Clarke v Karaitiana

[2011] NZCA 281

IN THE COURT OF APPEAL OF NEW ZEALAND

CA256/2010
[2011] NZCA 281

BETWEEN  PETER TUKITERANGI CLARKE
Appellant

AND  HARVEY KARAITIANA
Respondent

Court:             Ellen France, Randerson and Harrison JJ

Counsel:         H M Aikman QC and M A Taylor for Appellant
M S McKechnie for Respondent

Judgment:      17 June 2011 at 4 p.m.

SUPPLEMENTARY JUDGMENT OF THE COURT

AThe appointments of the trustees made by the Mäori Land Court on 11 November 2010 are declared to be invalid.

BPending fresh appointments, the trustees appointed on 11 November 2010 are appointed as interim trustees.

CThe respondent must pay costs to the appellant as for a standard appeal on a band A basis together with usual disbursements.  We certify for two counsel.

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REASONS OF THE COURT

(Given by Randerson J)

1. In our substantive judgment issued on 14 April 2011 we reserved the issues of the relief to be granted and costs.  Memoranda from counsel on these topics have now been received.  We regret that these memoranda were not drawn to our attention until this week.

2. The appellant seeks the appointment of the Mäori Trustee or an independent lawyer as an interim trustee pending fresh appointments as trustees as contemplated by our judgment.  The respondent submits that the present trustees should continue in office as interim trustees until fresh appointments are made.

3. We have decided that the better course is for the existing trustees to continue as interim trustees bearing in mind that they have now been in office for some time and the disruption which would inevitably be caused by the appointment of an independent trustee.  We had envisaged directing the Mäori Land Court to appoint interim trustees but in view of the delay we will do so ourselves under s 58A of the Te Ture Whenua Mäori Act 1993.  We order accordingly.

4. In relation to costs, the appellant is legally aided but the respondent is not.  The respondent opposes a costs order but we see no reason not to make the usual order in favour of the appellant as the successful party.  The respondent may seek contribution or indemnity from others as he sees fit.  The appellant has raised issues about the legal aid funding as between solicitors and counsel but we do not see that as an issue for us.  It is a matter between solicitors, counsel and the Legal Services Agency.  Any costs recovered from the respondent will presumably be paid to the Legal Services Agency by way of reimbursement.

5. Accordingly, we order that the respondent must pay costs to the appellant as for a standard appeal on a band A basis together with usual disbursements.  We certify for two counsel.

Solicitors:
Woodward Law Office, Lower Hutt for Appellant