Maori Trustee v Smith - [2019] NZHC 1122

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 1122

IN THE MATTER OF An application granting leave for arrest order to issue

BETWEEN

MAORI TRUSTEE

Entitled party

AND

BRUCE SMITH, RUBY SMITH,

COLE SMITH, JARNA SMITH AND KRESLEA SMITH

Liable parties

Hearing: 15 May 2019

Appearances:

G Shaw for Maori Trustee

J Smith and K Smith in person for liable parties

Judgment:

15 May 2019

ORAL JUDGMENT OF GRICE J

(Application for stay of issue of arrest orders)

[1] This is an application for a stay of enforcement.1 It relates to the granting of leave to issue arrest orders made on 16 April 2019 against the liable parties (excluding Cole Smith).2 The judgment of 16 April 2019 followed an earlier judgment of 14 February 2019.3 Before that I had refused to deal with the application for issue of arrest orders then filed on a without notice basis.4 I directed that the liable parties be served with the application before I would deal with it.

1      This judgment was given orally due to time constraints. The written judgment has been edited for grammar and flow.
2      Māori Trustee v Smith [2019] NZHC 1022.
3      Māori Trustee v Smith [2019] NZHC 322.
4      Māori Trustee v Smith [2018] NZHC 2898.

MAORI TRUSTEE v SMITH [2019] NZHC 1122 [15 May 2019]

[2] Two of the liable parties, Kreslea and Jarna Smith appeared today by teleconference. They represent the liable parties, the Smith whanau, and made submissions in support of the stay application.

[3] One of the liable parties, Ruby Smith, who is Jarna and Kreslea’s mother, had earlier briefed counsel, Mr Tūpara, to appear at the hearing on 14 February 2019. However, he has not been involved since then. I am advised by Kreslea Smith that the Smith whānau have had a number of lawyers involved in these matters but have not been satisfied by their performance. Therefore, they wish to represent themselves; hence Kreslea and Jarna Smith are dealing with the matter today.

[4] The liable parties had filed a number of documents in the High Court. These documents were called “memoranda” but purported to seek various relief from the Court including a permanent injunction. The documents did not comply with the High Court Rules 2016. However, as I noted in my minute of 10 May 2019,5 after considering the documents I proposed to treat the matter as if the liable parties were making an application for stay of enforcement of the issue of the arrest orders. I therefore set it down for hearing today and deferred the issue of the orders from 14 May 2019 to 16 May 2019. Subsequently, the liable parties filed a document entitled “memorandum for filing an application for stay of enforcement for various orders” on 14 May 2019. I deal with the contents of that document that later in my decision.

[5] The leave granted to issue the arrest orders on…

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 1122
Case: [2019] NZHC 1122
Decision Date: 15 May 2019

CaseChat Overview and Summary

This case involves an application for a stay of enforcement in relation to arrest orders made against Bruce Smith, Ruby Smith, Cole Smith, Jarna Smith, and Kreslea Smith (the liable parties) by the Māori Trustee. The liable parties sought a stay of the issue of the arrest orders, which would enforce an injunction prohibiting them from entering or occupying the Waipaoa 5A2 land. The High Court was required to determine whether a substantial miscarriage of justice would likely result if the arrest orders were enforced. The court considered the Smith whānau's claims of conflicts of interest, equitable interests, and the alleged inappropriate use of police and force in removing them from their home. The court found that the issues raised by the liable parties had already been addressed in previous judgments and that a substantial miscarriage of justice was not likely to result from the enforcement of the arrest orders. The application for a stay of enforcement was dismissed, and the issue of the arrest orders was postponed until 27 May 2019, to allow the liable parties time to resolve matters with the Māori Trustee or make arrangements to leave the property.

Orders