Marsden v Tiro
[2025] NZHC 3302
•4 November 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-488-000063 [2025] NZHC 3302
IN THE MATTER of the Maungarongo Foundation Trust BETWEEN
ARIANA MERE CATHERINE MARSDEN, PARAIRE PARAONE KENA,
GABRIELLE MONICA HANA POLSON, and MAHALIA RORA POLSON
Plaintiffs
AND
KADE VANO TIRO
First Respondent
TE AROHA HENARE
Second Respondent
Hearing: 30 October 2025 Appearances:
J Browne for the Applicants
S Davies-Colley for the Respondents
Judgment:
4 November 2025
JUDGMENT OF ASSOCIATE JUDGE COGSWELL
This judgment was delivered by me on 4 November 2025 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
Solicitors:
Henderson Reeves, Whangarei WRMK Lawyers, Whangarei
MARSDEN v TIRO [2025] NZHC 3302 [4 November 2025]
Introduction
[1]There are two applications before the Court:
(a)an application by the first respondent under r 10.15 of the High Court Rules 2016 for orders that a question or issue in the proceeding be determined separately; and
(b)an application by the applicants for an order for general discovery under r 8.7.
[2]Both applications are opposed.
Background
[3]The originating application seeks orders that:
(a)Three of the applicants be appointed trustees of the Maungarongo Foundation Trust (MFT) under s 114 of the Trusts Act 2019 or pursuant to the courts’ inherent jurisdiction, or alternatively, that such other trustees be appointed as the Court thinks fit.
(b)The current sole trustee, the first respondent, be removed from the trust.
[4] At the heart of this dispute are issues relating to the ownership and control of the land on which Te Kopuru Hospital was located. As between the first respondent and the applicants, there is clearly dissent and historical conflict. The first respondent says that the applicants have long believed that the sale of the trust property to MFT was illegitimate.
[5]The background facts are:
(a)The former Te Kopuru Hospital site was purchased by the Rev. Maori Marsden and his wife Jane Marsden in 1978. This site consisted of three adjoining properties at Te Kopuru formerly owned by the Northland Hospital Board.
(b)The Trust was formed by deed of trust dated 12 November 1982.
(c)In 1983, the Marsdens sold the properties to the Board of Maori Affairs which leased them back to the Trust.
(d)On 18 February 1988, the trust deed was updated.
(e)In around 1997, the Trust purchased the properties.
(f)On 24 November 1982, the trustees were incorporated as a board under the Charitable Trusts Act 1957.
(g)On 25 March 2004, Judge Joyce QC gave an interim judgment for the possession of land in favour of the Trust against Rangitane Marsden.
(h)On 25 June 2008, the trust deed was updated and this was registered with the Registrar of Charitable Trusts.
(i)On 17 July 2008, the Trust registered the change in its name to “Maungarongo Foundation Trust”. This change had taken place the month before.
(j)Annual returns were filed in 2009 and 2010 with the Charities Commission, but have not been since that time.
(k)The first respondent appears to have moved into the properties on 23 August 2012.
(l)On 20 September 2012, the first respondent became a trustee.
(m)In 2013, the Trust lost its charitable status with the Department of Internal Affairs for tax purposes. This appears to be due to the non- filing of annual returns. The Department of Internal Affairs wrote a letter setting out their concerns as to the Trust.
(n)In 2015, the first respondent claims that the Trust was “resettled”. He claims the name of the Trust was changed and the trust deed changed. However, these changes were not registered with the Registrar of Charitable Trusts.
[6] There is uncertainty about the status of the alleged resettlement and the involvement of a new trust, Te Kopuru Historical Hospital Trust. What is not in dispute is that the Trust is currently operating outside the terms of its trust deed.
[7] This is because there is only one trustee when the trust deed requires a minimum of three trustees.
[8] For their part, the applicants say that they wish to have the Trust run in compliance with the trust deed, that they are entitled to have it operate in that way and that the Court should intervene to appoint three of them as trustees and remove the first respondent. They say that the Trust buildings are in a state of disrepair and that there is a clear need for fresh leadership with the legal ability to act.
[9] For the first respondent’s part, he characterises this application as nothing more than a further step in a continued campaign by members of the Marsden whānau to seize control of the Trust’s land. He points to earlier claims seeking ownership. He says that social media posts make their intentions clear.
[10] Those issues will need to be aired in the substantive determination of this application.
