Sila v Nanai-Leota - [2018] NZHC 3163

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-978

[2018] NZHC 3163

UNDER Part 8 of the High Court Rules 2016; Law Reform (Testamentary Promises) Act 1949

IN THE MATTER

of the estate of Faalepo Paul Sila

BETWEEN

SILIUA VAA SILA

Plaintiff

AND

UAITA NANAI-LEOTA

Defendant

Hearing: 3 December 2018

Counsel:

S Perese for the Plaintiff

J J Pietras for the Defendant

Judgment:

4 December 2018

JUDGMENT OF CHURCHMAN J

Introduction

[1] This is an application by the defendant for an order for security for costs pursuant to r 5.45 of the High Court Rule 2016.

[2] By application dated 9 November 2018, the defendant sought the following orders:

(a)an order that the plaintiff pay $25,000 by way of security for costs in two stages:

SILA v NANAI-LEOTA [2018] NZHC 3163 [4 December 2018]

(i)$15,000 within 10 working days of the Court granting the order; and

(ii)$10,000 no later than 1 February 2019.

(b)a direction that the proceedings be stayed until the plaintiff pays the first $15,000; and

(c)an order granting leave to apply to strike-out the proceedings if the plaintiff does not pay the $10,000 by 1 February 2019.

[3] The application that a direction for stay was abandoned during the course of the hearing.

The claim

[4]The substantive proceedings in this case allege:

(a)a breach of constructive trust;

(b)a claim under the Law Reform ((Testamentary Promises) Act 1949; and

(c)an action in equity alleging the existence of a fiduciary obligation on the defendant as administrator of the deceased’s estate to dispose of the deceased’s remains in a specified culturally appropriate manner.

[5] The plaintiff (Siliua Vaa Sila) and the deceased (Faalepo Paul Sila) were brother and sister.

[6] The defendant’s mother (So’iligamalo) was also a sister of the deceased and the plaintiff. The plaintiff and the deceased moved to New Zealand from Samoa in the early 1960s.

[7] The defendant was born on 9 July 1982 in Samoa. In accordance with a customary arrangement, the defendant was brought up by his maternal grandmother, Fesouaina Sila (who was the mother of the plaintiff and the deceased).

[8] The defendant and Fesouaina Sila moved to New Zealand in 1985 and lived with the deceased at his property in Lower Hutt.

[9] The defendant started school in Lower Hutt at the age of 5 in 1987. In 1993, the defendant and Fesouaina Sila returned to Samoa to live. Fesouaina Sila died on 25 August 1995.

[10] The deceased wanted to adopt the defendant and for the defendant to come and live with him in New Zealand.

[11] By order of the Magistrates Court of Samoa on 11 December 1995, the defendant was adopted by the deceased. The defendant was some 13 years old at this stage. He moved to New Zealand and lived with the deceased in Nelson between 1996 and 1998.

[12] In 1998, it appears that the relationship between the defendant and the deceased broke down, and the defendant…

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.

Keep reading for free

Create a free CaseChat account to read Sila v Nanai-Leota and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZHC 3163
Decision Date: 4 December 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiff, Siliua Vaa Sila, filed an application against the defendant, Uaita Nanai-Leota, for an order for security for costs. The plaintiff's claim relates to the estate of Faalepo Paul Sila, the plaintiff's brother, and includes a breach of constructive trust, a claim under the Law Reform (Testamentary Promises) Act 1949, and an action in equity. The court had to decide if an order for security for costs should be granted, the amount of security, and whether the plaintiff's claims had any prospect of success.

The court considered the legal issues and found that the parties had agreed on the sum of $10,000 as security for costs. However, the plaintiff failed to comply with the agreement. The court held that it was reasonable for the defendant to make the application for security for costs, given the plaintiff's failure to comply with the agreement. The court also found that the plaintiff's claims had little chance of success and that the plaintiff was impecunious.

The court granted the application for security for costs and fixed the $10,000 already paid by the plaintiff into Court as security. The defendant was awarded costs on a category 2B basis. The timetable order in respect of the substantive proceedings was also varied. The defendant was to have costs on a category 2B basis in relation to this application, along with disbursements, to be paid by the plaintiff by 21 December 2018. If they were not paid by that date, these proceedings were to be stayed.

Orders