Leef v Bidois - [2017] NZHC 440

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2015-470-151 [2017] NZHC 440

BETWEEN
RAPOTA (ROBERT LEEF (HAPŪ OF

NGᾹTI TAKA) Plaintiff

AND

COLIN BIDOIS (HAPŪ OF PIRIRAKAU) AND ORS Defendants

Hearing: 1 March 2017 (by telephone)

Counsel:

S P Bryers for Mr Leef (Ngati Taka) M J Sharp for Mr Bidois (Pirirakau)

No appearance by or on behalf of other defendants

Judgment:

15 March 2017

JUDGMENT (NO. 2) OF HEATH J

This judgment was delivered by me on 15 March 2017 at 2.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Martelli McKegg, Auckland Holland Beckett, Tauranga Counsel:
S P Bryers, Auckland

LEEF v BIDOIS AND ORS [2017] NZHC 440 [15 March 2017]

Judgment of 25 January 2017: Remaining issues

[1] On 25 January 2017,1 I gave judgment on a claim by Mr Leef, as a mandated representative of Ngāti Taka, against Mr Bidois, as a mandated representative of Pirirakau. As in my earlier judgment, I shall refer to the parties as Ngāti Taka and Pirirakau respectively.

[2] I found in favour of Ngāti Taka, and indicated that I was minded to make a series of declarations to give effect to those findings. I reserved for further submissions the form in which the declarations should be sealed. I said:2

[83] For those reasons, I make the following orders:

(a) I declare that the award resolves finally and in a binding way disputes about which hapū held mana whenua over the relevant lands.

(b) I declare that the award does not resolve finally and in a binding way the question whether the proceeds of settlement presumptively receivable by Pirirakau should be held by Pirirakau alone or be the subject of some adjustment as between Pirirakau and Ngāti Taka.

(c) I declare that the Mana Whenua Agreement remains in force and the parties are bound by cl 6.5 to resolve remaining disputes using the process set out in cls 6.10–6.15. That process may be invoked by Ngāti Taka to deal solely with the question whether any adjustment should be made, of the type to which cl 6.14 refers.

[84] I leave the precise terms of my proposed declarations to be finalised after counsel have had the opportunity to consider this judgment. Counsel shall confer and finalise the terms of an order to be sealed to reflect the declarations I have made. If agreement cannot be reached, I shall hear further from counsel at a telephone conference to be convened at their request. The Registrar shall not seal any order pending receipt of a draft approved by both counsel, or further order of the Court.

[3] I reserved questions of costs. I said:3

[81] I reserve questions of costs. Presently, given the nature of the dispute, the way in which the issue arose and the need for the Court to provide guidance as to the path that the parties need to take to resolve outstanding issues, I am inclined to let costs lie where they…

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 Leef v Bidois

Details

AGLC: Leef v Bidois [2017] NZHC 440
Case: [2017] NZHC 440
Decision Date: 15 March 2017

CaseChat Overview and Summary

The High Court of New Zealand, Tauranga Registry, was presented with a case between Rapota (Robert Leef, representing the hapū of Ngāti Taka) and Colin Bidois (representing the hapū of Pirirakau) and others, concerning the interpretation and application of a settlement agreement known as the Mana Whenua Agreement. The dispute arose from the interpretation of the agreement regarding the allocation of settlement proceeds and the final resolution of mana whenua (authority over ancestral lands) disputes. The court was required to decide on the form of declarations to be made in accordance with its earlier judgment and the allocation of costs between the parties. The central issue was whether the court should adopt more expansive declarations as proposed by the plaintiff's counsel or stick to the original wording as suggested by the defendant's counsel. The court also needed to determine whether to make an order regarding costs, considering the parties' failure to collaborate and the procedural issues that arose during the trial.

The court decided that the declarations should be made in the form previously outlined in its earlier judgment. The judge was not persuaded that more expansive declarations were necessary, as the formal orders were designed to reflect the findings made in the judgment. The judge also concluded that no order for costs should be made. While the plaintiff's counsel initially suggested that costs be determined to address all cost questions as part of the appeal, the judge did not find merit in penalising the defendant for its approach to the issues. The judge found it reasonable for the plaintiff to propose broader declarations but believed it was not the principal approach. The court decided that costs should lie where they fall, consistent with the collaborative approach expected by the Mana Whenua Agreement.

The court made two primary orders: firstly, declarations were made in the form set out in the earlier judgment; secondly, costs were to lie where they fell. The judge thanked counsel for their assistance and delivered the judgment on 15 March 2017.

Orders