Time v Fagalilo (Recall) HC Wellington CIV 2008-485-540
[2010] NZHC 1099
•30 June 2010
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: 30 June 2010
Counsel: R J Buchanan for Applicant
O Woodroffe for Respondent
Judgment: 30 June 2010
JUDGMENT OF RONALD YOUNG J (Application for recall)
[1] On 9 March 2010 I gave judgment on an application for the appointment of an interim trustee and an application that I give directions as to how new trustees should be selected for the future. The application related to the Green Valley Samoan Assembly of God Property Trust Board. I concluded that the existing trustees had not been validly elected and that there was an intractable standoff. I appointed an interim trustee and I gave directions as to how the new trustee should be selected for the future. Mr Time now seeks an order recalling this judgment.
[2] To understand the basis of the application for recall it is necessary to briefly describe the findings and conclusions I came to in my judgment of March 2010.
[3] I made orders dismissing those who claimed to be the existing trustees and appointing the Public Trust as an interim trustee. No issues arise with respect to
SINETI TIME V LUAIVA FAGALILO HC WN CIV 2008-485-540 30 June 2010
those orders in the application for recall. I directed the Public Trust therefore to hold an election to appoint new trustees so that they could run the trust as required by the Trust Deed or any legitimate variation of the Trust. I then said:
[99] Who then should be empowered to vote at the election of trustees. Although I accept it is potentially problematic, the proper time to assess voting qualification is a date in 2005 before this dispute arose. I fix that date as 1 March 2005 on the basis that it is a date near to but before the date the dispute broke out. Thus those who were members of the Green Valley Church as at 1 March 2005 would qualify to vote for the new trustees.
[100] What are the qualifications required to be a member of the Church who can vote? All parties were agreed that to be a voting member the person must be 18 years or over. Secondly, I consider that to vote the person must have been a regular church attendee who was committed to the Green Valley Church prior to 1 March 2005. While financial support for the Church is a factor supporting evidence of commitment to the Church I do not consider that financial contribution is an essential feature of membership. Some committed Church members may not have had the ability to contribute financially. That fact should not exclude them provided by their attendance and commitment they illustrate they were members of that Church. Nor should a failure to attend Church every Sunday exclude anyone. A liberal approach to membership by the Public Trustee in my view is properly required.
[101] The applicant says that Mr Fagalilo and those associated with his group who were and are currently affiliated with Samoan AOG should be prohibited from voting because, by their actions, they have disassociated themselves with AOG NZ and the Trust. I reject that approach. A church congregation is free to change its affiliation at any time provided it keeps to the rules it has agreed to be bound by. In this case those who wanted a change in affiliation, or a rejection of AOG NZ and affiliation solely with Samoan AOG, are not prohibited from voting assuming they otherwise qualify as members of the Church. They simply wanted to change affiliation. They are entitled to that view and that view does not prevent them from voting for the trustees of their choice.
[102] The problem arose because of the refusal of those in authority in the Green Valley Church to undertake a proper vote and to run the Trust according to the Deed. If the applicant’s approach now to qualification to vote was taken then there could never be any change permitted because those who wanted change would immediately be disqualified from voting on the change.
[103] Also for reasons I have given Mr Time’s group are not excluded from those who may vote. They did not abandon the Green Valley Church. They were wrongly excluded.
[4] Once the new trustees are elected, as I pointed out in my judgment ([88]), they may wish to amend the Trust Deed or change allegiance to a parent body. If they do there is a process for them to go through to comply with the Trust Deed.
[5] The applicant’s recall application is based on the concern that:
.... it is highly likely that those who were previously claiming to be Trustees will be elected and the situation will then revert to what it was prior to His Honour’s Judgment. If that happens then the Trust Board would, in effect, be administered by Trustees loyal not to the AOGNZ but to the Samoan AOG. In counsel’s submission that is not a situation which Your Honour’s Judgment was designed to create.
