IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO DISTRICT A

Transcription

1 74 Waikato Maniapoto MB 277 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO DISTRICT A UNDER Section 237 of Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN AND AND AND Te Reti B and Te Reti C Block STANLEY JAMES URWIN, WILLIAM HAURUIA NEPIA, PHILSON TUMATAWHA PIAHANA, RANGINUI WINIATA, CHRISTOPHER HAURUIA NEPIA, MICHELLE TURNER and KINGI JUNIOR TE REOHAU RANUI as Trustees of the Te Reti B and C Block Applicant RAYMOND TE KURA First Respondent LUKE STEVENSON TAMATUKARERE MATTHEWS Second Respondent DESTINY SIVITA MIKAERE-TOTO Third Respondent Hearing: 30 January 2014 (71 Waikato Maniapoto MB ) (Heard at Tauranga) Appearances: Mr Michael J Sharp and Ms Te Rangimārie Williams, Counsel for the Applicants Mr John P Koning, Counsel for the Third Respondent Judgment: 10 April 2014 RESERVED JUDGMENT OF JUDGE S R CLARK Copies to: Mr M J Sharp, Holland Beckett Solicitors, DX HP40014, Tauranga, michael.sharp@hobec.co.nz Mr J P Koning, Koning Webster Lawyers, P O Box 11120, Papamoa 3151, john@kwlaw.co.nz

2 74 Waikato Maniapoto MB 278 Introduction [1] Raymond Te Kura, Luke Matthews and Destiny Toto ( the respondents ) are former trustees of the Te Reti B and C Block, Māori freehold land situated in Tauranga. A meeting of the beneficial owners for the block was held at Tauranga on 13 August One of the agenda items that day was trustee elections. The respondents were not reelected. On 30 August 2011 the respondents were replaced as responsible trustees by the Māori Land Court. 1 [2] On 18 February 2013 the current trustees filed a statement of claim with the Māori Land Court pursuant to s 237 of Te Ture Whenua Māori Act 1993 ( TTWMA ). There are three causes of action, all alleging inter alia breach of trust. [3] Since March of 2013 various directions have been put in place relating to the service of documents and the filing of evidence. Save for Destiny Toto, none of the respondents have participated in defending the proceedings. [4] On 31 October 2013 counsel for Ms Toto filed an interlocutory application seeking a preliminary determination on a point of law. The interlocutory application was heard on 30 January The issue to decide [5] Destiny Toto is named only in relation to the first cause of action. A breach of fiduciary duty and breach of trust is pleaded against her. The prayer for relief seeks the equitable remedies of: a) Equitable compensation/damages; b) An accounting for any payments or benefits personally received Waikato Maniapoto MB 281 (27 WMN 281). The trust is an ahu whenua trust constituted under Part 12 of TTWMA Waikato Maniapoto MB (71 WMN ).

3 74 Waikato Maniapoto MB 279 [6] Mr Koning, counsel for Destiny Toto argues that the inherent jurisdiction of the High Court, available under s 237 of TTWMA, does not extend to permitting the Māori Land Court to grant equitable remedies for breach of trust. Mr Sharp for the trustees argued otherwise. [7] The short but important point to decide is whether the Māori Land Court has jurisdiction to grant equitable remedies for breach of trust or breach of fiduciary obligations. Sections [8] The jurisdiction of the Māori Land Court in relation to trusts can be found at ss of TTWMA. The particular focus of this application has been on s 237. In the context of this application ss 236 and 238 are also important. I set them out in full: 236 Application of sections 237 to 245 (1) Subject to subsection (2), sections 237 to 245 shall apply to the following trusts: (a) (b) (c) every trust constituted under this Part: every other trust constituted in respect of any Maori land: every other trust constituted in respect of any General land owned by Maori. (2) Nothing in sections 237 to 245 applies to any trust created by section 250(4). 237 Jurisdiction of court generally (1) Subject to the express provisions of this Part, in respect of any trust to which this Part applies, the Maori Land Court shall have and may exercise all the same powers and authorities as the High Court has (whether by statute or by any rule of law or by virtue of its inherent jurisdiction) in respect of trusts generally. (2) Nothing in subsection (1) shall limit or affect the jurisdiction of the High Court. 238 Enforcement of obligations of trust (1) The court may at any time require any trustee of a trust to file in the court a written report, and to appear before the court for questioning on the report, or on any matter relating to the administration of the trust or the performance of his or her duties as a trustee. (2) The court may at any time, in respect of any trustee of a trust to which this section applies, enforce the obligations of his or her trust (whether by way of injunction or otherwise).

