Māori Trustee v Hill - [2017] NZHC 2377

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIŌEA ROHE

CIV-2016-454-85 [2017] NZHC 2377

UNDER the Insolvency Act 2006

IN THE MATTER

of an application by

Fredrick Piripi Kingi Hill to set aside a bankruptcy notice

BETWEEN

MĀORI TRUSTEE
Judgment creditor

AND

FREDRICK PIRIPI KINGI HILL Judgment debtor

Hearing: 7 April 2017

Appearances:

C M Reuhman for the judgment creditor
Mr Hill in person

Judgment:

29 September 2017

JUDGMENT OF ASSOCIATE JUDGE SMITH

Introduction

[1] Fredrick Hill (Mr Hill) applies to set aside a bankruptcy notice issued by the Māori Trustee (the Trustee) on 31 August 2016 (the bankruptcy notice). The bankruptcy notice required Mr Hill to pay the Trustee the sum of $87,423.33 together with $796 costs, being the amount of a judgment the Trustee obtained against Mr Hill in the District Court at Palmerston North on 23 February 2015.

Background

[2] The Trustee is the registered proprietor of certain Māori freehold land at

Mangatainoka near Pahiatua (the land), as responsible trustee of an ahu whenua trust

MĀORI TRUSTEE v HILL [2017] NZHC 2377 [29 September 2017]

under pt 12 of the Te Ture Whenua Māori Act 1993 (the Act).1 The Trustee leased the land to Mr Hill for a nine year term commencing on 11 December 2006 (the lease).

[3] The Trustee alleged that Mr Hill breached the terms of the lease. Following a defended hearing of the Trustee's claim, Judge Ross ordered that the lease be cancelled and found Mr Hill liable for damages of $87,423.33 together with costs.2
An order was made granting possession of the land to the Trustee.

[4] Mr Hill filed an appeal to the High Court, which was dismissed by Dobson J.3 The Judge also declined Mr Hill's application for leave to appeal to the Court of Appeal.4

[5] On 9 August 2016 the Court of Appeal dismissed Mr Hill's application for a stay of proceedings.5 The Court of Appeal also dismissed an application by Mr Hill for leave to appeal to that Court.6

[6] On 31 August 2016 the Trustee issued a bankruptcy notice claiming the

$87,423.33 judgment debt, along with $796 costs. Mr Hill was served with the bankruptcy notice on 29 October 2016. On 11 November 2016 he filed an interlocutory application, inter alia asking the Court to refuse or dismiss the bankruptcy notice.

[7] On 25 November 2016 the Trustee filed a notice of opposition to Mr Hill’s

interlocutory application.

[8] On 1 December 2016 the Trustee also applied for an order adjudicating

Mr Hill bankrupt. The Trustee claimed the amount set out in the bankruptcy notice,

1 The trust was originally established under s 438(1) of the Māori Affairs Act 1953. Under s 354 of the Act, trusts constituted under s 438(1) of the 1953 Act which were still in existence when the Act came into force continued to exist as ahu whenua trusts, to which pt 12 of the Act applied.
2 Māori Trustee v Hill DC…

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.

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Details

Case: [2017] NZHC 2377
Decision Date: 29 September 2017

CaseChat Overview and Summary

In the case of Māori Trustee v Hill, the High Court considered an application by Fredrick Piripi Kingi Hill to set aside a bankruptcy notice issued by the Māori Trustee, requiring him to pay a judgment debt of $87,423.33, plus costs. The legal issues included whether Mr Hill was sued in the correct capacity, if the judgment debt had been remitted, and if there was a genuine cross-claim. The Court dismissed the application to set aside the bankruptcy notice, finding that Mr Hill had only one legal capacity, the judgment debt had not been remitted, and his claims did not constitute a genuine cross-claim. The Court allowed the Trustee to seek costs, potentially including increased or indemnity costs due to Mr Hill's repetition of previously rejected arguments.

Orders