Wharepapa v Tokuma

[2025] NZHC 2211

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2025-409-381

[2025] NZHC 2211

BETWEEN

ANASTASIS ROSITA WHAREPAPA

Applicant

AND

LUATALA TOKUMA, SOLOMONA SAVAIINAEA, AIGATULUTULUIATAO (FEUU FAAFOE), MATAGI MATAGI

Respondents

Hearing:	On the papers
Appearances:	S A Welsh and M R Gibson for Applicant
Judgment:	7 August 2025

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 7 August 2025 at 2.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

WHAREPAPA v TOKUMA [2025] NZHC 2211 [7 August 2025]

[1]                 The Court has received a without notice originating application for a Beddoe order, along with an interlocutory application for directions and supporting documents.

[2]                 While these documents are being filed without notice, the fact the application was being made was advised to counsel for the respondents. He, in turn, has filed a memorandum outlining the extent of the communications with counsel for the applicant and seeking three days in which to review the application and prepare any necessary response to it, saying this is so that the Court has all relevant matters before it before determining the application. However, for reasons given in this decision I have decided it should proceed without notice.

Background to the application

[3]                 The application is made by a trustee of the Ekalesia Fa’apotopotoga Kerisiano Samoan Kalaisetet Samoan Congregational Christian Church in Hornby Christchurch (the Trust). The plaintiff is an existing trustee of the Trust and the only trustee whose office is not disputed. The Trust operates pursuant to the Constitution and Rules of the Samoan Congregational Christian Church Trust Board. It is responsible for the operation of the Congregational Christian Church at Hornby (the Church).

[4]                 The Trust’s assets were built up principally by way of fundraising through weekly housie sessions at the Woolston Working Men’s Club. Initially the funds were used to purchase a property in Halswell for the Church. However, that has since be sold and the borrowings repaid. The assets of the Trust therefore comprise the sum of

$101,102.10 held in the trust account of Corcoran French, lawyers, following the sale of the Trust’s property. There is also a BNZ bank account for the Trust, but that has been frozen because of the current dispute.

[5]                 The dispute which has arisen relates to the purported resignation of four former trustees (the former trustees), who are the named respondents in this application. The applicant says three of them announced their resignations to the Church congregation in January 2022 and their names were formally removed from the church register. Shortly  afterwards  the  fourth  trustee  is  said  to  have  verbally  resigned  on      17 February 2023 and his resignation was accepted by a senior elder. The applicant

says that all of the former trustees left the Church and became involved in different branches of the Congregational Church in Samoa (the New Churches). From the date of their departure they had no further involvement in the Church or the Trust.

[6]                 However, around the time of the sale of the property owned by the Trust in October 2023, the respondents asserted they had not been properly removed as trustees of the Trust, nor did they effectively retire and so they remained as trustees. Given they had not been removed as trustees, they claimed the appointment of later trustees was invalid. They also claim that one of the current trustees has been suspended from his office by the Mother Church and no longer holds office as trustee. The applicant is concerned that the respondents are trying to take control of the Trust’s assets for the purposes of the New Churches.

[7]                 There have been proposals to resolve the dispute through alternative dispute resolution but the respondents rejected that option. The respondents have proposed winding up the Trust but, as the applicant, Ms Wharepapa, says in her supporting affidavit, the Trust’s assets were accumulated through fundraising by the church congregation and they wish to use it to continue the work of the Church, which includes offering educational programmes in partnership with the Ministry of Education.

[8]                 The applicant has also written to the Mother Church in Samoa seeking guidance in March 2024, but has received no response. The respondents have demanded that the proceeds of sale of the Trust property be paid over to them and they have also said if the Trust made any application to the Court, they would seek costs against each of the trustees personally.

[9]                 Ms Wharepapa says that she and her fellow trustees have held off commencing Court proceedings while they have tried to resolve the dispute outside the Court and with the Mother Church. However, she now believes there is no other option available but to seek the Court’s guidance. The impasse with the respondents cannot continue. She says:

We have been unable to operate the Church properly. We have missed out on funding, paid for various Church activities through our own money, and now have a dispute over the funds held in our lawyers’ trust account.

[10]             She acknowledges that the potential costs are significant as compared to the relatively modest amount held on trust but considers the proposed legal action as necessary in order to resolve the current impasse and move forward.

[11]             The applicant’s lawyer has sought an independent legal opinion in respect to the Beddoe order application. That opinion comes from Greg Kelly Trust Law. While that opinion is privileged and is sought to be kept confidential pursuant to rule 19.4A(c)(ii) of the High Court Rules, it is supportive of the steps being taken.

[12]             Ms Wharepapa brings the application in her name as the only trustee whose appointment is not challenged. However, she confirms she is not acting alone. The decisions in this case have been made collectively with her fellow trustees in accordance with the Constitution of the Trust. She says she is not bringing the action for her own self interest but so the Trust can be freed from this dispute to focus on its spiritual, charitable and educational purposes.

[13]             Finally, she says she does not have the resources to pay for legal action herself which is why she is proactively asking the Court to confirm the legal costs of her determining who are properly appointed as trustees, will be met from Trust funds.

[14]             The likely costs, however, include $60,000 incurred to date, plus an estimated additional $30,000 to complete the hearing. This is unfortunate, as it will consume a large part of the known assets of the Trust. However, I note unless the position is resolved all the Trust’s assets are frozen and cannot be utilised at all.

Legal principles

[15]             The application is brought pursuant to r 19.4(f) of the High Court Rules. This provides that a trustee seeking directions as to whether or not to bring or defend a proceeding in their capacity as a trustee may seek the directions of the Court by originating application. An application for such directions is known as a “Beddoe application”.