4 74 Waikato Maniapoto MB 280 Submissions for Destiny Toto [9] Mr Koning submits that s 237 of TTWMA does not grant jurisdiction to the Māori Land Court to award equitable remedies for breach of trust. [10] The type of remedies sought in this case are equitable remedies for breach of trust. Mr Koning argued that equitable remedies are not statutory or common law remedies nor are they invoked by the inherent jurisdiction of the High Court. [11] Mr Koning referred the Court to a number of authorities which discuss the scope of s 237. The authorities, which are well known to the Court, discuss the extent of the inherent jurisdiction available to the Māori Land Court. Mr Koning submits that the principle to be drawn from those authorities is that the Māori Land Court has a supervisory jurisdiction only, which is to be exercised for the welfare of the beneficiaries. The authorities he refers to are the Court of Appeal decisions, The Proprietors of Mangakino Township v Māori Land Court; 3 and Clarke v Karaitiana. 4 [12] To those authorities I also add the recent Court of Appeal decision of Rameka v Hall. 5 Mr Koning s point is that those authorities whilst confirming the broad supervisory jurisdiction the Māori Land Court enjoys (the same as the High Court in respect of trusts) do not go so far as confirming that the Māori Land Court has jurisdiction to award equitable remedies. [13] Mr Koning also submitted that there are no authorities from the Māori Land Court, the Māori Appellate Court or superior Courts which confirm that the Māori Land Court has the jurisdiction to award equitable remedies. [14] Mr Koning submitted that claims for breach of trust need to be heard in a Court of competent jurisdiction, that being either the District Court or High Court. He referred to s 34 of the District Courts Act Section 34(1)(a) reads: 3 CA 65/99, 16 June 1999 at [27]. 4 [2011] NZCA 154 at [38] and [39]. 5 [2013] NZCA 203 at [23].

5 74 Waikato Maniapoto MB Equity jurisdiction (1) Subject to the provisions of this Act, the courts shall have (a) the same equitable jurisdiction as the High Court to hear and determine any proceeding (other than a proceeding in which the amount claimed or the value of the property claimed or in issue is more than $200,000): [15] In the example of the District Court, Mr Koning highlighted that there was a specific provision in the empowering legislation which confers jurisdiction upon the District Court to hear and determine equitable claims. He noted the absence of any such similar provision in TTWMA and submitted that the jurisdiction of the Māori Land Court is limited simply to a supervisory jurisdiction. [16] In relation to the High Court, its general jurisdiction is confirmed in s 16 of the Judicature Act It reads: 16 General jurisdiction The court shall continue to have all the jurisdiction which it had on the coming into operation of this Act and all judicial jurisdiction which may be necessary to administer the laws of New Zealand. [17] Mr Koning referred to the commentary in Sim s 6 on s 16 of the Judicature Act In that section the learned authors set out examples when the High Court had exercised its inherent jurisdiction. The submission was made that all of the instances referred to relate to matters concerning procedure and the conduct of proceedings in the High Court. Mr Koning submitted that the inherent jurisdiction is consistent with the Māori Land Court having a supervisory role over those trusts referred to in s 236 but it does not go so far as to confer jurisdiction to award equitable remedies. Submissions for the Trustees [18] Mr Sharp for the trustees, in reliance upon the Privy Council decision of Schmidt v Rosewood Trust Ltd 7 submitted that the High Court s inherent jurisdiction is to supervise, and if necessary to intervene, in the administration of trusts. 6 Sim s Court Practice (online loose leaf ed LexisNexis) at [JUD 16.4]. 7 [2003] 2 AC 709 at [51] and [66].

