Bamber v Official Assignee

[2023] NZHC 260

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-77

[2023] NZHC 260

WĀHANGA

-UNDER

Section 414(1) of the Insolvency Act 2006

MŌ TE TAKE

-IN THE MATTER

of the reserved judgment of District Court Judge RLB Spear dated 27 July 2022

I WAENGA IA

-BETWEEN

KATHLEEN MATA BAMBER and BRUCE ANDERSON

Ngā Kaipira
-Appellants

ME

-AND

THE OFFICIAL ASSIGNEE

Te Kaiurupare

-Respondent

Nohoanga

-Hearing:

21 February 2023

Kanohi kitea

-Appearances:

C B Hirschfeld for the Appellants RMG Hindriksen for the Respondent

Whakataunga

-Judgment:

23 February 2023

TE WHAKATAUNGA Ā KAIWHAKAWĀ MĀTĀMUA HARVEY JUDGMENT OF HARVEY J

This judgment was delivered by me on 23 February 2023 at 10.30 am

pursuant to r 11.5 of the High Court Rules.

Date: …………………..
(Deputy) Registrar

Solicitors:

Foster Milroy, Hamilton Meredith Connell, Auckland

Counsel:
C Hirschfeld, Barrister, Auckland

BAMBER v THE OFFICIAL ASSIGNEE [2023] NZHC 260 [23 February 2023]

Hei tīmatanga kōrero

Introduction

[1]    In July 2019, Kathleen and Bruce Bamber were adjudged bankrupt over a debt that at that time amounted to $175,851.25 that they owe to the Tahorakuri A 1 Section 33A2 Trust (the Tahorakuri Trust) at Reporoa near Taupō. On 27 July 2022, Judge RLB Spear in the District Court ordered that Mr and Mrs Bamber’s property at 18 Wingrove Road, Ōwhata, Rotorua be vested in the Official Assignee under the Insolvency Act 2006.1

[2]    They appealed that decision to this Court on two grounds. First, they argued that the learned Judge should have allowed the kaumātua to speak to their affidavit evidence at the hearing. Secondly, the Bambers contended that it is contrary to tikanga Māori that they should be removed from what had been their papakāinga or home in order to satisfy a debt owed to the Tahorakuri Trust. Instead, they submitted that the issue should be referred to mediation so that, in accordance with tikanga, they can attempt a resolution of the matters outstanding between them and the trust.

[3]    The issue for determination is whether tikanga Māori is relevant to the issuing of orders under s 152 of the Insolvency Act 2006.

Kōrero whānui

Background

[4]    The following summary is taken from the Assignee’s factual chronology and from judgments of the Māori Appellate and Māori Land Courts.

[5]    Tahorakuri A No 1 Section 33A2 is a block of Māori freehold land, located near Broadlands between Reporoa and Taupō, with an area of 38.56 hectares. It was created by partition order dated 27 March 1991.2 There are currently 16 owners in the land holding a total of 100 shares. Almost invariably, those owners will all be related by blood and descend from common tīpuna or ancestors.

1      Official Assignee v Bamber [2022] NZDC 13038. The Wingrove Rd property is general freehold land and is not located on the Tahorakuri block.

2      65 Taupo MB 114 (65 TPO 114).

[6]    In 1983, Mr and Mrs Bamber entered into a lease over the Māori freehold land known as Tahorakuri A No 1 Section 33A2 for a period of ten years. They also lived on the land during much of this period, leaving in 2003. Then in 2008, it was discovered that the Bambers had subleased part of the land to a third party, since approximately 1994. In doing so, it was held by the Māori Land Court that they failed to account to their co-owners, represented by the Tahorakuri Trust, for the rent received.3 The Bambers submitted that they had a counterclaim for money and effort they contended had been spent on improving the land, which should therefore be set off against the rent they had received.

