Toailoa v Eliu - [2024] NZHC 2030

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1748

[2024] NZHC 2030

UNDER Trusts Act 2019, the Charitable Trusts Act 1957, and Part 18 of the High Court Rules

IN THE MATTER OF

the Samoan Independent Seventh Day Adventist Church charitable trust board and the Samoan Independent Seventh Day Adventist Property Trust charitable trust board

BETWEEN

SIAOSI DAVID SOOTAGA TOAILOA

First Applicant

Cont:/

Hearing: 18 July 2024

Counsel:

B O’Callahan and R J Warren for applicants (respondents to stay application)

J D McBride and B E Smith for first, second, third and fourth respondents (the first applicants being stay applicants)
D L Harris and A A A Ghandour for fifth respondent
M K Mahuika for Samoan Independent Seventh Day Adventist Church

Judgment:

24 July 2024

Reissued:

26 July 2024

JUDGMENT OF JOHNSTONE J

(application for stay pending appeal)

Solicitors:

This judgment was recalled and reissued by me on 26 July 2024 pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar

Zhang Law, Auckland
CM & Associates, Auckland
Crown Law Office, Wellington

TOAILOA & ORS v ELIU & ORS [2024] NZHC 2030 [24 July 2024]

AND
FEU SEUMAALII

Second Applicant

AND

PENIATA SAUNIA

Third Applicant

AND

MATAUAINA ELIU, SALETAULUA CHARLES FAAMANATU MAKA AND TONGA SEINI FATA, AS TRUSTEES OF THE SISDA PROPERTY

TRUST
First Respondents

AND

SUNRISE GLOBAL HOMES LIMITED

Second Respondent

AND

WILLIE PAPU

Third Respondent

AND

WILLIE JUNIOR PAPU

Fourth Respondent

AND

ATTORNEY-GENERAL

Fifth Respondent

[1] By result judgment dated 28 March 2024,1 with reasons delivered on 31 May 2024,2 I made orders in this proceeding (the Costs Proceeding):

(a)declaring it reasonable and appropriate for the applicants (the Toailoa applicants) to commence proceedings (the Main Proceeding) seeking to remove the trustees of trusts I referred to as the Property Trust and the Church, and otherwise regularising aspects of the trusts’ constitutions and administration;

(b)declaring it reasonable and appropriate for the Toailoa applicants to seek interim orders in the Main Proceeding appointing an interim receiver or trustee of the Property Trust and the Church; and

(c)directing that the Toailoa applicants be reimbursed such of their reasonable legal costs in doing so as may be approved by the Registrar of this Court, from the assets of the Church and, if necessary, the Property Trust.

[2] Trustees of the Property Trust seek a stay of those orders, pending determination of their appeal against them to the Court of Appeal.

Background

[3] The circumstances in which my result judgment was issued are described in my reasons judgment. Following my results judgment of 28 March 2024:

(a)The application in the Main Proceeding for interim orders was heard, on 8 April 2024.

(b)The legal representation of the Church and of the Property Trust changed. Mr Kohler KC and Ms Short had appeared before me in the Costs Proceedings, and before Wilkinson-Smith J in the Main Proceedings, as counsel for the first- to fourth-named

1 Toailoa v Eliu [2024] NZHC 701.
2 Toailoa…

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 Toailoa v Eliu

Details

AGLC: Toailoa v Eliu [2024] NZHC 2030
Case: [2024] NZHC 2030
Decision Date: 24 July 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Toailoa v Eliu concerned a dispute between the applicants, Siaosi David Sootaga Toailoa and others, and the respondents, including Matauaina Elia, Saletaulua Charles Faamanatu Maka, Tonga Seini Fata, and others, as trustees of the Samoan Independent Seventh Day Adventist Church charitable trust board and the Samoan Independent Seventh Day Adventist Property Trust charitable trust board. The applicants sought to remove the trustees of the trusts and regularise aspects of their constitutions and administration. The legal issues involved determining whether the applicants were entitled to seek interim orders and reimbursement of their legal costs from the assets of the Church and, if necessary, the Property Trust. The court also had to decide whether to grant a stay pending the determination of the trustees' appeal against the orders.

Johnstone J considered the application for a stay pending appeal under rule 12(3) of the Court of Appeal (Civil) Rules 2005. The court must balance the interests of the parties desiring the fruits of the judgment against those who might be successful on appeal but have been required to meet the judgment in the interim. Factors considered included whether the right of appeal would be rendered nugatory if no stay is granted, whether the appellant is acting in good faith, the effect on third parties, the novelty and importance of the questions, the public interest, the overall balance of convenience, and the apparent strength of the appeal.

The trustees of the Property Trust argued for a stay, asserting they were pursuing their appeals diligently and in good faith, and that without a stay, the Property Trust could suffer irreversible harm. They also argued that the appeals had merit, particularly regarding the costs ordered to be paid from the Church's assets. The applicants, on the other hand, contended that the appeals lacked merit and that they might be unrepresented if a total stay was granted. They proposed a conditional stay with a fund of $120,000 to cover appeal costs. The Church supported the stay application but opposed funding the applicants' appeal costs.

After weighing the arguments, Johnstone J concluded that the appeals did not appear to have abundant merit but were being pursued diligently. The court decided that a total stay would expose the applicants to the risk of being unrepresented on appeal due to their inability to meet legal fees. The court granted the stay but required the Property Trust to pay $100,000 into court for the applicants' appeal costs, to be certified by their solicitor at rates of $500 per hour for senior counsel and $250 per hour for junior counsel.

In summary, the court granted the application for a stay pending appeal and ordered the Property Trust to pay $100,000 for the applicants' appeal costs, subject to certification by their solicitor at specified rates.

Orders