Matamu and Others v Si'itia and Others

• Jurisdiction: New Zealand
• Judge: MOORE J
• Judgment Date: 21 October 2016
• Neutral Citation: [2016] NZHC 2516
• Docket Number: CIV-2014-404-000170
• Court: High Court
• Date: 21 October 2016

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

[2016] NZHC 2516

CIV-2014-404-000170

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

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.

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

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 buildings. As for the last of these, the buildings included the Avondale Methodist Church and the land owned by it, the Waterview Methodist Church, the St Ninians Church Hall and manse and the Victoria Hall, including land and houses.

12 Under the AUP, although individual members of the congregation might affiliate as Presbyterian or Methodist, each is part of a single, unified congregation known as the AUP. Denominationally, the Ministers appointed to the AUP alternate term by term.

The Samoan congregation

13 The main decision-making and governing body of the AUP is the Parish Council. It is the Parish Council which “manages the life and resources” of the church. 4 Those elected to the Parish Council must be members of the church.

14 Initially the Parish Council consisted of the Minister and 10 representatives drawn equally from the Presbyterian and Methodist members of the congregation. However, as the Pacific Island membership of the AUP grew, there was a call for that constituent group to have its own Minister. In 1979 this aspiration was realised in an agreement which recognised that the Pacific Island community had become an integral part of the Parish. As a consequence it was resolved that the Rev H C Pomeroy and the Rev L Si'itia would both be appointed as full-time Ministers of the AUP working together in what was described as a “Team Ministry … as a team, both of equal status and, exercising the fullest possible ministry … to all members of the Parish.” 5

15 An arrangement was then implemented which led to two services being held for the AUP's congregation each Sunday; an 11:00 am for the English speaking fellowship (“ESF”) and a later service for the Samoan speaking fellowship (“SSF”).

Although the two services were primarily organised along language lines some from the ESF would attend the afternoon service and vice versa. The Ministers tended to alternate between the services. Although there was a broad and largely informal delineation within the AUP congregation based on language, the ESF included parishioners from both the Presbyterian and Methodist denominations while the SSF primarily identified as Presbyterian. Members of the congregation from other Pacific Island communities were welcome at either service although they were fewer in number than the Samoan parishioners and tended to worship with the ESF. This arrangement of separate morning services appears to have operated well; co-operatively and without any evident tension or difficulties

16 From 1986 it was agreed that the membership of the Parish Council should reflect both the English speaking and Samoan speaking elements of the AUP congregation. It was thus decided that the 10 seats formerly reserved in equal numbers for the Presbyterian and Methodist members of the congregation should be reduced to five with an equivalent number drawn from the SSF.

The Pacific Island Synod and Rev Amosa

17 In 2003 Rev Si'itia's term as the SSF's Minister ended. Rev Asora Amosa was inducted as his replacement. On the evidence it is apparent that Rev Amosa's 10 year ministry had a polarising effect in the AUP both within the SSF and the ESF.

18 As will be discussed more fully later, the appointment of Ministers to a united parish is prescribed by the rules and principles promulgated by the governing body for united parishes, the Uniting Congregations of Aotearoa New Zealand (“UCANZ”). The rules are contained in the Procedures for Co-operative Ventures 2012 (“PCV”). 6 Rev Amosa's letter of appointment recorded his tenure was for an initial term of eight years beginning 31 July 2003. The appointment was made by the Presbytery of Auckland. 7...