IN THE MĀORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A

Transcription

1 163 Waiāriki MB 10 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A UNDER Section 59,Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN AND Matangareka 3B Ahu Whenua Trust - orders made at 154 Waiariki MB on 21 December Leave to appeal preliminary decision RICHARD BUTLER, THOMAS BUTLER, STEWART BUTLER, TUIHANA POOK, MAURA ROBSON AND MOANA WAITITI AS TRUSTEES OF THE MATANGAREKA 3B AHU WHENUA TRUST Applicants EDWARD MATCHITT Respondent Counsel: Ms T Wara for Mr Edward Matchitt Mr C Bidois for the Trustees of the Matangareka 3B Ahu Whenua Trust Judgment: 16 May 2017 DECISION OF JUDGE S F REEVES Copies to: C M Bidois, East Brewster Ltd, 1137 Pukuatua St, P O Box 1742 Rotorua, DX JP T Wara, Tu Pono Legal Ltd, 1222 Eruera St, P O Box 1693, Rotorua 3040

2 163 Waiāriki MB 11 Introduction [1] On 24 February 2017 the trustees of the Matangareka 3B Ahu Whenua Trust ( MAWT ) filed an application seeking leave to appeal my preliminary decision of 21 December [2] On 8 March 2017 Mr Bidois, counsel for MAWT, filed a further application for leave to appeal out of time. Opposing submissions were filed by Ms Wara, counsel for Mr Matchitt, on 13 April Background [3] On 16 November 2016, Mr Matchitt filed applications seeking orders in respect of MAWT under ss 231, 236, 237, 238, 240 and 242 of Te Ture Whenua Māori 1993 ( the Act ). On 18 November 2016, Judge Savage granted an interim injunction freezing the trust s bank accounts and stopping contractors from entering trust property. He also directed the matter be set down for hearing in the following week. 2 [4] I heard the applications at Rotorua on 24 November At the conclusion of the hearing I continued the injunction and adjourned the matters, for the parties to provide further information. 3 After the further information was filed as directed, both parties agreed there was sufficient evidence for me to determine the preliminary issues concerning the trustees conflicts of interest, and breach of trust in relation to trustee fees. This would determine the scope of issues to be dealt with in a further hearing. [5] The preliminary decision was issued on 21 December [6] A further hearing of the applications was held at Rotorua on 8 February 2017, and was adjourned for a final reserved decision to be issued. 5 [7] On 24 February 2017, I issued further directions suspending the current trustees and indicating the appointment of interim trustees. The interim trustees were directed to Matchitt v Butler Matangareka 3B Block (2016) 154 Waiariki MB 261 (154 WAR 261). 153 Waiariki MB (153 WAR 59-72). 153 Waiariki MB (153 WAR ). Matchitt v Butler, above n Waiariki MB (159 WAR 17-93).

3 163 Waiāriki MB 12 review the operations of the trust and report to the Court, particularly their views on whether the injunction should remain in place. 6 [8] The applicants also filed their application for leave to appeal the preliminary decision on 24 February [9] The issue I now have to decide is whether the interests of justice and of the parties would best be served by issuing a final decision, or by pausing the proceedings to allow an appeal of the preliminary decision. Grounds for leave to appeal [10] Section 59 of the Act provides that a party may appeal any provisional or preliminary determination of the Māori Land Court to the Māori Appellate Court by leave of the lower Court. Section 59(3) provides: 59 Appeals from provisional determination (3) The Māori Land Court may decline leave where it is satisfied that the interests of justice and of the parties would best be served by completing the proceedings before any appeal is made to the Māori Appellate Court. [11] The Court has considered the grant of leave to appeal a preliminary or provisional determination on few occasions, noting that the decision will necessarily turn on the interests of justice and of the parties. 7 Submissions in support [12] Mr Bidois s memorandum of 24 February 2017 seeks leave to appeal the preliminary decision. The appeal is focused on the finding of trustee conflict of interest and the decision to continue the interim injunction. 6 7 Directions of the Court dated 24 February 2017, Application File A See Ruapuha Uekaha Hapū Trust Hauturu East 8 Block (2013) 67 Waikato Maniapoto MB 100 (37 WMN 100) and Williams Harataunga West 2B2B2B2 (2014) 74 Waikato Maniapoto MB 6 (74 WMN 6).

