Maori Trustee v Smith - [2019] NZHC 1701

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2018-416-3

[2019] NZHC 1701

BETWEEN
MĀORI TRUSTEE

Entitled party

AND

BRUCE SMITH, RUBY SMITH, COLE SMITH, JARNA SMITH, KRESLEA SMITH

Liable parties

Hearing: 18 July 2019

Appearances:

F Cleary and C Stuart for New Zealand Police G Shaw for Māori Trustee

L Lafferty for Ruby Smith, Jarna Smith and Kreslea Smith H Tunstall for Bruce Smith

Judgment:

18 July 2019

JUDGMENT OF GRICE J

[1] This is a hearing following the arrest of Bruce Smith, Ruby Smith, Jarna Smith and Kreslea Smith under the terms of an arrest order issued through this Court.1

[2] The background is that in October 2016, the Māori Land Court determined that the Māori Trustee was entitled to vacant possession of Waipaoa 5A2 as the lease then held by Digga-Bygum Ltd was at an end.2 On 16 November 2017 the Māori Land Court issued an injunction prohibiting Bruce Smith and his whanāu from entering or occupying any part of Waipaoa 5A2.3 The injunction orders were duly served on 27 November 2017.

1      This decision was delivered orally on 18 July 2019 and has been appropriately edited and footnoted before distribution.
2      Māori Trustee v Smith – Waipoa 5A2 (2016) 62 Tairawhiti MB 122 (62 TRW 122).
3      Māori Trustee v Smith – Waipoa 5A2 (2017) 72 Tairawhiti MB 57 (72 TRW 57).
MĀORI TRUSTEE v BRUCE SMITH, RUBY SMITH, COLE SMITH, JARNA SMITH, KRESLEA SMITH [2019] NZHC 1701 [18 July 2019]

[3] Appeals were filed against the Māori Land Court decision ending the lease and issuing the injunction, but those appeals were dismissed as Mr Smith did not progress them.4 This Court cannot reconsider the substance or the merits of the original injunction or lease decisions today, except insofar as they affect the issue of the arrest orders or indicate they should not proceed.

[4] The injunction was transmitted to this Court by the Deputy Chief Māori Land Court Judge on 2 March 2018. It was deemed therefore to have been issued by this court for the purposes of enforcement.5 A possession order for the land was issued on 12 April 2018.

[5] Ruby, Jarna, Kreslea and Bruce Smith now appear following execution of the arrest orders issued for non-compliance.

[6] It has been nearly three years from the date the Māori Land Court determined the Trustee was entitled to vacant possession. It has been nearly two years since the injunction was issued. You have all refused to follow the decisions or obey the orders of the Māori Land Court throughout that period. In addition, the matter has come before this Court on a number of occasions.

[7] On 14 February 2019 the application for arrest orders came before me. I gave you until the 25 March 2019 to comply with the injunction or the arrest orders sought by the Māori Trustee would be issued.6 A second reprieve was given when the issue was further stayed until 14…

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 Maori Trustee v Smith

Details

AGLC: Maori Trustee v Smith [2019] NZHC 1701
Case: [2019] NZHC 1701
Decision Date: 18 July 2019

CaseChat Overview and Summary

This hearing before Grice J arose from the non-compliance with an injunction issued by the Māori Land Court, prohibiting the defendants from entering or occupying Waipaoa 5A2. The Māori Trustee, as the entitled party, sought the arrest of the defendants, Bruce Smith, Ruby Smith, Jarna Smith, and Kreslea Smith, for their failure to comply with the injunction. The primary legal issue was whether a further reprieve from the arrest orders should be granted, considering the defendants' persistent non-compliance with the court's decisions.

The court considered the history of the case, including multiple opportunities given to the defendants to comply with the injunction and vacate the property. The court noted that the defendants had refused to follow the decisions or obey the orders of the Māori Land Court throughout the nearly three years since the initial determination and nearly two years since the injunction was issued. The court emphasised that the defendants were aware of the avenues available to them in the Māori Land Court but had chosen not to pursue them. Grice J concluded that a further stay should not be granted, given the circumstances.

Grice J decided to release the defendants at large with the clear understanding that they would not return to the property and face the consequences if they did. The court warned the defendants that if they breached the injunction, the Māori Trustee might apply for further arrest orders, potentially leading to contempt of court proceedings and imprisonment of up to three months. Grice J advised the defendants to seek legal advice, stating this was their last warning.

The final orders included releasing the defendants at large, with the clear understanding that they would not return to the property, and refusal of the application for suppression of the defendants' names due to the matter already being at large in the media.

Orders