6 74 Waikato Maniapoto MB 282 [19] Mr Sharp did not take issue with the Court of Appeal authorities referred to earlier at paragraphs [11] and [12]. He submitted that they are all correct propositions of law however in none of those cases was the Court being asked to award equitable remedies for breach of trust. [20] Mr Sharp submitted that it is now well settled law that the High Court has jurisdiction to award equitable compensation for breaches of trust and other fiduciary duties. He relies upon the authorities Day v Mead 8 and Aquaculture Corp v NZ Green Mussel Co Ltd. 9 [21] Mr Sharp further submitted that s 237 should be given its ordinary and plain meaning which is that the Māori Land Court not only has the same supervisory jurisdiction of the High Court but also in an appropriate case has the ability to award equitable compensation for breach of trust. [22] Mr Sharp also referred to the general objectives set out in s 17 of TTWMA. He argued that it would be nonsensical if the Māori Land Court had the ability to supervise only and not grant remedies with regards to past breaches of obligations by trustees. In such a case the Māori Land Court would be hamstrung with regards to enforcement of the obligations of trust. Discussion on s 238 of TTWMA [23] I received considerable assistance in both the oral and written submissions of Mr Koning and Mr Sharp. However for reasons which will become apparent I have approached the issue before me in a slightly different way. [24] The focus of the submissions from both counsel was what was meant by the words of s 237. I start by referring to the opening words of s 237, they read as follows: Subject to the express provisions of this Part of this Act 8 [1987] 2 NZLR 443 (CA). 9 [1990] 3 NZLR 299 (CA).

7 74 Waikato Maniapoto MB 283 [25] Those opening words provide a limitation upon the extent of the authority granted to the Māori Land Court. As the Māori Appellate Court said in Tito Mangakahia 2B2: 10 In our view, Parliament s intention to give the Māori Land Court wide supervisory powers in respect of trusts in sections 236 and 237 is clearly limited by the specific provisions relating to trusts in Te Ture Whenua Māori Act [26] Later at paragraph [31] the Māori Appellate Court said: Therefore, we consider that where there is an express provision in Part 12 of the Act, to use another authority through section 237 for the same task would be an obvious inconsistency. The Court should use the express statutory provisions as provided in Part 12 for the administration of Māori land trusts unless a case falls under one of the exceptions we outline below. In this case, it is the express provision of section 222 which prevails over section 237. [27] Following that reasoning, s 237 is therefore subject to s 238. Thus I initially focus on what is the scope of s 238. It is worth setting out the section again in full: 238 Enforcement of obligations of trust (1) The court may at any time require any trustee of a trust to file in the court a written report, and to appear before the court for questioning on the report, or on any matter relating to the administration of the trust or the performance of his or her duties as a trustee. (2) The court may at any time, in respect of any trustee of a trust to which this section applies, enforce the obligations of his or her trust (whether by way of injunction or otherwise). [28] Clearly s 238(2) provides that the obligations of a trust may be enforced by the Court by way of injunction. The question arises what is meant by reference to the words or otherwise? In the enforcement of a trustee s obligations is the Māori Land Court limited to its statutory powers contained in TTWMA, for example injunctions ss 19 and 238(2), removal of trustee s 240 and termination of a trust s 241? [29] There are no direct authorities on point. Nor do the debates in Hansard assist. [30] The case of Paki v Māori Land Court contains a useful obiter comment by Hammond J. That case involved a judicial review of a decision by a Judge of the Māori Land Court to initiate a s 238 investigation of a trust. The plaintiffs alleged that the Judge 10 [2011] Māori Appellate Court MB 86 (2011 APPEAL 86) at [29].

