Hanara - [2025] NZHC 1687

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2025-441-049

[2025] NZHC 1687

IN THE MATTER

AND
of section 114 of the Trusts Act 2019

IN THE MATTER

of an application by NATASHA HANARA, MARY TUKIWAHO AND ROCKY ROPIHA

FOR AN ORDER

to appoint interim trustee(s)

Hearing: Teleconference

Counsel:

T N Ahu and B C K Murfitt for the Applicant

Judgment:

24 June 2025

JUDGMENT OF CHURCHMAN J

Introduction

[1] Natasha Hanara, Mary Tukiwaho and Rocky Rophia (the applicants) are the initial trustees of the Ngāti Hinemanu, Ngāi Te Upokoiri Me Ōna Piringa Hapū Authority Trust (the Trust). The applicants apply for an order to appoint an interim trustee to the Trust under s 114 of the Trusts Act 2019 (the Act), in an originating application without notice.

Background

[2] The Trust is a registered charitable trust established by deed of trust dated 18 November 2019 (Trust Deed). The Trust Deed was signed by the initial trustees of

HANARA and Ors to appoint interim trustee(s) [2025] NZHC 1687 [24 June 2025]

the Trust: Natasha Hanara, Barry Atkenson, Renata Hakiwai, Rocky Ropiha, Tamanuhiri Russell, Mary Tukiwaho and Meihana Watson.

[3] The Trust is a hapū trust whose members are the uri (descendants) of Ngāti Hinemanu, Ngāi Te Upokoiri me ōna piringa hapū o Ngāti Mahuika and Honomokai, which are hapū of Ngāti Kahungunu located in Te Matau a Māui, the Hawkes Bay.

[4] Between 2023 and 2024, Renata Kaiwai, Tamanuhiri Russell and Meihana Watson retired, causing the trustee numbers to fall below the minimum required under the Trust Deed. Clause 3.1, Schedule One of the Trust Deed also requires no fewer than five trustees and no more than seven, at any given time. The applicants continued to act as trustees and were not re-appointed in accordance with the Trust Deed before their term of office expired.

[5] The terms of appointment of the remaining three trustees have expired, without the appointment of new trustees under the election process contemplated in the Trust Deed. As a result, the Trust has no trustees, and no one has the power to continue operating the Trust. The trust has been operating for some years without knowledge of the breach of deed.

[6]There are no clauses in the Trust Deed that:

(a)empower trustees to act notwithstanding any vacancies in their number; and

(b)empower the trustees to proceed to an election to appoint replacements if the number of trustees falls below the minimum number.

[7] On 29 May 2025, Grice J directed the parties to file further information by way of further affidavit with a memorandum in support regarding the details of the:

(a)financial position of the trust as to its solvency, assets and liabilities and sources of income;

(b)trust’s accountants and auditors;

(c)evidence that the application has been bought to the bank’s attention; and

(d)written consent to the suggested appointment from the trustees.

[8] Grice J also directed the applicant to file a memorandum setting out steps which…

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

AGLC: Hanara [2025] NZHC 1687
Case: [2025] NZHC 1687
Decision Date: 24 June 2025

CaseChat Overview and Summary

Natasha Hanara, Mary Tukiwaho, and Rocky Ropiha applied for an order to appoint an interim trustee for the Ngāti Hinemanu, Ngāi Te Upokoiri Me Ōna Piringa Hapū Authority Trust under section 114 of the Trusts Act 2019. The Trust, a charitable hapū trust, faced a situation where the number of trustees had fallen below the minimum required by the Trust Deed. This application arose because Renata Kaiwai, Tamanuhiri Russell, and Meihana Watson retired, and the remaining trustees' terms expired without new trustees being appointed. The Trust Deed did not allow trustees to act despite vacancies and did not permit an election to fill vacancies. The applicants sought an interim trustee to manage the Trust's affairs until new trustees could be elected.

The primary legal issues were whether it was necessary or desirable to appoint a new trustee and whether it was difficult or impracticable to do so without court assistance. The applicants argued that appointing Daphne Luke as an interim trustee was suitable and necessary due to her experience and independence. The court needed to determine if the circumstances warranted judicial intervention to facilitate the election of new trustees and maintain the Trust's operations.

The court found that appointing an interim trustee was necessary as the Trust lacked valid trustees and could not self-appoint new ones. The court determined it was difficult or impracticable to appoint new trustees without its assistance. Following the applicants' submissions and the affidavits presented, the court appointed Daphne Tania Luke and Natasha Hanara as interim trustees for six months. They were granted all the powers of trustees to manage the Trust's affairs and facilitate the election of new trustees. The court reserved leave for the applicants to apply for further orders as necessary.

Final Orders:
1. Daphne Tania Luke and Natasha Hanara are appointed as interim trustees for six months.
2. Interim trustees have all the powers of trustees to manage the Trust's affairs.
3. Leave is reserved for the applicants to apply for further orders as necessary.

Orders