IN THE MAORI LAND COURT OF NEW ZEALAND TAKITIMU DISTRICT 10 Takitimu MB 107 (10 TKT 107) A

Transcription

1 IN THE MAORI LAND COURT OF NEW ZEALAND TAKITIMU DISTRICT 10 Takitimu MB 107 (10 TKT 107) A UNDER Sections 79 and 81 of Te Ture Whenua Maori Act 1993 IN THE MATTER OF Poukawa 13B BETWEEN AND TAMIHANA MATEKINO NUKU AND THOMAS HARRISON Applicants LEON HAWEA, BONNY RAUHUIA HILTON, OWEN JERRY HAPUKU, RUIHA TIAKINA ERUETI WOODWARD, THOMAS KEREMENETA-HUPATA Respondents Hearing: 5 August 2011 (Heard at Hastings) Appearances: Ms C Bennet for the Applicants Mr J Johnston for the Respondents Judgment: 11 August 2011 RESERVED JUDGMENT OF JUDGE LR HARVEY Solicitors: cara@langleytwigg.co.nz Langley Twigg Lawyers, PO Box 446, Napier 4140 qjohnston@batehallett.co.nz - Bate Hallet Lawyers, PO Box 749, Hastings 4150 NUKU V HAWEA MLC 10 Takitimu MB August 2011

2 Introduction [1] By judgment dated 11 December 2007 Deputy Chief Judge Isaac made various adverse findings against the Respondents, the then trustees of Poukawa 13B Trust. 1 By that decision he awarded costs against the former trustees personally and made provision for counsel to file memoranda as to quantum. [2] In a further decision dated 22 December 2009 Chief Judge Isaac ordered costs in the amount of $12, against the former trustees personally. 2 Prior to that that Judge Savage granted an application for rehearing which dealt with the question of whether or not the former trustees should be indemnified out of the assets of the Trust for payment of the costs. 3 [3] Despite the unequivocal orders that the former trustees pay costs no such payment has been made. The Applicants now seek orders: (a) for the transmission of the judgment to the District Court per section 81 of Te Ture Whenua Māori Act 1993 to enable enforcement to commence in that jurisdiction; (b) for a charging order over the Māori land interests of the former trustees and in particular any income derived from those interests; and (c) for interest at the rate of 5% per annum from the date of the original judgment 11 December [4] After hearing from the parties I granted the application, in part, subject to a condition that a further poll of the owners be conducted. The substance of this decision was pronounced orally in open Court on 5 August 2011 with written reasons to follow. Submissions for the Applicants [5] Ms Bennett, in a comprehensive written submission, contends that the transfer of enforcement to the District Court per section 81 of the Act is appropriate. She submitted that almost four years had elapsed from the date of the original judgment issued in Napier MB 19 1 Tākitimu MB Napier MB Takitimu MB 108

3 Moreover, the decision on quantum was issued in 2009, two years ago. Despite repeated requests, the former trustees have failed or refused to meet their obligations under the judgments issued against them. [6] Counsel also argued that the former trustees have had ample opportunity to take any further steps that they considered appropriate. However, despite the lapse of over two years since the quantum decision was issued, they have done nothing to satisfy the judgment. [7] Ms Bennett submitted that, while much was made of the financial stress on the former trustees should enforcement commence, this Court had found that they had personally profited from the Trust and in one instance in excess of $36, She argued that if the trustees, or any of them, were faced with financial hardship then they ought to consider the profit that had been made by at least one of the trustees from the Trust, which was considerably less than the judgment sum due. [8] As to the former trustees argument that the views of the owners were not properly canvassed as to whether or not the Trust should pay, Ms Bennett contended that the former trustees had been provided with every opportunity to state their case. They had done so on more than one occasion and the clear direction from the owners by a considerable margin was that the Trust should not suffer any further by contributing towards the costs of the former trustees. [9] Ms Bennett pointed to the fact that the Māori Trustee had issued notices to 700 owners for which responses were received for approximately 100. By a significant margin those responses did not support use of trust funds to pay the costs awarded against the former trustees. Regarding my suggestion that a further poll of owners could be taken, once opportunity had been given for the former trustees to submit in writing a summary of events as they understood them, Ms Bennett argued that this would only serve to further delay eventual enforcement of the decision. She implored the Court to make the orders as sought forthwith. Submissions for the former trustees [10] Mr Hawea provided a detailed written submission in response to the application. In that submission Mr Hawea makes a number of statements as to the standing of the former trustees in their local community, the contributions they have made and the support they have received from the owners. 10 Takitimu MB 109

