Na'Amanu v Morisa
[2024] NZHC 928
•26 April 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-002225
[2024] NZHC 928
BETWEEN MAOIAUTELE LAMOSITELE NA’AMANU and TAULA PERRY YOUNG
Plaintiffs/Applicants
AND
VENI MORISA
First Defendant/First Respondent
TAFUNA’I MUAIAVA
Second Defendant/Second RespondentFA’AMANU PENIATA
Third Defendant/Third Respondent…/2
Hearing: 24 April 2024 (by telephone) Appearances:
R Marsich for Plaintiffs/Applicants
S Keall for Fourth and Fifth Defendants/Respondents
Judgment:
26 April 2024
JUDGMENT OF VENNING J
Applications under r 7.49 and for stay
This judgment was delivered by me on 26 April 2024 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Fortune Manning, Auckland
Douglas M A Burgess, Auckland
Counsel:R Marsich, Auckland S Keall, Auckland
NA’AMANU v VENI MORISA [2024] NZHC 928 [26 April 2024]
THE SAMOAN ASSEMBLIES OF GOD IN NEW ZEALAND (INC)
Fourth Defendant/Fourth Respondent
THE SAMOAN ASSEMBLIES OF GOD IN AOTEAROA CHARITABLE TRUST BOARD
Fifth Defendant/Fifth Respondent
WOODROFFE LAW PARTNERSHIP
Sixth Defendant/Sixth Respondent
Introduction
[1] In a judgment delivered on 8 December 2023, the Court granted an interim injunction on the application by the fourth and fifth defendants, The Samoan Assemblies of God in New Zealand (Inc) (SAOGNZ) and The Samoan Assemblies of God in Aotearoa Charitable Trust Board (Trust Board), for access to and control over all the Trust Board’s bank accounts.1
[2] The Court directed that Maoiautele Lamositele Na’amanu’s and Taula Perry Young’s (the plaintiffs) authorisations to deal with the bank accounts be removed and gave authorisation to operate the accounts to Taloolema’agao Soi Afoa, Tanfuna’i Muaiava, and Fa’amanu Peniata. The Court also made orders in relation to control of the church hall.
[3]The judgment followed a hearing the previous day on 7 December 2023.
[4] The plaintiffs have filed an amended application seeking to vary the orders made under r 7.49 and have also made an application for stay.
Procedural background to the applications
[5] Ms Woodroffe appeared as counsel for the plaintiffs/respondents at the hearing in December. On 15 December 2023 the plaintiffs instructed new solicitors and counsel. The new solicitor, Salamasina Toilolo filed an application under r 7.49 High Court Rules 2016 seeking to vary the order for interim injunction.
[6]The application sought orders:
(a)replacing Pastor Tanfuna’i Muaiava as a signatory with any one of the other pastors who were purportedly appointed to the Trust Board in August 2022, (other than Pastor Veni Morisa) as the third authorised signatory; and
1 Na’amanu v Morisa [2023] NZHC 3599.
(b)as a condition of the interim order the respondents were, on request, to provide the second-named plaintiff copies of the account statements and records.
[7] The application was not referred to me (as the rule contemplates) but instead was listed for call in the duty Judge list. The SAOGNZ and Trust Board filed a notice of opposition. Before the matter was called, the plaintiffs instructed another solicitor and counsel, Mr Marsich.
[8] On 13 February van Bohemen J adjourned the application to enable Mr Marsich time to take instructions and file an amended application. Ultimately the original application was not pursued.
[9] On 4 March 2024 the plaintiffs filed the current amended interlocutory application for variation of the orders under r 7.49. The orders sought were extensive. In addition to orders rescinding the interim orders made by the Court on 8 December 2023 the plaintiffs sought orders declaring:
(a)the plaintiffs remain trustees of the Trust Board and members of the Executive Council; and
(b)the members of the Trust Board purportedly elected at the 12 August 2023 meeting are not members of the Trust Board.
