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 Ms Adlam that updates her financial position, and one from her daughter, Loren Riddall, addressing an estoppel claim. The affidavits were accompanied by two further memoranda of counsel - one provided confirmation of Ms Adlam’s surgery and the date she was notified being 2 November 2022. The other seeking leave to adduce further evidence.

[6]    The issue for determination is whether the adjournment should be granted, and if so, on what terms? The application for leave to adduce further evidence is also considered in this decision.

Rae Beverley Adlam’s submissions

[7]    In a brief memorandum, Ms Van submitted that the defendant seeks assistance from a tikanga Māori expert to incorporate such comment into her submissions in light of Ellis. Accordingly, the defendant wishes for tikanga to be considered at the hearing. This intention has, however, been complicated by the fact that counsel has been unable to secure the help of a tikanga Māori expert.

[8]    Added to that counsel contended that Ms Adlam wishes to attend the hearing in person. However, as foreshadowed, she has surgery scheduled on Friday 11 November 2022. If that proceeds, then there is a risk that Ms Adlam may not be well enough to attend the hearing on Monday.

[9]    At the telephone conference counsel elaborated on these submissions. Ms Van highlighted Ms Adlam’s belief that the trustees are estopped from forcing the sale of her two properties. This belief was based on alleged representations made by former trustees to Ms Adlam. Counsel also contended that Ms Adlam had been seeking to reach a solution with the trustees but those efforts had been largely ignored.

[10]   In addition, Ms Van submitted that Ms Adlam’s presence could assist in the efficient disposal of the proceedings, should she be required to provide instructions or relevant information to counsel. For these two principal reasons, counsel sought a brief adjournment.

Savage Papakāinga Land Trust’s submissions

[11]   Mr McDougall submitted that the substantive application concerns the trustees enforcing the balance of an original judgment of $11,200,000 (plus interest) against the defendant issued by the Māori Land Court in 2014, Savage v Adlam – Lot 39A Sec 2A Parish of Matatā.3 That application is opposed by Ms Adlam on the basis that, as mentioned above, the trustees are estopped from enforcing the debt due to alleged representations that it would not do so.

[12]   A hearing of the trustees’ application was originally scheduled for 5 October 2022 at Hamilton with a pre-hearing timetable agreed between the parties. Ms Adlam was directed by the Court on 26 July 2022 to file her opposition by 5 August 2022 and a synopsis of submissions by 30 September 2022. This timetable, counsel contended, has not been complied with by Ms Adlam, and she remains in breach in the case of submissions. Following that, on 28 September 2022 the parties were advised that the October hearing had been vacated and a replacement fixture for 14 November 2022 was confirmed.

[13]   The trustees argued that the opportunity for considering evidence whether tikanga is relevant and what principles are engaged was the time pre-hearing directions were made or soon after; not a week before the hearing. In addition, counsel contended that while it may be convenient for Ms Adlam to raise issues of tikanga and seek a deferral, there is no proper basis for doing so. Namely, Ms Adlam’s notice of opposition of 26 August 2022 does not rely on any tikanga principles or any matters resembling them. Further, there is no controlling statute or principles where tikanga may be inherently relevant. Neither does Ms Adlam’s affidavit refer to such principles. Counsel argued that there is no foundation to consider the incorporation of tikanga in this case.

[14]   As to the second ground for adjournment, Ms Adlam’s personal attendance at the hearing, counsel submitted that Ms Adlam’s presence is not required for the hearing. She is not needed to give oral evidence or to be cross-examined. There are

3      Savage v Adlam – Lot 39A Sec 2A Parish of Matatā (2014) 95 Waiariki MB 176 (95 WAR 176).

also the dual options of attendance by AVL if she wishes to witness the hearing or the provision of the hearing transcript.

[15]   In summary, the trustees argued that no prejudice would be caused by Ms Adlam’s absence. Further, while the Ellis decision was released after the timetable was agreed, it cannot now be a basis to defer the allocated hearing to enable tikanga evidence to be given. Counsel argued that Ms Adlam has not acted reasonably nor done everything practical to avoid seeking an adjournment. Finally, as the trustees have made personal arrangements to attend the hearing, deferring it at this point will cause them some prejudice.

[16]   Essentially, Mr McDougall submitted that the request is a continuation of Ms Adlam’s conduct throughout the related proceedings to avoid accountability and delay enforcement. The trustees are also sceptical about the authenticity of her position given the history and lack of detail supporting the application.

[17]   Accordingly, the trustees request that the hearing proceed on 14 November 2022. They seek a direction that that Ms Adlam’s submissions be filed by 5 pm on Wednesday 9 November 2022.

