Toailoa v Eliu - [2024] NZHC 2080

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1747

[2024] NZHC 2080

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 (SISDAC) charitable trust board and the Samoan Independent Seventh Day Adventist Property Trust (SISDA Property Trust) charitable trust board

BETWEEN

SIAOSI DAVID SOOTAGA TOAILOA

First Applicant

Continued:…/2

Hearing: 18 June 2024

Appearances:

B O’Callahan and R Warren for Applicants

J D McBride and R Woods for First to Fourth Respondents

Judgment:

19 July 2024

Reasons:

30 July 2024

REASONS JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 30/07/2024 at 2pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:
Zhang Law, Auckland
B O’Callahan, Auckland R Warren, Auckland
CM & Associates, Auckland Crown Law, Wellington

TOAILOA & ORS v ELIU & ORS [2024] NZHC 2080 [30 July 2024]

Continued…

AND

FEU SEUMAALII

Second Applicant

PENIATA SAUNIA
Third Applicant

MATAUINA ELIU, SALETAULUA CHARLES FAAMANATU MAKA AND TONGA SEINI FATA

as trustees of the SISDA PROPERTY TRUST First Respondents

SUNRISE GLOBAL HOMES LIMITED

Second Respondent

WILLIE PAPU
Third Respondent

WILLIE PAPU JUNIOR
Fourth Respondent

ATTORNEY GENERAL

Fifth Respondent

Introduction

[1] On 10 June 2024, I issued a judgment appointing a manager and making associated orders in respect of the administration of two closely related charitable trusts, namely the Samoan Independent Seventh Day Adventist Church (SISDAC), which is incorporated as a charitable trust board and the Samoan Seventh Day Adventist Property Trust (SISDA Property Trust), also incorporated as a charitable trust board (the Management Decision). The respondents have filed an application for leave to appeal the Management Decision and an application for stay of execution of the interlocutory orders pending appeal.

[2] On 19 June 2024, I granted the application for leave to appeal and ordered a stay of execution of the interlocutory orders pending appeal with reasons to follow. These are the reasons.

[3] The applicants in the proceeding opposed the respondents’ applications. Related orders were made by Johnstone J granting Beddoe orders in favour of the applicants (the Beddoe Decision).1

[4] The respondents have already filed an appeal against that decision (the Beddoe Appeal).

[5] The respondents have applied to have the Beddoe Appeal submitted to the Court of Appeal’s fast track procedure. The respondents will apply to join this appeal to the Beddoe Appeal.

Leave to appeal

[6] The respondents sought leave to appeal the Management Decision on the following grounds:

1 Toailoa v Eliu [2024] NZHC 701; and Toailia v Eliu [2024] NZHC 1412.

(a)The proposed appeal is neither frivolous nor vexatious.

(b)They have already filed an appeal against the judgments issued by Johnstone J in this proceeding, dated 28 March 2024 and 31 May 2024, making Beddoe orders in favour of the respondents, in the Court of Appeal.

(c)They have applied to have the Beddoe Appeal admitted to the…

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 2080
Case: [2024] NZHC 2080
Decision Date: 19 July 2024

CaseChat Overview and Summary

In Toailoa v Eliu, the High Court of New Zealand was called upon to determine an appeal against the appointment of a manager for two charitable trusts, the Samoan Independent Seventh Day Adventist Church (SISDAC) and the Samoan Seventh Day Adventist Property Trust (SISDA Property Trust). The respondents, trustees of the SISDA Property Trust, sought leave to appeal the decision and a stay of execution of the orders pending appeal. The applicants opposed the appeal and stay. The legal issues at the heart of the case revolved around the jurisdiction of the court to appoint a manager for the trusts, the potential consequences of such an appointment, and the principles governing interlocutory appeals and stays of execution.

The court considered the respondents' application for leave to appeal, which was based on several grounds, including the novelty of the appointment of a manager and the potential significant adverse effects on the trusts. The applicants argued against the appeal, emphasizing the court's broad powers under the Charitable Trusts Act 1957 and the merits of the appointment in preventing mismanagement and securing the trusts' assets. The court found that while the appeal involved interlocutory matters and a high threshold applied, the issues raised were of sufficient importance and novelty to warrant consideration. The interests of justice favored granting leave to appeal, as the appointment of a manager had significant potential consequences for the trusts, and there was little prospect of the applicants meeting an order for costs if the appeal was successful.

Turning to the application for a stay of execution pending appeal, the court considered various factors, including the risk of rendering the appeal nugatory, the effect on third parties, and the overall balance of convenience. The court concluded that failure to grant a stay would likely render the appeal nugatory, as the orders appointed a manager who would incur immediate costs and potentially trigger defaults under banking facilities. The balance of convenience favored granting a stay, as the risks of the manager's appointment outweighed the potential prejudice to the applicants. The court imposed conditions for the stay, including the requirement for the respondents to comply with cost orders and the need for a fund to be established for the appeal costs.

In its decision dated 19 June 2024, the court granted leave to appeal and stayed the execution of the interlocutory orders appointing the manager, subject to specific conditions. The court reserved costs pending further orders.

Orders