Matamu v Si'Itia [2014] NZHC 34 (31 January 2014)

Last Updated: 11 March 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000170 [2014] NZHC 34

BETWEEN TUA'IMALO MATAMU, TALAOALI'I NASERI, MALIELEGAOI AUMUA, SAENI PITA and TOFIA TOFA Applicants

AND VA'AIMALU SI'ITIA, MARY McEWING, REVEREND ALISA LASI, REVEREND ROY CHRISTIAN, FORBES WORN and SALAPO RAPITI TUA

First Respondents

THE PRESBYTERIAN CHURCH PROPERTY TRUSTEES

Second Respondents

Hearing: On the papers

Judgment: 31 January 2014

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 31 January 2014 at 4.45 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date............................}

MATAMU & ORS v SI'ITIA & ORS [2014] NZHC 34 [31 January 2014]

[1] The Avondale Union Parish (AUP) is a cooperative venture between the Methodist Church and the Presbyterian Church of Aotearoa New Zealand. The first respondents are representatives of the AUP. Two groups worship within the AUP. These are the Pacific Island Church Avondale (PIC Avondale) and the Methodist congregation. PIC Avondale has operated as part of AUP since 1979. It has contributed capital, donations and tithing. The applicants are representatives of over

300 members of PIC Avondale.

[2] The AUP occupies properties at 49-55 Rosebank Road, Avondale and 212

Rosebank Road, Avondale. The properties are owned by the Presbyterian Church Property Trustees, a statutory trust established under the Presbyterian Church Property Act 1885. The trustees are the second respondents.

[3] The properties are used by both congregations for their separate church services and other church-related activities. The Parish Council has the day-to-day running of the church and church property. It comprises two ministers from each congregation, the secretary of the Parish Council, the treasurer of PIC Avondale, five members of PIC Avondale and five members from the Methodist Congregation.

[4] The second named applicant, Talaoali’i Naseri, is the treasurer of PIC Avondale. In her affidavit 31 January 2014 she has described a dispute arising between the two congregations, the origins of which seem to lie in the termination of employment of the PIC Avondale minister, Reverend Asor Amosa. That led to PIC Avondale considering a dissolution of the AUP in accordance with the Procedures for Co-operative Ventures approved by (amongst others) the Presbyterian Church of Aotearoa New Zealand.

[5] PIC Avondale’s solicitors wrote to the Presbyterian Church of Aotearoa New Zealand advising that it wished to seek a dissolution of the cooperative venture and to enter into a joint use agreement for the use of the church buildings and assets, to which its members had contributed over many years. However, the agreed procedures were not implemented. Instead, the Parish Council held a meeting on 5

December 2013. The PIC Avondale members were not notified of the meeting. Two motions were passed, one of which was that:

[6] That the Council of the Avondale Union Parish will not allow the future use of their premises by the separating Samoan group.

[7] The locks on the church premises were changed. Although arrangements were made for access to the premises for Christmas services and concerts no progress has been made towards a resolution of the issue this year. Several letters requesting the provision of keys and resolution of the issue have been sent but with no response.

[8] The applicants have commenced proceedings against representatives of the Parish Council and the Presbyterian Church property trustees alleging breach of trust and breach of fiduciary duty. They have applied for interim relief in the form of orders allowing them access to the church property at 49-55 Rosebank Road, Avondale for their church services and activities on specified days and times and provision of keys to the premises. The application has been brought without notice today so that the applicants may attend the premises and hold their church services this coming week, beginning Sunday, 2 February 2014.

Serious issue to be tried

[9] The evidence provided is to the effect that PIC Avondale has, by virtue of some three decades worth of financial contribution, a beneficial interest in the church property to which the applicants seek access. The Uniting Congregations of Aotearoa New Zealand (UCANZ) had provided a property schedule kept that shows the three contributors to the parish and their respective contributions, being the Methodist congregation ($110,890 or 16.3%), Presbyterian (304,810 or 44.7%) and Presbyterian Pacific Islanders ($265,910 or 39%).

[10] UCANZ has advised that it does not hold a deed of trust for the Avondale Parish. There is, however, a trust deed annexed to Ms Naseri’s affidavit for the Pacific Island Church Avondale trust which refers to the Trust Board for that trust having members representing the AUP. These documents, together with the correspondence between the parties, satisfy me that there is a serious issue regarding the management of the property, the proper procedure for the dissolution of the AUP

or for the separation of PIC Avondale and the accounting to that group for its contributions.

The balance of convenience

[11] I am satisfied that the balance of convenience favours the applicants. It is evident from the correspondence that they have made a sustained effort over several months to secure a resolution to the outstanding issue between them and the AUP. The applicants number over 300 persons representing about 40 families who have been in the habit of worshipping at this church for many years. Their services and church activities have been conducted for all of that time without interfering with those of the Methodist congregation. There is no apparent reason that this could not continue. It would be unfair and impractical to expect them to find alternative accommodation for their needs pending the resolution of the substantive issue.

Undertaking as to damages

[12] The applicants have given an undertaking as to damages that confirms they are the representatives of 306 members of PIC Avondale and are authorised by those members to give the undertaking.

Result

[13] There will be an order for interim relief in the terms sought at paragraph 1 of the interlocutory application dated 31 January 2014.

[14] The matter should be listed in the duty judge list next week for further directions.

P Courtney J