[7]    Those counterclaims were eventually dismissed by the Māori Land Court4 and the Māori Appellate Court.5 A later application by the Bambers to the Chief Judge of the Māori Land Court to exercise his special powers to correct mistakes and omissions under ss 44–45 of Te Ture Whenua Māori Act 1993 was also dismissed.6

[8]    On 22 June 2016, Mr and Mrs Bamber successfully applied to the Māori Land Court for transfer of their Wingrove Road property, where they had resided since 2008, to a whānau trust, the Bamber Whānau Trust.7

[9]    On 21 February 2017, quantum for the failure to account litigation was fixed and judgment entered. Then on 14 July 2017, the trustees of the Tahorakuri Trust demanded payment of $175,851.25. The Bambers did not pay and so they were adjudged bankrupt on 4 July 2019.

[10]    Then on 6 March 2020, following an application for a rehearing, the Māori Land Court annulled the order transferring the Wingrove Road property to the Bamber

3      Monschau v Bamber – Tahorakuri A No1 Section 33A2 (2015) 125 Waiariki MB 260 (125 WAR 260).

4      Monschau v Bamber – Tahorakuri A No 1 Section 33A2 Block (2017) 157 Waiariki MB 173 (157 WAR 173); Bamber v Monschau – Tahorakuri A No 1 Section 33A 2 (2019) 218 Waiariki MB 292 (218 WAR 292); Bamber – Tahorakuri A No 1 Section 33A2 (2021) 259 Waiariki MB 274 (259 WAR 274).

5      Bamber v Monschau – Tahorakuri A No 1 Section 33A2 [2016] Māori Appellate Court MB 363 (2016 APPEAL 363); Monschau v Bamber – Tahorakuri A No 1 Section 33A2 [2016] Māori Appellate Court MB 286 (2016 APPEAL 286).

6      Bamber v Official Assignee – Lot 39 DPS 3455 [2022] Chief Judge’s MB 664 (2022 CJ 664).

7      A whānau trust is one of five forms of trust that can be established by the Māori Land Court under Part 12 of Te Ture Whenua Māori Land Act 1993.

Whānau Trust and vested the property in the Assignee.8 Further litigation followed, culminating in the 14 May 2021 judgment of the Māori Appellate Court dismissing an application for leave to appeal out of time,9 and as mentioned above, the 14 October 2022 decision of the Chief Judge.10

Ko te hātepe e pā ana ki te tono nei

Procedural history

[11]   At the commencement of the hearing, I raised with counsel the fact that I had been part of the coram of the Māori Appellate Court in 2016 that had ordered costs of

$2,035.25 against the Bambers following their abandonment of that appeal.11  Counsel

both confirmed that they took no issue with me continuing to hear the present appeal.

[12]   Mr Hindriksen also raised the matter of adducing additional evidence in terms of the affidavit of Martina Magoni sworn 15 December 2022 after the District Court judgment under appeal had been issued.12 Mr Hirschfeld sensibly took no objection to that request. In addition, during the hearing, I asked Mr Hindriksen to file an updating memorandum on the total amount of the debt claimed against the Bambers. Later that day counsel confirmed that the current amount outstanding “which excludes the sums payable in respect of admitted creditor claims and any post-adjudication interest, is approximately $332,745.09”.

[13]   As foreshadowed, the Bambers were adjudged bankrupt on 4 July 2019 on the application of the Tahorakuri Trust. On 31 August 2020, the Assignee’s evidence confirmed that he wrote to the Bambers formally requesting them to vacate the property within 42 days. Given the ongoing litigation before the Māori Land Court, the Assignee deferred further enforcement, pending resolution of those proceedings. Once the applications had largely been concluded, the Assignee requested a meeting with the Bambers to discuss their options on 17 June 2021. They did not attend.

8      Bamber – Lot 39 DPS 3455 [2016] 143 Waiariki MB 74.

9      Bamber v Official Assignee – Lot 39 DPS 3455 [2021] Māori Appellate Court MB 161 (2021 APPEAL 161).

10     Bamber v Official Assignee – Lot 39 DPS 3455, above n 6.

11     Bamber v Monschau – Tahorakuri A No 1 Section 33A2, [2016] Māori Appellate Court MB 363 (2016 APPEAL 363).

12     The affidavit records that the Official Assignee has lodged a transmission of title over the Wingrove Road property which is recorded against title and annexes a search copy of title.

