the Otahuhu Church were incorrectly put to the SCC.
[60] Furthermore, Reverend Vii maintains the SCC vote to remove him was irrelevant, not only as it had no power to do so, but also because the NZ Church ministers did not in fact agree to remove him as the minister of the Otahuhu Church. Mr Telle referred to the applicants’ reliance on the letter dated 27 April 2016, couriered to Reverend Vii on 9 May 2016, which purported to confirm the agreement by the ministers to remove Reverend Vii. Mr Telle noted that the letter is unsigned by any of the ministers and three of those named in the letter have provided affidavit evidence that they refused to sign the document and did not agree to the decision. Mr Telle observed that no other ministers have provided evidence that they agreed to remove Reverend Vii and the evidence of the three ministers has not been challenged.
[61] The respondent says this evidence contradicts the President’s claim the SCC was unanimous in its resolution. Mrs Woodroffe submitted that, four of the ten attendees at the meeting disagreeing does not mean that the decision was invalid. In Mr Telle’s submission, what this evidence does show is bad faith and lack of proper process.
[62] Furthermore, Reverend Vii’s affidavit evidence is that the version of the NZ Church constitution in force at the time would not allow for his dismissal, because dismissal was possible only if either the minister or the minister’s wife had been:
Proven guilty of murder, adultery, theft, alcoholism and violence.
[63] The applicants say that the version of the constitution in force at the time of the respondent’s dismissal was much broader and allowed for removal for abusive and unacceptable behaviour, which the applicants say is relevant to the allegations faced by the respondent.
[64] There is, therefore, an issue as to the version of the constitution of the NZ Church in force at the time of the decision to dismiss Reverend Vii. The affidavit evidence on behalf of the respondent raises serious questions as to the version relied on by the applicants, going so far as to say that it is a fabrication. Reverend Vii provided evidence about the translation of the 2000 constitution (in the Samoan language) which he says was the one in force at the time. Although there is no affidavit evidence to refute it, Mrs Woodroffe submitted his interpretation was not accepted. There is clearly more to come on this issue.
[65] Reverend Vii was criticised for not having challenged the resolution to dismiss him within the relevant time period, being three days from the date of resolution. He points out that notice was not served on him until 9 May 2016, the resolution apparently having been passed on 27 April 2016. Furthermore, he says the applicants are on notice that he disputes the decision, by his letter to the NZ Church dated 15 May 2016 and the letters from his lawyers.
[66] Although there was a great deal of affidavit evidence on the subject, I will not deal with the allegations of bad behaviour on the part of Reverend Vii and his family which are said to justify the decision to dismiss him as minister. The evidence is, in any event, strenuously contested by the respondent.
Conclusion
[67] In this case, there are conflicts in the evidence as to central issues in determining the overall proceeding: the form of constitution to be considered, the process of the dismissal of Reverend Vii (if the NZ Church has a role) and the identity of the Trustees. These conflicts cannot be decided on the basis of the affidavit evidence. There is no objective standard against which they can be assessed, given the deeply conflicting views of events contained in the affidavits. Many of the records are alleged to be fabrications, wrong, or deliberately falsified. The varying contentions as to the factual events, not simply the legal consequences of events, means a determination of the true position is not possible at this stage. Given all these considerations, I am satisfied there is a serious question to be tried as to whether Reverend Vii is entitled to occupy the Manse.
Balance of convenience
Would damages be an adequate remedy and are there any uncompensatable disadvantages of the grant or refusal of the interim injunction?
[68] Mrs Woodroffe referred to Choi v Son, where his Honour Nicholson J found that damages would not be an appropriate remedy in similar circumstances:20
[27] The dispute is about the control and use of church premises. Even if priority is given and the matter treated with urgency, the substantive issues are unlikely to be resolved for many months. In the meantime, divisions and bad feeling between members of the Auckland Church will be aggravated and considerable upset experienced.
[28] If the plaintiffs were to succeed, damages would be an inappropriate way to compensate them for the wrong which they will have suffered. The assessment of damages would be difficult. There is no evidence about the ability of the defendants to pay substantial damages. Similarly, on the other hand, damages would be an inappropriate remedy for the defendants should the plaintiffs fail at a substantive hearing. I therefore decide that damages would not be an adequate remedy if the interim injunction sought is not granted.
