Booth v Tito
[2020] NZHC 1071
•21 May 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2020-488-05
[2020] NZHC 1071
BETWEEN RICHARD CHARLES BOOTH and SHARRON ANDREA BOOTH
Entitled PartyAND
KEVIN TITO
Liable Party
Hearing: 7 May 2020 and 21 May 2020 (via VMR/AVL) Counsel:
A J Easterbrook for Entitled Party A H C Warren for Liable Party
Judgment:
21 May 2020
JUDGMENT OF BREWER J
Solicitors:
WRMK Lawyers (Whangarei) for Entitled Party McCaw Lewis (Hamilton) for Liable Party
BOOTH v TITO [2020] NZHC 1071 [21 May 2020]
Introduction
[1] Mr Kevin Tito owns 65 per cent of the shares in the Mangakahia 2B2 No 2A1A block (the whenua). It is administered by an Ahu Whenua Trust (the Trust). Mr Tito is one of the three trustees.
[2] The whenua is 41.1843 ha in area. There are currently 30 owners holding a total of 1020 shares. The whenua is leased by the Trust to neighbouring dairy farmers, Mr and Mrs Booth.
[3] For over a decade there has been repeated litigation in the Maori Land Court, and in higher Courts, about the management of the whenua. Mr Tito has repeatedly tried to terminate the Trust. His latest attempt was rejected by Judge MJ Doogan in the Maori Land Court on 20 August 2018.
[4] Mr Tito believes the Trust lacks legitimacy and he should have the sole right to decide what happens on the whenua. He bases this on his view of tikanga.
[5] I set out this background because it sets the scene for why Mr Tito is before me today.
Background
[6] In 2017, Mr Tito purported to give Mr and Mrs Booth notice to terminate their lease. He did that as an owner, not as a trustee. The other trustees went to the Maori Land Court and, on 31 January 2017, the Maori Land Court issued an injunction in these terms:
THE COURT HEREBY GRANTS an injunction pursuant to Section 19(1)(b) of Te Ture Whenua Maori Act 1993 prohibiting Kevin Tito, his agents, workers, contractors, employees or invitees from taking steps to cancel, terminate, frustrate or otherwise interfere with the lease of Mangakahia 2B2 No 2A1A to Richard and Sharron Booth.
[7] Mr Tito challenged the injunction unsuccessfully before the Maori Appellate Court which gave its judgment against him on 29 September 2019.
[8] In late November or early December 2019, Mr Tito and others breached the injunction by occupying the whenua, placing containers on it and blocking access. Mr and Mrs Booth could not farm the whenua nor tend to the maize crop they had growing on it. Mr and Mrs Booth say the maize crop has been damaged by vehicles driving through it.
[9] Mr and Mrs Booth applied to the Chief Judge of the Maori Land Court to transfer the Maori Land Court injunction to this Court for enforcement. The Chief Judge duly transferred the injunction pursuant to s 85 of Te Ture Whenua Maori Act 1993 on 14 January 2020.
[10] In January 2020, Mr and Mrs Booth obtained a possession order for the whenua and this was served on Mr Tito on 18 February 2020. Mr Tito did not comply with it.
[11] Justice van Bohemen issued a warrant for Mr Tito’s arrest. He was brought before me on 5 March 2020. I released Mr Tito on bail and directed the contempt hearing for breach of the Maori Land Court’s injunction would be heard at 2:15 pm on 16 March 2020. I made it clear to Mr Tito that if he did not appear there would be a further order for his arrest and he would likely be detained in custody pending a rescheduled contempt hearing.
[12] Mr Tito did not appear on 16 March 2020 and I directed that a warrant for Mr Tito’s arrest be issued and executed.
[13] Mr Tito was arrested pursuant to the warrant and appeared before me on 6 April 2020. The duty solicitor, Mr Penny, conceded that Mr Tito’s failure to appear amounted to a further contempt of Court. I directed that the hearing of the Maori Land Court contempt proceeding and the related failure to appear for bail be scheduled for 21 April 2020. I remanded Mr Tito in custody.
