Maori Trustee v Smith
[2019] NZHC 1220
•27 May 2019
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 1220
IN THE MATTER OF An application granting leave for arrest order to issue BETWEEN
MĀORI TRUSTEE
Entitled party
AND
BRUCE SMITH, RUBY SMITH, COLE SMITH, JARNA SMITH, KRESLEA SMITH
Liable parties
Hearing: 27 May 2019 Appearances:
G Shaw for the Māori Trustee
F Cleary for New Zealand Police (by teleconference)
K & J Smith (in person) for liable parties (by teleconference)Judgment:
27 May 2019
JUDGMENT OF GRICE J
(Application for a permanent injunction of the Maori Trustee to restrain New Zealand Police from enforcement of arrest and dispossession on
22 May 2019)
Introduction1
[1] This is an application by among others, Bruce, Ruby, Kreslea and Jarna Smith against whom arrest orders were due to issue today.
1 This decision was delivered orally on 27 May 2019 and, as indicated, the written form would be appropriately edited and footnoted before distribution.
MĀORI TRUSTEE v SMITH [2019] NZHC 1220 [27 May 2019]
[2] The applications reached me last week.2 While they do not conform with the rules and requirements of procedure, given the fact that the arrest orders were due to issue today I have treated the application as an urgent without notice application.3
[3] Mr Shaw for the Māori Trustee was served by the Smiths, before the matter was filed in the Court, and has made an appearance together with Ms Cleary for the police.
[4] Bruce Smith is the occupier of the homestead and land known as Waipaoa 5A2 block. The land is held in Ahu Whenua trust which the Māori Trustee administers. It is owned by various shareholders including the estate of his father, Francis Guthrie Smith. The estate beneficiaries include Bruce Smith and his brothers.
[5] Bruce Smith and his family were occupying and farming the land until the lease that Mr Smith was operating under expired in 2014.4 They continued in occupation despite orders of the Māori Land Court in 20165 which noted the lease had expired and set in place a process for the tendering of the lease. That decision also confirmed the appointment of Māori Trustee as administrator. Subsequently, in 2017 the Māori Land Court issued a permanent injunction ordering the Smiths to leave the property to allow the Māori Trustee to take over.6
[6] Today, Ms Kreslea and Jarna Smith appear by telephone for the Smith family as they did on 15 May 2019 when I dealt with the matters raised by them in previous memoranda sent to the court. I treated those as an application for stay of the issue of the arrest orders.7
[7] Ms Kreslea Smith says the Smith whanau now realise that they do need a lawyer for these matters as they have become complicated. Although I note that at
2 The application is dated 21 May 2019. It is headed “Application for a permanent injunction of the Maori Trustee to restrain New Zealand Police from enforcement of arrest and dispossession on 22 May 2019”. The Court advise it was technically received on 23 May 2019. The filing fee was paid on 24 May 2019.
3 No undertaking as to damages was filed.
4 The lessee was Digga-Bygum Ltd. At that time Bruce Smith was the major shareholder and sole director; Māori Trustee v Smith – Waipoa 5A2 (2016) 62 Tairawhiti MB 122 (62 TRW 122) at [4].
5 Māori Trustee v Smith – Waipoa 5A2, above n 4.
6 Māori Trustee v Smith – Waipoa 5A2 (2017) 72 Tairawhiti MB 57 (72 TRW 57).
7 Māori Trustee v Smith [2019] NZHC 1122.
Ms Kreslea and Jarna Smith’s last appearance by telephone for the hearing on 15 May 2019 and in their written application I am dealing with today they said they did not want a lawyer.8 However, they now say they have made contact with a lawyer and intend to seek legal advice.
Principles – interim injunctions
[8] The principles relating to interim injunctions are well known. As the Court of Appeal in New Zealand Tax Refunds v Brooks said:9
[12] The approach to an application for an interim injunction is well established. The applicant must first establish that there is a serious question to be tried or put another way that the claim is not vexatious or frivolous. Next the balance of convenience must be considered. This requires consideration of the impact on the parties of the granting of and the refusal to grant an order. Finally an assessment of the overall justice of the position is required as a check.10
[9] The first thing I must consider is whether on the material before me there is a serious question to be tried by this Court. I will briefly mention the background although it is set out extensively in earlier judgments.11
Background
[10] In summary, Bruce Smith, together with his family, is not willing to leave the land. He says that they have a right to stay and farm the land despite the Māori Land Court judgments and orders. Mr Bruce Smith says his rights come from his father, Francis Guthrie Smith, who owned the majority of the shares in Waipaoa 5A2 as well as all the land in the neighbouring block.
