Toailoa v Eliu - [2024] NZHC 1509

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1747

[2024] NZHC 1509

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: 8 April 2024 (further submissions received 19 April 2024)

Appearances:

B O’Callahan and X Zhang for Applicants

G J Kohler KC and H P Short for First to Fourth Respondents D L Harries for Fifth Respondent

Judgment:

10 June 2024

JUDGEMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 10 June 2024 at 4pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:
Zhang Law, Auckland
CM & Associates, Auckland Crown Law, Wellington

TOAILOA v ELIU [2024] NZHC 1509 [10 June 2024]

Continued…

AND

FEU SEUMAALII

Second Applicant

PENIATA SAUNIA
Third Application

MATUAINA ELIU, SALETAULUA CHARLES FAAMANATU MAKA AND TONGA SEINI FATA

as trustees of the SISDA PROPERTY TRUST First Respondent

SUNRISE GLOBAL HOMES LIMITED

Second Respondent

WILLIE PAPU
Third Respondent

WILLIE PAPU JUNIOR
Fourth Respondent

ATTORNEY GENERAL

Fifth Respondent

Table of Contents Para No

Introduction[1]
Background[15]
De-registration[34]
The Remnant Church[45]

The New Church Build Project[61]

Procedural History [69]

Issues[80]

The parties’ positions [81]

The applicants’ position[81]
The Respondents’ position[87]

The Attorney-General’s position[98]

The alternative application [100]

The evidence[104]

Pastor Toailoa[104]

Faavae Cherry Gagamoe[129]
Simas Finai[140]
Pastor Willie Papu[147]
Miracle Sopaima Deborah Pili Faatamala[167]
Tonga Seni Fata[184]
Financial statements of the Trusts[200]

Discussion[204]

Do the applicants have standing to bring this application?[211]

Is it reasonably necessary to appoint a receiver/manager?[219]
What form should the managerial appointment take?[246]
What conditions should attach to the appointment?[249]
Should the preservation orders remain in place?[252]
Orders[253]

Introduction

[1] The applicants are a former pastor and two elders of the Samoan Independent Seventh Day Adventist Church.

[2] As such they are former board members of the Samoan Independent Seventh Day Adventist Church (SISDAC) Charitable Trust Board under the terms of the Constitution.

[3] They have applied for orders in respect of the administration of two closely related charitable trusts namely SISDAC and the Samoan Independent Seventh Day Adventist Property Trust (SISDA Property Trust) (collectively, referred to as the Trusts).

[4]The main proceeding is at an early stage and does not have a hearing date.

[5] In the meantime, the applicants seek an interim order appointing either a receiver or a manager to administer the Trusts until further order of the Court or determination of the proceeding.

[6] The applicants say that the appointment of a neutral and experienced receiver or manager is required to protect the assets of the Trusts by ensuring they are competently managed and applied only to the charitable purposes of SISDAC.

[7] The applicants propose Andrew McKay of BDO New Zealand Ltd as receiver or manager.

[8]…

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 1509
Case: [2024] NZHC 1509
Decision Date: 10 June 2024

CaseChat Overview and Summary

The applicants, former board members of the Samoan Independent Seventh Day Adventist Church (SISDAC) Charitable Trust Board, have applied for interim orders to appoint a receiver or manager to administer the Trusts until the outcome of the main proceeding. The main proceeding seeks, among other things, a declaration as to the lawful trust deed of the Samoan Independent Seventh Day Adventist Property Trust (SISDA Property Trust), the transfer of property from SISDA Property Trust to Sunrise Global Homes Limited, and the replacement of the trustees of SISDA Property Trust and SISDAC. The applicants contend that the Trusts' assets are being used for the purposes of the Universal Remnant Church of the Living God (Remnant Church), tithes and donations made to SISDAC are being distributed to the Remnant Church, and there is generally poor management and administration. The applicants further contend that the affairs of SISDAC and SISDA Property Trust are effectively run by Pastor Willie Papu, who is banned from being an officer of a charitable entity. The Respondents oppose the application and seek the discharge of interim preservation orders currently in place. The Court found that the applicants do have standing to bring the proceedings. The Court found that the appointment of a manager is reasonably necessary. The Court held that the appointment of a manager should avoid the risk of de-registration for non-compliance with the conditions of re-registration and should ensure that systems for ongoing compliance can be put in place. The Court appointed Andrew McKay of BDO New Zealand as manager of the SISDA Property Trust and SISDAC for the purpose of managing and administering each charitable trust in the best interests of the objects of the trust until further order of the Court. The manager is entitled to exercise any power of a trustee until further order of this Court and must endeavour to consult with the applicants and the first respondents when making decisions relating to funding the ongoing operation of SISDAC or the construction, use, maintenance or disposal of buildings or real property owned by the SISDA Property Trust. The manager must also seek to identify and secure the property of SISDA Property Trust and SISDAC, endeavour to prepare audited accounts for SISDA Property Trust and SISDAC, and prepare periodic reports of his activities to the Court and parties to this proceeding no less often than every three months. The preservation orders currently in place remain in place pending the manager's first report to the Court. The manager may request variation or removal of the preservation orders at any stage. Any such request may be dealt with on the papers if not opposed by the parties. The manager's actual and reasonable fees are to be paid out of the assets of the SISDA Property Trust and are capped at $50,000 (excluding GST), with leave to apply to the Court to extend this cap. Leave is reserved to the manager to seek any further directions or orders that might be required to implement the above orders. Leave is also reserved to the parties to seek further directions or orders following receipt of each report provided by the manager. The costs of this hearing are reserved to the substantive hearing.

Orders