Ieriko v Fa'Afuata HC Auckland Civ-2009-404-6067

[2011] NZHC 2132

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

AND  FERETI FA'AFUATA

First Defendant

AND  THE 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)