SIONE AND OTHERS v THE ONEHUNGA SAMOAN ASSEMBLY OF GOD TRUST BOARD [2013] NZHC 2840
The Court gave effect to the parties’ consent agreement: the application to prevent the caveat lapsing was dismissed on the condition that the respondent’s solicitors (Daniel Overton Goulding) give a written undertaking to pay $194,177.91 to the applicants’ solicitors within three working days of the notice of lapse...
Source-derived case information.
- Citation
- [2013] NZHC 2840
- Parties
- Applicant: Leauma Sione and others; Respondent: The Onehunga Samoan Assembly of God Trust Board
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 29 October 2013
- Procedural Posture
- Caveat Proceeding (constructive Trust Claim) / Consent Order Resolving Caveat Application
- Outcome
- Application dismissed by consent; caveat to lapse conditionally upon provision of a written undertaking to pay the agreed sum; no costs order.
- Legal Topics
- Constructive Trust, Caveat, Proprietary Claim, Settlement by Consent
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leauma Sione and others
Applicant
The Onehunga Samoan Assembly of God Trust Board
Respondent
Procedural Posture
Caveat Proceeding (constructive Trust Claim) / Consent Order Resolving Caveat Application
Legal Issues
- 1 Whether contributions/advances created a proprietary interest giving rise to a constructive trust
- 2 Whether sums advanced were gifts or intended to create proprietary rights
- 3 Whether the caveat should be sustained or allowed to lapse pending resolution or settlement
Ratio Decidendi
The Court gave effect to the parties’ consent agreement: the application to prevent the caveat lapsing was dismissed on the condition that the respondent’s solicitors (Daniel Overton Goulding) give a written undertaking to pay $194,177.91 to the applicants’ solicitors within three working days of the notice of lapse appearing on the property identifier; consequential issues were left open and no order as to costs was made.
Court Disposition
Application dismissed by consent; caveat to lapse conditionally upon provision of a written undertaking to pay the agreed sum; no costs order.
Orders
- Dismissal of the application for an order that the caveat not lapse (by consent).
- Caveat to remain in place until Daniel Overton Goulding, solicitors, Onehunga, provide a written undertaking to the Court to pay $194,177.91 to the solicitors for Mr Sione’s interests within three working days of the notice of lapse appearing on the property identifier.
Full Case Text
Judgment text and source record
1 paragraphs
SIONE AND OTHERS v THE ONEHUNGA SAMOAN ASSEMBLY OF GOD TRUST BOARD [2013] NZHC 2840 [29 October 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2013-404-4289[2013] NZHC 2840BETWEEN LEAUMA SIONE AND OTHERSApplicantsAND THE ONEHUNGA SAMOANASSEMBLY OF GOD TRUST BOARDRespondentHearing: 29 October 2013Counsel: T Bowler for ApplicantsR O Parmenter for RespondentJudgment: 29 October 2013(ORAL) JUDGMENT OF HEATH JSolicitors:Neilsons, OnehungaGraham & Co, AucklandCounsel:R O Parmenter, Auckland[1] Leauma Sione and others were members of the Glen Innes Samoan Assembly of God. They apply for a caveat to be sustained over land owned by the Onehunga Samoan Assembly of God Trust Board. The claim is based on a constructive trust.[2] In broad terms, the claim arises out of events which saw, first a sum of $20,000 and later a sum of $162,000 being advanced on behalf of the Glen Innes Assembly to the Onehunga Assembly. There are disputes as to whether these sums were advanced to obtain some form of proprietary interest, or as gifts.[3] There are also additional sums reflecting both a gift to the former Pastor of the Onehunga Assembly, Mr Moananu, of $20,000 and $50,000 from tithings. These are not linked specifically to the proprietary claim but, in light of the order I am about to make, I record expressly that any issues involving those sums are expressly left open for resolution between the parties, whether through litigation or otherwise.[4] So far as the caveat proceeding is concerned, the parties have reached an agreement whereby the sum of $194,177.91 will be paid to Mr Sione on behalf of his interests and the caveat over the Trust Board's property will lapse. That will be doneby dismissing the application for an order that the caveat not lapse, on the condition that the caveat remains in place until Daniel Overton Goulding, solicitors, Onehunga, provide a written undertaking to the Court that they will pay the sum of$194,177.91 to the solicitors for Mr Sione's interests within three working days ofthe notice of lapse appearing on the identifier for the property. An order is made by consent to that effect.[5] The parties have agreed to meet to discuss shared use of the church. That is in agreement in principle. It is hoped that that meeting will take place within the next seven days or so. Obviously, the Court cannot compel the parties to enter into such discussions but it would be appropriate for them to do so, given the nature of the issues that require resolution.[6] In the circumstances, there will be no order as to costs on the application for an order that the caveat not lapse.____________________________P R Heath J