[11] I note that Mr Smith does not claim to own the shares himself but accepts the estate of F G Smith owns them. The beneficiaries of that estate are Bruce Smith and his brothers. There is a family dispute between them about who should be farming and occupying the land. In addition, other shareholders, have 40 per cent interest in
8 At [3].
9 NZ Tax Refunds v Brooks Homes Ltd [2013] NZCA 90, (2013) 13 TCLR 531.
10 See, for example, Roseneath Holdings Ltd v Grieve [2004] 2 NZLR 168 (CA) at [35]–[37].
11 Māori Trustee v Smith [2018] NZHC 2898; Māori Trustee v Smith [2019] NZHC 322; Māori Trustee v Smith, above n 7; Māori Trustee v Smith – Waipoa 5A2, above n 6; Māori Trustee v Smith
– Waipoa 5A2, above n 4.
the Waipaoa 5A2 land. Importantly, the Māori Trustee has been appointed as administrator of the land in the trust. The Māori Land Court has refused to set that administration aside.12
Serious question to be tried
[12] The grounds advanced in support of the application today are largely the same as those dealt with in the stay application.13 They allege in the application dated 21 May 2019:
(a)Deceit, described as “confusion with a pinch of deceit”. This is based on the denial of the rights of Bruce Smith to the land and the assets which he had been farming. The basis of these claims predate the Māori Land Court hearings and orders.
(b)That the Māori Trustee should have called a meeting of owners before it took steps to take back the possession of the land.
(c)That the Māori Trustee should not have appointed the police to take possession of the land.
(d)That the Māori Trustee has breached its duty of care in administering the trust and the land.
(e)The detrimental impact of their dispossession on the Smith whanau, the land, as well as the game on the land and the livestock.
[13] The Smiths say the Māori Trustee has no lawful authority to enforce the right of possession.
[14] Ms Kreslea Smith submitted that the family had been defamed by the allegations made by the Māori Trustee. She particularly wanted to emphasise that her father Bruce Smith is a good farmer and has farmed the land well. She said that the
12 Māori Trustee v Smith – Waipoa 5A2, above n 4.
13 Māori Trustee v Smith, above n 7.
pasture which he had farmed on this block was the best pasture on the farm. In support of that submission Ms Kreslea Smith referred me to a reference for Bruce Smith concerning his farming ability.14 Ms Kreslea Smith noted that the reference referred to Bruce being a “reliable, honest and conscientious person” and it said he appeared to get on very well with his fellow farming and agriculture peers as well as the staff he employed. It referred as well to Mr Smith’s extensive farming, bush and quarrying experience.
[15] Ms Kreslea Smith further says that the matters in dispute are family matters. She says that Bruce Smith has undertaken the role of looking after the land for the family and he has never denied the family access. She says while there are internal family disputes over the land Bruce Smith has always looked after the family, intervened when there have been problems and paid out of his own pocket for events such as family funerals.
Analysis
[16] The difficulty with the matters raised today is that the issues raised have already been dealt with. The substantive issues about which the Smiths are concerned are matters which were properly before and dealt with by the Māori Land Court.
[17] I do not consider the application today or the proceedings raise a serious question to be tried. First, because the substantive matters raised have been dealt with in the Māori Land Court and secondly, while Bruce Smith lodged appeals from the Māori Land Court they were not pursued and had been dismissed.15 Finally, the matters which were raised have been dealt with in the earlier judgments of this Court relating to first the issue of the arrest orders and secondly, the stay application.
14 Reference from Heron & Co (Wairoa) Ltd, 13 March 2008: “We have found Bruce to be a reliable, honest and conscientious person and he appears to get on very well with his fellow farming and agricultural peers as well as the staff he employs”.
15 Smith v Māori Trustee – Waipaoa 5A2 [2018] Māori Appellate Court MB 45 (2018 APPEAL 45);
Smith v Māori Trustee – Waipoa 5A2 [2017] Māori Appellate Court MB 143 (2017 APPEAL 143).
[18] Mr Tupara appeared for Ruby Smith when the application for leave to issue arrest orders was dealt with.16 He advanced a number of matters on behalf of Ruby Smith which were dealt with in that judgment.17
[19] Therefore, I do not consider there is a serious question to be tried in these proceedings.
Attempts at resolution
[20] However, I also note that Ms Kreslea Smith sought time to brief counsel and secondly, to enable discussions or negotiations under the supervision of this court.
[21] Ms Kreslea Smith noted that the Māori Trustee should have approached the Smith whānau following the decision to refuse the application for stay of the issue of the arrest orders. When I made the orders staying the issue of the arrest orders until today, I said that the time allowed would allow the Smiths either to negotiate with the Māori Trustee or to arrange to move out.
