IN THE MĀORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A A First Applicant. Respondent RESERVED JUDGMENT OF JUDGE C T COXHEAD

Transcription

1 186 Waiariki MB 32 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A A UNDER IN THE MATTER OF BETWEEN AND AND Sections 67 and 269(4), Te Ture Whenua Māori Act 1993 Mangaroa Block and others TUIHANA POOK First Applicant VENA MURIWAI APPLETON Second Applicant LEO GAGE Respondent Hearing: On the papers Judgment: 2 May 2018 RESERVED JUDGMENT OF JUDGE C T COXHEAD

2 186 Waiariki MB 33 Introduction [1] On 28 August 2017, I issued a preliminary decision in relation to these applications concerning the Proprietors of Mangaroa & Other Blocks Incorporated ( Mangaroa Incorporation ). 1 In that decision, I found that the term of appointment for committee of management members of Mangaroa Incorporation is three years. [2] It was hoped that the decision would resolve issues between committee members. However, rather than parties working with the decision I made, there were further questions raised by some of the parties. [3] In directions issued on 22 November 2017, I identified the following three matters for determination: 2 (a) Whether Leo Gage and Walter Swanson are still members of the committee of management; (b) Clarification regarding the Special General Meeting held on 18 March 2017 for the purpose of replacing Carl Ngamoki-Cameron and Tuihana Pook; and (c) Clarification regarding whether my decision of 28 August 2017 was restricted to a person elected to a new term or includes a person elected due to a casual vacancy. [4] After hearing from the parties on how to progress, I considered that these matters could be determined on the papers. I provided the parties time to file any further submissions and evidence. [5] I now consider each of the relevant issues. 1 Pook v Gage The Proprietors of Mangaroa & Other Blocks Incorporated (2017) 168 Waiariki MB 200 (168 WAR 200) Waiariki MB (175 WAR 59-60).

3 186 Waiariki MB 34 Are Leo Gage and Walter Swanson still members of the committee of management? [6] Schedule 1 of the Māori Incorporations Constitution Regulations 1994 ( the Regulations ) sets out the standard Māori incorporations constitution. Clause 22 states: 22 Term of office (1) Subject to subclauses (2) to (4), every member of the committee shall hold office for a term of 3 years expiring at the end of the annual general meeting held in the third calendar year after the calendar year in which the member was elected, unless the member sooner dies or resigns or is sooner removed from office. (2) Notwithstanding subclause (1), the shareholders may, by special resolution, determine that the term of office of any member of the committee shall expire at such other date as will provide for the rotation of retirement dates. (3) If in any calendar year the annual general meeting at which a committee member is due to retire is not held for any reason, the term of office of that member shall expire at the end of that calendar year. (4) Every member who is elected to fill any extraordinary vacancy caused by death, resignation, or removal from office of any member shall hold office for the remainder of the term for which his or her predecessor was elected. (5) In this rule calendar year means a period of 12 months ending with 31 December. [7] From my reading of the information before the Court, Leo Gage and Walter Swanson were both elected at the 2015 Annual General Meeting ( AGM ) to replace Bridget Ngamoki (also noted as Bridgette Rika) who had resigned, having been appointed on 3 November 2013, and Karamea Insley, who was due for retirement by rotation. There is some confusion caused in the notice for the AGM, which incorrectly states that Ms Ngamoki and Mr Insley have both resigned. [8] With regard to the election, the AGM minutes simply record that the scrutineers declared Walter Swanson and Leo Gage duly elected. Further, the minutes only record that there are two vacancies to be filled, they do not record the type of vacancies or the names of those committee members being replaced. It is therefore not clear from the AGM minutes which person was elected to replace Ms Ngamoki and which person was elected to replace Mr Insley.

4 186 Waiariki MB 35 [9] Recent submissions to the Court have been put forward on the basis that Mr Gage and Mr Swanson were both elected to fill casual vacancies left by Ms Ngamoki and Mr Insley. While this may have been the impression caused by the notice and AGM minutes, it is not the reality of the case. Ms Ngamoki s position is clear. She resigned prior to serving the full three-year term of her office and a causal vacancy was thereby created. However, Mr Insley was not a causal vacancy given he completed his three-year term and retired by rotation. [10] If the AGM minutes provided a clear account of who was elected to replace Ms Ngamoki, then that person would be appointed to serve out the balance of Ms Ngamoki s term, being one year. Similarly, if it was clear who was elected to replace Mr Insley, then that person would be serving a full term of three years from their appointment in However, the minutes from the AGM are not clear and no one has provided any further clarity on this issue. [11] I note that the letter of Carl Ngamoki-Cameron dated 24 April 2017 helpfully sets out a table of relevant appointments and terms for the committee members. However, even this table does not clarify who of Mr Swanson and Mr Gage replaces Ms Ngamoki and who replaces Mr Insley. Instead, in noting the terms of the committee members, the table states Leo/Walter in relation to Ms Ngamoki s term and then Walter/Leo in relation to Mr Insley s term. [12] Several reasons have been advanced as to why the Court should allow Mr Gage and Mr Swanson to both serve terms of three years. The most compelling of these reasons is that the Court cannot be sure as to who is serving the balance of Ms Ngamoki s term of office and who is serving the three-year term. I therefore determine that both Mr Gage and Mr Swanson are serving three-year terms from the date of their appointment on 21 November They are both therefore still members of the committee of management.