Further correspondence ensued, including with officials, a Minister’s office and a local MP, but without any satisfactory conclusion. According to the Assignee, the Bambers remain in the property.

[14]   The Assignee then applied to the District Court for a possession order of the Wingrove Road property requiring the Bambers to vacate, which is the decision presently under appeal.

Te whakataunga tārewa o te Kōti-ā-Rohe

District Court judgment

[15]   Judge Spear considered that, the usual basis for a s 152 order being met, the principal issue for determination was whether the order sought by the Assignee would be contrary to tikanga Māori. On this matter the Judge expressed concern over how the order sought would be contrary to tikanga:13

[14] It has been difficult to identify exactly what would be contrary to Tikanga Māori if the Court was to make an order for possession. Mr Tupara initially referred to the frailty of Mr and Mrs Bamber, essentially arguing that it would be unfair to put two elderly people out of their home. That argument was developed to the point where an approach should be taken in accordance with Tikanga that the parties (not the Official Assignee but the creditors of Mr and Mrs Bamber) sit down and attempt to resolve the matter within the whānau. Unfortunately, it is abundantly clear from the detail history to this matter that there have been ample opportunities for Mr and Mrs Bamber to sit down with other members of their whānau to discuss this debt owed by them.

[16]   After then setting out in summary the detailed history to the proceedings before the Māori Land Court and the Māori Appellate Court, the Judge underscored that, as set out above, there had been ample opportunity for the Bambers to meet with the Tahorakuri Trust representatives to try and reach a solution. More importantly, the Judge while acknowledging counsel’s submission that evicting the Bambers in such circumstances will be contrary to tikanga, also observed that counsel had not identified any supporting authority for that proposition:14

[15]      Mr Tupara indicated that proceedings had been or were about to be commenced before the Waitangi Tribunal in respect of this proceeding. Be that as it may, it is abundantly clear that Mr and Mrs Bamber have had more

13     Official Assignee v Bamber, above n 1.

14     Official Assignee v Bamber, above n 1.

than sufficient time to meet with their creditors who, as it happens, are members of their wider whānau. Accordingly, to suggest now that tikanga requires the parties to sit down and discuss matters ignores the protracted history to this litigation and this outstanding debt. Furthermore, it points very strongly to the fact that the creditors (the trustees of the Ahu Whenua Trust) lost patience with Mr and Mrs Bamber many years ago, which is hardly surprising given the attempts made by Mr and Mrs Bamber to remove their Rotorua property from their individual estates obviously to protect their home from the claim against them.

[16]      Mr Tupara submitted that Tikanga Māori was part of the common law of New Zealand, tikanga was against evicting the Bambers from their home, and that this should override the attempts by the Official Assignee to obtain possession of the property. Mr Tupara was unable, however, to provide any authority and support of that somewhat novel submission. In any event, the best that Mr Tupara could maintain, insofar as an approach to be taken now in accordance with Tikanga, was that the parties should now meet to try and resolve the issues between them. As I have explained there has been ample opportunity for such a meeting, and perhaps there have been meetings in the past, but no resolution has been achieved. There was no suggestion that the creditors of Mr and Mrs Bamber have waivered in their resolve to recover the judgment debt owing to them.

[17]     Finally, Judge Spear granted the Assignee’s application, rejecting the argument that the issuing of order sought by the Assignee was contrary to tikanga:15

[17]      I do not consider that there is any reason, either by consideration of Tikanga Māori principles or not, for the Official Assignee to be denied an order against Mr and Mrs Bamber for possession of their property. Indeed, the Official Assignee would justifiably be criticised by the creditors if the Official Assignee took no steps to obtain possession of this property absent a resolution of the creditors to that effect.

[18]Accordingly Judge Spear made the order for possession.

Ngā kōrero a te Kaipīra

Appellants’ submissions

[19]     In summary, Mr Hirschfeld, (in the absence of Mr Tupara who could not attend due to the ongoing effects of Cyclone Gabrielle), endorsed the written submissions that had been filed. They highlighted that there are two fundamental concerns in respect of the appeal. First, that the Judge incorrectly relied on earlier opportunities not taken to resolve matters. Secondly, he failed to allow kaumātua to speak to the evidence at the hearing via AVL. According to Mr Hirschfeld, either way, the Judge

15     Official Assignee v Bamber, above n 1.

failed to give cognisance to or implement tikanga Māori. Counsel’s written submissions also referred to an article by Kennedy Warne, “Tikanga and the audacity of enlightenment”,16 which was considered relevant to the appeal.

