Maori Trustee v Smith - [2019] NZHC 1220

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…

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 1220
Case: [2019] NZHC 1220
Decision Date: 27 May 2019

CaseChat Overview and Summary

The case of Maori Trustee v Smith involved an application by Bruce, Ruby, Kreslea, and Jarna Smith against whom arrest orders were due to issue. The applicants sought to restrain the New Zealand Police from enforcing the arrest and dispossession orders. The matter was heard in the High Court of New Zealand at Gisborne Registry. The application was treated as an urgent without notice application, given the imminent issuance of the arrest orders.

The legal issues the court needed to decide included whether there was a serious question to be tried, whether the balance of convenience favoured granting the injunction, and if the overall justice of the position warranted an interim injunction. The background involved Bruce Smith, the occupier of Waipaoa 5A2 block, and his family, who continued to occupy the land despite the lease expiring in 2014. The Māori Land Court had issued orders for the Smiths to leave the property, which they had ignored, leading to the current application.

The court found that the substantive issues had already been dealt with by the Māori Land Court, and the Smiths' claims did not raise a serious question to be tried. Despite this, the court considered the balance of convenience and noted the substantial delay and the impact on other stakeholders. The court decided to further stay the issue of the arrest warrants until 4 June 2019, allowing the Smiths to make an orderly exit from the premises. The decision left the door open for the Smiths to seek legal advice and potentially resolve the matter amicably.

Orders