[10] The amended application as filed also sought a number of additional orders. It sought an order postponing the Annual General Meeting (AGM) due to be held over Easter 2024. Mr Marsich accepts that is now moot and is no longer pursued. In addition, it sought an order declaring the first respondent is constitutionally barred from holding the position of a member of the Executive Council of the SAOGNZ and General Treasurer and trustee of the Trust Board. Mr Marsich conceded during the hearing that order could not be pursued. Finally, Mr Marsich also accepted that, as the Executive Council is presently in control of the church hall, no orders were sought in relation to it, even though the Court had made orders in relation to it in its December judgment.
[11] The matter next came before Powell J in the duty Judge list on 6 March 2024. The Judge made the following directions:
(a)Any application by the plaintiffs to stay the judgment of Venning J is to be filed on or before 20 March 2024;
(b)Notices of opposition/affidavits in opposition to the amended r 7.49 application/stay application by any defendant are to be filed by 3 April 2024;
(c)Submissions in support of the application are to be filed by 10 April 2024;
(d)Submissions in opposition are to [be] filed by 17 April 2024; and
(e)The amended application is then to be referred to Venning J for determination with his Honour to determine whether any hearing is necessary or whether it can be dealt with on the papers.
[12] The plaintiffs filed an application for stay on 20 March 2024. Counsel have also complied with the balance of the above directions (as amended by a minute of this Court dated 15 April 2024).
[13] Following the exchange of substantive submissions by both the applicants and the respondents the Court convened a telephone conference hearing to deal with the matter.
The application under r 7.49
[14]Rule 7.49 provides:
Order may be varied or rescinded if shown to be wrong
(1)A party affected by an interlocutory order (whether made on a Judge’s own initiative or on an interlocutory application) or by a decision given on an interlocutory application may, instead of appealing against the order or decision, apply to the court to vary or rescind the order or decision, if that party considers that the order or decision is wrong.
(2)A party may not apply under subclause (1) if the order or decision was made or given—
(a)with the consent of the parties; or
(b)on an interlocutory application for summary judgment under rule 12.4.
(c)[Revoked]
(3)Notice of an application under subclause (1) must be filed and served,—
(a)if it is made by a party who was present or represented when the order was made or the decision given, within 5 working days after the order was made or the decision was given:
(b)if it is made by a party who was not present and not represented, within 5 working days after receipt by the party of notice of the making of the order or the giving of the decision, and of its terms.
(4)The application does not operate as a stay unless a Judge so orders.
(5)Unless a Judge otherwise directs, the application must be heard by the Judge who made the order or gave the decision.
(6)The Judge may,—
(a)if satisfied that the order or decision is wrong, vary or rescind the order or decision; or
(b)on the Judge’s own initiative or on the application of a party, transfer the application to the Court of Appeal.
[15] Rule 7.49 provides an alternative to an appeal so that interlocutory matters can be dealt with expeditiously and less expensively in the High Court.2 The intent of the rule is to give an opportunity in an appropriate case for reconsideration of an interlocutory application upon a fuller argument.3 As the commentary to the rule in McGechan notes,4 it is particularly appropriate where some additional point not raised before has emerged or there are facts which were not previously before the Court and should be considered.5 It is not an opportunity to relitigate an issue the Court has already determined. In such a case an appeal is the appropriate course if the affected party considers the Court has erred in its decision.6
[16] Both counsel referred to the decision of Arnerich v Vaco Investments (Lincoln Road) Ltd (in liq) where Associate Judge Sargisson accepted that jurisdiction would be engaged where:
2 Graebar Holdings Ltd v Taylor [1989] 2 NZLR 10 (CA); and Arnerich v Vaco Investments (Lincoln Road) Ltd (in liq) [2018] NZHC 1974 at [38].