[20]     According to Mr Hirschfeld, the hearing presented the Court with an opportunity to address the appellants’ circumstances with an open mind, despite the previous failed attempts to meet with the Bambers, and to consider the opportunity for a tikanga based process to take its course. The Judge’s failure to do so deprived the appellants of that option and this was an error.

[21]     Counsel submitted that the failure of the Judge to permit the witnesses to speak to their evidence also demonstrated a disrespect toward and a non-recognition of tikanga Māori. The Bambers, according to Mr Hirschfeld, should have been given the opportunity to present their evidence at the hearing, including that of Mr Hohepa. Counsel submitted that this issue alone, the right to be heard, also touched upon the Bambers’ rights under the New Zealand Bill of Rights Act 1990.

[22]     Mr Hirschfeld then provided an overview of the development of the common law citing the examples of Earl of Oxford's case,17 and Keech v Sandford18 in support of the submission on the evolution of the common law and principles of equity. In addition, he underscored that, following the Supreme Court decision Ellis v R tikanga was now effectively part of the orthodox legal method.19 He acknowledged that Ellis also recognised the possible limitations of tikanga depending on the facts of the case. Nonetheless counsel emphasised that tikanga was now more relevant than has been recognised previously to the extent that, he argued, the common law and tikanga are effectively “cousins” while underscoring that tikanga “leans” more toward equity.

[23]     Further, Mr Hirschfeld contended that tikanga, like equity, had the ability to be flexible and to take account of changing circumstances. This was because both had the ability to ameliorate the extreme inflexibility of the common law. Concepts that

16     Kennedy Warne “Tikanga and the audacity of enlightenment” E-Tangata (online ed, 15 October 2022).

17     Earl of Oxford's case (1615) 21 ER 485.

18     Keech v Sanford [1726] EWHC J76.

19     Ellis v R [2022] NZSC 114.

were relevant in this case included manaakitanga, tika, and whakaoranga, even though the statues that applied in this proceeding made no mention of tikanga. Mr Hirschfeld contended that this is because tikanga was not simply an adjunct to interpreting the common law and statutes but was central to the juridical process. He argued that Te Tiriti o Waitangi was also relevant in this context, as the Supreme Court acknowledged in Ellis.20

[24]     Mr Hirschfeld then cited the English Court of Appeal decision Lloyds Bank Ltd v Bundy.21 He confirmed that the case was not on point with the appeal but rather highlighted as a gloss how special circumstances could properly be identified and taken into account.

[25]     Finally, in his reply submissions, Mr Hirschfeld contended that the principles of tikanga included the right to be heard. He also rejected the respondent’s submission that tikanga would need to be codified if the approach advocated on the appeal were to find favour. Mr Hirschfeld took issue with the submission that the appeal was unmeritorious. He submitted that the appeal should be granted and referred back to the court below, with directions, where a proper hearing including the evidence of the kaumātua could take place.

Ngā kōrero a te Kaiurupare

Respondent’s submissions

[26]     In summary, Mr Hindriksen submitted that the issue for determination is whether the District Court had to take account of tikanga Māori when making an order under s 152(2) of the Insolvency Act. Alternatively, counsel contended that even if tikanga was taken into account, the facts of this case do not warrant the appeal being granted. Moreover, he argued that the Bambers had had their day in court, more than once, and so it was now time to draw those earlier proceedings to a close and instead focus on the s 152 order under appeal.

20 At [80].

21     Lloyds Bank Ltd v Bundy [1975] 1 QB 326.

[27]     Regarding the submission of the appellant’s counsel that there should be a further opportunity for discussion between the Bambers and the Tahorakuri Trust, Mr Hindriksen highlighted the references in the judgment to the fact that there had been plenty of opportunity for dialogue long before now. Equally importantly, according to counsel, there was no evidence before the Court of a desire on the part of the Bambers to engage in discussions with the creditors. If there had been, then the Assignee would have been required to file evidence in reply as to the unwillingness of the creditors to now engage with the Bambers, but because of how the point was taken, counsel submitted that the Assignee was denied that opportunity.

