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Doney v Adlam

Doney v Adlam

Case [2023] NZHC 363 1 March 2023

Trust Formation

Breach of Trust

Unconscionable Conduct

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-44

[2023] NZHC 363

I WAENGA IA

-BETWEEN

WILLIAM HENRY DONEY, ALLAN RICHARD NIAO, MARTIN LESILY NIAO, CARRIAGE SAVAGE, KERERUA RAY SAVAGE, ANTHONY TANGIHIA SAVAGE and PHYLLIS MONIQUE

SAVAGE being the Trustees of Lot 39A Section 2A Parish of Matata Block Ahu Whenua Trust (known as the Savage Papakāinga Land Trust)

Te Kaitono
-Plaintiff/Judgment Creditor

ME

-AND

RAE BEVERLEY ADLAM

Te Kaiurupare

-Defendant/Judgment Debtor

Nohoanga
-Hearing:
14, 25 November 2022

Kanohi kitea
-Appearances:

J W McDougall and M Hunia for Plaintiff/Judgment Creditor L M Van and N J Jirkowsky for Defendant/Judgment Debtor

Whakataunga
-Judgment:

1 March 2023

TE WHAKATAUNGA Ā KAIWHAKAWĀ MĀTĀMUA HARVEY

Judgment (No. 2) of Harvey J

This judgment was delivered by me on 1 March 2023 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

Date: …………………..
(Deputy) Registrar

Solicitors:
Holland Beckett, Tauranga Anthony Harper, Auckland

DONEY v ADLAM [2023] NZHC 363 [1 March 2023]

Contents

Hei tīmatanga kōrero............................................................................................. [1]
Introduction
Kōrero whānui....................................................................................................... [5]
Background
Ko te hātepe e pā ana ki te tono nei...................................................................... [10]
Procedural history
Me whakaae ki te tono kia tīni ngā taratī - Should the application to substitute
trustees be granted?............................................................................................. [14]

Ngā kōrero a te Kaitono – Applicants’ submissions............................................. [14]

Ngā kōrero a te Kaiurupare – Respondent’s submissions[15]

Kōrerorero........................................................................................................... [16]

Discussion
Me whakaae ki te tono kia whai hua ai te whakataunga - Should the application for leave to enforce the judgment be granted?..................................................................................... [17]

Ngā kōrero a te Kaitono – Applicants’ submissions............................................. [17]

Ngā kōrero a te Kaiurupare – Respondent’s submissions[25]

Te Ture................................................................................................................. [38]

The Law
Kōrerorero........................................................................................................... [46]
Discussion
He tikanga Māori e pā ana ki tēnei tono - Is tikanga Māori relevant to this
application?.......................................................................................................... [57]

Ngā kōrero a te Kaiurupare – Respondent’s submissions[57]

Ngā kōrero a te Kaitono – Applicant’s submissions............................................... [67]

Te Ture................................................................................................................. [75]

The Law
He whaitake te tikanga i tēnei kēhi?..................................................................... [81]
How is tikanga relevant in this case?
He aha ngā tikanga e pā ana ki tēnei kēehi?......................................................... [86]
What principles of tikanga apply?
Ka whakakorengia te mana whenua te tūrangawaewae o Mrs Adlam mēnā ka hokona te whenua?............................................................................................................................ [108]
Will the properties’ sale sever Mrs Adlam’s mana whenua and turangawaewae?
Whakataunga..................................................................................................... [111]
Decision

Hei tīmatanga kōrero

Introduction

[1] The trustees of the Savage Papakāinga Land Trust apply for substitution of judgment creditor and leave to issue enforcement proceedings against Rae Beverley Adlam. The application concerns the enforcement of a judgment issued by the Māori Land Court in 2014 where Mrs Adlam was ordered to repay various amounts totalling approximately $15 million.1 To date, the trust has received $4.7 million, although Mrs Adlam asserts that they have in fact received more. The trustees now seek to enforce the outstanding judgment debt including by way of sale of two properties owned by Mrs Adlam in Tauranga and…

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.

Continue reading Doney v Adlam

Details

AGLC: Doney v Adlam [2023] NZHC 363
Case: [2023] NZHC 363
Decision Date: 1 March 2023

CaseChat Overview and Summary

In Doney v Adlam, the High Court of New Zealand was tasked with determining whether the trustees of the Savage Papakāinga Land Trust should be granted leave to enforce a judgment against Rae Beverley Adlam, who was ordered to repay approximately $15 million. Adlam opposed the enforcement, arguing that the trustees were estopped from enforcing the judgment and that it would not be in the interests of justice to do so. The court also considered the relevance of tikanga Māori in the proceedings.

The court found that the trustees were entitled to enforce the judgment. The delay in enforcement was not unreasonable, and the trustees had consistently communicated their intent to enforce the judgment. The court rejected Adlam's claim of estoppel, finding that there was no formal authorization for any promise not to enforce the judgment. The court also found that tikanga Māori, while relevant, did not outweigh the trustees' duty to enforce the judgment. The principles of tikanga, such as whanaungatanga and manaakitanga, did not absolve Adlam of her responsibility to repay the trust.

The court granted the trustees' application for substitution of judgment creditor and leave to issue enforcement proceedings, including a sale order, against Adlam. The decision emphasised that the trustees were entitled to pursue the judgment debt, and the principles of tikanga did not override this entitlement.

Orders