Fisher v Faafiu - [2018] NZHC 2584

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-685 [2018] NZHC 2584

IN THE MATTER of an appeal against summary judgment

BETWEEN

NIGEL CLAUDE FISHER AND WACKROW SMITH & DAVIES TRUSTEE SERVICES LIMITED as Trustees of MARLIN TRUST

Appellants

AND

SATUI ALEFAIO FAAFIU, SOOTAGA AFAMASAGA, FAIFAISOO FAAFIU AND SONNY FAAFIU as Trustees of the RACE TO VICTORY SUPPORT TRUST Respondents

Hearing: 2 October 2018

Appearances:

A Barker QC and H H Clark for the Appellants
S I Perese for the Respondents

Judgment:

3 October 2018

JUDGMENT OF GORDON J

This judgment was delivered by me
on 3 October 2018 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Wackrow Williams & Davies, Auckland
Saseve Solicitors, Auckland

Counsel: A Barker QC, Auckland

FISHER v FAAFIU [2018] NZHC 2584 [3 October 2018]

Introduction

[1] The appellants are the trustees of the Marlin Trust. The respondents are the trustees of the Race to Victory Support Trust (RVST), a charitable trust incorporated under the Charitable Trusts Act 1957 on 13 May 2013.

[2] Nigel Fisher, as one of the trustees of the Marlin Trust, signed an agreement for sale and purchase dated 18 May 2013 for the sale of a commercial property owned by the Marlin Trust to the respondents, as trustees of the RVST (the Agreement). RVST paid the first half of the deposit but was unable to pay the second half. The solicitors for the Marlin Trust cancelled the Agreement.

[3] By way of judgment dated 15 March 2018, Judge Harrison in the District Court at Auckland granted the respondents’ summary judgment application against the appellants.1 He entered judgment against the appellants for $102,000, being the balance of the deposit the RVST had paid.2

[4] The appellants now appeal that decision.

Factual background

[5] The Marlin Trust owns a number of commercial properties. It has two trustees, the appellants, Mr Fisher and Wackrow Smith & Davies Trustee Services Limited (WSD). Donald Wackrow is a director and sole shareholder of WSD. Te Kani Williams is the other director of WSD. The two are also partners or directors of a law practice, Wackrow Williams & Davies Limited (WWDL). WWDL are the solicitors for the Marlin Trust.

[6] The respondents are members of the Panmure Samoan Assembly of God Church (the Church) which operates from rented premises. The Church is registered with the Charities Board. Satui Faafiu, one of the respondents, is the spiritual leader of the Church.

1 Faafiu v Fisher [2018] NZDC 4713.

[7] The Church wished to acquire a property so that it could operate its activities from a permanent location. By April 2013, it had saved approximately $150,000. That month, the Church investigated the possibility of acquiring a commercial property at
2 Te Apunga Place, Mount Wellington, Auckland (the Property). The Property was owned by the appellants as trustees of the Marlin Trust.

[8] On 16 May 2013, the respondents, as trustees of the…

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 Fisher v Faafiu

Details

AGLC: Fisher v Faafiu [2018] NZHC 2584
Case: [2018] NZHC 2584
Decision Date: 3 October 2018

CaseChat Overview and Summary

Fisher v Faafiu involved an appeal by the trustees of the Marlin Trust against a summary judgment entered by the District Court in favour of the trustees of the Race to Victory Support Trust (RVST). The RVST had paid the first half of the deposit for a property owned by the Marlin Trust but failed to pay the second half. The Marlin Trust cancelled the agreement for sale and purchase, and the RVST sought the return of the deposit. The District Court held that the agreement was not valid because it was not signed by both trustees of the Marlin Trust, and the RVST did not ratify the agreement. The trustees of the Marlin Trust appealed the decision.

The legal issue before the court was whether the agreement for sale and purchase was valid, despite only being signed by one trustee of the Marlin Trust. The court had to determine if the other trustee had ratified the agreement, either before or after it was signed. The court considered the evidence of discussions between the trustees and the actions taken by one of the trustees after the agreement was signed. The court also examined the principle that trustees must act unanimously in the execution of their powers.

The court found that it was reasonably arguable that the other trustee, as a director of the other trustee, had sanctioned the agreement, if not before it was signed by the first trustee, at least by his subsequent acts. The court held that the question of ratification was a question of fact and that the appellants had satisfied the court that there was a sufficient basis for the matter to go to trial. The court set aside the judgment of the District Court and remitted the matter back to the District Court for timetabling through to trial. The court also awarded costs on a 2B basis to the appellants and ordered that disbursements be fixed by the Registrar.

Orders