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 will bring any appointment by the Court of an interim trustee as well as the proceedings to the attention of the beneficiaries and other interested parties.

[9]The applicants have filed the relevant documents which confirm:

(a)The Trust’s assets exceed liabilities with net assets recorded at

$1,881,547.

(b)The accountants are both aware of the High Court proceeding and confirm that they are willing and available to continue to act as the accountants for the Trust during this period and have the capacity and skills to complete compiling the annual financial accounts of the Trust.

(c)The Trustee’s bank, the Bank of New Zealand is “aware of the issue with the existing trustees and was informed by the trustees at the Hastings branch BNZ on 20th May 2025.” It also notes that the bank is currently working through a solution to support the Trust, until an interim trustee can be appointed by the High Court.

(d)The other two applicants and initial trustees, Mary Ngahuia Tukiwaho and Rocky James Junior Ropiha filed affidavits consenting to the suggested appointment of Daphne Luke as the interim trustee.

(e)The Applicants all consent that Ms Natasha Hanara, the current chairperson, would be best suited to be appointed as a further interim trustee alongside Ms Daphne Luke.

(f)The persons interested in the application would be Uri (descendants) / beneficiaries of Ngāti Hinemanu, Ngāi Te Upokoiri, Ngāti Mahuika and Honomokai, who belong to Runanga Marae, Te Awhina Marae and Ōmāhu marae. The interim trustees intend to

(i)send a pānui (notice) to Runanga Marae, Te Awhina Marae and Ōmāhu marae and their respective marae committees informing them of the application by email. The pānui shall apprise members of the background; why the remaining trustees made the application; identify the interim trustees are that were appointed by the Court; an election to install new trustees in accordance with the Trust Deed;

(ii)send a pānui advising all beneficiaries / Uri of the application on the register by email; and

(iii)post a pānui about the application on social media page on Facebook.

[10]   The applicants submit that, in this case, there is a suitable and willing interim trustee for the Court to appoint, namely Daphne Luke.  The applicants summarise  Ms Luke’s affidavit that she has:

(a)extensive experience in the governance and Māori area;

(b)suitable qualifications for this role of interim trustee;

(c)a prior understanding of how the Trust operates; and

(d)sufficiently independent of the Trust’s operations and governance decisions.

Law

[11]The relevant provision under the Act is s 114 which provides:

114     Court may appoint or replace trustee

(1)Whenever it is necessary or desirable to appoint a new trustee and it is difficult or impracticable to do so without the assistance of the court, the court may make an order appointing a new trustee.

(2)However, this section does not empower the court to appoint an executor or administrator.

(3)If the court proposes to appoint Public Trust as the replacement trustee, the court must, before making  the  appointment,  give  Public Trust an opportunity to be heard on the matter.

(4)If the court (except on application by a supervisor within the meaning of section 6(1) of the Financial Markets Conduct Act 2013) appoints Public Trust as the replacement trustee, Public Trust—

(a)must accept the appointment; and

(b)may charge fees for acting as trustee.

Issues

[12]Issues for the Court to determine are:

(a)whether it is necessary or desirable to appoint a new trustee; and

(b)it is difficult or impracticable to appoint a new trustee without the assistance of the Court.

Analysis

[13]   Having reviewed all the affidavit material provided and the submissions of Mr Ahu in support of the application, I am satisfied that it is necessary to appoint an interim trustee as the number of trustees is below the minimum specified in the terms of the Trust Deed.1

[14]   The Trust has no valid trustees and cannot appoint any new trustees on its own terms. The Court must, therefore, provide assistance in the appointment of interim trustees who can facilitate an election which will result in the election of the requisite number of trustees.

1      See Nyhoff v Atkins [2021] NZHC 2238 at [33].

[15]   Following discussions with counsel, I consider it is appropriate for the appointment of interim trustees to be fore a finite term of six months.

[16]   In addition to facilitating the election of new trustees, the interim trustees are to have all the powers of the trustees in accordance with the Trust Deed to conduct the affairs of the Trust.

Outcome

[17]   Daphne Tania Luke and Natasha Hanara are appointed as interim trustees of the Trust for a finite period of six months from the date of this decision. They are to have all the powers of trustees validly appointed in terms of the trust deed to manage the affairs of the trust.

[18]   Leave is reserved to the applicant to apply for such further orders as may be necessary.

Churchman J

Solicitors:
Whāia Legal, Wellington for Applicants