8 74 Waikato Maniapoto MB 284 had acted beyond his jurisdiction in relation to the s 238 investigation. Hammond J when considering the scope and extent of a s 238 application said: 11 [77] I have reached the point where I have determined that the Judge acted lawfully, and within his discretion under section 238 in holding that a formal hearing and determination should be held. The Judge had clearly reserved the Court s position as to what the remedies might ultimately be and again I note that the Māori Land Court has all the powerful sanctions of this Court, in that regard. [31] In the next paragraph of his decision Hammond J went on to discuss the power to remove a trustee pursuant to s 240 of TTWMA. Thus it is not entirely clear to me that when Hammond J referred to the Māori Land Court enjoying all the powerful sanctions of the High Court, he was limiting his comments to the statutory powers set out in TTWMA or he literally meant that the Māori Land Court has available to it the same sanctions as the High Court when enforcing trustees obligations. [32] In Rameka v Hall the Court of Appeal said: 12 [24] Section 238 of the Act deals with the enforcement of the obligations of a trust. Under s 238(1) the Court may at any time require a trustee to file a written report in the Court and to appear before the Court for questioning on the report or on any matter relating to the administration of the trust or the performance of his or her duties as a trustee. Section 238(2) provides that the Court may enforce the obligations of a trustee including by way of an injunction. [33] I accept that the obiter comments by the High Court and Court of Appeal quoted above do not expressly say that the Māori Land Court may grant equitable remedies for a breach of trustees duty. However what they suggest to me is that the Māori Land Court has the jurisdiction to enforce the obligations of a trust s 238(2) including all the powerful sanctions of the High Court. [34] Ultimately the answer, I believe, lies in the nature of a trust, trustees obligations and the type of remedies contemplated for a breach of trust. [35] I start with what the Court of Appeal said in The Proprietors of Mangakino v The Māori Land Court: 13 trusts are a development of judge made law and courts of equity have for centuries undertaken the function of supervising them. 11 Paki v Māori Land Court [1999] 3 NZLR 700 at [77]. 12 [2013] NZCA 203 at [24]. 13 CA 65/99, 16 June 1999 at [27].

9 74 Waikato Maniapoto MB 285 [36] It is a basic right of a beneficiary to have the trust administered in accordance with the provisions of the trust instrument, if any, and the general law 14. [37] In the context of TTWMA and ahu whenua trusts the Court of Appeal in Rameka v Hall said: 15 The trustees have obligations to the beneficiaries to administer the trust property in accordance with general trust law, the requirements of the Trustee Act 1956 and the provisions of the Act. In other words, trustees are subject to traditional trustee duties with the statutory overlay of particular obligations arising from the context of ahu whenua trusts. [38] Where a breach of trust has caused trust property to be lost to the trust fund then the trustee s principal obligation is to recover that property and restore it to the trust fund. If that is not possible, then the trustee s obligation is to pay equitable compensation to reconstitute the value of the trust fund. 16 [39] In the case of Bank of New Zealand v New Zealand Guardian Trust Co Ltd, Tipping J after discussing trustees obligations and the types of breaches of duty by trustees said: 17 In the first kind of case the allegation is that a breach of duty by a trustee has directly caused loss of or damage to the trust property. The relief sought by the beneficiary is usually in such circumstances of a restitutionary kind. The trustee is asked to restore the trust estate, either in specie or by value. The policy of the law in these circumstances is generally to hold the trustee responsible if, but for the breach, the loss or damage would not have occurred. This approach is designed to encourage trustees to observe to the full their duties in relation to the trust property by imposing upon them a stringent concept of causation. Questions of foreseeability and remoteness do not come into such an assessment. [40] The House of Lords in Target Holdings Ltd v Redferns confirmed the basic right of a beneficiary to have the trust administered in accordance with the provisions of a trust instrument and the general law. They emphasised that in the case of a breach of trust involving the wrongful paying away of trust assets: 18 the liability of the trustee is to restore to the trust fund, often called the trust estate what ought to have been there. 14 Target Holdings v Redferns [1996] 1 AC 421 at p [2013] NZCA 203 at [19]. 16 Alistair Hudson Equity and Trusts (7 th ed, Routledge, New York, 2013) at [18.1.2]. 17 [1999] 1 NZLR 664 at 687, line [1996] 1 AC p 421 at 434.