3 Jollands Ltd v Whitley [1949] NZLR 290.
4 Jessica Gorman and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [7.49.02].
5 High Court Rules 2016, r 7.49.02.
6 Gracewood International Ltd v Zhan [2023] NZHC 311 at [14].
(a)There was not full argument at the initial hearing;
(b)Some relevant point of evidence was overlooked;
(c)There has been a material change of circumstances; or
(d)Some special circumstance has arisen.
Within time?
[17] As noted, r 7.49(3) requires the application to be made within five working days after the order was made or a decision was given. While the initial application was made within time, the amended application is out of time.
[18] Mr Marsich submits that r 7.49(3) does not apply to the amended application. He submits the amended application falls within the ambit of the review sought under r 7.49 that was commenced by the original application. However, I consider that r 7.49(3) is engaged here. As noted, the original application was of quite a different nature to the orders now sought in the amended application.
[19] The first application sought to vary the orders in a minor way but did not challenge the underlying validity of them nor did it seek to rescind them. It is no longer pursued. As noted, the amended application sought to rescind the orders and also sought a number of substantive orders which went beyond the ambit of the original application that was before the Court on 7 December 2023. The amended application is, both in form and in substance, a fresh application. I treat it as such.
[20] The amended application is well out of time. It was filed almost three months after the original hearing.
Extension of time
[21] Mr Marsich submitted that, if necessary, r 1.19 could be applied and the Court could extend the time for filing the amended application as Moore J had accepted was appropriate in NSK Ltd v General Equipment Co Ltd.7
7 NSK Ltd v General Equipment Co Ltd [2016] NZHC 2721.
[22] While I accept the Court has power to extend time to bring an application under r 7.49, in the present case, the relevant considerations involved in determining whether to exercise that jurisdiction are the explanation for delay, whether there would be any prejudice to the respondents, and the merits of the application. The overriding consideration remains the interests of justice, bearing in mind the purpose of the rule.
[23] Despite Mr Marsich’s submissions to the contrary, there is no proper explanation for the delay. The reason for delay seems to be that the applicants were dissatisfied with the original advice given to them by their first alternative counsel. They have changed their position and now seek to substantively challenge the underlying reasoning of the judgment. The affidavits sworn in support of the amended application do not address the issue of delay. There remains no adequate explanation.
[24] I also consider the respondents will be prejudiced if the orders made in December are rescinded or set aside at this late stage. Any order rescinding the orders made on 8 December 2023 regarding the bank account authorisations which enabled the operation of the bank accounts would leave the parties in the position they were in on 7 December 2023, namely that the bank accounts would be frozen by the banks until the issue of authority to operate them is resolved by the parties by consent (which seems unlikely given the history of this matter) or by the Court at some later hearing. The parties would be back in the position of an impasse. Further, the respondents will have incurred additional cost in implementing the orders and dealing with the banks.
[25]I turn to the merits of the amended application.
[26] Mr Marsich correctly submitted that a key consideration in the Court’s decision to grant the interim injunction application was the outcome of the 12 August 2023 special session. That session removed the plaintiffs as members of the Executive Council and as trustees of the Trust Board and replaced them with new members of the Executive Council and Trust Board.
[27] Mr Marsich submitted that an important aspect of evidence was overlooked in the 8 December 2023 judgment, specifically the provision of the Constitution that
required circumstances of “extreme urgency” to abridge the time periods as a pre- condition for a special session of the General Committee.
[28] Mr Marsich noted that cl 4(4)(iv) of the Constitution generally requires notice in writing no later than four months before the date of the session. In the present case notice of the special session was forwarded on 24 June 2023, less than two months prior to the scheduled session of 12 August 2023. The only basis that could be justified was under cl 4(4)(iv).
[29]Clause 4(4)(v) provided as relevant:
Special sessions of the General Council may be called by the Executive Council at its discretion. … In a matter of extreme urgency the Executive Council may abridge the time periods prescribed for special sessions of the General Council.
