Doney v Adlam - [2022] NZHC 2963

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-44

[2022] NZHC 2963

BETWEEN
WILLIAM HENRY DONEY, ALLAN RICHARD NIAO, MARTIN LESILY NIAO, CARRIE 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)

Plaintiff/Judgment Creditor

AND

RAE BEVERLEY ADLAM

Defendant/Judgment Debtor

Hearing: 10 November 2022 (by telephone)

Appearances:

J W McDougall for Plaintiff/Judgment Creditor

L M Vann and N J Jirkowsky for Defendant/Judgment Creditor

Judgment:

11 November 2022

JUDGMENT OF HARVEY J

This judgment was delivered by Justice on 11 November 2022 at 11:30am Registrar/Deputy Registrar

Date: …………………………

Solicitors:
Holland Beckett, Tauranga Anthony Harper, Auckland

DONEY v ADLAM [2022] NZHC 2963 [11 November 2022]

Introduction

[1] The trustees for the Savage Papakāinga Land Trust have made an application to this Court for leave to enforce a judgment debt in their favour, of $15,187.668.41, of which $10,453,491 remains owing, by way of sale orders. The genesis of the judgment debt is in Māori Land Court proceedings, beginning in 2012, where Judge Coxhead gave judgment, in 2014, against Ms Adlam personally over findings of breach of trust.1 Protracted litigation through the courts, including an unsuccessful application for leave to appeal to the Supreme Court, meant that the judgment debt was only sealed on 30 May 2022.

[2] The application for leave to enforce the judgment debt arises in part due to a change of trustees ordered by Judge Wainwright in March 2022. A hearing is of the enforcement application is scheduled for Monday 14 November 2022.

[3] On 7 November 2022, counsel for Ms Adlam sought a brief adjournment of the hearing next Monday. The grounds cited in support of the adjournment request were:

(a)to enable the inclusion of comment from a tikanga Māori expert into counsel’s submissions in light of the recent Supreme Court decision in Ellis v R;2 and

(b)to enable Ms Adlam, who has surgery scheduled for 11 November 2022 and is concerned that she will not be sufficiently recovered by Monday, to attend the hearing in person.

[4] By reply memorandum of the same day, counsel for the trust confirmed that the trustees oppose any adjournment. They argue that the application is a further example of Ms Adlam seeking to evade her responsibilities. Moreover, counsel contended that there is no proper basis for raising an application based on tikanga Māori in the context of these enforcement of judgment proceedings, and at this late stage. The trust also submitted that there is insufficient evidence to support the application.

1 Savage v Adlam – Lot 39A Sec 2A Parish of Matatā (2014) 95 Waiariki MB 176 (95 WAR 176).
2 Ellis v R [2022] NZSC 114.

[5] A hearing by telephone was convened yesterday, after which I confirmed a decision would issue in writing. Following the hearing, Ms Van also filed two affidavits, one from…

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 [2022] NZHC 2963
Case: [2022] NZHC 2963
Decision Date: 11 November 2022

CaseChat Overview and Summary

The case of Doney v Adlam involved an application by the trustees of the Savage Papakāinga Land Trust seeking to enforce a judgment debt of $15,187.668.41 against Rae Beverley Adlam, who had been found liable in earlier proceedings for breach of trust. The debt, originating from a 2014 judgment in the Māori Land Court, had accumulated interest and remained unpaid, prompting the enforcement application. The proceedings had a complex history, with Adlam having previously lost in the Māori Land Court, the Māori Appellate Court, and the Court of Appeal, before her application for leave to appeal to the Supreme Court was refused. The current application for leave to enforce the judgment arose partly due to a change in trustees ordered in March 2022. Adlam sought a brief adjournment of the scheduled hearing to enable her counsel to consult a tikanga Māori expert in light of a recent Supreme Court decision, and due to her scheduled surgery on 11 November 2022, which might prevent her from attending the hearing. The trustees opposed the adjournment, arguing that it was a further attempt by Adlam to delay enforcement and that there was no proper basis for raising tikanga Māori issues in these proceedings, particularly at such a late stage.

The primary issue before the court was whether the adjournment should be granted and, if so, on what terms. The court also considered whether leave should be granted to adduce further evidence. Adlam's counsel argued that incorporating comment from a tikanga Māori expert was necessary to address the recent Supreme Court decision and that Adlam's personal attendance could facilitate a more efficient disposal of the proceedings. The trustees countered that the opportunity to consider tikanga principles had already passed, and that Adlam's attendance was not essential. They also contended that the adjournment request was a continuation of Adlam's attempts to delay enforcement.

The court found that Adlam's attendance was not critical for the hearing, as the transcript would be available and it might be possible for her to attend via audio-visual link. Regarding the tikanga Māori argument, the court noted that the opportunity to consider such principles had already passed, particularly as the substantive application related to the enforcement of the Māori Land Court judgment. However, the court agreed that Adlam should have the opportunity to consult a tikanga expert to inform her submissions. To balance the need for finality in the proceedings, the court decided that the hearing would proceed as scheduled on 14 November 2022, with an adjournment to 25 November 2022 to allow Adlam's counsel to present any further submissions after consulting a tikanga expert. The court also directed that Adlam's submissions for the initial hearing be filed by 4 pm on 11 November 2022, and that her submissions for the adjourned hearing be filed by 4 pm on 18 November 2022. Finally, the application to adduce further evidence was granted.

In conclusion, the court granted the adjournment to allow Adlam's counsel to incorporate relevant tikanga Māori principles into their submissions and to enable Adlam to potentially attend the adjourned hearing. The enforcement application was scheduled to proceed as originally planned, with the adjournment providing a limited window for additional submissions.

Orders