Māori Trustee v Smith - [2018] NZHC 2898

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

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

CIV-2018-416-3

[2018] NZHC 2898

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 KRESLEA SMITH

Liable parties

On the papers

Counsel: G Shaw for the Maori Trustee

Judgment:

8 November 2018

(INTERIM) JUDGMENT OF GRICE J

(Without notice applications for arrest warrants)

[1] On 16 November 2016, a matter was heard before the Maori Land Court which related to property described as Waipaoa 5A2 in Wairoa. On that day, the Judge made several orders. One of those orders was an injunction against the liable parties – although the reasons for this decision were not released until 17 November 2017.1 As will be apparent, the liable parties have not complied with the injunction. These events have resulted in the present without notice application for the enforcement of the injunction through the mechanism of an arrest order.

[2] As this minute will make clear, I am of the view it is inappropriate for this matter to proceed on a without notice basis.

1 Te Ture Whenua Maori Act 1993, s 19(1)(a); Māori Trustee v Smith – Waipoa 5A2 (2017) 72 Tairawhiti MB 57 (72 TRW 57).
MAORI TRUSTEE v BRUCE SMITH, RUBY SMITH, COLE SMITH, JARNA SMITH KRESLEA SMITH [2018] NZHC 2898 [8 November 2018]

Background

[3] Waipaoa 5A2 is administered by the Māori Trustee on behalf of over 500 beneficial owners. Bruce Smith, one of the liable parties, has a small shareholding in the trust in his own name. He is also a beneficiary in the estate of Francis Guthrie Smith, a major shareholder of Waipaoa 5A2 and an advisory trustee of Waipaoa 5A2 Trust.

[4] Until 18 October 2016 Bruce Smith leased Waipaoa 5A2 through an estate owned company called Digga-Bygum Limited. On 18 October 2016 the Māori Land Court determined that the lease of Waipaoa 5A2 had come to an end and that the Māori Trustee was entitled to vacant possession of the land.2 The court granted the Māori Trustee an order for recovery of the land.

[5] Bruce Smith and his family members, who are named as the liable parties, refused to allow the Māori Trustee vacant possession of the land.

[6] On the 16 November 2017 the Māori Land Court issued an injunction prohibiting Bruce Smith, his wife and adult children from entering or occupying any part of Waipaoa 5A2. The injunction further prevented them from obstructing, impeding or otherwise hindering the Māori Trustee from entering, occupying or leaving the land. The orders were served, as directed, by way of email on 28 November 2017.

[7] However, the orders were not complied with. On 11 December 2017 the Māori Trustee received an email from a neighbouring farmer who confirmed that the liable parties had kept a gate across the Ngapakira Bridge impeding access to Waipaoa 5A2, Bruce Smith’s stock had not been…

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 [2018] NZHC 2898
Case: [2018] NZHC 2898
Decision Date: 8 November 2018

CaseChat Overview and Summary

In the case of Māori Trustee v Smith, the Māori Trustee sought to enforce an injunction issued by the Māori Land Court against Bruce Smith and his family members for their refusal to vacate a property known as Waipaoa 5A2. The Smith family, who are liable parties, had been ordered to vacate the property but had continued to occupy it, leading to the Māori Trustee applying for arrest warrants to enforce the injunction. The High Court was tasked with determining whether the arrest warrants should be issued on a without notice basis, given the history of non-compliance and the potential for confrontation.

The court considered the criteria for issuing arrest warrants, including 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 was wilful and excusable. The Māori Trustee argued that the Smith family had shown persistent non-compliance, had outstanding warrants for trespass, and exhibited confrontational behavior. However, the court was concerned about the significant implications of arrest warrants on the liberty of the liable parties and found no undue urgency or prejudice to the Māori Trustee in proceeding on notice. Therefore, the court decided that the applications should proceed on notice and that the liable parties should be served with the relevant documents and a copy of the judgment.

The court's decision underscored the importance of ensuring due process and the right to be heard, even in matters involving enforcement of court orders. The court ordered that the applications proceed on notice and that the Registry set a date for the matter to be placed in the list, allowing the liable parties an opportunity to respond and be heard before any arrest warrants were issued.

Orders