10 74 Waikato Maniapoto MB 286 [41] They went on to say that: 19 The equitable rules of compensation for breach of trust have been largely developed in relation to such traditional trusts, where the only way in which all the beneficiaries rights can be protected is to restore to the trust fund what ought to be there. In such a case the basic rule is that a trustee in breach of trust must restore or pay to the trust estate either the assets which have been lost to the estate by reason of the breach or compensation for such loss. Courts of Equity did not award damages but, acting in personam, ordered the defaulting trustee to restore the trust estate; see Nocton v Lord Ashburton [1914] A.C. 932, 952, 958, per Viscount Haldane L.C. If specific restitution of the trust property is not possible, then the liability of the trustee is to pay sufficient compensation to the trust estate to put it back to what it would have been had the breach not been committed. [42] A relevant authority is in Dawson, Re; Union Fidelity Trustee Co Ltd v Perpetual Trustee Co Ltd. 20 In that case a trustee wished to transfer funds from New Zealand to New South Wales to lend to two companies in which he and other family members were financially interested. This was at a time, 1939, when there were regulations in place which made it difficult to transfer currency from New Zealand to New South Wales. Arrangements were made by a trustee, Percy Stewart Dawson for 4,700 to be withdrawn from the estate account in New Zealand and handed to Raymond Nelson for the purpose of transmitting the monies to New South Wales and evading the requirements of the New Zealand regulations. Raymond Nelson absconded with the money. [43] It was common ground in the proceedings taken in the Supreme Court of New South Wales that Percy Stewart Dawson was guilty of a breach of trust by giving Raymond Nelson a sum of cash. [44] Against those background facts, Street J considered it necessary to examine the nature of the obligation owed by the defaulting trustee to recoup the trust asset in respect of those monies which he had wrongfully withdrawn from it. [45] Street J found that: 21 The obligation of a defaulting trustee is essentially one of effecting a restitution to the estate. The obligation is of a personal character and its extent is not to be limited by the common law principles governing remoteness of damage. 19 Ibid. 20 [1966] 2 NSWR Ibid at p 214.

11 74 Waikato Maniapoto MB 287 [46] After referring to the personal obligation of a defaulting trustee to effect restitution, the Court went on to say: 22 The cases to which I have referred demonstrate that the obligation to make restitution, which courts of equity have from very early times imposed on defaulting trustees and other fiduciaries is of a more absolute nature than the common law obligation to pay damages for tort or breach of contract... The form of relief is couched in terms appropriate to require the defaulting trustee to restore to the estate the assets of which he deprived it The obligation to restore to the estate the assets of which he deprived it necessarily connotes that, where a monetary compensation is to be paid in lieu of restoring assets, that compensation is to be assessed by reference to the value of the assets at the date of restoration and not at the date of deprivation. In this sense the obligation is a continuing one and ordinarily, if the assets are for some reason not restored in specie, it will fall for quantification at the date when recoupment is to be effected and not before. [47] I summarise the above discussion as follows: a) Trusts are a development of Judge made law and the Courts of equity undertake the function of supervising them; b) Trustees of ahu whenua trusts have an obligation to administer the trust property in accordance with the general trust law, the requirements of the Trustee Act 1956, the provisions of Te Ture Whenua Māori Act 1993 and the trust order; c) In cases involving a breach of trust, the primary obligation of a defaulting trustee is to effect restitution. That obligation is of a personal nature; d) If specific restitution of the trust property is not possible then the obligation on the trustee is to pay sufficient equitable compensation to put the trust estate back to what it would have been if the breach had not been committed. [48] Section 238(2) expressly provides the Māori Land Court with the authority to enforce the obligations of a trust. The wording of that section makes it very clear that the Court is not limited to the remedy of injunction. Had the legislature intended to limit the Māori Land Court s jurisdiction to injunctions only then they would have expressly said so. 22 Ibid, at p 216.

12 74 Waikato Maniapoto MB 288 [49] Section 238(2) gives the Māori Land Court jurisdiction to enforce the obligations of a trust by way of injunction or otherwise. As I have discussed earlier, in those cases involving a breach of trust, the Courts have traditionally enforced the personal obligations of the trustees by making an order for restitution or an order for equitable compensation to be paid in lieu of restoring assets. [50] I do not read the sanctions contemplated by s 238(2) as being limited only to the statutory sanctions set out in TTWMA such as injunction or removal of a trustee pursuant to s 240. As the Court which has the primary responsibility for supervising trusts constituted over Māori freehold land, it would be surprising if the legislature intended that s 238(2) was to be limited only to the statutory sanctions set out in TTWMA. 23 If the Māori Land Court does not have the jurisdiction to make an order for restitution or equitable damages for breach of trust that necessarily means that those types of proceedings would need to be filed in the District or High Court. I do not consider that was the intention of the legislature. [51] I do not consider that s 238(2) is in any way inconsistent with s 237. Section 237 is subject to s 238. Section 237 does not limit in any way the jurisdiction conferred by s 238(2). Section 237 allows the Court to exercise jurisdiction in those situations not expressly covered in ss 237 to 245. Thus for example the Māori Land Court could invoke provisions in the Trustee Act 1956, if it was faced with a situation not expressly covered by ss 237 to 245. In the same situation the Māori Land Court can invoke the inherent jurisdiction of the High Court. All of that makes common sense in that ss 237 and 238 in combination give the Māori Land Court a wide suite of powers and jurisdiction, to not only supervise but also enforce trustees obligations involving those types of trusts within the jurisdiction of the Māori Land Court. The Remedy of Account [52] Thus far I have concentrated my discussion on the equitable remedies available for breach of trust. The trustees have in the first cause of action also pleaded that the first, second and third respondents breached fiduciary obligations. One of the remedies they 23 According to Ministry of Justice figures, as at March 2009 there were approximately 13,000 trusts that fall within the jurisdiction of the Māori Land Court, excluding trusts over reservations NZLS CLE Seminar Booklet Māori Land Update, June 2009 at p 115.