Discussion

[18]    Of the total judgment debt amount, approximately $4.7 million has been received by the trust from Ms Adlam. Understandably, the trustees, in seeking to fulfil their duties under the law, wish to enforce that judgment. Judge Wainwright also made it plain that the trustees were obliged to fulfil their responsibilities and, in effect, protect the trust assets, by enforcing the judgment.4

[19]   As foreshadowed, Ms Adlam opposes the enforcement proceedings on various grounds as set out in her notice of opposition augmented by her supporting affidavit. In any event, those matters are for argument before this Court next week. More importantly, the present application for adjournment has been made on the basis of first, the relevance of tikanga principles following the issuing of the Ellis decision and

4      272 Waiariki MB 289 at 310 (272 WAI 289 at 310).

secondly, because of Ms Adlam’s surgery and potential unavailability. What must also be borne in mind is that, less than a week out from the hearing, which itself had been rescheduled, this adjournment request has been made.

[20]   On the second ground of adjournment, I agree with the trustees’ submissions. Ms Adlam’s attendance in person is not essential. Doubtless, while she may understandably wish to attend, as counsel for the trustees points out, that attendance is not critical. In any case, the transcript will be available and, with prior notice, it may be possible for her to attend by AVL.

[21]   On the first ground for adjournment, it will be remembered that the substantive application concerns the enforcement of the judgment of the Māori Land Court. In this context, I also agree with the trustees that the time for tikanga arguments was when the case was before the Māori Land Court and Māori Appellate Court. Or at the very latest, at the time pre-hearing directions were made in relation to the present application. At first blush, and without the benefit of further submissions, it is difficult to see how tikanga principles in the context of the enforcement of the judgment are engaged.

[22]   Moreover, as the plaintiff has argued, the proceedings that began in 2012 were contested by both Ms Adlam and the trustees all the way to the Supreme Court. Although as counsel points out, while Ms Adlam was unsuccessful in the Māori Land Court, she prevailed in the Māori Appellate Court when the proceedings were remitted back for hearing to the Māori Land Court.5 However, what is not in dispute is that the Māori Appellate Court decision was overturned by the Court of Appeal which in effect reinstated Judge Coxhead’s decision.6 As foreshadowed, Ms Adlam’s application for leave to appeal to the Supreme Court was then refused.7 The trustees are therefore entitled to enforce the judgment, just as Ms Adlam has the right to resist that application.

5      Adlam v Savage [2015] Maori Appellate Court MB 59, [2015] NZAR 746 (MAC).

6      Adlam v Savage [2016] NZCA 454.

7      Adlam v Savage [2017] NZSC 11.

[23]   In any event, the parties, and especially the trust’s long suffering beneficiaries, who have been deprived of the balance of the judgment debt for several years, are entitled to finality. After a decade of protracted and costly litigation, it must be the time to bring these proceedings to an end.

[24]   Even so, I accept that Ms Adlam should at least be given the opportunity to have her counsel consult a tikanga expert so that her submissions might reflect what she considers are relevant principles in the context of the enforcement application. Further, while I also accept Mr McDougall’s submissions that, in the normal course of events, it would not be necessary for Ms Adlam to attend, as the enforcement application could have the result of forcing her from her home, I can well understand her desire to attend the hearing. Equally importantly, I accept that several of the trustees have themselves made arrangements to attend the hearing on Monday and that they should not be inconvenienced further.

[25]   As canvassed with counsel, I consider that the most efficient way to deal with Ms Adlam’s requests is twofold. First, the hearing on Monday will proceed as scheduled with all counsel in attendance to make submissions. Secondly, the proceedings will then be adjourned to 3.30 pm on Friday 25 November next either at Tauranga or by AVL to enable Ms Van to present any further submissions she considers relevant, having consulted with a tikanga expert. By that stage, I anticipate Ms Adlam will have recovered sufficiently to be able to attend that hearing either in person or by AVL.

[26]   I also agree that Ms Adlam’s submissions must be filed urgently, given that the hearing will proceed on Monday. Ms Van is to file submissions for Monday’s hearing by 4 pm Friday.

[27]   Finally, even through Mr McDougall has not filed any submissions, given the short time frames involved, I consider that it will assist in the efficient determination of the present application if updated details of Ms Adlam’s financial position are accepted for filing and that the strength of the estoppel claim is properly assessed, based in part, on the assertions set out in the evidence of Ms Riddall.

Decision

[28]   The Savage Papakāinga Trust’s application for enforcement of judgment will proceed on Monday 14 November 2022 as originally scheduled to hear counsels’ submissions.

[29]   The proceedings will then be adjourned to 3.30 pm on Friday 25 November to at Tauranga or by AVL to enable Ms Van for Ms Adlam the opportunity to make further submissions. Mr McDougall for the trust will then have a right of reply at that hearing.

[30]   Ms Van is directed to file her submissions for the Monday hearing by 4 pm Friday 11 November 2022. She is further directed to file her submissions for the 25 November 2022 hearing by 4 pm on Friday 18 November 2022.

[31]The application to adduce further evidence is granted.

Harvey J