Henderson v Brooking - [2025] NZCA 368

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA242/2023
[2025] NZCA 368

BETWEEN	APIRANA HENDERSON AS TRUSTEE OF THE WHAREKAHIKA A47 TRUST Appellant
AND	ASHLEY BROOKING AS TRUSTEE OF THE WHAREKAHIKA A47 TRUST Respondent

Hearing:	12 September 2024
Court:	Courtney, Thomas and Hinton JJ
Counsel:	J P Kahukiwa for Appellant L J L Hemi for Respondent
Judgment:	28 July 2025 at 3 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe farm management direction is set aside.
CIf seeking costs, the respondent is to file a memorandum within 10 working days of delivery of this judgment and further directions will follow.

____________________________________________________________________

REASONS OF THE COURT

(Given by Hinton J)

Table of Contents

Para No

Introduction
Summary of alleged breaches
History of alleged breaches and application to remove

Payment of $10,000

Farm management proposal
Petrol vouchers
Application for removal filed and efforts to resolve
Refusal to comply with consent direction
The insurance policy
Payment of $5,000
Lack of annual general meetings
Apirana Henderson declines to attend Māori Land Court teleconference

Relevant clauses of Trust Order
Statutory provisions and case law

Conflict of interest
Removal of trustees under the Act

The Māori Land Court decision of 20 April 2022
The Māori Appellate Court decision of 9 February 2023
Arguments on appeal

Implied term permitting trustee remuneration and self-dealing
Brothers not conflicted
Misapplication of s 240 — failure to take account of work done and cultural context

Issue One: Is there an implied term in the Trust Order permitting trustee remuneration and self-dealing?

Bases on which Apirana Henderson could legitimately receive payments

Section 227A of the Act
Clause 2 of the Trust Order
Conclusion

Whether there is an implied term in the Trust Order permitting trustee remuneration and self-dealing

Issue Two: Were the Henderson brothers impliedly authorised to act on matters involving each other?
Issue Three: Was the removal of Apirana Henderson justified?

Test on appeal
General principles
Application to this case

Whether Apirana Henderson is no longer suitable to hold office
Whether the removal of Apirana Henderson is desirable

Farm management direction

Costs

Result

Introduction

On 20 April 2022 the Māori Land Court ordered that the appellant, Apirana Henderson, be removed as trustee of the Wharekahika A47 Trust (the A47 Trust) under s 240 of Te Ture Whenua Maori Act 1993 (the Act), primarily as a result of repeated breaches of his trustee duties.[1] That decision was upheld by the Māori Appellate Court.[2]
[1]Brooking v Henderson – Wharekahika A47 (2022) 110 Tairawhiti MB 238 (110 TRW 238) [Māori Land Court decision] at [114].
[2]Henderson v Brooking – Wharekahika A47 [2023] Māori Appellate Court MB 17 (2023 APPEAL 17) [Māori Appellate Court decision] at [42]–[43].
Under s 58A of the Act a party to an appeal to the Māori Appellate Court has a right of further appeal to this Court against all or part of the determination of the Māori Appellate Court. Apirana Henderson has exercised that right to bring a second appeal,…

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 Henderson v Brooking

Details

AGLC: Henderson v Brooking [2025] NZCA 368
Case: [2025] NZCA 368
Decision Date: 28 July 2025 at 3 pm

CaseChat Overview and Summary

This appeal was brought by Apirana Henderson, one of the trustees of the Wharekahika A47 Trust, against the decision of the Māori Appellate Court to uphold the removal of Apirana Henderson as a trustee of the A47 Trust by the Māori Land Court. The Court of Appeal dismissed the appeal, finding that the Māori Land Court was correct to find Apirana Henderson had repeatedly breached his duties as a trustee, including by receiving payments from the trust of which he was a part, without proper authority, and that his removal as a trustee was desirable. The Court of Appeal also set aside the farm management direction made by the Māori Land Court.

Apirana Henderson was one of six trustees of the A47 Trust, which was constituted over 1,174 hectares of Māori freehold land known as the Wharekahika A47 block. The Māori Land Court appointed Apirana Henderson as a trustee in 2015. Between 2018 and 2021, Apirana Henderson had made several attempts to obtain payments from the A47 Trust for work done on the land, contrary to the terms of the Trust Order. The Māori Land Court found that Apirana Henderson had breached his duties as a trustee by voting on and receiving the payments, contrary to s 227A of the Te Ture Whenua Maori Act 1993, which prohibits a trustee from participating in a decision affecting their own remuneration or employment unless authorised by the Court. The Māori Appellate Court upheld the Māori Land Court's decision to remove Apirana Henderson as a trustee under s 240 of the Act, which allows for the removal of a trustee who is no longer suitable to hold office because of their conduct or circumstances.

The Court of Appeal considered three issues on appeal. The first was whether there was an implied term in the Trust Order permitting trustee remuneration and self-dealing. The Court found that there was no such term, either express or implied, and that Apirana Henderson's receipt of payments and benefits from the A47 Trust was therefore unauthorised. The Court also found that even if such a term could be implied, it would not have permitted Apirana Henderson to receive payments and benefits without a contract and proper authorisation. The second issue was whether Apirana Henderson's brothers were impliedly authorised to act on matters involving each other. The Court found that the appointment of siblings as trustees did not imply any authorisation to act on matters involving each other, and that the brothers were in breach of their duties as trustees for participating in and voting on the payments to Apirana Henderson. The third issue was whether the removal of Apirana Henderson was justified. The Court found that the Māori Land Court was correct to conclude that Apirana Henderson was no longer suitable to hold office as a trustee and that his removal was desirable for the proper execution of the trust. The Court also found that the farm management direction made by the Māori Land Court had lapsed and set it aside. The Court of Appeal dismissed the appeal and ordered that if the respondent was seeking costs, a memorandum should be filed within 10 working days of delivery of this judgment and further directions will follow.

Orders