Toailoa v Eliu

[2024] NZHC 1621

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1747

[2024] NZHC 1621

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 June 2024

RESULTS JUDGMENT OF WILKINSON-SMITH J

[Application for leave to appeal and application for stay pending appeal of orders appointing interim manager]

This judgment was delivered by me on 19/06/2024 at 3pm 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 ELI & ORS [2024] NZHC 1621 [19 June 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 decision appointing an interim manager to administer the affairs of two closely related charitable trusts, namely the Samoan Independent Seventh Day Adventist Property Trust (SIDSA Property Trust) and the Samoan Independent Seventh Day Adventist Church (SISDAC), both of which are incorporated as Charitable Trust Boards (the Trusts).

[2]    The first to fourth respondents (the Respondents) seek leave to appeal that judgment and they apply for a stay of execution of the orders appointing the interim manager and associated orders pending appeal.

[3]    I heard initial argument on 12 June 2024  and  further argument yesterday   18 June 2024.

[4]    There is some urgency as the orders have implications for the Trusts’ funding arrangements.

[5]For reasons that will be set out separately, I make the following orders:

(a)Granting leave to appeal against the decision dated 10 June 2024 ([2024] NZHC 1509).

(b)Staying the execution of the interlocutory orders made in the decision dated 10 June 2024 appointing Andrew McKay as manager of SISDAC and the SISDA Property Trust pending determination of any appeal filed in the Court of Appeal upon the following conditions:

(i)a notice of appeal is to be filed within five working days; and

(ii)the appeal is to be prosecuted with all diligence including application to have the appeal admitted to the fast-track process in the Court of Appeal.

[6]    The applicants sought additional conditions if the applications were granted. First, that a fund of $120,000 be paid into Court upon which the applicants could draw to meet the legal costs associated with the appeal and with an associated appeal from a decision of Johnstone J granting Beddoe orders in favour of the applicants (Costs Judgment).

[7]    The applicants also seek an order that the Respondents comply with the costs orders made by Johnstone J, subject only to any amendment occasioned by orders made in determination of the application for stay of execution of the Costs Judgment and that the stay be in place for a period of three months and must be reconsidered if any appeal is not determined within that time.

[8]    The issue of funding for the appeal is closely associated to the Costs Judgment and the application for stay of that decision which is yet to be heard. In my view, the issue of funding for the appeal should be decided by the judge dealing with the application for a stay of execution of the costs orders made in that judgment. I direct the registry to identify a hearing date for that application as soon as possible.

[9]    I decline to limit the stay to a period of three months. Bringing the matter back for reconsideration will simply incur further costs which must be borne by the Trusts. If something changes it is always open to the applicants to seek further orders.

[10]   Finally, I note that there was an entirely responsible and realistic concession made by the respondents’ counsel that there are governance issues with the Trusts although not to such a degree that appointment of an interim manager is justified. Counsel is working with the respondents to address those issues. Given that this whole proceeding involves concerns about the governance of the Trusts, if there is any assistance the Court can provide to enable the parties to achieve an agreed outcome, leave is reserved to seek further orders to facilitate such an outcome.

Costs

[11]The costs in respect of this matter are reserved.

Wilkinson-Smith J