[30] Mr Marsich submitted that the requirement of “extreme urgency” did not exist to justify the abridgement of the meeting times.
[31] Mr Marsich noted the Constitution did not define what was an “extreme urgency” but submitted that it must be an extraordinary situation. He noted that cl 5(2) of the Constitution referred to an “urgent” special meeting where matters affecting the public, legal and social standing of the fellowship might arise. Mr Marsich noted that initially the respondents sought to justify calling the special session by reference to the fact there had been two unsuccessful mediations in March and May and that the matters raised “were very serious because they were challenging the legal basis on which the organisation was functioning”.
[32] Mr Marsich made the point that a dispute had existed between the two factions of the Executive Committee since the election of Pastor Morisa to the Executive Council and to the position of General Treasurer on 16 April 2022, one and a half years prior to the meeting in August 2023. He submitted the August 2023 session was not called in response to a matter of “extreme urgency” but was rather simply a convenient measure for one faction of the Executive Council to dispose of the other faction, the current applicants.
[33] Mr Marsich submitted the August session 2023 session was effectively invalid as it was not properly convened so that the Court was wrong to find there was a serious question to be tried that the present applicants had been removed from their respective positions on the Trust Board and Executive Council.8 For those reasons he submitted that leave should be granted (if necessary) and the orders made on the injunction application should be set aside and replaced with the orders referred to in [9] above.
[34] While accepting that the quorum was technically met, Mr Marsich also suggested it was significant that the 12 August 2023 session was attended by only half (208/416) of the eligible voting members and less than half of the eligible voting members (197) voted to remove the applicants from the Executive Council. However, I note that the attendance at the recent session at Easter was similar, (227/416).
[35] I accept the Court did not directly address the issue now raised about whether there was an “extreme urgency” justifying calling the special session in August 2023. However, in his affidavit in support of the application for injunctive relief, Pastor Peniata referred to the relevant clause and the situation of an “emergency”. The Constitution of the SAOGNZ and the Trust Board were both annexed to his affidavit and were in evidence. This is not a case where the evidence was not before the Court. It is better analysed as a situation where the current applicants seek to make further or more detailed submissions to the Court on the particular point they now raise. Ms Woodroffe did suggest in general terms that the August 2023 meeting was not formally authorised, and was not according to the Constitution, but she did not expand on that submission or refer expressly to the clause.
[36] Where a party (such as the applicants in this case) is represented at a hearing, even one brought on at short notice as the injunction hearing was, the Court will be reluctant to allow a party to “improve” its case by invoking r 7.49 to present a detailed argument that was not raised at the hearing when it could have been.
[37] The current application essentially alleges the Court was in error by accepting the change in the members of the Executive Council and trustees of the Trust Board following the August 2023 session. The plaintiffs now say there was no basis to invoke
8 Kung v Country NZ Indian Association Inc [1996] 1 NZLR 663(HC)
cl 4(4)(v) to abridge the notice required and the decisions and appointments made at the session were invalid.
[38] It is important to bear in mind that the test before the Court at the time of the hearing of the injunction application was whether the then applicants, the now respondents, could satisfy the Court there was a serious question to be tried.
[39] The evidence before the Court in December (which is not altered in any relevant way by the evidence of the plaintiffs in support of this application) supported a finding that by mid-2023 the situation facing the SAOGNZ was one of extreme urgency justifying the calling of a special session. As an aside, I note the plaintiffs’ affidavits contain submissions as to the law, which is inappropriate.
[40] At the relevant time the Executive Council was “riven by dissent” as Muir J described it in a related proceeding.9 The actions of the Executive Council (of which, prior to August 2023 the plaintiffs were members) had been challenged in Court proceedings. The plaintiffs maintained their challenges after unsuccessful mediations in March and May 2023. They challenged the legal basis upon which the SAOGNZ and the Trust were operating. Mr Marsich suggests that the length of time the issue had been before the parties supports the conclusion the situation was not one of urgency. I disagree. I consider the fact the issue was longstanding and had not been resolved (despite the mediations) and involved the issue of misuse of the Trust Board’s funds supports the view that it was a situation of extreme urgency.
