Māori Trustee v Smith - [2019] NZHC 322

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 322

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: 14 February 2019

Appearances:

G Shaw for the Māori Trustee B Tūpara for Ruby Smith

Judgment:

14 February 2019

ORAL JUDGMENT OF GRICE J

[1] On 16 November 2016 the Māori Land Court made several orders. One of those orders was an injunction against the liable parties. The injunction was recorded in the reasons judgment issued on 17 November 2016 in the following terms: 1
[84] …

5.Pursuant to s 19 of the Tu Ture Whenua Māori Act 1993 and until further order of the Court, there is an order granting a permanent injunction requiring Bruce Smith, his wife Ruby Smith and their children Cole Smith, Jarna Smith and Kreslea Smith, and any of their agents, contractors or invitees to, within 7 days from the date of service of this order, remove themselves and their possessions, chattels and materials from or under the Waipaoa 5A2 block and including any livestock and prohibiting Bruce Smith, his wife Ruby

1 Te Ture Whenua Māori Act 1993, s 19(1)(a); Māori Trustee v Smith – Waipoa 5A2 (2017) 72 Tairawhiti MB 57 (72 TRW 57) [Injunction decision].

MĀORI TRUSTEE v SMITH [2019] NZHC 322 [14 February 2019]

Smith and their children, Cole Smith, Jarna Smith and Kreslea Smith and any of their agents, contractors or invitees from:

a)Entering or occupying any part of Waipaoa 5A2, including the homestead and other buildings on Waipaoa 5A2;

b)Preventing, obstructing, impeding or otherwise hindering the Māori Trustee, his employees, agents, contractors, lessees and invitees from entering on, occupying or leaving Waipaoa 5A2 including passage over the Ngapakira bridge.

6.These orders are to take effect on and from seven days of the date of service of these orders on any of the following, Bruce Smith, his wife Ruby Smith and their children Cole Smith, Jarna Smith and Kreslea Smith. Such service will be effected by way of email to the email addresses recorded in the application, with respect to the effected parties, with a further copy to be sent to the physical address of the persons affected, being 14 Seymour Road, Inner Kaiti, Gisborne 4010.

[2]The liable persons, the Smith whanāu, have not complied with the injunction.

[3] The Māori Trustee initially made an application to this Court on a without notice basis for leave to issue arrest warrants against the liable parties enforcing the terms of the injunction order; and following the refusal of that application made an on-notice application for leave to issue the arrest orders.2

Background

[4] The application before me today is for leave to issue those warrants of arrest following service of the applications. The Smith whanāu have been served with the applications including notice of the hearing date…

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 Māori Trustee v Smith

Details

AGLC: Māori Trustee v Smith [2019] NZHC 322
Case: [2019] NZHC 322
Decision Date: 14 February 2019

CaseChat Overview and Summary

The case of Māori Trustee v Smith involved an application by the Māori Trustee for leave to issue arrest orders against the Smith family, who had failed to vacate land in Waipaoa 5A2 following an injunction by the Māori Land Court. The Smith family, consisting of Bruce Smith, his wife Ruby, and their three children, had been ordered to vacate the land, but they had disregarded the order, leading to the Māori Trustee's application to the High Court. The legal issues before the court were whether the terms of the original court order were clear, whether the liable parties had been served with the order, and whether their failure to comply showed wilful and inexcusable disregard. The court found that the terms of the order were clear, the liable parties had been served, and their non-compliance demonstrated wilful and inexcusable disregard. The court granted leave for the arrest orders to issue on 25 March 2019, with a three-day notice to be given to the Smiths' counsel. The application concerning Cole Smith was adjourned to 27 March 2019. No costs were awarded as neither party sought them.

Orders