[14] Mr Tito secured the services of Mr Warren as his counsel and made a further application for bail. The hearing was before me on 9 April 2020. From this point, Mr Tito has acted properly and with a newfound understanding of his legal rights and obligations.
[15] At the hearing on 9 April 2020 Mr Tito provided a written undertaking that he would henceforth abide by the Maori Land Court injunction. I granted Mr Tito bail until the hearing scheduled for 21 April 2020. I ruled that the admitted contempt of Court arising from Mr Tito’s failure to surrender to his previous bail and appear at the Court on 16 March 2020 was purged by the period Mr Tito had spent in custody since being arrested on Saturday, 4 April 2020.
[16] Following a request from Mr Warren, I subsequently adjourned the contempt of the Maori Land Court hearing to 7 May 2020. Mr Tito’s bail continued.
[17] At the hearing on 7 May 2020, I heard from Mr Warren on behalf of Mr Tito and from Mr Easterbrook on behalf of Mr and Mrs Booth. There were two matters which were not able to be resolved at the hearing:
(a)Mr and Mrs Booth seek an order for their actual legal costs incurred in enforcing the injunction. I directed Mr Easterbrook to provide me with a detailed breakdown of those costs under headings related to each step of the enforcement proceeding.
(b)Mr Tito offered, in mitigation of his contempt, to sequester in some way his share of the lease payments by Mr and Mrs Booth as lessees of the whenua which are accumulating in the Trust account of a firm of solicitors under the terms of a Court injunction. I wanted Mr Warren and Mr Easterbrook to see if they could agree upon a document which could be signed by Mr Tito and which could then be taken into account by me as a significant mitigation of his contempt.
Discussion
[18] Mr Tito accepts he breached the Maori Land Court injunction and acted in contempt of a Court order. His submission is that the appropriate redress is a non- custodial penalty because:
(a)Mr Tito will not breach any further orders of the Maori Land Court, including the injunction;
(b)Mr Tito has made reasonable and genuine attempts to address the harm he has caused Mr and Mrs Booth; and
(c)Mr Tito is working to address his personal issues which led to the contempt.
[19] The Court has a general discretion when it comes to setting a penalty for contempt of Court. In this case, the contempt arises from a breach of an order of the Maori Land Court and not from a breach of an order of this Court. That fact does not affect the Court’s inherent jurisdiction to punish the contempt. But it does change the context. I have to take into account the events which led to the issuing of the injunction by the Maori Land Court in the context of that Court’s jurisdiction.
[20]In general terms, I must consider:
(a)The extent of the contempt;
(b)Mr Tito’s motives; and
(c)The prejudice suffered by Mr and Mrs Booth.
The extent of the contempt
[21] Counsel have very helpfully collaborated to produce an agreed summary of facts. I find the following extracts particularly relevant:
(a)Mr Tito accepts that between 2 December 2019 and his arrest on 4 April 2020, he and his partner occupied a portion of the whenua and their actions “frustrated or otherwise interfered” with the lease.
(b)On 2 December 2019, Mr Tito and others placed some shipping containers and a cabin on the whenua. An associate of Mr Tito served Mrs Booth a “trespass notice” which warned the Booths to stay off the whenua or face penalties.
(c)Mr Tito cut a fence in an adjacent paddock on 2 December 2019 and later cut two “tape gates”.
(d)On 3 December 2019 and 10 December 2019, Mr Tito padlocked the gate between the whenua and adjacent land owned by Mr and Mrs Booth.
(e)In about mid-February 2020, Mr Tito cut the grass in one of the paddocks on the whenua which Mr and Mrs Booth would otherwise have used to feed stock.
