Toailoa v Eliu - [2024] NZHC 1412

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1747

CIV-2023-404-1748 [2024] NZHC 1412

BETWEEN
SIAOSI DAVID SOOTAGA TOAILOA

First Applicant

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

Cont:/

Hearing: 26 February 2024

Appearances:

B O’Callahan and R Warren for applicants

G J Kohler KC and H P Short for respondents D L Harris for fifth respondent

Judgment:

31 May 2024

REASONS JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 31 May 2024 at 2 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Zhang Law, Auckland
Duggan & Murphy, Auckland Crown Law, Wellington

TOAILOA & ORS v ELIU & ORS [2024] NZHC 1412 [31 May 2024]

AND
WILLIE PAPU

Third Respondent

AND

WILLIE JUNIOR PAPU

Fourth Respondent

AND

ATTORNEY-GENERAL

Fifth Respondent

[1] By way of a results judgment dated 28 March 2024, I made orders relating to two trusts: the Samoan Independent Seventh Day Adventist Church (Church) and the Samoan Independent Seventh Day Adventist Property Trust (Property Trust).

[2]In essence, I made orders:

(a)declaring that it was reasonable and appropriate for the applicants:

(i)to commence substantive proceedings seeking certain orders as to the trusts’ constitutions and administration, for removal and replacement of trustees of the Church and the Property Trust, and for the transfer of various properties from the Property Trust back to the Church; and

(ii)to seek interim orders in those proceedings, appointing an interim receiver or trustee, and restraining disposition of trust property except for stated purposes; and

(b)that the applicants’ reasonable legal costs are to be met from the Church’s assets, or failing that, the Property Trust’s assets.

[3]This judgment sets out my reasons for making those orders.

Background

Charitable trusts, incorporated boards, registered charities and Charities Services

[4] The trustees of charitable trusts may apply to the Registrar of Incorporated Societies for their incorporation as a board under s 7 of the Charitable Trusts Act 1957. The Registrar’s role under that Act is to register trust boards, and to record changes to trust deeds, addresses and other details. The Registrar is not empowered to enquire into an incorporated board’s activities or operations.

[5] Qualifying entities may apply for registration as charitable entities under s 17 of the Charities Act 2005. The primary advantage of doing so is that registered charities may qualify for certain tax benefits, including tax exemptions for all or some

of their income, and donee status, which allows donors to claim tax credits on donations.

[6] Charities Services is an agency established within the Department of Internal Affairs to administer the Charities Act, and to assist the Charities Registration Board to make decisions about registering or de-registering charities. Its website states that they “strive to be a modern, responsive, risk-based regulator focused on promoting public trust…

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 1412
Case: [2024] NZHC 1412
Decision Date: 31 May 2024

CaseChat Overview and Summary

The applicants, including Pastor Siaosi Toailoa and two Church elders, sought orders to commence proceedings and seek interim relief for the proper administration of the Samoan Independent Seventh Day Adventist Church (Church) and the Samoan Independent Seventh Day Adventist Property Trust (Property Trust). The respondents, including the trustees of the Property Trust and Pastor Willie Papu, opposed the applicants’ requests. The High Court of New Zealand, Auckland Registry, was required to determine whether the applicants' proposed proceedings and associated applications for interim preservation and receivership/trusteeship orders were for the purpose of proper administration of the trusts, and whether pre-determined costs consequences were justified.

The Court found that the applicants' proceedings and associated applications were intended for the proper administration and governance of the Church and the Property Trust, and not self-interested. The Court was concerned about the Church's de-registration, the establishment of a new church (Remnant), and the apparent lack of inclination on the part of Charitable Services to enforce strict compliance with the trusts' financial reporting requirements. The Court also found that the applicants' proceedings did not appear to be self-serving. However, the Court declined to immunise the applicants against the prospect of an adverse costs award and refused a declaration that the respondents are not entitled to have their costs met from assets of the Church or the Property Trust.

Accordingly, the Court made orders declaring that it was reasonable and appropriate for the applicants to commence substantive proceedings seeking certain orders as to the trusts’ constitutions and administration, for removal and replacement of trustees of the Church and the Property Trust, and for the transfer of various properties from the Property Trust back to the Church. The Court also ordered that the applicants' reasonable legal costs are to be met from the Church’s assets, or failing that, the Property Trust’s assets.

Orders