Inia v Julian - [2020] NZCA 423

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA498/2019
[2020] NZCA 423

BETWEEN	WHAEARANGI INIA, LARAINE IRITANA INIA AND MARILYN WHARETOROA INIA-MCGARVEY AS TRUSTEES OF THE INIA WHANAU TRUST Appellants
AND	TUI KUIAKAHA JULIAN Respondent

Hearing:	31 August 2020
Court:	Kós P, Cooper and Courtney JJ
Counsel:	J M Pou for Appellants J P Kahukiwa for Respondent
Judgment:	17 September 2020 at 9 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe respondent is entitled to costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

Mrs Moehuarahi Te Ruri (Inia) died aged 89 on 27 July 1994. She left seven

surviving children. By her will she left her Māori land interests to two only of those children, Te Pakiorangi (Paki) Inia and Oriwia Clarke. As the Māori Appellate Court observed, the other five were in effect disinherited.[1] Mrs Clarke renounced her entitlement to succeed. In an application to the Māori Land Court in October 1994, Mr Inia sought succession orders otherwise in accordance with his mother’s will. In February 1995, the late Judge Hingston vested the land interests of Mrs Te Ruri solely in Mr Inia (the succession order). By further order he constituted the Inia Whānau Trust (the Trust) and vested those interests in Mr Inia and Audrey McCaull as trustees (the trust order).[2] The beneficiaries of the Trust did not include the disinherited siblings or their uri. No tipuna was named in the trust order.

[1]Inia v Julian – Estate of Moehuarahi Inia [2019] Māori Appellate Court MB 333 (2019 APPEAL 333) [Appellate Court judgment] at [1].

[2]Inia – Estate of Moehuarahi Inia Te Ruri (1995) 237 Rotorua MB 74 (237 ROT 74).

The respondent, Mrs Tui Kuiakaha Julian, is one of the five disinherited children. In 2007 she filed an application under s 45 of the Te Ture Whenua Māori Act 1993 (the Act) seeking orders vesting the land in all seven children. In 2017 she amended this application seeking that the succession and subsequent orders be cancelled. A number of grounds were advanced, including that the 1994 application should have been adjourned to inquire into the interests of the other children and that the Judge should not have decided the matter because of apparent bias.[3] The Chief Judge recused himself and the Deputy Chief Judge sat instead.
[3]The Judge had acted for the deceased’s husband’s estate and was named in that capacity in his will.
In September 2018 Deputy Chief Judge Fox delivered a decision on the cancellation application. She found the disinherited siblings had not been notified of the February 1995 hearing.[4] However, the Judge found this would not have made a difference and that it was unlikely that Mrs Julian would have maintained a challenge to succession by her brother, Mr Inia.[5] The Judge said, “[t]his goes to whether it is necessary in the interests of justice to remedy this error of…

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 Inia v Julian

Details

AGLC: Inia v Julian [2020] NZCA 423
Case: [2020] NZCA 423
Decision Date: 17 September 2020 at 9 am

CaseChat Overview and Summary

Inia v Julian concerns the distribution of a deceased's Māori land under the Te Ture Whenua Māori Act 1993 (the Act). The appellants, trustees of the Inia Whānau Trust, appealed the decision of the Māori Appellate Court, which had annulled a decision of the Māori Land Court to vary the terms of the Trust. The respondent, Mrs Tui Kuiakaha Julian, one of the deceased's disinherited children, had applied for the Trust to be varied so that the disinherited siblings and their descendants could become beneficiaries of the Trust. The Māori Land Court had varied the Trust order, but the Appellate Court annulled that variation. The appellants appealed that decision.

The key issues were whether the Court of Appeal should have overturned a finding of fact of the Deputy Chief Judge regarding the impact of lack of notice, and whether the Court erred in challenging the Deputy Chief Judge's refusal to exercise jurisdiction under s 45 of the Act. The Court of Appeal found that the Judge had erred in finding bias on the part of the Judge who had presided over the original hearings. The Court also found that the Appellate Court had erred in varying the Trust order by including the disinherited siblings as beneficiaries, as it had not appreciated the enlarged capital of the Trust.

The Court of Appeal held that the Appellate Court had not erred in re-examining the notice error and its remedy. It held that the Appellate Court was required to revisit the findings below on the notice error as soon as the appellants prevailed in setting aside the variation order. The Court also held that the Appellate Court was entitled to remit the respondent's s 45 application for rehearing by the Māori Land Court.

The appeal is dismissed. The respondent is entitled to costs for a standard appeal on a band A basis and usual disbursements.

Orders