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, but it is subject to the consent of the Court. In this case, the majority of trustees had not consented to the licences to occupy on the marae. Nor had the Court consented.

[9]    The Judge found that there was no legal basis for the applicants to occupy any area on the marae.

[10]   The Judge then turned to ask whether granting the trustees’ injunction would be oppressive to the applicants as beneficiaries of the marae. The Judge considered:

(a)whether there had been some action taken by the trustees which lead the applicants to believe that they had consent to be on the marae;

(b)whether the trustees had slept on their rights; and

(c)whether there were any other matters that the Court ought to take into consideration in determining whether the applicants should be able to remain on the marae, despite a lack of any legal entitlement to do so.

[11]   The Judge found that the applicants, by prematurely moving three cabins onto the marae, had not given the trustees the opportunity to be fair to everyone — including the applicants and the other beneficiaries of the marae. In granting the trustees’ injunction the Judge said that she hoped, now that the legal position was clear, the trustees would give the applicants an opportunity to approach them in a proper way and find a solution that would work for everyone. The Judge cautioned that there must be a true negotiation and a willingness on both sides to change the position.

The application for stay of enforcement

[12]   The current application is filed without notice. This is on the basis that requiring the applicants to proceed on notice would cause undue delay or prejudice to

the applicants; and that it is in the interests of justice that the application be determined without notice.

[13]   Rule 17.29 of the High Court Rules 2016 permits a party to apply to the Court for a stay of enforcement or other relief upon the ground that a substantial miscarriage of justice would be likely to result if the judgment were enforced.

[14]   The onus is on the applicant for a stay of enforcement to persuade the Court to exercise its discretion.1 A substantial miscarriage of justice must be involved. This means something more than minor or insubstantial. Such a substantial miscarriage must be “likely to result” — it must be probable rather than possible.2 The Court must undertake a balancing exercise recognising and reconciling the conflicting interests of the parties.3 The apparent strength or weakness of the claim is a relevant factor.4

[15]   The applicants say that enforcement of the order will cause a substantial miscarriage of justice to them because it will move them from their whānau whenua where their families have lived for generations.

[16]   The applicants say that they intend to appeal the injunction decision on the basis that the previous trustees granted the applicants authority to place buildings on and reside at the land, and that a building permit was issued. That decision was given in October 2020 so there has been ample time for an appeal to be filed and dealt with.

[17]   The applicants further say they are currently engaged in litigation in the Māori Land Court concerning the conduct of the Horahora Marae Trust, which administers the property. The applicants say enforcement of the current order may enable a miscarriage of justice by undermining proceedings that are currently

1      Hellaby Resource Services Ltd v TBS Remcon Ltd [2021] NZHC 554 at [88] citing Bay Cities Real Estate Ltd v Re/Max New Zealand Ltd HC Napier CIV-2010-441-134, 8 June 2011, at [19]. See also Jason Bull (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR17.29.02].

2      Hellaby Resource Services Ltd v TBS Remcon Ltd, above n 1, at [88] citing Crawford v Odin Enterprises Pty Ltd [2009] NZCA 199 at [29].

3      Hellaby Resource Services Ltd v TBS Remcon Ltd, above n 1, at [88] citing Enright v Gold Metal Exports Ltd (1989) 3 PRNZ 243 (HC) at 245–246.

4      Hellaby Resource Services Ltd v TBS Remcon Ltd, above n 1, at [88] citing Raffles Education Corporation Ltd v Mills HC Auckland CIV-2008-404-5258, 16 February 2009; Goldsmith v Drummond HC Christchurch CP201/97, 21 July 1998; New Zealand Apple and Pear Marketing Board v Wallis (1990) 4 PRNZ 713 (HC).

underway. They say that a stay of enforcement is necessary as, if the order were complied with, it may compromise current and future court proceedings.

[18]   The sole issue for this Court is whether enforcement of the order is likely to cause a substantial miscarriage of justice. That is a relatively high threshold for the applicants to overcome.

[19]   I consider the balancing exercise in this case must take into account the consequences for the applicants if they are forced to remove the cabins. There will obviously be a financial consequence as well as emotional and practical consequences. Having to remove the cabins will be distressing and they will have to find somewhere to relocate their cabins to. There is infrastructure on the land which they have paid for.

[20]   As against that, their claim does not seem to have a strong legal basis. The land which they wish to occupy is set aside for the benefit of numerous beneficiaries. Their continuing occupation is unfair to those beneficiaries. The situation has now been ongoing for some years.

[21]   I am not persuaded that a substantial miscarriage of justice would result from enforcement of the possession order. The costs involved in removing the cabins and finding alternative accommodation could be recovered if the applicants were to be successful in any appeal.

[22]   The applicants’ emotional distress at having to leave the whenua is not recoverable. However, this must be balanced against the rights of the other beneficiaries. The beneficiaries have a clear legal right to the whenua and the trustees have the right to make decisions about the occupation of the marae. The applicants’ occupation affects the legal rights of the other beneficiaries and the trustees and does not have a clear legal basis.

[23]   The trustees are entitled to  enforcement  of the  possession  order issued  on 4 February 2025.

[24]I decline to order a stay.

Wilkinson-Smith J