[22] That was not a direction that the Māori Trustee approach the Smiths and negotiate with them. It was merely a suggestion.
[23] I also note that Mr Tupara who appeared for Ruby in the earlier hearing in February indicated that he was hoping to promote some negotiations by bringing in a facilitator who might assist moving this matter to an amicable resolution. That does not appear to have occurred.
Other matters raised
[24] I also note that Ms Kreslea Smith raised a number of matters including an issue which is outside these proceedings relating to recovery of some other land that Ms Kreslea Smith and Ms Jarna Smith apparently occupied. She said arrest orders have issued in execution of those matters. However, those orders are not relevant to today’s application.
16 Māori Trustee v Smith, above n 11.
17 At [23]–[39].
Role of police in existing arrest warrants
[25] I also note that the issue of the role of the police was raised. The police are not the agents of the Māori Trustee. The police have been undertaking their role under the direction or assisting the Sheriff of this court.18 This is noted in the form of the arrest warrant orders issued by me.19
[26] I note, for completeness, that the orders made by Judge Doogan prohibiting Bruce Smith and the family from entering or occupying Waipaoa 5A2 were made on 16 November 2017. Those orders were transmitted to this court following non- compliance by the Smiths. The injunction order was transmitted to this Court by the Deputy Chief Māori Land Court Judge on 2 March 2018 under s 85 of the Tu Ture Whenua Māori Act 1993. This meant that the injunction was deemed to have been issued by the High Court and could be enforced by the High Court as if the injunction had been issued by it.
[27] Arrest orders are a form of judgment enforcement available to the High Court but leave is required from the court before an order may be issued.20 In an application of this nature, it was for the applicant, the Māori Trustee, to establish that:21
(a)The terms of the original order were clear and unambiguous.
(b)The parties sought to be arrested had been served with the original court order.
(c)Those parties had failed to comply with the order in a manner which showed wilful and inexcusable disregard of the order.
[28] I dealt with all of those matters in earlier judgments and I was satisfied of all those points.22
18 Senior Courts Act 2016, ss 36, 38 and 39.
19 Māori Trustee v Smith, above n 11, at [54(b)]; Māori Trustee v Smith, above n 7, at [50(b)].
20 High Court Rules 2016, rr 17.3 and 17.9(1).
21 Rule 17.84; Horowhenua 11 (Lake) Part Reservation Trust v Taueki [2017] NZHC 4 at [3] citing
Soljan v Spencer [1984] 1 NZLR 618 (CA) with approval.
22 Māori Trustee v Smith, above n 11; Māori Trustee v Smith, above n 7.
Balance of convenience
[29] I turn back to the application for injunction. As I have said, I am not satisfied that there is a serious question to be tried. Nevertheless, I go on to consider the balance of convenience. I consider, the following factors are important in dealing with this application:
(a)The substantial delay. The parties have had plenty of notice about, first the making of the injunction orders and secondly, the enforcement steps taken by the Māori Trustee. I have delayed the issue of the arrest warrants to enable the Smith whānau to make such arrangements as appropriate for either an orderly withdrawal from the land and buildings and for something else to be worked out. That has not occurred.
(b)There are other owners or other people with an interest in this land. Delay caused has been to their detriment preventing the land from being administered in terms of the orders of the Māori Land Court.
[30] Standing back and looking at the situation as a whole I am not satisfied that grounds have been made out for an interim injunction preventing the issue of the arrest orders.
Legal advice and arrest order
[31] Nevertheless, as Ms Kreslea Smith has indicated that legal advice may be sought it may be that will lead to some movement in attempting to resolve this matter.
[32] I have indicated earlier the real issue of contention here relates to the administration of the land. These are matters dealt with by and are for the Māori Land Court. The Smiths’ suggestion that they are seeking legal advice in relation to these matters is sensible. I consider the Smiths should be given a few days to make an orderly exit from the premises.
[33] Therefore, I propose further staying the issue of the arrest warrants or delaying them until next Tuesday, 4 June 2019, to enable that to occur.23
[34] The arrest warrants will not issue until 4 June 2019. The form of the arrest orders is set out in my judgment of 15 May 2019 and will apply with appropriate alterations for the issue date.24
Appeal
[35] An appeal is available from this decision and the other decisions of this Court. It will be up to the Smiths to take such advice as appropriate on this and the correct processes.
Grice J
23 The Tuedsay following Queen’s Birthday holiday on Monday 3 June 2019.
24 Māori Trustee v Smith, above n 7, at [54] and [55].
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