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,…

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 Wharepapa v Tokuma

Details

AGLC: Wharepapa v Tokuma [2025] NZHC 2211
Case: [2025] NZHC 2211
Decision Date: 7 August 2025

CaseChat Overview and Summary

In the case of Wharepapa v Tokuma, the applicant, Anastasis Rosita Wharepapa, sought directions from the Court regarding the appointment of trustees of the Ekalesia Fa’apotopotoga Kerisiano Samoan Kalaisetet Samoan Congregational Christian Church Trust (the Trust). The Trust operates the Congregational Christian Church in Hornby, Christchurch, and its assets were primarily accumulated through fundraising efforts. The primary dispute involves the resignation of four former trustees, who claim they were not properly removed and remain trustees of the Trust. The applicant, a trustee whose position is not contested, argues that the former trustees have severed ties with the Church and are now involved with other branches of the Congregational Church in Samoa. The Court was tasked with determining whether it was in the best interests of the Trust to pursue legal action against the former trustees and, if so, whether the costs of such action should be borne by the Trust.

The legal issues before the Court were whether the application for a Beddoe order could proceed without notice to the respondents and whether the proposed litigation was in the best interests of the Trust. The Court considered the requirements of the High Court Rules and the principles established in previous case law, particularly the need to balance the interests of the Trust and its beneficiaries against the need to avoid undue delay and prejudice. The Court also had to assess whether the application related to a routine matter or whether it was necessary for the interests of justice to proceed without notice.

In deciding the application, the Court noted that Beddoe applications are typically handled without notice to allow for a quick and cost-effective resolution of disputes concerning the administration of trusts. The Court found that proceeding without notice was appropriate in this case to prevent further delay and to ensure the Trust could function properly. The Court also considered the independent legal opinion supporting the application, which confirmed that the proposed litigation had a reasonable prospect of success. The Court concluded that it was in the best interests of the Trust to resolve the dispute over the trustees' appointments, even though it might consume a significant portion of the Trust's assets. The Court granted the application, allowing the applicant to be indemnified from the Trust's assets for the costs of the litigation and directing that certain parts of the evidence be withheld from the respondents.

The Court's final orders included indemnifying the applicant from the Trust's assets for the costs of pursuing the litigation against the respondents and withholding specific parts of the evidence from the respondents to protect the applicant's legal strategy. The Court emphasized the importance of resolving the dispute to allow the Trust to continue its charitable and educational activities.

Orders