Hillier v Whitewood - [2018] NZHC 2623

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2017-463-000098 [2018] NZHC 2623

BETWEENTRACY HILLIER, MURIWAI JONES, DAVE PETERS, ARAPETA MIO and TE AURURANGI DAVIS
Applicants

AND VINCENT WHITEWOOD,
RAELYN RIKA, GARRY WATSON and STELLA TAKU
Respondents

Hearing: [On the Papers]

Counsel:C G Beaumont for the Applicants C M Bidois for the Respondents
R E Schmidt-McCleave for Te Ohu Kai Moana Trustee Ltd

Judgment: 9 October 2018

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 9 October 2018 at 3.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Te Haa Legal Ltd, Otaki
East Brewster Ltd, Rotorua
R E Schmidt-McCleave, Wellington

HILLIER and ORS v WHITEWOOD and ORS [2018] NZHC 2623 [9 October 2018]

[1] Ngaitai is a coastal iwi whose ancestral home extends from the seaside settlement of Torere in the Eastern Bay of Plenty inland to the heart of the Raukumara ranges.1 All parties to this proceeding are members of Ngaitai.

[2] This proceeding arose out of the purported removal of trustees of the Ngaitai Iwi Authority, and the appointment of replacement trustees, in December 2015. Toogood J made orders by consent for a question to be determined before trial,2 and for a case stated to be filed.3 The case stated question to be determined is:

Does the Trust Deed for the Ngaitai Iwi Authority provide for beneficiaries to remove and appoint trustees outside the three-yearly election process provided for in Part 12 of the Trust Deed?

[3]The parties agreed to have this question determined on the papers.

Events leading to the dispute

[4] The Ngaitai Iwi Authority is a charitable trust established to pursue redress for breaches of the Treaty of Waitangi. It is also the mandated iwi organisation under the Maori Fisheries Act 2004, responsible for administering Ngaitai’s fisheries settlement assets.

[5]The relevant facts agreed between the parties are as follows:

2.1On 10 June 2015, the respondents were appointed as trustees of Ngaitai Iwi Authority (“the Trust”). Those appointments have not been challenged.

2.2On 19 December 2015, a minority of the Trust’s beneficiaries met at Torere and passed resolutions that purported to remove the respondents as trustees and to appoint replacement trustees.

2.4. The respondents deny that the resolutions passed at the said meeting were valid in terms of the Trust Deed for the Ngaitai Iwi Authority dated 27 August 2006.

1      Ngaitai has been recorded as Ngai Tai in various court documents. I have adopted the spelling set out in the Ngaitai Iwi Authority Trust Deed.
2      High Court Rules 2016, r 10.15.
3      High Court Rules 2016, r 10.20.

2.5On or about February 2016, the ANZ Bank and the Westpac Bank suspended access to the Trust’s bank accounts following receipt of conflicting instructions from the respondents on the one hand, and from the Trust’s Chief Executive Officer under direction of the replacement trustees on the other.

2.6The ANZ Bank and the Westpac Bank have…

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 Hillier v Whitewood

Details

AGLC: Hillier v Whitewood [2018] NZHC 2623
Case: [2018] NZHC 2623
Decision Date: 9 October 2018

CaseChat Overview and Summary

The proceeding arose from a dispute among members of the Ngaitai iwi concerning the removal and appointment of trustees for the Ngaitai Iwi Authority, a charitable trust. The applicants, Tracy Hillier, Muriwai Jones, Dave Peters, Arapet Mio, and Te Aurunrangi Davis, sought to remove the existing trustees, Vincent Whitewood, Raelyn Rika, Garry Watson, and Stella Taku, and appoint new trustees. The central legal issue was whether the Trust Deed allowed beneficiaries to remove and appoint trustees outside the three-yearly election process specified in Part 12 of the Trust Deed. The court had to interpret the Trust Deed to determine if it granted beneficiaries such a power.

The court concluded that the Trust Deed did not provide for beneficiaries to remove and appoint trustees outside the established election process. The comprehensive nature of the Trust Deed suggested that if such a power were intended, it would be explicitly stated. The absence of any clause expressly granting beneficiaries the power of removal supported this view. Additionally, clauses 10.5 and 10.6 outlined specific circumstances under which a trustee's position would become vacant and the procedure for such vacancies, which did not include removal by beneficiaries. The mandatory election provisions in clauses 10.2, 10.3, and 12.1 reinforced that trustees were to be elected at annual general meetings (AGM), not removed by beneficiaries at special general meetings (SGM). Even if the SGM provisions were ambiguous, they did not confer a right to remove trustees. Given the available recourse under the Trustee Act 1956 for beneficiaries to seek judicial intervention, there was no need to infer a power of removal within the Trust Deed.

The court's determination that the Trust Deed did not allow beneficiaries to remove and appoint trustees outside the election process concluded the proceeding, as per the original agreement of the parties. However, the court scheduled a telephone conference to address the implications of this judgment on the ongoing proceeding and to discuss the matter of costs. The final orders would be made following this conference, ensuring all parties had an opportunity to present their positions.

Orders