Woodroffe Law Partnership v Fagalilo
[2018] NZHC 2727
•19 October 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2012-485-574
[2018] NZHC 2727
BETWEEN WOODROFFE LAW PARTNERSHIP
Plaintiff
AND
LUAIVA FAGALILO
Defendant
Hearing: 12 October 2018 Appearances:
Mr Jeff Ussher for the plaintiff
Mr Lance Pratley for the defendant
Mr John Gwilliam for the proposed second defendant, Ioritana Tonise
Judgment:
19 October 2018
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
[1] Counsel inform me that the background to this litigation is a dispute within the ranks of the Green Valley Samoan Assembly of God in Wainuiomata. Christendom has perhaps experienced more profound schisms in the past. Nevertheless, this one appears to have generated its share of anxiety for those most closely associated with it.
[2] During 2005 the church congregation was apparently lead by Pastor Luaiva Fagalilo. He and his flock, or at least some leading members, obviously concluded that they needed legal advice. The Pastor was instrumental in engaging Woodroffe Law Partnership and in particular one of that firm’s principals, Ms Olinda Woodroffe.
[3] The unchallenged evidence is that the Pastor, whose native language was Samoan, and who apparently spoke little English, was primarily responsible for
WOODROFFE LAW PARTNERSHIP v FAGALILO [2018] NZHC 2727 [19 October 2018]
providing instructions to Ms Woodroffe, also a fluent speaker of Samoan. Through Ms Woodroffe, the plaintiff firm accepted instructions to act in certain litigation. Regrettably, there is no record of the arrangements between the parties or the contract of retainer.
[4] Thus it is that there are unresolved issues as to whether the Pastor instructed the plaintiff firm in his own capacity, on behalf of a group of undisclosed principals (members for the time being of the congregation), or whether the Pastor disclosed that he was acting as an agent and identified his principals. Nor is it apparent what the precise terms of the contract of retainer were. All those things remain mysteries.
[5] Moving from the mysterious to the worldly, what is clear is that the plaintiff firm did a good deal of work and in the end rendered fee notes totalling $134,330.44 plus GST. These were rendered to the Pastor.
[6] When the plaintiff firm’s fee notes were unpaid, the firm sued to recover them, citing the Pastor as the defendant.
[7] Pausing there, it appears to me that the plaintiff firm’s evidence that the Pastor was responsible for providing instructions, the lack of any evidence from Ms Woodroffe or anyone else at the firm as to the terms of the arrangement, the fact that the firm rendered its fee notes to the Pastor and the fact that it elected in commencing this proceeding to sue the Pastor in his own name all suggest that, from day one, the parties proceeded on the basis that the Pastor was entering into the contract of retainer with the firm in his personal capacity and effectively taking responsibility on the basis that he would seek indemnity or reimbursement from the church or certain members of the congregation.
[8] On or about 30 April 2012 the plaintiff firm’s costs were challenged. The source of the challenge is something to which I will return. However, the immediate result of the challenge was that under s 6 of the Lawyers and Conveyancers Act 2006 this proceeding was stayed until that challenge was resolved.
[9] Like the mills of God, this process ground on slowly. However, on 17 May 2017 the Legal Complaints Review Officer issued what has turned out to be the final determination of the complaint. In effect the plaintiff firm’s costs were reduced to
$123,980.44 plus GST.
[10] Certain payments have been made in reduction of the debt. The exact source of these payments has not been revealed. But, as at the date of the hearing before me, the balance outstanding was $65,590.94.
[11] Sadly, while all this was going on, Pastor Fagalilo died. He died on 4 May 2015. The Pastor’s solicitor in the costs dispute was Mr O’Connor of Strachan O’Conner who has instructed Mr Lance Pratley as counsel. Mr O’Connor and Mr Pratley are now without instructions because they do not know whether the Pastor died intestate or left a will, and therefore who his earthly representative or representatives is or are. They are doing their best to find out.
[12] All of this brings me to the essential point which is that the plaintiff firm now seeks to join Mr Ioritana Tonise as a second defendant in the proceeding.
[13] Having regard to what I have already said, the legal basis for this joinder must, it seems to me, necessarily be that Mr Tonise, along with other members of the congregation of the church, became a party to the contractual arrangements with the plaintiff firm through the agency of the Pastor. No other legal foundation was advanced by Mr Ussher during the course of the hearing. Mr Ussher acknowledged when I raised the point with him that there may be issues around whether the plaintiff firm is in a position to sue Mr Tonise if, for example, he was an undisclosed principal. But, as he submitted, such issues are for trial rather than matters that I can resolve in the context of this interlocutory application.1
[14] In support of this application a number of points are made and I will summarise them briefly.