[69] In a similar vein, Mrs Woodroffe submitted that damages would not be an appropriate remedy in this case. She said the applicants would be wronged by losing
their right to manage and use the Manse. They would not be able to house the
20 Choi v Son HC Auckland M1397-SW02, 13 December 2002.
replacement minister at the Manse, contrary to its purpose, and they could be put to the financial expense of renting a manse for their new minister. The damages would be unquantifiable. The applicants do not seek damages in their statement of claim and there is no evidence that the respondent would be able to meet an award of damages.
[70] In the respondent’s submission, if the applicants succeed at trial then damages would be an adequate remedy. The damages would be nominal, in Mr Telle’s submission, in that they could only possibly be for whatever amount the Manse could be rented for, it being a “humble” property in Otara.
[71] Both parties maintain they would suffer un-compensatable disadvantages given the disruption to church services and worship, depending upon the result of this decision.
[72] In my assessment, the same reasons advanced by the applicants as to why damages would not be an adequate remedy, equally apply to the respondent’s position. In either case, a purported congregation will have to make alternative arrangements, at some cost and inconvenience. While the applicants raise an issue that the respondent has not provided proof he could meet such damages, there is no evidence which suggests he could not. The divisions and bad feeling between the congregation will continue until these proceedings are finally determined, unless, with good will on both sides, some resolution between them can be reached.
Preservation of the status quo
[73] There is no affidavit evidence to this effect, but Mrs Woodroffe maintained a new minister has been appointed by the applicants and he is having to occupy alternative accommodation given the unavailability of the Manse. Mrs Woodroffe said in this case maintaining the status quo would be an injustice to the applicants. Whilst the respondent and his group are using the Manse for their services, the applicants are required to pay for the rental of a venue to hold their own Church services. The Church needs to be able to move forward and establish a permanent minister so that they continue to worship and function as a church.
[74] The status quo is that Reverend Vii and his family continue to occupy the Manse which is used by his supporters for the purpose of worship. The respondent says that the premature removal of him and his family from the Manse will cause them hardship and that making interim orders would in reality constitute a final decision.
[75] The personal hardship likely involved in the orders, being the removal of the Reverend and his family from their home in the Manse and disruption of worship by some of the congregation there, favours the preservation of the status quo.
Relative strength of each party’s case
[76] I am unable to comment on the relative strength of each party’s case and simply note the issues to be decided and the conflicting affidavit evidence discussed above.
Clean hands
[77] In Mrs Woodroffe’s submission, Reverend Vii is not defending these proceedings with clean hands, as he is essentially staging a “sit in” at the Manse while failing to take appropriate action regarding his position in the NZ Church against that body.
[78] Both sides accuse the other of not coming to the Court with clean hands. The affidavits contain allegations of fabricated documents, misrepresentation and worse. In the circumstances, I cannot take these matters any further.
Overall justice
[79] The applicants seek mandatory orders. As noted above, a mandatory interim injunction ought to be awarded only in special circumstances, and then only in clear cases where either the Court thinks that the matter ought to be decided immediately, the injunction is directed at a simple and summary act which could easily be remedied, or where the respondent has attempted to steal a march on the applicant. Before granting a mandatory injunction the Court has to feel a high degree of
assurance that, at the trial, it would appear that the injunction had rightly been granted.
[80] In the circumstances and particularly given the mandatory orders sought, the overall justice favours the preservation of the status quo. This is not a case where special circumstances arise so as to justify a mandatory interim injunction.
Conclusion
[81] For the reasons given, the application is dismissed.
[82] By consent, I order that the bank account of the Otahuhu Church remains frozen until such time as substantive proceedings are heard.
[83] Costs are reserved and will be dealt with on the papers. Submissions from the respondent are required within 21 days, with any response 14 days thereafter.
[84] The parties are, however, encouraged to seek a constructive resolution of their differences at an early stage and without further involvement of the Court.
Thomas J
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