[6] And further:
However in counsel’s submission if a vote is held as at 1 March 2005 it is virtually inevitable that the congregration reappoint as Trustees those very same people who, in Your Honour’s judgment, have acted in breach of the Trust Deed to such an extent that if they had been existing Trustees their conduct would have justified their removal from office.
[7] And further:
In counsel’s submission some confusion may have arisen as to whether Your Honour was intending to direct a vote for the purpose of appointing new Trustees or whether there was first to be a vote as to whether the congregation wanted to change its affiliation, i.e. to disaffiliate from AOGNZ.
[8] Counsel submitted that I had authorised a process for the appointment of trustees which was outside the Trust and contrary to the tenor of my judgment. He submitted that having replaced the trustees with an interim trustee I should have appointed permanent trustees (Trustee Act 1956, s 60). He said that if my judgment was left as delivered then contrary to what I considered should happen one side would indeed succeed in getting all the assets of the church.
[9] Counsel submitted that I had therefore made a mistake in the orders I had made and this error came within the third category for recall as identified in Horowhenua County v Nash (No 2) [1968] NZLR 632 (NZSC).
[10] Before I consider the substance of the application for recall I need to deal with two preliminary matters. Firstly the respondent has asked me to recuse myself from hearing and giving judgment on this application. I refused to do so at the commencement of the hearing.
[11] Secondly, the respondent in her written submissions said that because the applicant has filed an appeal in these proceedings there is no jurisdiction for me to consider the recall application. She said I was functus officio. Having seen and heard counsel for the applicant’s submission Ms Woodroffe now accepts I have jurisdiction to consider the application for recall. I agree. The judgment has not been sealed and the appeal has not been heard (HCR 11.9).
[12] To return to the application. My judgment makes it clear what it decides and what directions are given. The application sought removal of the trustees. I found the trustees had not been properly elected and in any event there was an intractable impasse. Thus, I ordered that the existing trustees be dismissed and an interim trustee appointed for the purpose of an election to select new trustees. I did not consider the Trust Deed allows for these circumstances. In terms of clause 5 of the Deed there is no Board to appoint trustees. My decision therefore to direct an election of trustees and identifying those eligible to vote was not an error susceptible to recall in the sense that it was a considered decision.
[13] The next question, as I identified in my judgment, was who could vote at such an election. I concluded all of those who were members of the Church prior to the dispute arising should be able to vote at the election. I identified broad criteria, which I considered was appropriate to qualify as a member of the church ([99], [100], [101]).
[14] Once the new trustees are elected if they wish to change affiliation then as I identified in my judgment there is a process they must comply with ([37], [88]). If they do not comply with the process provided by the Trust Deed then it is probable their actions will be challenged again. If the new trustees comply with their trustee obligations and as a result there is a change in affiliation then there can be no complaint. The change in affiliation will have been according to the rules all members of the congregation agreed upon.
[15] The applicants say that some of those who are elected may be the very trustees who acted contrary to the Trust Deed. If those persons are qualified as voters and thereby qualified to become trustees if elected then there is nothing to
prevent them taking their place as trustees. These trustees however must abide by the Trust Deed.
[16] As I said in my judgment any individual member is entitled to a view as to which Church this particular congregation should be affiliated to. They are entitled to advocate for change but change can only occur through the rules set out in the Trust Deed ([101]).
[17] The issues raised by the applicant for recall are therefore essentially appeal points. The applicant identifies the decisions I have reached regarding the appointment of new trustees as in error. If they are in error then they are errors for correction on appeal rather than by recall.
[18] In my view therefore the application for recall of the judgment cannot succeed. I refuse the application.
[19] The respondents are therefore entitled to costs of this application on a 2B
basis.
Ronald Young J
Solicitors:
R J Buchanan, Buchanan Gray, PO Box 24057, Wellington, email: [email protected]
O Woodroffe, Woodroffe Law Partnership, PO Box 6505, Auckland
email: [email protected]
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