[16]Rule 19.4A of the High Court Rules provide that:

19.4A Application under rule 19.4(f)

(1)A Beddoe application may initially be made without notice and must be accompanied by the following:

(a)a memorandum—

(i)describing the proceeding in respect of which directions are sought and explaining its significance to the trust estate; and

(ii)stating all other relevant matters relating to the content or conduct of the application, such as whether a stay of the proceeding is sought pending the determination of the application; and

(b)an affidavit containing evidence of—

(i)the value and nature of the trust assets; and

(ii)the estimated costs likely to be incurred by the trust, directly or indirectly, in the proceeding and any other expected adverse impact of the proceeding on the trust; and

(iii)the advice of an appropriately qualified lawyer as to the prospects of success of the proceeding and whether bringing or defending the proceeding is in the best interests of the trust; and

(iv)all other relevant matters; and

(c)an application for directions as to service giving reasons (if applicable) why it is proposed that—

(i)any beneficiary should not be served with the application; and

(ii)any part of the evidence prescribed in this rule should be withheld from being served on any person; and

(iii)any person should be excluded from any part of the hearing.

(2)This rule is subject to rule 7.46.

[17]             Rule 7.46(3) provides that a Judge may determine that an application can be properly dealt with without notice, only if the Judge is satisfied that:

(a)requiring the applicant to proceed on notice would cause undue delay and prejudice to them; or

(b)the application only affects the applicant; or

(c)the application relates to a routine matter; or

(d)an enactment expressly permits it to be made without notice; or

(e)the interests of justice require the application to be determined without notice.

[18]             The relevant principles applying to the decision as to whether to make a Beddoe order were summarised by Thomas J in McLaughlin v McLaughlin:1

[18]      The overriding obligation of a trustee is to preserve and safeguard trust property for the benefit of the beneficiaries. When faced with the prospect of litigation, costs incurred for the benefit of the trust in its defence will generally be paid out of trust funds. They must, however, be reasonably and properly incurred. To mitigate the risk of liability for costs personally, trustees or beneficiaries may apply for a Beddoe order, named for the case from which they originate. To mitigate the risk or an adverse costs award against either the trust or the trustees, an application for prospective cost orders may be made.

…

[29] The test as deduced from case law is simply that Beddoe applications are gauged against the fundamental question of what is in the best interests of the trust. The Court must therefore exercise its jurisdiction in the best interests of the trust, and the beneficiaries as a whole, having regard to all the circumstances. This may include the need to balance the interests of different beneficiaries, as well as the interests of beneficiaries and trustees. That basic test conforms to the principle on which such applications are founded, namely that trustees ought to be indemnified for costs properly and reasonably incurred for the benefit of the trust.

Discussion

[19]     The fundamental question is whether prosecuting the proposed claim is in the best interests of the Trust. Here Mr Gibson notes the original draft claim has been amended in light of the independent opinion obtained from trust specialists Greg Kelly

1      McLaughlin v McLaughlin [2018] NZHC 3198, [2019] NZAR 286 (footnotes omitted).

Trust Law and which has been provided in support of the application to ensure that only claims with a reasonable prospect of success are pursued. Ms Wharepapa herself says that she is not acting for her own self-interest, but so that the Trust can be freed from the dispute and go forward with the purposes for which the Trust was established.

[20]     I am satisfied it is appropriate for the application to proceed without notice despite the respondents’ request to be served. Proceeding on such a basis is standard for Beddoe applications is indicated by r 19.4A(1) of the High Court Rules. Furthermore, it is necessary to avoid further cost. As Kós P said in McCallum v McCallum, “[t]hese orders are supposed to be fast and inexpensive”.2 Engaging the respondents when their position has been disclosed will only delay the Court’s decision on this application.

[21]     In any event, I am satisfied that sufficient factual background has been supplied to appreciate the respondents’ position. This includes a copy of Canterbury Legal’s letter dated 9 October 2023, and the memorandum of counsel from the respondents’ lawyer attaching  emails  between  the  firms,  including  that  firm’s  letters  dated  11 December 2024 and 15 July 2025.

[22]     I understand that the respondents maintain that the appointment of replacement trustees was not lawful and that they remain the lawfully appointed trustees, despite the fact they appear to have severed day to day involvement in the Trust and the Church.

[23]     However, none of that changes the fact that the applicant is acting reasonably and in the interests of the Trust, in bringing this application to resolve that dispute. It is therefore proper that she is indemnified from the Trust’s assets in order to resolve this dispute, despite the fact that may well consume the vast amount of the Trust funds. That said, if in fact the respondents are found to be at fault, it may be that some costs of the litigation can be recouped via a costs order.

2      McCallum Jnr v McCallum [2021] NZCA 237, (2021) 32 FRNZ 851 at [2].

[24]     In summary, I consider it is a proper and reasonable use of the Trust’s funds to fund the litigation in order to resolve the dispute over who, legally, are the trustees. The Trust cannot function until this dispute is resolved. I therefore order that:

The applicant is indemnified from the assets of the Trust for costs properly and reasonably incurred for the benefit of the Trust and pursuing proceedings against the respondents.

[25]     I also make an order, as sought, directing that the following parts of this evidence are to be withheld from the respondents pursuant to r 19.4A(c)(ii) of the High Court Rules:

(a)the applicant’s independent lawyer’s opinion attached to the affidavit of the applicant as annexure AW8; and

(b)all references to the applicant’s independent lawyer’s opinion (and the draft statement of claim as it was then) as referred to at paragraphs [48]-[50] and exhibited as annexure AW9 to the affidavit of the applicant filed in support of the application for a Beddoe order.

Solicitors:
Corcoran French, Christchurch

Copy to:

S A Welsh, Barrister, Christchurch