5 186 Waiariki MB 36 Clarification regarding whether my decision of 28 August 2017 was restricted to a person elected to a new term or includes a person elected due to a casual vacancy [13] As noted, my decision dated 28 August 2017 dealt with the term of office for committee members of the Mangaroa Incorporation. 3 [14] Clause 22 of the Regulations provides that a term of office for a committee member is three years. As noted at paragraph [60] of my decision, cl 22(2) allows the shareholders by a special resolution to determine that the term of office of any member of the committee shall expire at such other date (other than the three-year term provided by cl 22(1)) to provide for the rotation of retirement dates. Accordingly, that clause allows shareholders to agree to stagger dates for appointments to achieve staggered rotation of retirement dates. Unless a committee member has been appointed and a special resolution passed to extend that member s term then their appointment is for a three-year term. [15] I reiterate that the starting point is that all committee members terms are for three years. [16] My decision did not address the specific question of the term of office of a vacancy caused by death, resignation, or removal from office. However, cl 22(4) of the Regulations makes it clear that when a person is elected to fill a vacancy caused by death, resignation, or removal from office of any member, they will only hold office for the remainder of the term for which his or her predecessor was elected. For example, if a person was elected and they resigned after one year of holding office, then the person elected to fill their vacancy would only serve the remaining two years of the term of the resigning member. [17] I also note that Judge Harvey has previously given guidance on the issue for this Incorporation in his decision Ngamoki-Cameron v Koopu The Proprietors of Mangaroa & Other Blocks Incorporated. 4 3 Pook v Gage The Proprietors of Mangaroa & Other Blocks Incorporated (2017) 168 Waiariki MB 200 (168 WAR 200). 4 Ngamoki-Cameron v Koopu The Proprietors of Mangaroa & Other Blocks Incorporated (2014) 91 Waiariki MB 279 (91 WAR 279) at [38]- [43].

6 186 Waiariki MB 37 Clarification on the Special General Meeting held on 18 March 2017 for the purpose of replacing Carl Ngamoki-Cameron and Tuihana Pook [18] The issues surrounding the calling of the Special General Meeting ( SGM ) and purported cancelling of that SGM, all played out when there was uncertainty as to the term of committee members and the casual vacancies. [19] As a result, a SGM was advertised in A further advertisement then went out cancelling that meeting. However, the SGM did proceed and achieved a quorum. An election was held and Mr Insley and Ms Barlow were elected as new committee members to replace Carl Ngamoki-Cameron and Tuihana Pook who had both retired by rotation at the end of It is contended that that advertisement cancelling the meeting was null and void and the SGM was therefore valid. [20] What this demonstrates is that this committee is close to dysfunctional. The whole situation is shambolic. Even if the advertisement for the SGM is valid and the advertisement cancelling the SGM is null and void, it may still have left some shareholders under the impression that the SGM had been cancelled, denying them the opportunity to attend and vote at the election. [21] The Court has jurisdiction under s 269(6) to investigate the conduct of an election of members of a committee of management, on application, and can either confirm the appointment of those elected or declare the election invalid and order a fresh election. That jurisdiction is discretionary. In some cases, the breaches complained of may be merely technical and have no bearing on the result of an election. In others however, the breach may be fundamental and the Court would have no alternative but to act. 5 [22] In the present situation, the advertisement and purported cancelling of the SGM may appear to be merely technical. However, given the confusion this created and the fact that the SGM did proceed, the Court cannot be sure the process did not create a fundamental flaw in the outcome of the election. I consider that the best way to rectify any 5 See Rickard v Tukiri Te Kopua 2B3 Block Incorporated (2000) 92 Waikato MB 157 (92 W 157); Neho Muriwhenua Incorporation (2014) 84 Taitokerau MB 189 (84 TTK 189); and Whata - The Proprietors of Ruahine Kuharua Incorporation (2015) 120 Waiariki MB 204 (120 WAR 204).

7 186 Waiariki MB 38 anomalies the situation may have caused due to the different notices, is to convene a properly constituted SGM for the purposes of an election. [23] I am therefore of the view that the appointment of Mr Insley and Ms Barlow would be inappropriate, given the confusion surrounding the meeting at which they were elected. New elections are needed [24] Given my decision above, there are now vacancies on the committee of management. An issue was also raised that a number of the committee members are up for retirement by rotation on 31 December [25] New elections will therefore urgently be needed. The committee of management may need assistance from the Court to call and facilitate a meeting for an election. The Court can assist if needed. Other applications before the Court [26] There is a further application before the Court for the removal of Leo Gage. This matter is yet to be heard. It was hoped that my decision of 28 August 2017, and now this decision, would resolve matters. However, I anticipate that these decisions have not resolved the issues. The Court will now set that application for a s 67 judicial conference for the purpose of timetabling. [27] There are no issues as to costs. Parties will bear their own costs. Pronounced in Rotorua at 2:09 pm on Wednesday this 2 nd day of May C T Coxhead JUDGE