[28]     In any event, Mr Hindriksen contended that it is inconsistent with the statutory scheme of the Insolvency Act for the Court to consider granting an order under s 152 being contingent on the application of tikanga. Section 152 provided an efficient process by which an order for possession could be made to ensure that a bankrupt could be ordered to vacate land or buildings if required to do so. It is a procedural provision providing a framework for how the Assignee recovers property vested in the bankrupt estate. Council cited Pearson v Official Assignee in support.22

[29]     Equally importantly, the District Court was satisfied that the statutory criteria had been met. Counsel submitted that this is a point not disputed by the Bambers.

[30]     It is also important to note, according to Mr Hindriksen, that the Bambers have exhausted every legal means at their disposal to avoid payment of the debt. The decisions of the Māori Land Court and the Māori Appellate Court, as well as that of the Chief Judge, remain intact and undisturbed by any subsequent appeal. Counsel also referred to the comment by Chief Judge Isaac underscoring that the Bambers were effectively seeking a rehearing to relitigate a decision that they did not agree with rather than following the statutory jurisdiction for correcting errors or omissions.23

[31]     Regarding tikanga, Mr Hindriksen submitted that the Bambers’ counsel could not point to any authority supporting the proposition that tikanga over-rode the Assignee’s entitlement to possession of the property vested in him. This is because

22     Pearson v Official Assignee [2022] NZCA 158 at [20].

23     Bamber v Official Assignee - Lot 39 DPS 3455, above n 6, at [36].

the Bambers’ interest and associated rights in the property have been extinguished by legislation. According to counsel, it is no longer their land and buildings.

[32]     Regarding the decision of Ellis as cited by the appellants, Mr Hindriksen highlighted that the Supreme Court underscored that tikanga may not be relevant where it is contrary to statute or binding precedent.24 Counsel acknowledged that tikanga Māori is part of the common law and an important consideration for the courts when applying the common law. However, in this case, s 152(2) is a procedural mechanism for the enforcement of the Assignee’s entitlement under the law. It does not engage the discretion of the Court to weigh competing interests according to counsel. Counsel also cited the decision of this Court Te Ara O Te Rangatu O Te Iwi O Ngāti Te Ata Waiohua Inc v Attorney-General.25

[33]     Finally, Mr Hindriksen highlighted how the proceedings before the Māori Land Court had taken almost eight years. It was now over three and a half years since the Bambers were adjudicated bankrupt. Since then, they have brought proceedings on several occasions but failing at every turn. He also argued that there was no evidence from the Bambers over what steps that might have taken regarding post-bankruptcy discussions which in any event were legally beyond the purview of the Tahorakuri Trust and the Bambers, given the role of the Assignee. Accordingly, and for the reasons argued, counsel submitted that the appeal should be dismissed.

Te Ture

The Law

[34]     Rule 20.18 of the High Court Rules 2016 provides that appeals are by way of rehearing. Following the Austin, Nichols & Co Inc v Stichting Lodestar approach, it is well settled that it is the appellant who bears the onus of satisfying the Court that it should depart from the decision of the Judge under appeal.26 This Court must consider the matter afresh and form its own opinion in its assessment of the merits of the case. While this Court will consider any advantage possessed by the Judge in the decision

24     Ellis v R, above n 19, at [117].

25     Te Ara Rangatu o Te Iwi Ngāti Te Ata Waiohua Inc v Attorney-General [2018] NZHC 2886, [2019] NZAR 12 at [75].

26     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at [13]–[16] .

under appeal, such as having the opportunity to make credibility assessments through seeing and hearing witnesses, no further deference beyond that customary respect is required.

[35]Section 152 of the Insolvency Act provides:

152 Bankrupt must vacate land or buildings if required to do so

(1)   The Assignee may require the bankrupt and any of his or her relatives to vacate any land or building that is party of the property vested in the Assignee under the bankruptcy.

