Matamu v Si'Itia - [2016] NZHC 3137

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000170 [2016] NZHC 3137

BETWEEN
TUAʼIMALO MATAMU, TALAOALIʼI

NASERI, MALIELEGAOI AUMUA, SAENI PITA AND TOFIA TOFA Plaintiffs

AND

VAʼAIMALU SIʼITIA, MARY MCEWING, REVEREND ALISA LASI, REVEREND ROY CHRISTIAN, FORBES WORN AND SALAPO RAPITI TUIA

First Defendants

THE PREBYSTERIAN CHURCH PROPERTY TRUSTEES

Second Defendant

Hearing: (On the papers)

Counsel:

Olinda Woodroffe and Jeffrey Ussher for the Plaintiffs
Richard Pidgeon for the First, Second, Third and Sixth Named
First Defendants
Katie Hogan for the Fourth and Fifth Named First Defendants

Judgment:

19 December 2016

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 19 December 2016 at 2:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

MATAMU & ORS v SIʼITIA & ORS [2016] NZHC 3137 [19 December 2016]

Introduction

[1] This is an application for costs following the judgment I delivered on

21 October 2016.1 The dispute in question was long and complex. Significant time and resources were expended by both parties.

[2] As I recorded in a footnote to my judgment, the case between the plaintiffs and the second defendants was settled prior to trial and an agreement was reached between the parties as to costs. This judgment relates only to the cost issues as between the plaintiffs and the first defendants.

[3] My decision was almost entirely in favour of all defendants, that is the first to sixth named first defendants. As I recorded in my decision I regarded these parties as being entitled to costs on a 2B basis. I directed the parties to file memoranda within 20 working days.

[4] Initially three sets of memoranda were filed on behalf of, the first, second, third and sixth named first defendants,2 Reverend Christian and Mr Worn (the fourth and fifth named first defendants) and the plaintiffs.

[5] Initially, the first to sixth named first defendants were all represented by Mr Pidgeon. However, after 9 May 2016, Reverend Christian and Mr Worn were separately represented by Ms Hogan.

[6] It is agreed between the defendants to separately apportion the costs incurred by the first to sixth named first defendants prior to the change of counsel3 on a two third/one third basis. Under this arrangement, the first, second, third and sixth named first defendants would be entitled to two thirds of any costs ordered and Reverend Christian and Mr Worn one third. This is the ratio which Mr Pidgeon and Ms Hogan
have used in their respective calculations and I see no good reason to depart from it.

1      Matamu & Ors v Si’itia & Ors [2016] NZHC 2516.
2      Mr Pidgeon has since filed a reply memorandum on behalf of the first, second, third and sixth named first defendants.
3      Ms Hogan submits this should be as at 9 May 2016 and Mr Pidgeon submits it should be as at
17 May 2016. It makes no difference in practice so I am satisfied it is appropriate to adopt
Ms Hogan’s date…

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 Matamu v Si'Itia

Details

AGLC: Matamu v Si'Itia [2016] NZHC 3137
Case: [2016] NZHC 3137
Decision Date: 19 December 2016

CaseChat Overview and Summary

This case involves an application for costs following a complex and lengthy litigation between the plaintiffs, Tuaʼimalo Matamu, Talaoaliʼi Naseri, Malielegaoi Aumua, Saeni Pita and Tofia Tofa, and the first defendants, Vaʼaimalu Siʼitia, Mary Mcewing, Reverend Alisa Lasi, Reverend Roy Christian, Forbes Worn, and Salapo Rapiti Tuia, along with the second defendant, The Presbyterian Church Property Trustees. The dispute was primarily about the management and use of church property. The High Court of New Zealand, Auckland Registry, delivered its judgment on 19 December 2016. The court had to decide on the allocation of costs between the plaintiffs and the first defendants, as well as the second defendant, which had been settled prior to the trial.

The legal issues centred around the apportionment of costs between the parties, the entitlement to costs on a 2B basis, and specific objections to certain costs and disbursements claimed by the first defendants. The court considered whether certain costs should lie where they fall, whether the preparation and hearings were necessary, and whether some costs should be disallowed due to their nature or the timing of certain applications. The court also addressed the issue of disbursements, particularly focusing on the appropriateness of allowing mediation fees as a cost.

The court reasoned that while the first defendants were largely successful, certain costs should not be awarded against the plaintiffs. For instance, costs related to an interlocutory application to vary injunction orders and an application to adjourn a fixture were deemed unnecessary and thus should lie where they fell. The court also disallowed certain disbursements, such as filing fees for the interlocutory application and the mediation fee, considering them inappropriate given the context of alternative dispute resolution efforts. The court ordered that costs be apportioned between the first to sixth named first defendants and Reverend Christian and Mr Worn, as per their agreement, and directed adjustments to be made in the calculation of costs and disbursements. The final orders included specific deductions from the costs claimed by the defendants and disallowed certain disbursements, ensuring a fair allocation of costs considering the overall circumstances of the case.

Orders