Harris v Phillips

[2024] NZHC 1510

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2024-488-000040 [2024] NZHC 1510

IN THE MATTER

of an application by JOYCE ARIKI HARRIS

BETWEEN

JOYCE ARIKI HARRIS

Applicant

AND

DONNA PHILLIPS as administrator of the estate of MARIE HOKAI ESTATE TRUST

Respondent

Hearing:	(on the papers)
Judgment:	7 June 2024
Reasons:	10 June 2024

REASONS FOR JUDGMENT OF VENNING J

This judgment was delivered by me on 10 June 2024, at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Copy to:            Joyce Ariki Harris

Henderson Reeves Connell Rishworth, Whangarei (Mr Biddle)

HARRIS v PHILLIPS [2024] NZHC 1510 [7 June 2024]

Introduction

[1]    Late Friday afternoon (7 June 2024) the Registrar referred an application by Joyce Harris for urgent interim relief to me as duty Judge. Having perused the papers and the accompanying judgment of Judge K B de Ridder of the District Court at Kaikohe on 4 March 2024,1 I advised the Registrar the application was declined with reasons to follow. These are the reasons.

Background

[2]I take the background from the summary helpfully set out by Judge de Ridder:

[4]    The background to this matter is complex, but the essential matters relevant for the purposes of this appeal are set out as follows. Ms Harris and her twin sister were made wards of the state in 1964 when they were 18 months old. They were placed in the care of Matiu and Sophie Taylor. Although the Taylors tried to adopt Ms Harris and her sister their application was denied but Ms Harris was raised by the Taylors until she was 12. Ms Harris regards Ms Taylor as her mother.

[5]    In about 1989 Ms Harris and her children moved in to live with the Taylors. Ms Harris moved to Kaeo in 1995, and has lived at 123 Omaunu Road since 2006. A Mr Tua was renting this property and asked Ms Harris to board with him as his caregiver. Sophie Taylor lived with Ms Harris for four and a half years when Ms Harris was her fulltime caregiver from 2014 onwards.

[6]    In September 2012 Ms Taylor signed an enduring power of attorney appointing a Dr Bowker as her attorney and executed a will in October 2012 in which she left the majority of her estate to her brother, her sister Maria Hokai and Maria’s children. Ms Taylor made no provision in her will for Ms Harris or Ms Harris’ children.

[7]    In December 2013 Ms Taylor was assessed as no longer competent to manage er affairs and not mentally capable, thus leaving Dr Bowker in charge of her affairs pursuant to the power of attorney.

[8]    In 2015 the owners of the property at 123 Omaunu Road advised that they were selling the property. Ms Harris contacted Dr Bowker as Ms Taylor’s power of attorney and Dr Bowker then exercised his power under the power of attorney to utilise Ms Taylor’s money to purchase the property. It appears that he did so to ensure that Ms Taylor and Ms Harris could remain living in the property.

[9]    Between 2018 and 2022 Mr Tua paid for improvements to the property at 123 Omaunu Road which Ms Harris says was a gift to her for caring for him for those years. Ms Harris says she spent approximately

$76,000 of gifted money from Mr Tua to improve the property.

1      Harris v Phillips [2024] NZDC 4123.

Ms Taylor died on 27 August 2022. Her will of October 2012 remained her most recent will, and accordingly, her estate, including the property at 123 Omaunu Road passed to the beneficiaries, including her sister Ms Hokai. Maria Hokai died on 31 May 2023, and Donna Phillips is the executor of Ms Hokai’s estate. Ms Phillips, as executor of the estate, notified Ms Harris that she required her to vacate the property as it was being sold. Ms Harris did not vacate the property, leading to the application made by Ms Phillips to the Tenancy Tribunal resulting in the order made on 22 August 2023 granting possession of the property to Ms Phillips.

