Baker v Waimakuku Whanau Trust Board Incorporated

[2014] NZHC 3016

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2010-441-581 [2014] NZHC 3016

IN THE MATTER OF

sections 64 and 66 Trustee Act 1956

BETWEEN

EDWARD HENRY BAKER and WHAKAWE CHARLES RAMEKA as trustees of the THOMAS BAKER WHANAU TRUST

Applicants

AND

WAIMAKUKU WHANAU TRUST BOARD INCORPORATED Respondent

Teleconference:	24 November 2014
Appearances:	E M Bate for applicants N R Baker in person
Judgment:	28 November 2014

RESERVED JUDGMENT OF DOBSON J

[1]      In my judgment of 7 April 2014, I ordered the respondent to pay costs to the applicants of $20,000.1

[2]      Earlier,  in  dealing  with  costs  of  the  amicus  curiae  in  a  judgment  on

24 February    2014,2      I    had    commented    on    repeated    submissions    from Mr Nee Harland, counsel who had appeared for the respondent, that his instructions did not come from Mr Nigel Baker (Mr Baker).  I described that attempt to distance Mr Baker as disingenuous, and recognised the prospect that the applicants might be entitled to an order that Mr Baker contribute, in his personal capacity, to any costs

order against the respondent.

1      Baker v Waimakuku Whanau Trust Board Inc [2014] NZHC 686.

2      Baker v Waimakuku Whanau Trust Board Inc [2014] NZHC 255.

BAKER v WAIMAKUKU WHANAU TRUST BOARD INC [2014] NZHC 3016 [28 November 2014]

[3]      There was a precedent for that to occur.  At an earlier interlocutory stage of these proceedings, Associate Judge Gendall made a costs order personally against Mr Baker for steps taken up to that time.3    That was on the basis of findings that Mr Baker  stood  to  benefit  personally  from  the  respondent’s  actions  in  the proceeding, and that he was controlling the respondent’s conduct in the case.

[4]      After the respondent had failed to respond to a demand to meet the costs order made against it, on 13 June 2014 the applicants sought an order that that costs liability be met personally by Mr Baker.

[5]      There were difficulties in effecting service of the application, after Mr Nee Harland  protested  that  he  was  not  acting  for  Mr Baker,  and  Mr Baker  did  not acknowledge the sufficiency of service on him by means of email.  Personal service of the relevant documents was subsequently effected.

[6]      On  29 August  2014,  Mr Baker  filed  a  memorandum  indicating  that  he opposed the application that he be made liable for costs.   That memorandum foreshadowed arguments that Court decisions adverse to his interests and those of his immediate family since judgments in CP27/00 were wrong,4  and that issues still needed to be addressed to right unfair or unjust outcomes.   Mr Baker also sought more time in which to retain counsel and take other steps in opposition to the

application.   I granted Mr Baker a relatively generous period of further time until

20 October 2014.

[7]      Mr Baker personally filed a further memorandum on 10 October 2014.   It made no reference to Mr Baker’s previous suggestion that he intended to instruct counsel.  Again, the memorandum sought to continue argument on grievances that had been aired and, to the extent relevant, dealt with earlier in the proceedings.  It focused on what Mr Baker perceived to be the wrongful inclusion of beneficiaries in the Thomas Baker Whanau Trust, a claimed misappropriation of trust funds, and the use of trust funds without authority.  Mr Baker did not address, in any direct way,

why personal liability ought not to be attributed to him for the costs order on the

3      Baker v Waimakuku Whanau Trust Board Inc HC Napier CIV-2011-441-581, 13 October 2011 at

[32], [33] and [36].

4      Chisholm v Waimakuku Whanau Trust Board Inc HC Napier CP27/00, 29 August 2005.

basis  that  the  initiatives  taken  by  the  respondent  in  these  proceedings  were effectively orchestrated by Mr Baker and for his benefit.  Mr Baker sought a hearing to air these concerns in the context of the application for a costs order personally against him.

[8]      In contrast, Mr Bate urged that I deal with the remaining costs issue on the papers.   He was content to base the present application on his memorandum of

13 June 2014.  In the event, I convened a telephone conference to afford Mr Baker an opportunity to focus on matters that could be relevant to the exercise of my discretion on any personal liability to be ordered against him for the costs order previously made against the respondent.

[9]      At  the  outset  of  the  telephone  conference,  Mr Baker  sought  a  further adjournment.   Initially I understood him to say that he had retained counsel who would be available to deal with an argument on costs in the New Year.  In response to questions, Mr Baker indicated that Mr Nee Harland (who has previously denied having any instructions from Mr Baker) had written to Mr Squire QC on Mr Baker’s behalf, in circumstances where Mr Baker now apprehended that Mr Squire would be available to receive instructions from him in the New Year.

[10]     Given the extent of further time already allowed to Mr Baker, I was not prepared to have this remaining issue adjourned until 2015.