4 163 Waiāriki MB 13 [13] The grounds relating to the overall interests of justice are set out at paragraphs [25] [29] of the memorandum, and also summarise the core issues of the appeal: 8 Overall Interests of Justice 25. In counsel s respectful submission, it is in the interests of justice that leave is granted to appeal the Preliminary Decision and in particular, the finding of trustee conflict. 26. There is a wide public interest element; the issues highlight the inherent conflicts between common law principles and the scheme of the Act. Whilst the common law absolutely prohibits trustees using trust property to benefit family members, the scheme of the Act and the Objects of ahu whenua trusts appear to promote that as an outcome. 27. The safe harbours that are available to trustees under s 227A(2) and seeking Court directions will always be ineffective unless trustees can first identify whether they are interested or concerned as contemplated in the Act. 28. In counsel s submission, where the interest is held by a trustee personally; the position is clear and well understood by most lay trustees. However, where the interest is personal to a close relative of a trustee, the legal position is less clear following the findings of the Supreme Court in Fenwick v Naera as presently, there is no settled legal position. 29. Clarification would provide assistance to these parties, and to other trustees under the Act and their advisors. (Footnotes omitted) [14] Mr Bidois also submits at paragraph [20] that the terms of the injunction include a freezing order over the Trust s bank accounts which has prevented payments being made in the ordinary course of the Trust s business. He further submits at paragraph [24] that it is in the interests of justice that the injunction be considered afresh, and that while the respondent, Mr Matchitt, has given undertakings to make good any loss incurred by the Trust, his ability to satisfy the undertaking is questioned. No further details are given. [15] Mr Bidois filed a further memorandum dated 8 March 2017 which seeks leave to appeal out of time. The application for leave to appeal of 24 February 2017 was filed three days outside the usual two-month period for appeals from final orders. 8 Statement of Appeal Grounds dated 24 February 2017 at [25] [29].

5 163 Waiāriki MB 14 Submissions in opposition [16] Ms Wara filed submissions for the respondent on 13 April 2017, which largely focused on the issue of leave to appeal out of time and do not directly address the s 59(3) issue. In summary, Ms Wara submits that the grounds of appeal are without merit and do not have any prospects of success and that it is in the interests of justice that the application for leave to appeal out of time is dismissed. 9 Discussion [17] In submissions, Mr Bidois addresses the public interest element of granting leave to appeal in terms of the legal points he wishes to raise in an appeal, while Ms Wara focuses on leave to appeal out of time. [18] Neither counsel s submissions deal directly with the key matters raised in s 59(3) of the Act; whether the interests of justice and of the parties would best be served by issuing a final decision, or by pausing the proceedings to allow an appeal of the preliminary decision. [19] In my preliminary decision of 21 December 2016 I stated that [h]earing times for the balance of the applications are to be scheduled as soon as possible and I directed the parties to file memoranda early in 2017 in relation to dates for hearing and other issues. I gave several suggested hearing dates up to and including 7 8 February The point is, that both parties were on notice that I considered it was in the interests of justice and the parties to set down the balance of the applications for hearing as soon as possible. [20] Mr Bidois advised the Court in his memorandum of 17 January 2017 that his clients had given instructions that they wished to seek leave to appeal the preliminary decision. 11 However, in the absence of any appeal being filed, the further one day hearing was set down and completed on 8 February 2017 at Rotorua Submissions for the Respondent dated 13 April 2017 at [61] [62]. Matchitt v Butler Matangareka 3B Block (2016) 154 Waiariki MB 261 (154 WAR 261), at [52]. Memorandum of Counsel dated 17 January 2017 at [3]. 159 Waiariki MB (159 WAR 17-93).

6 163 Waiāriki MB 15 [21] Further directions were issued suspending the current trustees and appointing interim trustees until final determination of all applications. The interim trustees were directed to review the operations of the Trust and report to the Court their views as to whether the injunction should remain in place. 13 These steps were designed to safeguard the business of the Trust while these proceedings run their course. [22] Both parties agreed to a preliminary determination of the trustees conflicts of interest and breach of trust issues, as that would determine whether remedies would need to be addressed at the subsequent hearing. None of the grounds of appeal now raised by Mr Bidois are threshold or jurisdictional issues which would prevent a final decision being delivered on all remaining issues in the proceedings. [23] The final hearing has already been completed and I consider it is in the interests of justice and the parties that the final decision of the Court on all remaining substantive issues should be delivered before any appeal is heard. In terms of time and cost for the parties, this is a more efficient means of disposing of all issues, and in this context I note one of the parties is receiving special aid. The appellants will still have the opportunity to appeal after the final decision. [24] For completeness, I note that both counsel made submissions on the issue of leave to appeal out of time. Section 59 of the Act does not set out a timeframe for filing; however, in Davis v Mihaere Torere Reserves Trust, the Māori Appellate Court concluded that the time for filing appeals under s 59 is the same as an ordinary appeal against a final order. 14 [25] As noted, the appellants were only three days outside the two-month filing period, and in the circumstances I do not consider that delay as determinative, particularly given the time of year Directions of the Court dated 24 February 2017, Application File A Davis v Mihaere Torere Reserves Trust [2012] Māori Appellate Court MB 641 (2012 APPEAL 641) at [37].

7 163 Waiāriki MB 16 Decision [26] The application is declined. Pronounced at 3pm in Wellington on this 16 th day of May 2017 SF Reeves JUDGE