Time v Fagalilo - [2011] NZCA 402

IN THE COURT OF APPEAL OF NEW ZEALAND

CA191/2010
[2011] NZCA 402

BETWEEN SENETI TIME
Appellant

AND LUAIVA FAGALILO
Respondent

Hearing: 25 July 2011

Court: O'Regan P, Heath and Lang JJ

Counsel: R J Buchanan for Appellant
O Woodroffe for Respondent

Judgment: 22 August 2011 at 11.30 am

JUDGMENT OF THE COURT

ALeave is granted to both parties to adduce further evidence.
BThe appeal is allowed.
CThe order made in the High Court requiring the Public Trust to compile a list of members of Green Valley Samoan Assembly of God Church entitled to vote as at 1 March 2005 is quashed. In its place an order is made directing the Public Trustee:
(a)to compile a list of members of the Green Valley Church Assembly affiliated with Assemblies of God in New Zealand Incorporated over the age of 18 years as at the date of this judgment;
(b)to organise a ballot at which those persons elect not less than five and not more than nine persons who are to be nominated for appointment as trustees of Green Valley Samoan Assembly of God Property Trust Board (the Trust Board); and
(c)to report back to the High Court when that ballot has concluded setting out the names of those who have been nominated for appointment as trustees of the Trust Board and outlining the process by which the ballot was conducted and the manner in which those entitled to vote in the ballot was determined with a view to that Court formally appointing new trustees as the trustees of the Trust Board.

DThe orders made in the High Court are otherwise confirmed.
ECosts are reserved. The parties are to make written submissions on costs as indicated in [46] of the Reasons of the Court.

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REASONS OF THE COURT

(Given by O’Regan P)

Schism in the Green Valley Church Assembly

The applicant and the respondent are leaders of two factions of a church congregation that worshipped at a church owned by The Green Valley Samoan Assembly of God Property Trust Board, which is a trust board incorporated under the Charitable Trusts Act 1957 (we will call it the Trust Board). The appellant’s group is affiliated with the Assemblies of God Incorporated New Zealand (the AOGNZ).[1] The respondent’s group is affiliated with the Samoan Assemblies of God New Zealand (the SAOG). The respondent’s group excluded the appellant’s group from worshipping at the Green Valley Church. The appellant sought orders from the High Court under s 61 of the Charitable Trusts Act, s 51 of the Trustee Act 1956, and s 60 of the Charities Act 2005, appointing a new trustee of the Trust Board.
[1] That is, it is a member of the AOGNZ: see [17] below.
The application was heard by Ronald Young J. He determined that the respondent had unlawfully excluded the appellant and the appellant’s group from the Green Valley Church.[2]
[2] Time v Fagalilo HC Wellington CIV-2008-485-540, 9 March 2010.
The Judge found that the trustees of the Trust Board,…

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 Time v Fagalilo

Details

AGLC: Time v Fagalilo [2011] NZCA 402
Case: [2011] NZCA 402
Decision Date: 22 August 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Seneti Time, the appellant, appealed against a decision of Ronald Young J of the High Court in Wellington which had ordered the Public Trust to compile a list of members of the Green Valley Samoan Assembly of God Church entitled to vote as at 1 March 2005, and organise a ballot at which those persons would elect new trustees of the Green Valley Samoan Assembly of God Property Trust Board. The respondent, Luaiva Fagalilo, cross-appealed against the High Court's decision to appoint the Public Trust as an interim trustee and give directions as to how the Public Trust should organise an election to elect new trustees. The appellant and respondent were leaders of two factions of a church congregation that worshipped at a church owned by the Trust Board. The Trust Board had been incorporated under the Charitable Trusts Act 1957. The Trust Deed required that the trustees be appointed by the Officers Board of the Green Valley Church Assembly (the Church Board), and that any new trustee being appointed must be a member of the Church Board or a member of a "Local Assembly" recognised by the Assemblies of God in New Zealand Incorporated (AOGNZ). The appellant argued that only those who remained members of his group, and therefore affiliated with the AOGNZ, ought to be entitled to vote. The Court of Appeal agreed with the appellant and held that the determination of who should be trustees must be managed in a way that conforms more closely with the expectation of the Trust Deed. The Court of Appeal quashed the order made in the High Court and substituted a new order directing the Public Trustee to compile a list of members of the Green Valley Church Assembly affiliated with AOGNZ over the age of 18 years, organise a ballot at which those persons would elect nominees for appointment as trustees, and report back to the High Court when that ballot had concluded. The Court of Appeal also held that it would be preferable for the Court to appoint the new trustees, rather than for the Public Trustee to resign and hand over to trustees elected by the members of the Green Valley Church Assembly. The Court of Appeal ordered that the Public Trustee should organise an election of nominees for appointment as trustees and report back to the Court, and the Court then formally appoint the trustees under s 51 of the Trustee Act, if it is satisfied that the electoral process has been conducted appropriately.

Orders