Matamu and Others v Si'itia and Others

JurisdictionNew Zealand
CourtHigh Court
JudgeMOORE J
Judgment Date21 Oct 2016
Neutral Citation[2016] NZHC 2516
Docket NumberCIV-2014-404-000170

[2016] NZHC 2516

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000170

In the matter of the Avondale Union Parish

Between
Tui'imalo Matamu, Talaoali'i Naseri, Malielegaoi Aumua, Saeni Pita and Tofa Tofia Tofa
Plaintiffs
and
Va'aimalu Si'itia, Mary Mcewing, Rev Alisa Lasi, Rev Roy Christian, Forbes Worn and Salapo Rapiti Tuia
First Defendants

and

The Prebysterian Church Property Trustees
Second Defendants
Counsel:

Olinda Woodroffe and Jeffrey Ussher for the Plaintiffs

Richard Pidgeon for the First, Second, Third and Sixth Named First Defendants

Katie Hogan for the Fourth and Fifth Named First Defendants

Application under the Declaratory Judgments Act 1908 for declarations that the meeting of the Parish Council of Avondale United Parish (“AUP”) which voted to not allow the plaintiffs' group the future use of the premises had not been properly notified and improperly constituted with the consequence the motions were invalid — the first defendant was a reverend of the AUP — the second defendant was the Presbyterian Church Property Trustees — the dispute was between elements of the Samoan congregation of the AUP and the balance of the congregation regarding the status and property rights of the group represented by the plaintiffs who had expressed a desire to form a new church — the plaintiffs group attended their own services and had stopped financially contributing to the AUP — whether the plaintiffs' group were members of the AUP at the time of the Parish Council's vote or whether they had effectively left the AUP.

The issue was whether M's group were members of the AUP at the time of the Parish Council's vote or whether they had effectively left the AUP.

Held: The rules and principles which governed the activities of the AUP were drawn from three primary sources; the Procedures for Co-operative Ventures (“PCV”), the PCANZ's Book of Order and the Laws (“PCANZ”) and Regulations of the Methodist Church of New Zealand. Rules of an incorporated society constituted a contract between its members and the society itself, enforceable in the same manner as any other contract. That general principle also applied to unincorporated societies including voluntary religious bodies albeit that the contract was between the members themselves. A contractual relationship existed between the parties. The PCV were the primary applicable rules. The section in the PCV dealing with Local Church Councils (Parish Councils) did not contain a provision requiring that a particular period of notice be given or that notice be given at all.

The test for repudiation was an objective one; whether the actions of the complained of party, in all the circumstances, are such as to lead a reasonable person to conclude that the party no longer intended to be bound by the provisions of the contract. The PCV did not impose express obligations on individual members of uniting churches but there was a central obligation to submit to the authority of the church and to be willing to participate constructively in its operation. While members of the AUP's congregation may affiliate denominationally as Presbyterian or Methodist, the church they belonged to was the AUP. The actions and declarations of M's group were such that a reasonable person would have concluded they no longer intended to be bound by the constitutional structure of the AUP or by their most central obligations as members. M's group had not attended the SSF' service on one of the most important dates in the church. M's group also held their own services where they celebrated the forming of a new church, the PIC Avondale. M's group had established a separated organisational structure. M's group were financially independent and did not contribute to the AUP. The conduct of the plaintiffs' group made it plain that they had estranged themselves from the authority of both the Northern Presbytery and the Parish Council.

The actions and declarations of the plaintiffs' group were such that a reasonable person would have concluded that they no longer intended to be bound by the constitutional structure of the AUP or by their obligations as members. Its representatives had therefore lost their eligibility to serve on the Parish Council, and the remainder of the AUP was entitled to proceed on this basis when electing new members to replace them. It followed that the representatives of M's group on the Parish Council were not entitled to notice of the meeting of 5 December, and that the resolutions passed at the meeting were lawful and valid

Under the Presbyterian Church Property Handbook those who dealt with church property had responsibilities as trustees in keeping with the Trustee Act 1956. However, while a trustee relationship existed between the members of the Parish Council and the wider congregation of the AUP, M's group had already left the AUP at the time the alleged breaches of the trustee relationship. Fiduciary obligations were also owed to members of the AUP. By the time of the alleged breaches, M's group had repudiated their membership of the uniting church, meaning they were no longer parties to this relationship of trust and confidence.