(2)  If the Assignee’s demand is not complied with, the Assignee may apply to the District Court for an order for possession of the land or building.

[36]In Pearson v Official Assignee the Court of Appeal commented:27

[20] In discerning Parliament’s intention as to the scope of s 152 of the Insolvency Act, we are mindful of the objectives of the Insolvency Law Reform Bill of 2005, from which the Insolvency Act arose. The Bill sought a regime for dealing with financial failure which could be administered quickly and efficiently, and which maximised returns to creditors by providing flexible and effective methods of insolvency administration and enforcement.

[37]In terms of the role of tikanga in the law generally, the Supreme Court in Ellis

summarised:28

[19] The Court is unanimous that tikanga has and will continue to be recognised in the development of the common law of Aotearoa/New Zealand in cases where is it relevant. It also forms part of New Zealand law as a result of being incorporated into statutes and regulations. It may be a relevant consideration in the exercise of discretions and it is incorporated into the policies and processes of public bodies.

[38]     Further, consideration of tikanga will not always be relevant or necessary where tikanga will not or cannot assist, such as when it would be contrary to statute or binding precent.29 However, Glazebrook J in Ellis noted the argument that statutes should be interpreted consistently with tikanga as far as possible as a corollary of the presumption that statutes should be interpreted consistently with Te Tiriti.30

27     Pearson v Official Assignee, above n 22.

28     Ellis v R, above n 19 (footnotes omitted).

29 At [117].

30     At [98], citing Trans-Tasman Resources Ltd v Tarakani-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 67 at [154], [237], [296]–[297] and [332].

[39]      In Wairarapa Moana Ki Pouākani Incorporation v Mercury NZ Ltd (Pouākani), the Supreme Court highlighted the importance of context and the relevance of tikanga to the particular facts of each individual case.31 The Court emphasised that, even within a tikanga framework, unflinching adherence to a rigid hierarchy of principles cannot always have application—that invariably there will be exceptions. The Court concluded that, depending on the context, a range of tikanga principles may have application:32

[74] All that said, we take the view that in tikanga, as in law, context is everything. It is dangerous to apply tikanga principles, even important ones, as if they are rules that exclude regard to context. The following four factors suggest to us that in this case, a rigid approach to the priority of mana whenua (if that is what the Judge intended in the second conclusion cited above at [60]) cannot be justified.

…

[76]    Second, even within its own tikanga framework, mana whenua is neither immutable nor incapable of adaptation to new circumstances. Every system of law recognises that core principles, applied to real life, will have exceptions and adaptations. Indeed, as the mātanga (experts) noted in the course of the tikanga wānanga held by the Tribunal prior to completion of its preliminary report, tikanga is a principles-based system of law that is highly sensitive to context and sceptical of unbending rules. This is not a matter of compromising tikanga, but of applying it to context.

[77]  Relatedly, the Tribunal did not refuse to apply tikanga in its assessment. Rather, it concluded that mana whenua need not be the controlling tikanga because other tikanga principles were also in play. These included principles such as hara, utu, ea and mana. Taken together, they reflect the importance of acknowledging wrongdoing and restoring balance in a way that affirms mana. We come back to this last aspect below when we discuss tikanga-based processes.

Kōrerorero

Discussion

[40]     Mr and Mrs Bamber’s current circumstances will be deeply distressing to them and their whānau. They have been adjudged bankrupt and have lost title to their home in Rotorua as a result. They now face what for them will be the harrowing prospect of having that property sold, leaving them homeless, according to Mrs Bamber’s evidence. Doubtless, her health challenges, as referred to in previous hearings before other courts, will be affected by the stress of the litigation. She also stated that Mr

31     Wairarapa Moana Ki Pouākani Incorporation v Mercury NZ Ltd [2022] NZSC 142 (footnotes omitted). See also Ellis v R above, n 19.

32     Wairarapa Moana Ki Pouākani Incorporation v Mercury NZ Ltd above, n 31 (emphasis added).

Bamber suffers from dementia. In addition, if the Assignee continues with enforcing the bankruptcy process, as he is entitled to do under the law, then more serious steps could be taken. That might involve the forced removal of the Bambers, who are both elderly and in declining health, from the property. The situation is very unfortunate. Arguably, however, it could have been avoided.