13 74 Waikato Maniapoto MB 289 seek is an accounting for any payments which they allege were improperly made in relation to a land clearing contract. [53] An account of profits is an equitable restitutionary remedy. It has its source in the inflexible principle of equity that a person in a fiduciary position is not, unless otherwise expressly provided, entitled to make a profit. A fiduciary is not entitled to put themselves in a position where the duty to another and their personal interests either conflict or may conflict. 24 [54] In the Privy Council case of New Zealand Netherlands Society Oranje Inc v Kuys and The Windmill Post Ltd 25 the Privy Council said: The obligation not to profit from a position of trust, or, as it is sometimes relevant to put it, not to allow a conflict to arise between duty and interest, is one of strictness. The strength, and indeed the severity, of the rule has recently been emphasised by the House of Lords (Boardman v Phipps [1967] 2 AC 46; [1996] 3 All ER 721). It retains its vigour in all jurisdictions where the principles of equity are applied. Naturally it has different applications in different contexts. It applies, in principle, whether the case is one of a trust, express or implied, of partnership, of directorship of a limited company, of principal and agent or master and servant, but the precise scope of it must be moulded according to the nature of the relationship. [55] I come back to the point made earlier in this judgment that trusts are a creature of equity. A breach of trust is a breach of an equitable obligation and may lead to the imposition of civil liability on the trustees. Trustees are personally liable for any losses which have occurred if they have acted in breach of their obligations. The Courts have imposed liability by: 26 a) A duty to account to the beneficiaries for funds and assets administered by the trustee; b) An obligation to make restitution; c) An obligation to make good the loss of trust property by equitable compensation. 24 Boardman v Phipps [1967] 2 AC [1973] 2 NZLR 163 (PC) at p Greg Kelly and Chris Kelly, Garrow & Kelly Law of Trusts and Trustees (7 th ed, LexisNexis, Wellington, 2013) at p 834.

14 74 Waikato Maniapoto MB 290 [56] The duty to account is to be distinguished from a common law action for damages. It is described as an alternative to an inquiry into damages. 27 In this case what is pleaded by way of remedy are the equitable remedies of compensation and account. Common law damages are not sought by way of relief. [57] I return to the basic premise that the obligations a trustee takes upon his or herself are personal obligations. The Courts may enforce those in any number of ways, for example injunction, specific performance or in cases of breach of fiduciary duty or breach of trust by imposing the equitable remedies of account, restitution or compensation. [58] For the reasons which I have discussed earlier, I am of the view that s 238(2) permits the Māori Land Court to avail itself of the type of equitable remedies available to the High Court when enforcing the obligations of trustees of those trusts within the jurisdiction of the Māori Land Court. Decision [59] The Māori Land Court has jurisdiction to award equitable remedies, in this case equitable compensation or make an order to account for profits in the case of breach of trust or breach of fiduciary duty. [60] Thus far the proceedings have been pleaded in reliance upon s 237 and not s 238(2). That would necessarily require an amendment to the statement of claim but that does not prevent this case from proceeding. Discussion on s 237 of TTWMA [61] If I am wrong as to the extent of the jurisdiction available to the Māori Land Court under s 238(2) and, that it is limited only to the statutory sanctions set out in TTWMA, then I return to s Andrew Butler (ed), Equity and Trusts in New Zealand (2 nd ed, Brookers, Wellington, 2009) at p 896.

