IN THE MĀORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A Section 269(6) of Te Ture Whenua Māori Act 1993

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1 120 Waiariki MB 204 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A UNDER Section 269(6) of Te Ture Whenua Māori Act 1993 IN THE MATTER OF The Proprietors of Ruahine Kuharua Incorporation Investigation of election of Committee of Management BETWEEN WHETU FREDRICK LINDSAY WHATA Applicant Hearing: 28 May 2015 Appearances: Mr C Bidois, for the Applicant Judgment: 29 May 2015 RESERVED JUDGMENT OF DEPUTY CHIEF JUDGE C L FOX Copies to: Mr Curtis Bidois, East Brewster, PO Box 1742, Rotorua Curtis.bidois@eastbrewster.co.nz

2 120 Waiariki MB 205 Introduction [1] This matter concerns the voting process adopted in February 2015 for the AGM of the Proprietors of Ruahine & Kuharua Incorporation (the Incorporation). The Incorporation was established by order of Incorporation on 17 July On that date the Māori Land Court also defined the objects of the Incorporation. Those objects of Incorporation were redefined by orders dated 10 December 1985, 19 December 1989, and 21 March Application [2] On 20 March 2015, the Māori Land Court in Rotorua received an application pursuant to s 269(6) of Te Ture Whenua Māori Act The applicant Whetu Fredrick Lindsay Whata applies for an order confirming the appointment of persons elected in the 2015 Committee of Management ( the COM ) elections for the Incorporation. The grounds for bringing the application are that: An election for two positions on the COM for the Incorporation was held at the Annual General Meeting ( AGM ) for the Incorporation on 14 February Certain voting forms in the election had been filled out incorrectly in that the name of the proxy holder had been wrongly entered in the space reserved for the shareholder s name. Stapled to each of those voting forms was a correctly completed proxy form bearing the name and signature of the shareholder who had granted the proxy. The COM together with all persons nominated in the 2015 election have met and considered the incorrectly completed voting forms referred to above. 1 2 Rotorua Minute Book 103/ Rotorua Minute Book 146; 226 Rotorua Minute Book 113; 226 Rotorua Minute Book 220

3 120 Waiariki MB 206 There is disagreement as to whether the incorrectly filled out voting forms are valid. The COM and nominees have agreed to seek a determination from the Court as to the validity of those votes. Voting at the AGM [3] Mr John McRae gave evidence on behalf of Deloitte, in its capacity as Secretary for the Incorporation. He noted that the AGM was held on 14 February At that meeting an election for two COM members was conducted. The AGM was well advertised and notice of the election was included. Notice was also sent to as many shareholders as possible. [4] Where a constitution of an Incorporation is silent on issues such as procedure for meetings, the Māori Incorporations Constitution Regulations 1994 operate to fill the void. Regulation 12(a) provides that a shareholder may exercise the right to vote either by being present in person or by proxy. Regulation 23(1) further provides that election of persons to fill vacancies in a COM shall be conducted at an AGM, unless the Court otherwise directs. There is no issue that the procedure adopted at the February 2015 was voting by shareholding including proxy voting. [5] In this case, proxy forms were available from the Deloitte Rotorua Office and completed forms were to be lodged with the Secretary no later than 5pm on Wednesday 11 February 2015, well within the timeframe set under regulation 19. These forms were validated by the share manager at Deloitte and there is no dispute that the proxy forms filled out were valid. A blank voting form was stapled to each proxy form and placed into an envelope to be collected by the proxy holder at the AGM. [6] At the AGM it was decided that the election would proceed on the basis of shareholding as permitted by regulation 14. Shareholders were asked to place their votes in a sealed box that was later unsealed at the Deloitte Rotorua office. Twenty-eight voting forms, being votes cast by the one proxy voter for other shareholders, had been completed incorrectly. In the space marked Shareholder on each of those voting forms, the name