[11]     I then heard quite extensively from Mr Baker on a range of grievances about the injustices he perceives as resulting from decisions of Durie J in CP27/00, and the inappropriate conduct of the present applicant trustees in managing the fund.   A dominant theme in Mr Baker’s comments was the threat he perceives the current trustees pose to his ownership of certain land at Tarawera, and the disruption that is caused to his immediate family’s quiet enjoyment of the land by wider descendants of the original Thomas Baker accessing gravesites on part of the land.   Mr Baker adverted to a current application he has before the Māori Land Court, and also to an acknowledgement he claims to have received from Crown Law recently to the effect that the Crown made a mistake in drafting the original deed for settlement of the

relevant claim before the Waitangi Tribunal when defining the beneficiaries who were to share the proceeds of that settlement.

[12]     The  essence  of  Mr Baker’s  arguments  was  that  the  Court  had  been responsible for numerous mistakes to his detriment, and ought not to compound them by punishing him with personal liability for costs.  It was clear that he did not consider the applicants should have been awarded costs at all.

[13]     Mr Baker also argued that the initiatives taken on behalf of the respondent in these proceedings had resulted in a measure of success.  He cited as an example that the present trustees of the Thomas Baker Whanau Trust had adamantly refused to convene  a meeting of  beneficiaries  until  the respondent  applied  pressure  in  the proceeding for that to occur.

[14]     In support of the application, Mr Bate invited me to review the history of some three years’ delays and expansion of issues that were essentially collateral, and in any event unsuccessful for the respondent.   He characterised the respondent’s stance in what ought to have been a relatively narrow issue about the appropriate terms of a trust deed as a campaign of obfuscation and obstruction of what was a proper application to have a sound basis for governance of the trust.  He repeated a previous point that it was entirely responsible of the applicants to bring the application, and that the attitude of the amicus and the outcome vindicated the course that had been pursued.

[15]     Mr Bate disputed that the respondent could claim any measure of success from the initiatives pursued in its name in these proceedings.  The applicant trustees had considered that the appointment of an amicus with responsibility to canvass beneficiaries as to their attitudes was preferable to convening a meeting of all beneficiaries. As to the outcome of the meeting that was convened, he referred me to the independent chair’s report, which made clear that Messrs Baker and Nee Harland had attempted to disrupt the proceedings and then left before the meeting was completed.

[16]     Mr Bate also disputed that the current trustees were pursuing any challenge to Mr Baker’s indefeasible title to the Tarawera land. Whilst he has filed an appearance in  the  pending  Māori  Land  Court  application  brought  by  Mr Baker,  he  is  not instructed to oppose, and at this stage at least has instructions merely to monitor the relief sought by Mr Baker.

[17]     The immediate issue is a difficult one.   I assess it on the premise that the outstanding costs order against the respondent will not be paid by the respondent itself (except to the extent of offsetting an amount owed to the respondent).  Further, that the initiatives in these proceedings in the name of the respondent were directed by Mr Baker, in his own interests and the interests of his immediate family.   The primary argument raised against attributing personal liability for the adverse costs order is that to do so would compound the perceived injustice arising out of the Court’s earlier judgments in CP27/00, and my own judgment in regularising the current administration of the settlement fund by approving the terms of a new trust deed.  The difficulty with that argument, which was made with considerable force by Mr Baker, is that it would require me to recognise that existing decisions of this Court that have not been appealed were wrong.  That is not a valid premise on which to determine the present application.

[18]     Mr Baker made a final rejoinder to the criticism that he had orchestrated initiatives in the present proceedings for the respondent that did not bear directly on the issues raised by the current trustees’ application.   It was to the effect that his family’s interests had nowhere else to turn in the on-going dispute with those now charged with administering the fund derived from the settlement of the Waitangi Tribunal claim.  Mr Baker criticised my approach in dealing just with the costs issue as a “narrow window syndrome” that would lead to injustice.

[19]     It is naïve to expect that disputes in relation to administration of the Thomas Baker Whanau Trust are at an end, but this proceeding now certainly is.   I am concerned to minimise the grounds for renewed arguments between the opposing factions.   The applicants are entitled to an order for contribution to the costs previously ordered against the respondent but in all the circumstances I am not persuaded that such an order should extend to attributing total liability to Mr Baker.

I accordingly order that he be liable for a contribution to those funds to the extent of

$10,000, or such lesser amount as is presently outstanding.

[20]     There will also be an order for Mr Baker to reimburse the disbursements incurred by the applicants in effecting personal service on him.   In other respects, there is to be no order as to costs in relation to the present application.

[21]     After this judgment was drafted but before it could be released, I received, without warning or any form of application for leave to file further documents, a second memorandum from Mr Baker dated 24 November 2014.  That memorandum incorrectly contemplates that the issue raised by the present application remains open for further debate.  The most recent memorandum confirms Mr Baker’s intention to instruct Mr Squire, comments on the inappropriateness of Mr Baker being held liable for any part of the Crown’s costs in relation to the services of Crown counsel as an amicus, criticises the current trustees’ processes in having their financial statements audited, confirms the existence of a pending application by Mr Baker before the Māori Land Court and inappropriately invites the Court to reactivate an application that Mr Baker had made many years ago for an injunction in other proceedings (CIV-

2007-441-590).

[22]     None  of  the  matters  raised  in  this  most  recent  memorandum  alter  the reasoning I had previously settled in determining the application.

Dobson J

Solicitors:

Hansen Bate, Hastings for applicants

Crown Law, Wellington for amicus curiae

Copy to:

N R Baker