4 [11] He further submitted that Ms Bennett s attempt to transfer the proceedings to the District Court for enforcement was completely inappropriate. Mr Hawea argued that counsel s use of Māori Land on Line to extract details as to the shareholdings of the former trustees in various blocks of Māori freehold land for the purpose of determining what revenue they derived as a contribution towards costs, was comparable to the activities of nineteenth century land agents, surveyors and speculators in attacking the integrity of Māori land tenure and the whakapapa that is so integral to ownership. [12] When questioned about the failure to appeal the earlier judgments, Mr Hawea claimed that he had no knowledge of those processes. While it was correct, he acknowledged, that the former trustees had received legal advice, somehow the issue of whether or not to appeal and the rights of appeal became confused for the former trustees. [13] Mr Hawea further claimed that the former trustees had not been given proper opportunity to explain their side of the case when it came time to vote on whether or not the Trust should pay the costs awarded against them. He argued that a proper opportunity should be given to the owners to hear the former trustees perspective so that they could make an informed decision on whether or not the Trust should contribute towards costs. [14] As to the point that, if the former trustees were given opportunity to provide a summary document in any future poll, and if that poll was unfavourable, then the costs would be enforced Mr Hawea confirmed that he and his colleagues would consider themselves bound by the outcome. Discussion Transmission to the District Court [15] As foreshadowed, the Court made adverse findings against the former trustees in the decision of 11 December Following that, costs of $12,000 were then awarded against the trustees personally. That award of costs remains unpaid. The former trustees acknowledge that they have not paid the costs and nor have they made any efforts to arrange payment. As I pointed out at the hearing, the former trustees had every opportunity to appeal both decisions from 2007 and They also could have applied for a rehearing. A further remedy available to them would be judicial review. They have not taken any of those steps and consequently the costs awarded against them of $12,000 stands. 10 Takitimu MB 110

5 [16] I see no reason why the application for transmission per s81 of the Act as sought by Ms Bennett should not be granted. The Applicants have prevailed in this Court on two occasions. It is trite law that costs will follow the event in any proceedings before this Court and the Māori Appellate Court. 4 The Applicants are within their rights to seek a transfer of the judgment to the District Court per section 81 of the Act for the purposes of enforcement. [17] The transcript of the hearing will confirm that I have underscored to the former trustees the dire consequences of their failure to act should the Applicants use every available means for enforcement of the judgment. That includes examination as to their means and orders for payment from whatever income they may have available. As I pointed out at the hearing, the former trustees, and those owners supporting them, should take every step available to avoid the ignominy that will result in people who hitherto had been respected members of the community being subjected to enforcement proceedings. [18] Some of the owners did stand in support of the former trustees and agreed to contribute their income from this Trust towards payment of costs in an effort to avoid the indignity of the former trustees being exposed to the full force of the law regarding enforcement of the costs judgment. [19] Even so, as I have foreshadowed, I can see no reason why the orders of this Court should not now be enforced. The application for transfer of the proceedings to the District Court per section 81 of the Act for the purposes of enforcement of the judgment is granted. Interest [20] Ms Bennett seeks interest at the rate of 5% from the date of the original judgment. I do not agree. In the circumstances, taking into account the background of this matter, I consider it more appropriate that interest commence from the date from 22 December 2009, the date of the decision on quantum. Further poll of the owners [21] The former trustees should be given proper opportunity to state their case in writing for the purposes of a further poll of the owners. Mr McGregor for the Māori Trustee 4 Nicholls v Nicholls Part Papaaroha 6B (2011) Māori Appellate Court MB 64 (2011 APPEALS 64) 10 Takitimu MB 111