4 120 Waiariki MB 207 David Te Hurihanganui Wickliffe had been entered instead of the name of the shareholder. However, the proxy forms of each shareholder, were still attached to these forms. [7] There were a total of 56 votes cast in the election so that 28 incorrect proxy votes account for half of all votes cast. If these votes were excluded the results would be that Te Napi Tutewehiwehi Waaka and Selwyn Rikiti would be elected. If the incorrect proxy votes were allowed Georgina Whata and Kiri Mitchell would be elected. Position of the Parties [8] Those who support Te Napi Tutewehiwehi Waaka and Selwyn Rikiti want the incorrect proxy votes excluded and their appointment to COM confirmed. Mr Waaka addressed the Court at length about the need to adhere to the correct process for completing elections such as this. Alternatively, the Court should ignore the law and allow tikanga Māori to determine the outcome. [9] Mrs Fenwick, a COM member suggested that all candidates be confirmed. The problem with that is s 269(1) and regulation 21 set the number for a COM at no less than 3 and no more than 7. Thus it is not possible for this Court to give effect to this proposal. [10] Conversely those who support the inclusion of the incorrect proxy votes support the confirmation of Georgina Whata and Kiri Mitchell as COM members. Ms Whata pointed out that she had gone to some trouble to obtain the proxy forms from those who could not attend the AGM and that their views should be taken into account. Issue [11] The issue for this Court is whether it should confirm the election outcome by including or excluding the 28 proxy votes that were incorrectly cast on behalf of those shareholders whose proxy forms were correctly completed.

5 120 Waiariki MB 208 Relevant Law [12] Section 269(6) of Te Ture Whenua Māori Act 1993 provides that: The Court may, on the application of any shareholder or officer of the incorporation, investigate the conduct of any election of a member or members to the committee of management, and may either (a) Confirm the appointment of the person or persons elected; or (b) Declare the election invalid and order a new election to be held. [13] Mr Curtis for the COM referred to two decisions from other Māori Land Court districts to assist this Court. These cases were from the Aotea and Taitokerau Districts and they are not strictly relevant to the issue in this case. [14] However, the first case Hoani Hipango v Whatarangi Murphy Peehi & Ors (2008) 3 does refer to the decision in Rickard v Tukiri, Te Kopua 2B3 Block Incorporated (2000). 4 In that case His Honour Judge Carter found: In many cases where there is legislation allowing for elections to be challenged strict time limits are prescribed within which an application must be filed. Te Ture Whenua Māori Act 1993 contains no such time limits. Section 269(6) does provide that the Court may investigate the conduct of an election and may come to a determination. This allows the Court s own discretion in coming to a decision. In some cases the breaches complained of maybe merely technical and have no bearing on the result of an election. In such cases the Court could use its discretion not to interfere. However, where the breach is fundamental the Court would have no alternative but to act. [15] I agree with Judge Carter that this is the correct approach for applications under s 269(6). Discussion [16] While it is true to say that the incorrect proxy votes technically reflected the intention of the shareholders as outlined in their proxy forms, the problem is the sheer number of incorrect votes. In my view that tips the balance from this being a case about mere technical defects, to one that is fundamental. In other words, too many incorrect Aotea Minute Book

6 120 Waiariki MB 209 proxy votes were cast and this created a fundamental flaw with the election. I cannot include those votes to determine the outcome and thus Georgina Whata and Kiri Mitichell cannot be appointed. [17] I turn now to the position of Te Napi Tutewehiwehi Waaka and Selwyn Rikiti. In doing so I note I am required to have regard to the Preamble, ss 2 and 17. These sections are important, as they require that I weigh the interests of all the owners in coming to a decision on whether to exercise my discretion under section 269(6) regarding whether I confirm their appointment. [18] I am not prepared to do so given the number of shareholders who supported the other candidates. They were not responsible for the mistake. Those who correctly filled out their proxy forms acted in good faith and their views should not be ignored. In the interests of fairness a new election will need to be conducted. Order [19] There is an order under section 269(6)(b) declaring the election held on 14 February 2015 invalid, and ordering a new election to be held within 6 weeks of this judgment. Pronounced at Rotorua at am on Friday 29 th day of May 2015 C L Fox DEPUTY CHIEF JUDGE 4 92 Waikato Minute Book 157