Kruger v Mason - [2025] NZHC 263

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2025-463-19

[2025] NZHC 263

BETWEEN
TAMATI KRUGER AS TRUSTEE OF

TŪHOE–TE URU TAUMATUA TRUST
First Plaintiff/Applicant

TŪHOE TRUST CUSTODIAN TRUSTEE COMPANY LIMITED
Second Plaintiff/Applicant

AND

DONNA MASON

First Defendant/Respondent

RITCHIE CONTRACTING LIMITED
Second Defendant/Respondent

ALAN MAURICE RITCHIE

Third Defendant/Respondent

PERSONS UNKNOWN

Fourth Defendants/Respondents

Hearing: 21 February 2025

Counsel:

M R G van Alphen Fyfe for Plaintiffs/Applicants

Judgment:

21 February 2025

JUDGMENT OF McQUEEN J

[1] The plaintiffs in this matter (Tūhoe) bring a claim for trespass to land, trespass to goods and conversion in the context of unauthorised occupation of and activity on Matahi Forest by the defendants. By way of relief, Tūhoe seeks permanent injunctions and damages.

KRUGER v MASON [2025] NZHC 263 [21 February 2025]

[2] Tūhoe also seek an interlocutory injunction and orders for substituted service on a without notice basis.

[3] Yesterday I directed that the proceeding be served on the defendants so that the hearing of the application for the interlocutory injunction could proceed on a Pickwick basis and set the matter down for a one-hour hearing.

[4] Counsel for Tūhoe, Ms van Alphen Fyfe, confirmed that service was completed as directed. There was no appearance at the hearing by or for the defendants.

[5] However, after the hearing, notices of opposition were received by the Court from “Donna Mason contracting limited”, “O Muriwaka Marae”, “Allen Maurice Ritchie” and “Ritchie contracting limited” which indicate there is opposition to the orders sought. I address the implications of this at the conclusion of the judgment.

Background

[6] I have drawn the following description of the background of this matter from the affidavit from Umesh Naik, an officer of each of the plaintiffs/applicants, filed in support of the application.

[7] The first plaintiff/applicant is Tamati Kruger as trustee of Tūhoe–Te Uru Taumatua Trust (TUT), the post-settlement governance entity for Ngāi Tūhoe.

[8] The second plaintiff/applicant is Tūhoe Trust Custodian Trustee Company Ltd (Custodian Company), which holds assets on behalf of TUT. The Custodian Company holds assets on behalf of TUT. In that role, the Custodian Company is the registered proprietor of seven parcels of land that together make up the forest known as Matahi Forest.

[9] Matahi Forest is approximately 2,100 hectares of land located along Matahi Valley Road, approximately 40 km from Whakatane, Bay of Plenty, and near the boundary of Te Urewera. The land has been planted, for some decades, in pine for forestry harvesting purposes. The estimated value of Matahi Forest in 2021 was
$9.41 million (plus GST).

[10] Prior to the settlement of historical Treaty of Waitangi claims between Tūhoe and the Crown in 2014, parts of Matahi Forest and surrounding land were periodically subject to occupation by members of Ngāi Tama Tuhirae (a hapū of Tūhoe) at various times. For instance, in 2007, Ngāi Tama Tuhirae sought to exclude the public from camping grounds and to exclude the then owner of Matahi Forest from entering…

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 Kruger v Mason

Details

AGLC: Kruger v Mason [2025] NZHC 263
Case: [2025] NZHC 263
Decision Date: 21 February 2025

CaseChat Overview and Summary

The High Court of New Zealand in Rotorua was presented with a case where Tūhoe sought to protect its rights over the Matahi Forest from alleged unauthorized occupation and forestry activities by various defendants. The plaintiffs, Tūhoe, claimed trespass to land, trespass to goods, and conversion against the defendants, seeking permanent injunctions and damages. Additionally, they sought an interlocutory injunction and orders for substituted service on a without notice basis. The defendants included Donna Mason, Ritchie Contracting Limited, Alan Maurice Ritchie, and persons unknown, who were alleged to be members of Ngāi Tama Tuhirae and/or Ōmuriwaka Marae. The court had to determine whether there was a serious question to be tried, whether the balance of convenience favored the grant of the injunction, and where the overall justice of the case lay.

The legal issues before the court were whether Tūhoe had established a serious question to be tried, whether the balance of convenience favored the granting of the interlocutory injunction, and whether the overall justice of the case required the injunction to be granted. The court considered the arguments presented by both parties, including the history of land occupation, the settlement between Tūhoe and the Crown, and the potential for ongoing tikanga-based rights and beneficial interests of the defendants.

The court found that there was a serious question to be tried, as the defendants might argue that they have tikanga-based rights to Matahi Forest. However, the court held that these arguments were not tenable, as the land returned as part of the settlement was not Māori customary land and was not subject to unregistered proprietary interests. The balance of convenience favored the plaintiffs, as the defendants intended to continue their activities on Matahi Forest despite Tūhoe's requests to cease. The overall justice of the case also favored the grant of an interlocutory injunction, as damages would not be an adequate remedy for Tūhoe if the injunction were refused.

The court granted the interlocutory injunction on a without notice basis but limited its duration and required an early opportunity for the respondents to be heard. The court also granted the orders for substituted service on the fourth defendants, allowing service by email, affixation of documents at the entrance to Matahi Forest, and publication on the Tūhoe Trust website. The court allocated a hearing date within the next 15 working days for the application for an interlocutory injunction to be heard on an on-notice basis.

Orders