Ieriko v Fa'afuata HC Auckland CIV-2009-404-006067

[2011] NZHC 554

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-006067

UNDER  the Trustee Act 1956

AND UNDER                 the Declaratory Judgments Act 1908

BETWEEN  PAULO IERIKO Plaintiff

ANDFERETI FA'AFUATA First Defendant

ANDTHE WESLEYAN SAMOAN METHODIST CHURCH OF NEW ZEALAND INCORPORATED Second Defendant

Counsel:         S I Perese for Plaintiff

G M Illingworth QC and M J Morris for Defendant

Judgment:      13 June 2011

JUDGMENT OF HON JUSTICE FRENCH As to Costs

[1]      This proceeding concerned a dispute between two Samoan Methodist church groups over a trust fund.

[2]      By agreement, the sole issue at the hearing was for me to determine who were the current lawful trustees.

[3]      In my judgment of 6 October 2010 I considered the legality of certain trustee appointments made by each faction, and issued a declaration naming the current

lawful trustees.

IERIKO V FA'AFUATA HC AK CIV-2009-404-006067 13 June 2011

[4]      As regards costs, my expectation was that this would be able to be resolved by agreement.  However, if that did not prove possible, I reserved leave for either party to come back to the Court.

[5]      Unfortunately, the parties have been unable to reach agreement on costs.  The defendants  have filed  an  application  seeking costs  on  a 2B basis  amounting to

$15,792.  In support of the application, counsel advances the following arguments:

(i)The  plaintiff’s  original  pleadings  contained  a  fundamental defect in that the proceedings were wrongly issued in the name of the trust board.

(ii)      The plaintiff was unsuccessful.

(iii)Although   the   defendants   did   not   proceed   with   their counterclaim,  that  was  because  it  no  longer  needed  to  be heard.    No costs should therefore be awarded on the counterclaim.

[6]      It is correct that I found the plaintiff’s appointment process to be invalid and a breach of trust.  However, I also rejected the defendant’s arguments and found that actions they had taken and on which they relied in their counterclaim were also improper and unlawful.

[7]      In my view, this case was very much a situation where the decision has provided clarity to both parties and has been of benefit to both parties.

[8]      It  is  just  that  costs  should  lie  where  they  fall  on  both  the  claim  and counterclaim, and I so order.

Solicitors:

Tua Saseve, Manukau

(Counsel: S I Perese, Auckland) Woodroffe Law Partnership, Auckland

(Counsel: G M Illingworth QC, Auckland)