Koromako v Uluiviti - [2019] NZHC 1268

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1982

[2019] NZHC 1268

UNDER Incorporated Societies Act 1908

IN THE MATTER

of the Fiji Community Association of Auckland Inc

BETWEEN

RATU ISOA SOQOSOQO KOROMAKO, PENAIA DRIU SAMUSAMUVODRE, JOSALA 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:
4 February 2019; further memorandum 11 February; further

evidence 13 February 2019

Counsel:
Appearance:

RS Pidgeon and GCK Sidnam for plaintiffs

AA Uluiviti, defendant in person

Judgment:

6 June 2019

JUDGMENT OF FITZGERALD J

[As to application for summary judgment]

This judgment was delivered by me on 6 June 2019 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

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

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

Koromako v Uluiviti [2019] NZHC 1268 [6 June 2019]

CONTENTS

Introduction [1]

Factual background  [7]
The June 2018 SGM  [8]
The disputes remain unresolved  [13]

Ms Uluiviti purports to call and conduct a meeting of the Executiv
Committee [16]

The three Executive Committee meetings which Ms Uluiviti is said to
have failed to attend [17]

Purported removal of Ms Uluiviti from Executive Committee [24] Ms Uluiviti continues to act as a member of the Executive Committee [26] The proceedings to date [28]

Plaintiffs’ submissions [33]

Ms Uluiviti’s submissions [39]

Summary judgment – the law [41]

Evaluation
Relevant aspects of the Constitution [43]
Was the meeting called by Ms Uluiviti on 26 June 2018 a valid Executive
Committee meeting? [50]
Was the meeting held on 5 July 2018 a valid meeting of the Executive

Committee? [60]

Did Ms Uluiviti fail to attend the next two Executive Committee meetings? [66]

Was the termination of Ms Uluiviti’s membership of the Executive

Committee valid? [67]

Did Ms Uluiviti act in breach of contract by purporting to call an AGM? [68]

Conversion

Legal principles and plaintiffs’ submissions [80]
Discussion [83]

Result and concluding observations [89]

Costs [93]

Introduction

[1] This proceeding represents the latest round in an unfortunate dispute between two factions vying for control of the Fiji Community Association of Auckland Incorporated (FCAA).

[2] The first plaintiffs’ position is that at the time these proceedings were commenced in September 2018, they were the properly constituted members of the FCAA’s Executive Committee.1 As of 23 June 2018, Ms Uluiviti was the elected Vice President of the FCAA and thus under the FCAA Constitution, was also a member of the Executive Committee.

[3] The first plaintiffs say, however, that over the period July to August 2018, Ms Uluiviti failed without adequate explanation to attend three consecutive meetings of the Executive Committee. As a result, by operation of the FCAA’s Constitution, they say Ms Uluiviti automatically ceased to be an Executive Committee member. Despite her no longer being a member of the Executive Committee, the first plaintiffs say Ms Uluiviti nevertheless continued to act as though she was a Committee member, including…

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 1268
Decision Date: 6 June 2019

CaseChat Overview and Summary

In Koromako v Uluiviti, the plaintiffs, who were the then Executive Committee members of the Fiji Community Association of Auckland (FCAA), sought summary judgment against the defendant, Ms Uluiviti, who was also an Executive Committee member. The plaintiffs alleged Ms Uluiviti breached the FCAA Constitution and acted in conversion. The Court granted summary judgment on the liability aspect of the plaintiffs’ first cause of action, breach of contract, and denied summary judgment on the conversion cause of action. The Court found that Ms Uluiviti ceased to be a member of the Executive Committee due to her failure to attend three consecutive meetings without adequate explanation. Consequently, her notice to call an AGM was invalid and in breach of contract. However, the Court declined to enter summary judgment on the conversion cause of action due to the way the claim was pleaded, the progression of the proceedings, and the lack of clarity regarding the remaining items in dispute. The question of damages and other relief will proceed to trial. The Court directed that the matter be listed for further updates on the progression of the remaining claims.

Orders