6 confirmed that 700 addresses are held for owners out of a total of approximately 1200 individuals. He also confirmed that at the last poll while 700 notices were issued, only approximately 100 were received in reply. Mr Hawea has until 4.00pm Friday 12 August 2011 to submit a summary of up to three typed A4 pages single space for the inclusion in the poll documents to be posted to owners. The content of his summary will be subject to the Court s approval to ensure that no defamatory or factually incorrect material is inadvertently included. [22] For the purposes of balance, I consider it appropriate that Ms Bennett also provide a similar summary for the inclusion in the voting pack for beneficial owners. Ms Bennett will have until 4pm on Friday 12 August 2011 to submit such summary. In the circumstances, I also consider it appropriate that the costs for this exercise be borne from the Special Aid Fund. Accordingly, Ms Bennett will submit an appropriate estimate as soon as possible. [23] I direct the Māori Trustee to conduct a further poll of owners on the question as to whether or not the Trust should contribute towards the costs awarded against the former trustees. The Māori Trustee should also poll owners as to whether or not they agree to their personal dividends being paid towards payment of costs until the amount awarded is paid in full, should the owners refuse a contribution from the Trust. The Māori Trustee will undertake this exercise within 30 days from the date of this decision. Once the outcome is known I direct the Māori Trustee to report to me directly as soon as possible. Outcome not binding [24] I pointed out to the former trustees that, regardless of the outcome of the poll, neither the Māori Trustee as responsible trustee nor the Court are bound by the outcome of the owners vote. This elementary proposition was recently affirmed by the Māori Appellate Court in its decision Naera and ors v Fenwick and ors Whakapoungakau At paragraph 62 of that judgment the Māori Appellate Court states: [62] Accordingly, in reliance on previous Māori Appellate Court decisions and well establish trust law we agreed with the Lower Court s findings that the owners consent or support was not required for the trustees to enter into this agreement. The Lower Court correctly stated that resolutions of beneficial owners cannot bind trustees unless the trust order makes appropriate provision for this. 5 (2011) Māori Appellate Court MB 301 (2011 APPEALS 301) 10 Takitimu MB 112

7 Decision [25] The application for transfer of the proceedings to the District Court per section 81 of Te Ture Whenua Māori Act 1993 is granted, subject to the completion of a poll of owners by the Māori Trustee. [26] The Māori Trustee is directed to conduct a poll by post of beneficial owners and will seek responses to the following two questions: (a) Do you agree or disagree that $12,000 from Trust funds should be used in payment of legal costs awarded against the former trustees Leon Hawea, Bonny Rauhuia Hilton, Owen Jerry Hapuku, Ruiha Tiakina Erueti Woodward and Thomas Keremeneta-Hupata Clarke personally? (b) Do you consent to the use of your personal dividends from the trust being used to pay the legal costs of $12,000 award against Leon Hawea, Bonny Rauhuia Hilton, Owen Jerry Hapuku, Ruiha Tiakina Erueti Woodward and Thomas Keremeneta- Hupata Clarke until such time as the debt is paid by those dividends? [27] The Māori Trustee will complete the poll of owners within 30 days from the date of this decision and confirm with the Court the outcome as soon as possible. [28] Mr Hawea for the Respondents and Ms Bennett for the Applicants are to submit to me by 4pm Friday 12 August 2011 a summary of the case that they wish to put to the beneficial owners of up to three A4 pages, subject to the Court s approval as to content. [29] Interest is awarded at the rate of 5% from 22 December 2009 on the original amount of $12,000. [30] The proceedings are adjourned to chambers pending the outcome of the poll of owners by the Māori Trustee. Pronounced in open Court at 5.30 pm in Rotorua on Thursday the 11th day of August 2011 L R Harvey JUDGE 10 Takitimu MB 113