Cain v Nikau - [2025] NZHC 389

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-003

[2025] NZHC 389

UNDER Rule 17.29 of the High Court Rules 2016

IN THE MATTER

of an application for stay of enforcement

BETWEEN

LYNETTE HUIANGA TAUREREWA

CAIN as trustee of the HORAHORA MARAE TRUST

Entitled Party/Respondent

AND

ANNE WIKITORIA NIKAU

Liable Party/First Applicant

LINDA TOMULI
Liable Party/Second Applicant

SESA ANN MERE TOMULI

Liable Party/Third Applicant

Hearing: On the papers

Counsel:

S McKenna for Entitled Party/Respondent

B Loader for First to Third Applicants/Liable Party

Judgment:

5 March 2025

JUDGMENT OF WILKINSON-SMITH J

[Application for stay of enforcement]

This judgment was delivered by me on 05/03/2025 at 11 am
Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel: McKenna King, Hamilton Loader Legal, Auckland

CAIN v NIKAU [2025] NZHC 389 [5 March 2025]

Introduction

[1] The applicants, Anne Nikau and Linda Tomuli apply on a without notice basis for a stay of enforcement of a possession order issued on 4 February 2025 in respect of land, the Whangape Parish Lot 23B Block which is also known as the Horahora Marae (marae).

[2] The whenua is a marae reservation which is set aside for the benefit of the beneficiaries of the marae. The applicants say that in 2016 the trustees agreed that they could place cabins on the marae, provided there was supporting infrastructure, including a septic tank and water supply.

[3] The current trustees of the Horahora Marae Trust, who were not the trustees in 2016, took action to have the cabins removed. In October 2020 that action was successful, resulting in the Māori Land Court granting an injunction to remove the dwellings owned by the applicants and, failing that, permitting the trustees of Horahora Marae Trust, to remove the dwellings.

[4] The trustees took enforcement action resulting in a possession order dated 4 February 2025 in favour of Lynette Cain as trustee for the Horahora Marae Trust.

[5] Under the terms of the order, the dwellings were to be removed by 9 am on 3 March 2025. The application for a stay of enforcement is dated 28 February 2025 and was provided to me on the morning of 3 March 2025.

The Māori Land Court decision

[6]Judge Milroy granted the injunction permitting the removal of the cabins.

[7] The Judge dismissed an application for an occupation order as there was no jurisdiction to grant it. The Judge further dismissed an application for an injunction preventing the trustees from removing the applicants’ cabins from the property.

[8] Judge Milroy said in relation to the injunction filed by the trustees that the law is clear: the trustees have the right to determine how the marae is utilised. They have the right to decide whether anyone is allowed to build or dwell on the marae. The provisions under s 338(12) of Te Ture Whenua Māori Act 1993 provide that the trustees can agree for people to have license to occupy the marae,…

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.

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Details

Case: [2025] NZHC 389
Decision Date: 5 March 2025

CaseChat Overview and Summary

In the case of Cain v Nikau, the applicants, Anne Nikau and Linda Tomuli, sought a stay of enforcement of a possession order issued by the Māori Land Court on 4 February 2025. The order pertained to the removal of cabins from the Whangape Parish Lot 23B Block, also known as the Horahora Marae. The applicants argued that enforcing the order would cause them a substantial miscarriage of justice, particularly as it would force them to leave the land where their families have resided for generations. They also claimed that the order might undermine their ongoing litigation in the Māori Land Court concerning the conduct of the Horahora Marae Trust. The primary legal issue before the Court was whether enforcing the possession order would result in a substantial miscarriage of justice.

The Court considered the applicants' arguments and the factors required for granting a stay under Rule 17.29 of the High Court Rules 2016. It noted the significant consequences for the applicants if the order were enforced, including financial, emotional, and practical hardships. However, the Court also weighed these against the lack of a strong legal basis for the applicants' claim. The land in question is reserved for the benefit of numerous beneficiaries, and the applicants' continued occupation was deemed unfair to them. The Court concluded that the trustees were entitled to enforce the possession order and declined to grant a stay of enforcement.

Orders