(f)On 24 February 2020, despite having had served upon him a possession order, Mr Tito temporarily parked a tractor across the gate between land owned by Mr and Mrs Booth and the whenua.
(g)On 25 February 2020, Mr Tito told a police officer he would not leave the whenua.
(h)Mr Tito was arrested on 5 March 2020 and upon his release on bail he continued to occupy the whenua until his arrest on 6 April 2020.
Mr Tito’s motives
[22] Mr Tito has provided an affidavit in which he gives a detailed overview of the long history of issues involving the whenua, many of which have been the subject of litigation in the Maori Land Court.
[23] This morning, Mr Tito has read to me a further statement in which he clarifies his motives and comments on some of the history of issues which have led to him being in Court today.
[24] I accept Mr Tito’s explanations. Put simply, Mr Tito has been in conflict with other members of his whanau regarding the whenua for many years. There have been significant delays by the Maori Land Court in addressing these issues and Mr Tito’s
mounting frustration led him to breach the injunction after two years of complying with it. Mr Tito had, and has, nothing against Mr and Mrs Booth.
The prejudice suffered by Mr and Mrs Booth
[25] Mr Tito has apologised to Mr and Mrs Booth and accepts he has caused them costs and loss. He has already paid the Court filing fees incurred by Mr and Mrs Booth totalling $2,912.70.
[26] Since the hearing on 7 May 2020, Mr Easterbrook has filed his memorandum on costs. Mr Warren in his memorandum dated 15 May 2020 advises that Mr Tito will abide the Court’s decision on costs.
[27] Mr Tito and the Booths have not reached agreement on the damages claimed by the Booths but Mr Tito has agreed to “ringfence” his portion of the lease payments held by the solicitors as a fund to pay any costs order I make as well as any sum for damages later agreed or adjudicated. The parties have signed a deed giving effect to this.
[28] In Mr Easterbrook’s supplementary submissions dated 15 May 2020, he addresses the issue of costs. There have been four invoices rendered to 8 May 2020 totalling $17,627.
[29] The first invoice is for the period 11 December 2019 to 21 January 2020. It covers the application to transfer the injunction of the Maori Land Court to this Court. It covers also the subsequent application in this Court for a possession order. The amount, exclusive of GST, is $4,594. Of this, 80 per cent, or $3,675, related to the transfer of the injunction for enforcement from the Maori Land Court to this Court.
[30] The second invoice covers the period 22 January 2020 to 17 March 2020. It relates to the service of the possession order, the subsequent application for Mr Tito’s arrest and Mr Easterbrook’s appearances at the first two hearings on 5 March 2020 and 16 March 2020. The amount of the invoice is $5,708, exclusive of GST.
[31] The third invoice covers the period 24 March 2020 to 17 April 2020. It relates to attendances from Mr Tito’s second arrest on 4 April 2020, his subsequent appearance on 6 April 2020, his application for bail heard on 9 April 2020 and initial engagement with the contempt issues. The invoice is for $4,325 plus GST.
[32] The fourth invoice covers the period 29 April 2020 to 7 May 2020. It relates to preparation for, and attendance at, the hearing on 7 May 2020. The amount of the invoice is $3,000 plus GST.
Decision
[33] The rule of law underpins our democracy. It means that everyone is subject to the law and must abide by it. The job of the Courts is to apply the law to disputes between the parties and to decide them. In civil disputes, such as this one, the decisions of the Courts are binding on the parties unless properly challenged or set aside. That must be so. If parties were free to disregard orders of the Courts without penalty then there would be anarchy. The strong would dominate the weak, there would be no rule of law and our democracy would disappear.
[34] This is the reason why the summary contempt of Court jurisdiction exists. It enables the Courts to quickly bring to account those who ignore Court orders.
[35] I look first at the seriousness of Mr Tito’s contempt of the Maori Land Court in breaching the injunction. The aggravating factors are:
(a)The breach was planned and carried out with the assistance of others. It included moving containers and a cabin onto the whenua, serving Mrs Booth with a “trespass notice” and blocking the Booths’ access to the whenua.