[11] A few days prior to the Tribunal hearing, Ms Harris met with Mr Mark, a solicitor in Kerikeri to discuss her situation with a view to issuing proceedings under the Law Reform (Testamentary Promises) Act 1949. They also discussed the upcoming Tribunal hearing of 22 August and it was agreed that Mr Mark would attend that hearing. However, there was obvious confusion about whether or not Ms Harris would also attend. Ms Harris is adamant that she wished to attend the hearing and had no intention of having Mr Mark appear by himself on her behalf. The hearing took place by way of teleconference attended by Mr Liggett representing Ms Phillips, and Mr Mark representing Ms Harris. Ms Harris did not participate in the hearing.

The District Court judgment

[3]    Ultimately the Judge concluded that although Ms Harris’ right to be heard at the original hearing was not observed, on any view of it, it had not resulted in a substantial wrong or miscarriage of justice given the jurisdiction of the Tribunal. The Tribunal had properly applied the relevant provisions and there was nothing in the evidence provided in support of the rehearing application which would or could cause the Tribunal to revisit the approach it took at the original hearing.

[4]    The Judge had earlier noted that there was no jurisdiction for the District Court to consider an appeal from the Tribunal’s previous decision of 22 August 2023.

[5]    The Judge concluded by noting that the Tribunal’s decision did not affect Ms Harris’ rights to pursue a claim based on a testamentary promise or constructive trust but she was not able to pursue such claims in the Tribunal.

The application

[6]    In her application for interim relief, Ms Harris purports to rely on r 17.29 High Court Rules 2016 and seeks a stay of enforcement against the orders made by the

Tenancy Tribunal under the Residential Tenancy Act.2 She pleads the Residential Tenancies Act 1986 is in breach of the principles of the Maori version of the preamble to the Te Ture Whenua Maori Act 1993 which binds the Crown.

[7]    Ms Harris says Ms Phillips as administrator of the Marie Hokai Estate Trust and Mr Biddle are responsible for a miscarriage of justice and alleges instruments of fraud for pecuniary gain. She says her customary rights are ignored instituting racial discrimination by “legislated bullying”.

Analysis

[8]    The application was dismissed as it failed to disclose a reasonably arguable cause of action or basis for claim. In short, the reasons for dismissing the application include:

(a)First, the application is misconceived to the extent it purports to rely on r 17.29. Rule 17.29 provides for a stay of enforcement against a “judgment”. The judgment referred to is a judgment of the High Court. Rule 11.1 defines judgment which includes a decree or order of the Court, the Court being the High Court, as confirmed by r 1.3. High Court Rule 17.29 has no application to the District Court judgment or the order of the Tenancy Tribunal.

(b)To the extent that Ms Harris’ application could instead be treated as an application for injunctive relief to stay the order of the Tenancy Tribunal, the material before the Court does not establish an arguable case for injunction. The material before the Court is limited but, relying on the background in Judge de Ridder’s judgment, the property at 123 Omaunu Road appears to be held by Ms Phillips as executor of Ms Hokai’s estate. As executor and trustee of the estate Ms Phillips has obligations to the beneficiaries of the estate. Ms Phillips was entitled to apply to the Tenancy Tribunal under the Residential Tenancies Act

2      I take it that Ms Harris’ reference to the Residential Tenancy Act 1984 is a reference to the Residential Tenancies Act 1986.

for possession of the property. Ms Phillips’ reference to the provisions of the Te Ture Whenua Maori Act 1993 do not affect that. There is no evidence that the property is in fact Maori freehold land. Further, s 30 of the Te Ture Whenua Maori Act is not engaged.

(c)The balance of convenience does not favour a grant under the relief sought. As noted, Ms Phillips has obligations to the beneficiaries of the estate who are entitled to the property.

(d)As Judge de Ridder observed, if Ms Harris has a claim either under the Law Reform (Testamentary Promises) Act 1949 or a claim based on a constructive trust then the appropriate course of action for her is to commence those proceedings, which she should do so as a matter of urgency but that cannot affect the issue of whether or not she is required to deliver up vacant possession of the property at this point in time.

[9]For those reasons the application was dismissed.

Venning J