Clarke v Karaitiana - [2010] NZCA 486

IN THE COURT OF APPEAL OF NEW ZEALAND
CA256/2010
[2010] NZCA 486
BETWEENPETER TUKITERANGI CLARKE

Applicant

ANDHARVEY KARAITIANA

Respondent

Hearing:19 October 2010

Court:Ellen France, Randerson and Stevens JJ
Counsel:M A Taylor and N van der Wal for Applicant

S Webster for Topia Rameka, Charlotte Severne, Heemi Biddle and John Fenwick, together with certain unnamed beneficial owners as Interveners
No appearance for Respondent

Judgment:26 October 2010
Reasons for Judgment: 28 October 2010 at 11.30 am

JUDGMENT OF THE COURT

A The application for stay is declined.
BThe application for intervener status is granted for the purposes of the application for a stay only. The application in respect of the appeal is reserved for further consideration.
CAll questions of costs are reserved.

____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
[1]        The applicant, Mr Clarke, has sought a stay of execution of a judgment of the Māori Appellate Court pending the determination of an appeal against the judgment under s 58A of Te Ture Whenua Māori Act 1993 (the Act). The applicant is a current trustee of the Tauhara Middle 15 Trust (the Trust). He contends that the effect of the Māori Appellate Court’s judgment is that he is unlikely to be returned as a trustee of the Trust and he will be prejudiced if the appointment of new trustees proceeds before his appeal is heard.
[2]        We issued a result judgment on 26 October 2010 declining the application for a stay with reasons to follow. These are the reasons.
Background
[3]        The Trust is an Ahu Whenua trust under s 215 of the Act, representing around 3,600 beneficial owners. It is constituted by the Māori Land Court under s 211 and is subject to the powers of that Court set out in the Act.
[4]        After some irregularities following the Trust’s joint purchase with another Māori trust of land from Landcorp, the matter came before Judge Harvey of the Māori Land Court, who gave three judgments on the matter. The first, given on 29 June 2007,[1] followed the refusal of one of the trustees, the respondent Mr Karaitiana, to execute a mortgage over the land to secure a loan taken out to fund the purchase. The other trustees sought directions whether they were able to execute the mortgage by a majority of their number. The Judge held that it was possible under the Act to execute a mortgage by majority, but directed a number of questions to the trustees concerning irregularities with the purchase.
[1]      Wall v Karaitiana 85 TPO 225, 29 June 2007.
[5]        The second judgment given on 30 July 2008[2] was critical of the decision to buy the land and directed that the current trustees, including the applicant, stand down at a special meeting of beneficiaries convened by the Registrar of the Māori Land Court. The trustees were able to stand for re-election.
[2]      Wall v Karaitiana 87 TPO 107, 30 July 2008.
[6]        The special meeting was held on 28 September 2008 and a vote…

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: [2010] NZCA 486
Decision Date: 26 October 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Clarke v Karaitiana involved the applicant, Peter Tukiterangi Clarke, seeking a stay of execution of a judgment from the Māori Appellate Court. Clarke, a current trustee of the Tauhara Middle 15 Trust, contested the judgment's implication that he might not be reappointed as trustee. He argued that his reappointment would be prejudiced if the appointment of new trustees proceeded before his appeal was heard. The respondent, Harvey Karaitiana, did not appear at the hearing, and the interveners, who opposed the applicant, were allowed to present their case. The legal issues before the court were whether the Māori Land Court's broad discretion under section 222 of the Te Ture Whenua Māori Act 1993 would allow the top-polling candidates to be appointed as trustees and whether the applicant's right of appeal would be rendered ineffective if the stay was not granted.

The court considered various factors, including the Māori Land Court's powers to remedy the situation if the appeal was successful and the need for a prompt resolution of the appointment of trustees. It concluded that the balance of convenience favoured refusing the stay as the Trust had important and urgent business negotiations that needed to be taken up immediately by a panel of trustees with a clear mandate. The court also noted that the Trust's current management structure was unsatisfactory, particularly given that a joint board had power in respect of geothermal issues while the old trustees had power in relation to other issues. Refusing a stay would perpetuate a situation in which the former and new trustees comprising the joint board were at odds over the proper approach for the Trust to take on the geothermal issues. The court declined the application for stay and reserved the matter of costs.

The final orders were that the application for stay was declined, the application for intervener status was granted for the purposes of the application for a stay only, and all questions of costs were reserved. The court did not comment on any of the issues to be argued in the appeal.

Orders