Si'itia v Matamu - [2018] NZHC 1436

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-000170

[2018] NZHC 1436

BETWEEN
VA’AIMALU SI’ITIA, MARY MCEWING, REVEREND ALISA LASI, REVEREND

and SALAPO RAPITI TUIA

First, Second, Third, Sixth named First Defendants / First Counterclaim Plaintiffs

AND

TUI’IMALO MATAMU, TALAOALI’I NASERI, MALIELEGAOI AUMUA, SAENI PITA and TOFA TOFIA TOFA

Plaintiffs / First Counterclaim Defendants

ASORA AMOSA
Second Counterclaim Defendant

PACIFIC ISLAND CHURCH AVONDALE TRUST

Third Counterclaim Defendant

AOGA AMATA PACIFIC ISLAND CHURCH AVONDALE TRUST

Fourth Counterclaim Defendant

Hearing: 18 May 2018

Appearances:

Richard Pidgeon for the First Counterclaim Plaintiffs Olinda Woodroffe for the Second to Fourth Counterclaim Defendants

Judgment:

15 June 2018

JUDGMENT OF MOORE J

[Costs]

This judgment was delivered by me on 15 June 2018 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

SI’ITIA & ORS v MATAMU & ORS [2018] NZHC 1436 [15 June 2018]

Introduction

[1] Members of a parish once a model of unity remain locked in an acrimonious and drawn out dispute. This decision represents the latest iteration in what is a most unfortunate and, in my view, avoidable battle.

[2] In the substantive proceeding I dismissed the plaintiffs’ causes of action.1 Earlier, the defendants had discontinued a counterclaim. This decision relates only to costs on the discontinuance which, perhaps unsurprisingly given the progress of this matter from the outset, was hotly contested.

Background, in brief

[3] The Avondale Union Parish (“AUP”) was established in 1972 when several Presbyterian and Methodist congregations in the area united. It grew to include a large Samoan component, reflected in separate services being conducted in English and Samoan for the English speaking fellowship (“ESF”) and Samoan speaking fellowship (“SSF”) respectively.

[4] In October 2012, the national governing body of the Presbyterian Church established a Pacific Islanders’ Synod in recognition of the need to meet the spiritual needs of the Pacific Island congregations within the Church. Over the course of 2013, certain factions within the SSF agitated to establish themselves as a separate congregation operating under this Synod. This group is represented by the plaintiffs in the substantive proceedings. After escalating tensions, at a meeting on 5 December 2013 the AUP Parish Council passed a resolution denying the plaintiffs’ group future use of the Parish premises because they had already abandoned their commitment to and membership of the AUP.

[5] The plaintiffs commenced proceedings on 31 January 2014, challenging their ousting. These were defended. In a counterclaim dated 19 June 2014 the defendants alleged breach of trust, breach of contract and breach of fiduciary duty on the part of the plaintiffs and further counterclaim defendants associated with the substantive

1 Matamu & Ors v Si’itia & Ors [2016] NZHC 2516.

proceeding. They sought to litigate ancillary issues to the underlying disagreement between the branches of the AUP.

[6] A five day fixture was initially allocated, commencing on 23 March 2015, for the claim and counterclaim. It was vacated by Venning…

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 Si'itia v Matamu

Details

AGLC: Si'itia v Matamu [2018] NZHC 1436
Case: [2018] NZHC 1436
Decision Date: 15 June 2018

CaseChat Overview and Summary

In this case, the High Court of New Zealand was tasked with determining costs following the discontinuance of a counterclaim. The parties involved were members of the Avondale Union Parish (AUP), a church with both English and Samoan congregations. The plaintiffs, members of the Samoan congregation, had commenced proceedings challenging their expulsion from the church. The defendants, who were also members of the Samoan congregation, had filed a counterclaim alleging breach of trust, breach of contract, and breach of fiduciary duty. The counterclaim was later discontinued, and the defendants sought costs on the discontinuance.

The court was required to determine the principles governing costs on discontinuance and apply them to the facts of this case. The central rule is rule 15.23 of the High Court Rules 2016, which establishes a presumption that a plaintiff who discontinues a proceeding must pay costs to the defendant up to and including the discontinuance. However, this rule may be displaced if there are circumstances that make it just and equitable that it should not apply. The court will consider factors such as the reasonableness of the stance of both parties, conduct prior to the commencement of the proceeding, and the reason for discontinuing.

In this case, the court found that the discontinuance of the counterclaim was a responsible decision made in the interests of advancing the substantive dispute and bringing the proceedings to an end. The court considered the circumstances of the discontinuance as a whole and the conduct of the parties, and determined that a reduction of about 50 per cent was warranted. The court also noted that the plaintiffs had not paid any costs except in the Court of Appeal, and that the available funds were frozen.

The court awarded costs to the defendants, with the first counterclaim defendants entitled to $3,140.75 and the remaining counterclaim defendants entitled to $11,679.75 in costs, apportioned between them. The court also noted that the freezing orders made in this Court on the defendant's (AUP's) application had resulted in the available funds being frozen, making it difficult to see how the unsuccessful plaintiffs could use them to meet their cost obligations.

Orders