Kusabs v Staite - [2018] NZCA 106

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA652/2017
[2018] NZCA 106

BETWEEN

ANDREW MARUTUEHU KUSABS AND ORS AS TRUSTEES OF THE TUMUNUI LANDS TRUST
First Applicants

ANDREW MARUTUEHU KUSABS AND ORS RETIRED AS TRUSTEES OF THE TUMUNUI LANDS TRUST
Second Applicants

AND

PETER DANIEL STAITE AND ORS AS TRUSTEES AND AS REPRESENTATIVES OF THE BENEFICIARIES OF THE WHAOA NO 1 LANDS TRUST
First Respondents

PETER DANIEL STAITE AND ORS AS TRUSTEES AND BENEFICIARIES OF THE NGĀTI WHAOA MĀORI RESERVATION
Second Respondents

EDIE TE HUNAPO MOKE AND PIPI PHEOBE MOKE AS PERSONAL REPRESENTATIVES OF THE ESTATE OF EDWARD PAURINI MOKE, AS A FORMER TRUSTEE OF THE WHAOA NO 1 LANDS AND NGĀTI WHAOA MĀORI RESERVATION
Third Respondents

Hearing:	19 February 2018
Court:	Asher, Brown and Clifford JJ
Counsel:	M S McKechnie and AFS Vane for First and Second Applicants J B Orpin-Dowell and J P Koning for First and Second Respondents No appearance for Third Respondents
Judgment:	20 April 2018 at 12.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe first and second respondents must pay the applicants one set of costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

The first respondents, the trustees of the Whaoa No 1 Lands Trust (Whaoa), have for some time leased land to the applicants, the trustees of the Tumunui Lands Trust (Tumunui). That leased land is adjacent to land owned by the second respondents, the trustees of the Ngāti Whaoa Māori Reservation (the Reservation Trust).
In March 2017 Heath J gave judgment on a dispute involving, amongst other things, the terms of the lease between Whaoa and Tumunui.[1] On 19 October 2017 Tumunui filed a notice of appeal against that judgment (the first judgment), and two subsequent decisions of Heath J:
(a)of 27 July 2017 (the second judgment), correcting under the slip rule an obvious error relating to the date on which the lease from Whaoa to Tumunui began;[2] and
(b)of 22 September 2017 (the third judgment) granting a recall application by Tumunui.[3]
[1]Staite v Kusabs [2017] NZHC 416. Those proceedings also concern an issue between Tumunui and Whaoa involving the Reservation Trust. That aspect of the proceedings is not relevant here.
[2]Staite v Kusabs [2017] NZHC 1758.
[3]Staite v Kusabs [2017] NZHC 2299.
The Deputy Registrar rejected that notice of appeal. He said Tumunui could not appeal more than one judgment in a single notice of appeal. Moreover, Tumunui’s appeals against the first and second judgments were by then out of time.
Tumunui reviewed that decision. Miller J was satisfied that a single notice of appeal might, if nothing turned on it, address more than one decision. But here, by the time Tumunui’s notice of appeal was filed on 17 October, it appeared to be out of time as regards the first judgment. Moreover, the fact…

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 Kusabs v Staite

Details

AGLC: Kusabs v Staite [2018] NZCA 106
Case: [2018] NZCA 106
Decision Date: 20 April 2018 at 12.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with an application from the applicants, Andrew Marutuehu Kusabs and others as trustees of the Tumunui Lands Trust, seeking an extension of time to appeal a judgment issued by Heath J. The respondents were the trustees and beneficiaries of the Whaoa No 1 Lands Trust and the Ngāti Whaoa Māori Reservation. The applicants had appealed the first, second, and third judgments of Heath J, which were related to a dispute over the terms of a lease agreement between the applicants and the respondents. The applicants sought leave to appeal the first judgment, which had ordered the rectification of the lease agreement, as they believed the order was not justified.

The legal issues before the Court were whether the applicants' appeal against the first judgment was filed within the required time frame, and whether the Court should grant the applicants an extension of time to appeal if the initial appeal was out of time. The Court considered the principles of the slip rule and the circumstances under which an extension of time to appeal may be granted, as outlined in Almond v Read and Edel Metals Group Ltd v Geier Ltd.

The Court found that the applicants' notice of appeal was filed within a reasonable time, and that the appeal should proceed. The Court was satisfied that the applicants' intention to appeal had been made clear and that there was no significant prejudice to the respondents if the appeal proceeded. The Court also noted that the complex nature of the dispute and the issues surrounding the appropriateness of the rectification order justified allowing the applicants to appeal the first judgment. The Court granted the application for an extension of time to appeal and ordered the respondents to pay the applicants' costs for the standard application on a band A basis and usual disbursements.

The Court of Appeal of New Zealand granted the applicants' application for an extension of time to appeal the first judgment, and ordered the respondents to pay the applicants' costs for the standard application on a band A basis and usual disbursements. The Court found that the applicants' notice of appeal was filed within a reasonable time, and that the appeal should proceed. The Court considered the principles of the slip rule and the circumstances under which an extension of time to appeal may be granted, and found that the applicants' intention to appeal had been made clear and that there was no significant prejudice to the respondents if the appeal proceeded. The Court also noted that the complex nature of the dispute and the issues surrounding the appropriateness of the rectification order justified allowing the applicants to appeal the first judgment.

Orders