15 74 Waikato Maniapoto MB 291 [62] As the Māori Land Court said in Tito Mangakahia 2B2, 28 s 237 is available for use by the Māori Land Court when the express provisions relating to trusts in TTWMA do not apply. Thus the question needs to be asked, if the Māori Land Court does not have the jurisdiction to hear equitable claims and award equitable remedies pursuant to s 238 of TTWMA, can it do so pursuant to s 237? [63] As I have referred to earlier, the High Court s general jurisdiction is confirmed in s 16 of the Judicature Act 1908, I again set that out as follows: 16 General jurisdiction The court shall continue to have all the jurisdiction which it had on the coming into operation of this Act and all judicial jurisdiction which may be necessary to administer the laws of New Zealand. [64] Section 16 of the Judicature Act 1908 contains two limbs. As to the first limb the section confirms that the High Court continued to have all the jurisdiction which it had when the Act came into operation. As the Court of Appeal said in Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union: 29 By virtue of the provisions of the earlier Supreme Court Acts of 1860 and 1882 the High Court has all the jurisdiction possessed by the superior Courts in England at the time the 1860 Act came into force. [65] Sections 4 and 5 of the Supreme Court Act 1860 set out the jurisdiction of the then Supreme Court in the new colony of New Zealand. Those sections provided that the then Supreme Court had the same legal and equitable jurisdiction enjoyed by the superior Courts in England. That jurisdiction was again confirmed in s 16 of the Supreme Court Act of 1882 which is in almost identical terms to the current s 16 of the Judicature Act [66] Thus from its inception, the New Zealand Supreme Court, (now the New Zealand High Court), had the complete jurisdiction to hear common law actions, suits in equity and grant legal and equitable remedies. What is important to note is that in New Zealand, the source of that jurisdiction is always traced back to a statute. 28 Supra, FN [1983] NZLR 612 at 615, line 23.

16 74 Waikato Maniapoto MB 292 [67] The second limb of s 16 is a reference to the inherent jurisdiction of the High Court. As the Court of Appeal also said in Quality Pizzas Ltd: 30 Section 16 may be viewed as a statutory affirmation of the inherent jurisdiction of the High Court which it may exercise as may be necessary to administer the laws of New Zealand. [68] Section 237 of TTWMA says inter alia that the Māori Land Court shall have and may exercise all the same powers and authorities as the High Court has (whether by statute or by any rule of law or by virtue of its inherent jurisdiction). (Emphasis added). [69] The reference to the words whether by statute can be seen on the one hand to incorporate a reference to a statute such as the Trustee Act In that Act, Court is defined as meaning the High Court. However, the Māori Land Court in reliance upon s 237 also has the ability to invoke the statutory powers that the High Court enjoys under the Trustee Act [70] I am also of the view that the reference to the words whether by statute extends to include s 16 of the Judicature Act The jurisdiction of the High Court in New Zealand is affirmed by a statute the Judicature Act Ordinarily the Māori Land Court does not have the same powers and authorities as the High Court. However in the case of those trusts within the jurisdiction of the Māori Land Court, it does. It does so because the jurisdiction of the High Court has, since its inception, been affirmed by statute, first the Supreme Court Act of 1860, then the Supreme Court Act of 1882 and currently the Judicature Act of Put another way, but for those statutory provisions the High Court would not have the equitable, legal and inherent jurisdiction it enjoys. [71] In relation to the supervision of trusts within its jurisdiction, s 237 confers upon the Māori Land Court the same powers and authorities that the High Court enjoys pursuant to s 16 of the Judicature Act What that means in this case is that if the Māori Land Court does not have jurisdiction to hear and award equitable remedies pursuant to s 238 of TTWMA, it may then exercise that jurisdiction pursuant to s 237 of TWWMA in reliance upon s 16 of the Judicature Act Supra, at 615, line 53.

17 74 Waikato Maniapoto MB 293 Directions [72] The Registrar is directed to contact Mr Koning and Mr Sharp to arrange for a telephone conference to discuss the further progression of these proceedings. I am available at 12.30pm on Tuesday 6 May I direct the Registrar to check the availability of Mr Koning and Mr Sharp on that day. Pronounced in open Court at 3.10 pm in Hamilton on the 10 th day of April S R Clark JUDGE