(b)The breach was a lengthy one. It continued from 2 December 2019 to 6 April 2020 despite warnings from the police and a subsequent possession order issued by this Court. Indeed, it continued after Mr Tito’s first arrest on 5 March 2020 and his release on bail.
(c)The breach caused damages and costs to innocent third parties, Mr and Mrs Booth.
[36]The mitigating factors of the offending are:
(a)Although deliberate, the breach was not done out of malice. It was done out of a sincere and deeply held belief of entitlement based on tikanga.
(b)Mr Tito abided by the injunction for two years. It was his intense frustration with the positions taken by members of his whanau, and the lack of resolution by the Maori Land Court, which impelled him to breach the injunction.
(c)Mr Tito had fallen into the hands of “advisors” who told him he was entitled to act as he did.
[37]Factors personal to Mr Tito which go to mitigation are:
(a)He has been to this point a law abiding man. He has a good character.
(b)Mr Tito has readily accepted Mr Warren’s advice as to his actual situation at law. He has apologised to Mr and Mrs Booth and paid them
$2,912.70 to reimburse their filing fees.
(c)Mr Tito has undertaken to abide by the injunction in future. He has removed the containers and the cabin.
(d)Mr Tito has signed the deed which will “ringfence” his portion of the monies held by the solicitors as a fund to satisfy, or partly satisfy, Mr and Mrs Booth’s claims for costs and damages.
(e)Mr Tito has already served almost a week in custody. That purged his contempt for failing to appear as ordered, but it also caused him to take significant steps to address the personal issues which led to his offending. He has put in place tikanga-based counselling with
kaumatua, Tokowha Te Huia, and engaged Mr Phil Paikea as a mentor. Mr Tito has taken medical advice and his doctor will refer him to counselling sessions.
[38] I note that Mr and Mrs Booth, apart from seeking costs, abide the decision of the Court as to penalty.
[39] I find the contempt of Court through breach of the injunction of the Maori Land Court to be moderately serious. The seriousness is reduced by the mitigating factors I have set out.
[40] The mitigating factors personal to Mr Tito satisfy me this is not a case which calls for a custodial sentence.
[41] I am satisfied that the Court’s response to Mr Tito’s breach of the injunction should be a monetary one. I am advised by Mr Warren that Mr Tito has his own business but, like so many other businesses, it has been materially affected by the Covid-19 lockdown. I will reduce significantly the amount of the fine I will impose to take account of this.
[42] I consider Mr and Mrs Booth should be paid their actual legal costs incurred in their attempts to end Mr Tito’s breach of the injunction. It was reasonable for them to obtain a possession order from this Court as a step towards that. That should have caused Mr Tito to leave the whenua. I consider the costs claimed to be reasonable.
[43]I fine Mr Tito $2,000 for contempt of the Maori Land Court.
[44]I order Mr Tito to pay Mr and Mrs Booth’s legal costs in the sum of $17,627.
[45] I warn Mr Tito that this is a lenient response to his contempt and it is lenient because I have come to understand his motives. But, I make clear that any further breach of the injunction will almost certainly be met with a response of imprisonment.
[46] I express the hope that the Maori Land Court will now expeditiously resolve the outstanding issues between Mr Tito and his whanau.
[47] Finally, I thank Mr Warren and Mr Easterbrook for their helpful attendances and submissions. In my view, they have acted in accordance with the best traditions of the profession.
Brewer J
Addendum
[48] I delivered this judgment orally. Counsel have since advised me that the mitigating factor I cite at [37](c) is factually incorrect. Mr Tito has not yet removed the containers and the cabin. He has undertaken in writing to do so within an agreed timeframe which has yet to expire.
[49] I am grateful to counsel for drawing this error to my attention. I record it would not have affected my decision on penalty.
Brewer J
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