[41] At most from the plaintiffs’ position, the point Mr Marsich seeks to make is arguable, but so is the respondents’ position. Even accepting there may be an argument as to whether there was a situation of extreme urgency, the respondents still satisfy the requirement that there was a serious question to be tried. Clearly the balance of convenience favoured the majority view of those members of the Executive Council (even before the plaintiffs were removed). The injunction orders were justified.
[42] Nor do I consider the interests of justice overall support the current application. As noted, the additional orders sought in the current amended application go far
9 The Samoan Assemblies of God in NZ (Inc) v Morisa [2023] NZHC 3049.
beyond merely varying the orders that were made in December. The orders sought would effectively resolve the issue of the validity of the August 2023 meeting in their favour without a full hearing. The orders sought at [9] above (apart from rescission of the previous orders) are simply not open to the Court on an application under r 7.49.
[43] Further, the meeting of the General Council of the SAOGNZ held at Easter 2024 confirmed the appointment of the members of the Executive Council made at the August 2023 meeting (with the exception of Pastor Muaiava who subsequently resigned). Neither of the plaintiffs were re-instated as members of the Executive Committee. To that extent the recent meeting effectively confirmed the removal of the applicants from the Executive Council (and for that matter, as trustees) at the August 2023 meeting. Whatever the failings of the procedure at the meeting in August 2023, the decision to remove the plaintiffs from the Council and as trustees has effectively been confirmed by the session held at Easter 2024.
[44] The orders sought in the amended application would have the effect of frustrating the decisions as to the composition of the Executive Council made at that recent meeting (which the plaintiffs do not challenge).
[45] Mr Marsich sought to suggest that the plaintiffs could still be trustees of the Trust Board even though they are not members of the Executive Council of SAOGNZ. He suggested as there was no vacancy, the purported appointment of new trustees was invalid. However, on my interpretation of cl 4 of the Trust Deed, the power of removal of trustees was not restricted to the original named trustees. Mr Marsich also argued that the effective reinstatement of the plaintiffs to the Trust Board would not affect the operation of the Trust Board. But, with respect to that submission, it seems contrary to the general structure of the SAOGNZ and the Assembly. The preferrable interpretation of the founding documents is that the trustees of the Trust Board are also to be members of the Executive Committee.
[46] For the above reasons I would decline leave for the amended application under r 7.49 to be brought out of time but even if leave was granted, I would decline the application on its merits.
[47] If the plaintiffs were dissatisfied with the decision of the Court delivered on 8 December 2023, then their remedy was to pursue an appeal.
[48] As I have declined leave to bring the amended application for leave out of time it is dismissed.
Application for stay
[49] Mr Marsich confirmed the application for stay is directed solely at the issue of costs. The only matter of any relevance in the evidence by the applicants on this issue is that they are in a limited financial position and will struggle to meet the costs ordered. They are in their mid-seventies and early eighties. They say it would be unfair to require them to pay the costs now and then later require them to seek and obtain costs against the defendant if an award for costs was ordered upon the conclusion of the application for review.
[50] As Mr Marsich conceded, the applicants have effectively achieved the stay they sought. He confirmed the stay was sought only until delivery of this decision. Although the costs order has been sealed no enforcement procedures have yet been undertaken.
[51] While I have regard to the plaintiffs’ financial position, the respondents were put to the cost of making the application for interim injunction, which they succeeded on. There is no reason in principle why the costs awarded should not now be paid.
[52]The application for stay is dismissed.
Costs
[53] Costs should follow the event. Costs on a 2B basis would seem appropriate on both applications. However, I reserve the issue of costs. If the parties cannot agree submissions may be exchanged.
Venning J
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