Adams v Adams - [2024] NZHC 1713

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2020-419-000034

[2024] NZHC 1713

UNDER Property Law Act 2004 and Trusts Act 2019

IN THE MATTER OF

an application for an order for sale of real property and distribution of the proceeds and an application for directions

BETWEEN

SONIA RANGIMARIA ADAMS

Plaintiff

AND

DESMOND ALEXANDER ADAMS

First Defendant

PAULINE PARAKU

Second Defendant

Hearing: 13 May 2024

Appearances:

S McKenna for the Plaintiff

P Depledge for the Defendants

Judgment:

26 June 2024

JUDGMENT OF TAHANA J

This judgment was delivered by me on 26 June 2024 at 3.00pm

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
McKenna King Dempster, Hamilton Riverbank Chambers, Hamilton

ADAMS v ADAMS [2024] NZHC 1713 [26 June 2024]

Hei tīmatanga kōrero | Introduction

[1] At the heart of this application is a property owned by a Māori whānau. The property was left to the tamariki (children) on the passing of their mother, Marion Te Omiraka Putere. Ms Putere had eleven tamariki and one had sadly passed away prior to her death. The whānau proceeded to deal with the property as a whānau by holding whānau hui and discussing what should be done with the property. The whānau hui refer to “Te Omiraka Trust”. The whānau agreed to appoint persons as trustees, those persons included the plaintiff and the defendants (the Parties).

[2] The plaintiff, Sonia Adams, is a mokopuna1 and whāngai2 of Ms Putere and the defendants are tamariki of Ms Putere.

[3] The solicitor who acted as executor of Ms Putere’s estate transferred the property into the names of the Parties understanding that they had been appointed as trustees. This occurred around the same time that the whānau agreed to appoint a new solicitor. All beneficiaries except two provided written authority for the new solicitor to act.

[4] In the absence of a written trust deed, the new solicitor sought to transfer the property into the names of the beneficiaries under Ms Putere’s will. Had that occurred, the property would now be in the names of the children. The property has continued to be held in the names of the Parties.

[5] The Parties all accept that they hold the property for the benefit of the beneficiaries under Ms Putere’s will. They have not sought to deal with the property as though it was their own. The plaintiff seeks an order that the property be sold. The defendants do not oppose the application.

Ngā Take | Issues

[6]The issues I must determine are:

1 Biological grandchild.
2 Foster or adopted child according to tikanga Māori.

(a)What is the relevance of tikanga in considering the circumstances in which the property became to be held in the names of the Parties?

(b)Do the Parties hold the property pursuant to a trust and if so, what is the nature of that trust?

(c)Should an order for the transfer and/or sale of the property be made?

Ko ngā kōrero e pā ana ki te tono nei…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adams v Adams

Details

AGLC: Adams v Adams [2024] NZHC 1713
Case: [2024] NZHC 1713
Decision Date: 26 June 2024

CaseChat Overview and Summary

The case of Adams v Adams involved a property dispute within a Māori whānau, where the property was originally held by the mother, Marion Te Omiraka Putere, and later transferred to trustees, including the plaintiff Sonia Adams and the defendants Desmond Alexander Adams and Pauline Paraku. The dispute centred on whether the property should be sold and the distribution of proceeds among the beneficiaries under Ms Putere’s will. The court was required to determine whether tikanga Māori was relevant in considering the circumstances of the property transfer, the nature of the trust, and whether an order for sale should be made.

The court found that tikanga Māori was highly relevant, as the whānau had engaged in discussions and decision-making processes that reflected tikanga principles. The whānau had clearly intended to create a trust for the benefit of the beneficiaries under Ms Putere’s will, although the trust did not comply with the statutory requirements of the Property Law Act 2007. The court concluded that the property was held on a resulting trust in favour of the beneficiaries.

Regarding the sale of the property, the court held that a sale was not a proper exercise of the trustees’ powers, given the whānau’s clear intention to hold the property collectively and the strong opposition to selling it. The court emphasized that the decision to sell should be made by the whānau through a hui, consistent with tikanga. The court ordered that the property be vested in the beneficiaries under Ms Putere’s will in equal shares.

Finally, the court ordered that the defendants should be indemnified for any costs incurred in the proceeding, to be paid out of the trust assets if required.

Orders