Koromako v Uluiviti - [2019] NZHC 2234

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1982

[2019] NZHC 2234

UNDER Incorporated Societies Act 1908

IN THE MATTER

of the Fiji Community Association of Auckland Inc

BETWEEN

RATU ISOA SOQOSOQO KOROMAKO, PENAIA DRIU SAMUSAMUVODRE, JOSAIA KOROIWAQALEVU, JOHN KOTOISUVA and LIVIANA HIDE;

First Plaintiffs/First Applicants

FIJI COMMUNITY ASSOCIATION OF AUCKLAND INC

Second Plaintiff/Second Applicant

AND

ADI ASENACA ULUIVITI

Defendant/Respondent

Hearing: On the papers

Counsel:
Appearance:

RS Pidgeon for plaintiffs/applicants

AA Uluiviti, defendant/respondent in person

Judgment:

6 September 2019

JUDGMENT OF FITZGERALD J

[As to costs of summary judgment application]

This judgment was delivered by me on 6 September 2019 at 11:30am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar………………………… Date………………………

Solicitors: Grant SCK Sidnam, Auckland To: A Uluiviti, Auckland

Koromako v Uluiviti [2019] NZHC 2234 [6 September 2019]

Introduction and background

[1] As I noted in my substantive judgment delivered on 6 June 2019, the matters the subject of this proceeding represent the latest round in an unfortunate series of disputes between two factions vying for control of the Fiji Community Association of Auckland Inc (FCAA).1

[2] In the context of those ongoing disputes, in September 2018, it became necessary for the plaintiffs to commence these proceedings to support an urgent application for interim relief. By way of background, the plaintiffs’ position was that, as at September 2018, they were the validly elected members of the FCAA’s Executive Committee. The defendant, Ms Uluiviti, had also been elected a member of the Committee, and indeed as its Vice President. But she did not accept the process by which the other Committee members had been elected (or co-opted onto the Committee), and refused to attend Committee meetings as a result. She failed to attend three consecutive Committee meetings. The plaintiffs, in reliance on the FCAA’s Constitution and Rules (Rules), considered this justified Ms Uluiviti’s removal from the Committee.

[3] Despite this, Ms Uluiviti maintained in her possession or control various items of property belonging to the FCAA, as well as codes necessary to access its online (Xero) accounting records. She was also concerned at the Executive Committee’s delay in calling an Annual General Meeting (AGM), when one was due to be held in September 2018. She accordingly took it upon herself to issue a notice calling an AGM, despite it being tolerably clear under the Rules that she was not entitled to do so (even if she had remained on the Committee). The plaintiffs responded by applying for urgent interim relief, including restraining Ms Uluiviti from proceeding with the proposed AGM, and seeking orders that she deliver up, inter alia, the codes necessary to access the FCAA accounts.

[4] As matters transpired, the interim relief application was largely dealt with by consent and Muir J made orders in this context on 19 September 2018. This included Ms Uluiviti agreeing to return the FCAA’s property and to provide access to the online

1 Koromako v Uluiviti [2019] NZHC 1268

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.

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Details

Case: [2019] NZHC 2234
Decision Date: 6 September 2019

CaseChat Overview and Summary

The High Court of New Zealand was tasked with determining the costs of a summary judgment application brought by Ratu Isoa Soqosqo Koromako and others against Adi Asenaca Uluiviti regarding the governance of the Fiji Community Association of Auckland Inc. The plaintiffs sought an order that Ms. Uluiviti, the defendant, had breached contractual obligations by not attending committee meetings and had converted the association's property by withholding access to online accounting records. The court had previously granted the plaintiffs summary judgment on the breach of contract claim but denied it on the conversion claim. The plaintiffs sought scale 2B costs for the summary judgment application, reduced by 25% for the unsuccessful aspect of their application. Ms. Uluiviti, who represented herself, argued that the proceedings were of genuine public interest, could have been avoided had a reconciliation meeting been held, could have been filed in the District Court, and that she was financially unable to pay the plaintiffs' costs.

The court held that impecuniosity was not a valid reason to order that costs lie where they fall. The plaintiffs' contractual claim was straightforward, and Ms. Uluiviti's actions were unjustified. The court was not persuaded that the matter was of significant public interest or that the proceedings should have been filed in the District Court. The failure to hold a reconciliation meeting contributed to the ongoing tension between the factions, and while it did not generate the proceedings, it did prolong them. The court awarded the plaintiffs scale 2B costs, reduced by 60% due to the unsuccessful aspects of their application and the failure to hold a reconciliation meeting. The final costs award was $3,077.40, plus disbursements associated with the summary judgment application.

Orders