1 Tourplan Pacific Ltd v Australian Tours Management Pty Ltd [2017] NZHC 2310 at [22].
[15] First it is said that it is open to a plaintiff to sue whoever he, she or it wishes so that if the plaintiff firm were commencing proceedings today, it could not be prevented from citing Mr Tonise as a defendant. That, I think, must be right. It is reflected in the rules relating to joinder which do not require a plaintiff seeking to join a further party to an existing proceeding to give that party notice of an application to do so,2 and the liberal approach taken to joinder particularly where the joinder application is made by a plaintiff.3
[16] Second, Mr Ussher points out that when the plaintiff firm’s costs were challenged, it was Mr Tonise who purported to do so and that Mr Tonise was also the deponent of the principal affidavit filed in support of the notice of opposition in the plaintiff firm’s summary judgment application. There is no doubt, then, that Mr Tonise has been heavily involved, at least from the time that the plaintiff firm’s fees were challenged.
[17] Third and finally, Mr Ussher points to passages in Mr Tonise’s affidavit and complaint where he uses language suggesting that he and other members of the congregation may have contracted directly with the plaintiff firm in the first place, though I suspect those are simply infelicities of language.
[18] For the defendant, or, rather, his assumed estate, Mr Pratley felt unable to make any submissions in relation to this application. That seems wise given that he is not sure if he continues to have any standing in the matter.
[19] Mr Gwilliam who is instructed on behalf of Mr Tonise, did make helpful submissions.
[20] He accepted that, in the end, the plaintiff’s application to join Mr Tonise as a second defendant was irresistible. He said that he had, in his skeletal outline of his argument, identified the bases upon which any claim against Mr Tonise would be defended to ensure that the plaintiff firm was aware of the position that he — Mr Tonise — would take.
2 High Court Rules 2016, rr 4.3 and 4.56.
3 McKendrick Glass Manufacturing Co Ltd v Wilkinson [1965] NZLR 717 at 723.
[21] The defences foreshadowed include the privity point and a contention that any claim against Mr Tonise is time-barred. Adopting a liberal approach, it seems to me that Mr Tonise’s presence as a party may be necessary to ensure that all matters in the proceeding can be resolved.4
[22] On Mr Tonise’s behalf a concern was raised that his joinder at this stage might compromise his entitlement to rely on a limitation defence. This is a matter which will have to be determined at the substantive hearing. The order I make is that he be joined from the date of the filing of the application to join him.5
[23] In the end, I take the view that the plaintiff firm is entitled to the order it seeks and I therefore grant leave to it to join Mr Tonise as a second defendant.
[24] Mr Ussher invited me to make an order for costs against Mr Tonise. I am not persuaded that it would be appropriate to make such an order. The reality seems to be that the plaintiff firm has only sought to join Mr Tonise because of the Pastor’s death and because they can identify him – Mr Tonise – as having been a member of the congregation at the relevant time. Whilst I have concluded that they are entitled to do so, I regard the approach taken by Mr Gwilliam as having been appropriate in the circumstances. The costs of this application will be costs in the cause and can be dealt with when the matter is finally resolved.
[25] As mentioned earlier, this is (now at least) a debt collection claim for approximately $65,000. I suggested to counsel that it may be more economical for all concerned to transfer it to the District Court. Mr Ussher for the plaintiff firm indicated that he had no instructions to consent to that, and that he expected his clients would prefer that the litigation remain in this Court. Mr Pratley was unable to say anything for the reasons already explained. Mr Gwilliam indicated that Mr Tonise would not object to a transfer. Pursuant to s 94 of the District Courts Act 2016, I order that this proceeding be transferred to the District Court.
4 High Court Rules 2016, r 4.56(1)(b)(iii); Mainzeal Corp Ltd v Contractors Bonding Ltd (1989) 2 PRNZ 47.
5 Body Corporate 38172 v Heron Point Projects Ltd [2017] NZHC 597 at [16]–[17].
[26] I repeat in this judgment my observation to counsel that the case appears to me to cry out for a quick settlement which would no doubt involve both parties making compromises. I asked counsel whether a judicial settlement conference was a possibility. Mr Ussher indicated that he had no instructions as to that. Nor were Mr Pratley or Mr Gwilliam in a position to say yes or no. Whilst it is not for me to say, I would have thought that it would be wise for the parties to seek an early judicial settlement conference in the District Court in order to bring this rather unseemly matter to an end.
Associate Judge Johnston
Solicitors:
Jeff Ussher, Auckland
Lance Pratley Law, Wellington Main Street Legal, Upper Hutt
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