Time v Fagalilo HC Wellington CIV 2008-485-540

[2010] NZHC 1330

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2008-485-540

IN THE MATTER OF     the Green Valley Samoan Assembly of God

Property Trust Board

BETWEEN  SINETI TIME Applicant

ANDLUAIVA FAGALILO Respondent

Hearing:         On Papers

Counsel:         R J Buchanan for Applicant

O Woodroffe for Respondent

Judgment:      27 July 2010

JUDGMENT OF RONALD YOUNG J (Further Judgment on Costs)

[1]      In these proceedings I have given two costs judgments arising from two separate judgments.  The first substantive judgment dealt with Mr Time’s application relating to the trustees of the Green Valley Church Trust Board.   I concluded that Mr Time’s application was justified and I dismissed the trustees of the Green Valley Church Trust Board, appointed an interim trustee and gave directions to that trustee as to how new trustees should be selected.

[2]      As a result of that judgment Mr Time sought costs.  I made an order for costs in his favour in the sum of $40,000 plus disbursements being 2B costs plus a modest

uplift (see my judgment, 30 June 2010).

SINETI TIME V LUAIVA FAGALILO HC WN CIV 2008-485-540  27 July 2010

[3]      Counsel for Mr Time has correctly pointed out that I did not deal with his submissions that these costs should be directed to be paid either exclusively by the Green Valley Church Trust Board or alternatively jointly and severally by the Trust Board and Mr Fagalilo.

[4]      I now deal therefore with this issue having not previously dealt with it.

[5]      I consider the appropriate order in this case that both the Trust Board which was throughout a party to these proceedings together with Mr Fagalilo should be jointly and severally liable for the costs award.  Mr Time’s actions have resulted in the Trust Board now on track for a proper process for the appointment of lawful trustees who can carry out the work of the Board in accordance with the Trust Deed. Mr Time’s actions therefore were of significant benefit to the Trust Board.

[6]      Ordinarily in those circumstances it would be the Trust which would make payment  of  Mr Time’s  costs.    However  in  this  case  I found  that  Mr Fagalilo’s opposition to the orders sought was not justified.  In those circumstances both he and the Trust Board should be jointly liable for the costs and I so order.

[7]      The second costs judgment related to Mr Time’s unsuccessful application to recall my judgment.  Mr Time in those circumstances must be personally responsible

for those costs payable to Mr Fagalilo.

Solicitors:

Ronald Young J

R J Buchanan, Buchanan Gray, PO Box 24057, Wellington, email: [email protected]

O Woodroffe, Woodroffe Law Partnership, PO Box 6505, Auckland
Email:  [email protected]