The plaintiff's causes of action were dismissed. The declaratory relief sought was declined.

This judgment was delivered by me on 21 October 2016 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

JUDGMENT OF MOORE J
Contents

Paragraph Number

Introduction

[1]

History and background

History and formation of Avondale Parish Union

[7]

The Samoan congregation

[13]

The Pacific Island Synod and Rev Amosa

[17]

White Sunday and its aftermath

[25]

Finances of the AUP

[37]

The meeting of 5 December 2013

[46]

Procedural history

[57]

Present position

[62]

Causes of action and relief sought

[64]

Jurisdiction to grant declaratory relief

[68]

What are the applicable rules which apply to Co-operative Ventures?

The rules

[76]

Breach of Contract

[88]

Is there an enforceable contract between the parties?

[89]

Was there a breach?

[97]

Were the members of the plaintiffs' group part of the AUP as at 5 December 2013 or had they repudiated their membership?

[104]

The law on repudiation

[106]

Is the test for repudiation met on the evidence?

[107]

Decision on repudiation and reasons

[110]

(i) Declaration a new church formed

[111]

(ii) Continuation of Rev Amosa's ministry

[118]

(iii) Separate organisational structure

[121]

(iv) Financial independence and lack of contributions to AUP

[133]

(v) Non-attendance at Parish Council meetings

[139]

(vi) Discipline and respect for chain of command

[142]

(vii) The plaintiffs' arguments that they had not been removed from the AUP's membership roll in accordance with the Book of Order

[148]

Conclusion on repudiation

[151]

Breach of trust

[154]

Breach of fiduciary duties

[162]

Result

[166]

Costs

[167]

Introduction
1

This case represents the culmination of a bitter and longstanding dispute between elements of the Samoan congregation of the Avondale United Parish (“AUP”) and the balance of the congregation.

2

The dispute centres on the status and property rights of the group represented by the plaintiffs, who have expressed a desire to form a new church.

3

Following several years of rising tension within the AUP, its Parish Council voted to disallow the plaintiffs' group 1 the future use of the premises.

4

The plaintiffs seek declarations that the meeting of the Parish Council at which this vote was taken was not properly notified and improperly constituted with the consequence the motions were invalid.

5

The determination of this question focuses on whether, in fact, the plaintiffs' group were members of the AUP at the time of the Parish Council's vote or whether they had effectively left the AUP.

6

For the purposes of this judgment, the use of the term “defendant(s)” may be interpreted as a reference to the first, second, third and sixth named first defendants. 2

History and background
History and formation of Avondale Parish Union
7

For a very substantial period St Ninians Presbyterian Church was the only church in the Avondale region. From well before the turn of the last century Christians who wished to worship either attended the service at St Ninians, met informally or travelled considerable distances to attend churches of their own denominations.

8

As the city of Auckland grew, the non-Presbyterian denominations in the Avondale and West Auckland areas withdrew from St Ninians and established their own churches; first the Anglicans and later the Methodists.

9

However, an increase in ecumenicalism in the 1960s and 1970s saw many churches return to the earlier co-operative model, including those in the Avondale and West Auckland areas. This broadly coincided with large numbers of Pacific Island families, mostly from Samoa, immigrating to New Zealand. Many settled in West Auckland. As a consequence the Pacific Island congregation of St Ninians grew, particularly the Samoan component.

10

In Avondale the increase in ecumenicalism was formalised in 1972 when the AUP was established with several Presbyterian and Methodist congregations uniting. The unification model, which is discussed in more detail later in this judgment, permits churches of different denominations to join as a single, unified congregation. In the AUP the constituent, founding churches and congregations were St Ninians, the Methodist Church at Rosebank Road, the Waterview Methodist Church and Victoria Hall. 3

11

The agreement establishing the AUP defined the boundaries of the Parish, its constitution and membership, its governance, the number and appointment of Ministers, property and finance, and the joint use of...

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