[41]     The courts below have all found that the Bambers owe the Tahorakuri Trust a significant sum. That debt remains unsatisfied and to date there has been no realistic proposal from the Bambers to pay the amount outstanding. There was also, according to the Assignee, a small mortgage owed to a finance company. In any case, both that mortgage and the debt due to the Tahorakuri Trust, along with costs and interest, will not likely exceed the current value of the property. Put another way, if the Bambers and the trust had negotiated a solution, when they had the option of doing so, long before the bankruptcy proceedings were concluded, a more orderly settlement that was far less draconian than the present outcome might have resulted.

[42]     For example, the Tahorakuri Trust may have entertained the notion of a charge over the property so that when it was eventually sold, the trust would receive repayment plus interest. Records in the public domain disclose that the government valuation for the property as of July 2020 stood at $540,000—far in excess of the debt due and the existing mortgage. The market value will be even higher, even with the current property market slowdown. In recent times, the notion of a “reverse mortgage” has also gained in popularity.33 There will be other possibilities that might have been agreed and that would have avoided the present situation. Now, however, control of any settlement process that might have ensued is in the hands of the Assignee. Given the apparent reluctance of the Bambers to properly engage, it is little wonder settlement discussions did not occur. That was not the Assignee’s choice.

[43]     Turning then to the issues on appeal, regarding the first point, while I acknowledge that, for completeness, it might have been preferable for the Judge to have permitted Charles Hohepa and Mrs Bamber to speak during the hearing before him, it was within his authority to determine the procedure for the case and to simply

33     A reverse mortgage is a loan made against the equity of a property.

rely on the affidavit evidence.34 Under Part 10 of the District Court Rules 2014 the Judge may decide the appropriate mode of trial is a short trial, a simplified trial, or a full trial. Although it is not specifically recorded, it is likely the decision under appeal took place as a short or simplified trial given the mechanical nature of s 152 of the Insolvency Act.35 In both those forms of trial, witnesses only appear if the opposing party has served a notice of cross-examination.36 Further, it is relevant that in general the District Court is entitled to regulate its own procedures.37

[44]     In any event, this overlaps with the second point on appeal. I am not persuaded that any additional (oral) evidence on tikanga would have made a material difference to the outcome. For example, Mr Hohepa’s evidence references concepts including tino rangatiratanga, co-operation, partnership, “unfettered and absolute chiefly powers”, and Mrs Bamber’s “unqualified exercise of her paramount authority regarding her housing situation”. This is language more commonly applied in the Treaty/Te Tiriti context rather than bankruptcy proceedings, let alone in terms of tikanga. It is difficult to see how those terms and concepts are relevant to the order made under s 152(2) of the Insolvency Act, taking account of the facts in this case.

[45]     Mr Hohepa then includes a lengthy quote from the renowned academic, tribal leader and tohunga, Professor Sir Pou Temara, distinguishing between his home or kainga— for him Ruatāhuna— and his house or whare in Hamilton. In my assessment, Sir Pou was highlighting that, no matter where he may live, his turangawaewae, his wakainga, will always be Ruatāhuna—where he is from. Applying that approach to the present case, there is no evidence that Mrs Bamber is from the hapū and marae in Ōwhata, that she affiliates with them and has land interests nearby. From a cursory review of the holdings of the Bamber Whānau Trust, it would appear that the closest Māori land interest geographically that Mrs Bamber is a beneficiary of is Pukeroa Oruawhata, at Fenton, Victoria, Ti and Ranolf Streets and Tarewa Road in Rotorua.

34     See District Court Rules 2014, r 9.47 and rr 10.1–10.7; and District Court at Christchurch v McDonald [2021] NZCA 535, [2021] 3 NZLR 585.

35 See [46] below.

36     District Court Rules 2014, rr 10.3(c) and 10.6.

37     District Court at Christchurch v McDonald, above n 34.

[46]     More importantly, even if she were a member of the various iwi and hapū of Te Arawa including Ngāti Whakaue and Ngāti Rangiteaorere, who are amongst the tangata whenua of the Ōwhata region, that cannot defeat s 152 of the Insolvency Act. In short, tikanga, given the facts of this case, cannot be applied in the manner proposed to effectively override the applicable statute. This conclusion is consistent with the Supreme Court’s decisions Ellis and Pouākani.38 This is because s 152(2) is simply a procedural mechanism by which the Assignee is entitled to take certain steps to secure the bankrupt’s estate for the benefit of the creditor—in this case a Māori land trust where Mrs Bamber retains through her whānau trust, an ownership interest. So, like Judge Spear, I do not accept that Mr Hohepa’s evidence, if he were permitted to speak, or that of Mrs Bamber, in the context of the issues before the District Court, would have resulted in a different outcome.

[47]     Tikanga was especially relevant when the Bambers had the chance to discuss their situation with Tahorakuri Trust both during and after the Māori Land Court proceedings.39 For their own reasons they decided instead to continue with the litigation. That was unsuccessful and the consequences they now face as a result of that failure are dire. By way of observation, I also acknowledge that, presumably with the consent of the Assignee, it is still a possibility for the trust to reach a settlement with the Bambers, via the Assignee. They remain, after all, whanaunga of the rest of the owners and their uri will also retain rights to the whenua into the future. This is the principal distinction between owners of General land and Māori freehold land— the connection by whakapapa to each other and to the land spanning generations and often linking back to the pre-colonisation era.

[48]     In any event, even at this late stage, seeking some kind of agreement or understanding over any proposed sale would also be consistent with tikanga, and the principles of whanaungatanga, manaakitanga, hara, muru, utu and ea. More so given that if the property is sold the trust will likely receive all of the money ordered by the judgments of the Māori Land Court. Put another way, it would be a form of what

38  Ellis v R, above n 19; Wairarapa Moana Ki Pouākani Incorporation v Mercury NZ Ltd, above n  31.

39 In this regard I note the comments of the Supreme Court that recognise tikanga is a system of “values, standards, principles and norms” regulating Māori society and it reaches beyond the courts: Ellis v R, above n 19, at [22], [111], [168]–[169] and [271].

could be described as he mahi rangatira for the Tahorakuri Trust, which has the upper hand, to demonstrate a degree of magnanimity that is not unheard of in comparable situations, notwithstanding the Bambers’ historically obdurate approach to the dispute.40

[49]     That said, given the protracted history to this matter, the trust’s earlier unwillingness to consider an alternative solution is not surprising. I can only but appeal to the trustees’ and trust beneficiaries’ understandings of tikanga; that despite all the trust has had to endure, it may be preferable to reach an accord with their whanaunga, the Bambers, via the Assignee, possibly even along the lines set out above at [42] or some comparable formulation, notwithstanding the strict legal position regarding bankruptcy. I further note for completeness in this context that there have also been examples where an enforcing authority has sought to take possession of real property where the affected party has raised tikanga based arguments that have not always provided satisfactory outcomes to that authority.41

[50]     In addition, Mrs Bamber’s age, lack of alternative means and health status, are all matters that will be of real concern to her whānau, along with her husband’s doubtless declining health. Yet beyond these suggestions, I can venture no further— especially since the trust were not a party to the present appeal and could therefore not make any submissions or respond to the issues raised during the appeal hearing.

Whakataunga

Decision

[51]     The appeal by Kathleen and Bruce Bamber against the 27 July 2022 decision of the District Court is dismissed.

40 Inā te mahi he rangatira - Literally, the work of a chief or by deeds a chief will be known: Hirini Moko Mead and Neil Grove Ngā Pepeha a ngā Tīpuna (Victoria University Press, Wellington, 2001) at 146.

41 See Nicholas v Commissioner of Police [2017] NZCA 473.

Whakataunga nama

Costs

[52]     Mr Hindriksen seeks an uplift of costs by fifty percent on the grounds that the appeal was unmeritorious and “vexing” in nature. Mr Hirschfeld may file a memorandum within one month in reply of up to five pages in length.

Harvey J