Application under rule 10.15
[11] The first respondent seeks to have orders made for a “split trial” under which the court resolves the following questions separate from determination of other questions in the proceedings:
(a)Whether the applicants have standing to bring their application to have the first respondent removed as a trustee and to have themselves appointed as trustees.
(b)Whether the applicants are unsuitable to be trustees.
[12]Rule 10.15 of the High Court Rules 2016 provides:
The court may, whether or not the decision will dispose of the proceeding, make orders for—
(a)the decision of any question separately from any other question, before, at, or after any trial or further trial in the proceeding; and
(b)the formulation of the question for decision and, if thought necessary, the statement of a case.
[13] “Question” is defined in r 10.14 as including “any question or issue in any proceeding, whether of fact or of law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties, or otherwise.”
[14] There are a wide range of factors the Court can consider in ordering a question to be determined separately. They include:1
(a)the likelihood of delay in finally resolving the proceedings;
(b)the probable length of hearings if there is a split trial;
(c)whether a decision one way or the other on the separate questions would end the litigation;
(d)the impact on the length of any subsequent hearing;
(e)a balancing of the advantages to the parties and the public interest in shortening the litigation against any disadvantages asserted by the parties opposing a split trial;
(f)demarcation difficulties in defining issues to be addressed at the first trial and those left for the second;
1 Turners & Growers Ltd v Zespri Group Ltd HC Auckland CIV 2009-404-4392, 5 May 2010 at [11].
(g)resulting difficulties of issue estoppel;
(h)inadvertent disqualification of a judge who has expressed views at the first trial on matters for decision at the second trial;
(i)inadvertent findings at the first trial upon matters that are for full evidence and argument at the second hearing;
(j)the need to recall some witnesses at the second hearing;
(k)the duplication of time involved in the Court and counsel coming up to speed again for the second hearing;
(l)the prospect of multiple trials;
(m)the need for a second round of discovery or other interlocutories and amended pleadings following the first trial; and
(n)rostering difficulties in ensuring the same Judge is available for the second hearing.
[15]The Court’s approach can be summarised as follows:
(a)The purpose is to “expedite proceedings by limiting or defining the scope of the trial in advance or obviating the need for a trial altogether.”2
(b)The starting point is the assumption that all matters at issue in a given set of proceedings will be disposed of at one substantive trial.3 That will normally be the most expeditious and efficient manner for dealing with the proceeding.4
2 Innes v Ewing (1986) 4 PRNZ 10 (HC) at 18
3 Clear Communications Ltd v Telecom Corporation of New Zealand Ltd (1998) 12 PRNZ 333 (HC) at 334.
4 Above n 1, at [10].
(c)The burden of displacing this assumption falls on the applicant and has variously been described as “not insignificant”, “moderate” and “heavy”.5
(d)The courts are wary of the potential for split trials to complicate and prolong proceedings, emphasising the importance of ensuring the issues in question are properly discrete and not intertwined with other questions of law or fact.6
(e)However, every case must be considered individually and the possibility of a split trial should never be dismissed out of hand.7
(f)The Court must consider the public interest in ensuring efficient use of judicial resources. If a split trial is likely to consume more court time or create scheduling difficulties, this can be a valid ground for opposition.8
[16] An application under r 10.15 must determine whether it is expedient and practicable to order a split trial and, importantly, whether the separate determination of a question will be dispositive of the issues in the proceeding.
[17] For the first respondent, it is contended that the issue of whether it is appropriate for the applicants to be appointed trustees is an easily separable and resolvable issue which it says is entirely discrete from the trust’s historical background and other issues raised.
[18] The issue of suitability is described as a “gateway issue” in that if they are deemed to be unsuitable that would be an end to the proceeding. The first respondent further submits that a separate hearing will save time if the applicants are held to be unsuitable as appointees and that the Trust’s limited resources should be devoted, not to this proceeding, but rather to regularising the Trust’s operations.
5 See for example Haden v Attorney-General (2011) 22 PRNZ 1 (HC) at [46]–[47].
6 All Seasons Properties Ltd v Smith CA 151/96, 28 May 1997 at 1.
7 Above n 3, at 335.
8 Helilogging Ltd (In Recs and Liq) v Civil Aviation Authority of New Zealand [2019] NZHC 1641; and Lepionka & Co Investments Ltd v Sheat [2022] NZHC 1488.
[19] Further, the first respondent submits that it will take no more than one day to decide the issue of whether the trustees are suitable potential appointees but more than a week to hear all issues.
[20] In support of its position that the applicants are unsuitable trustees, the first respondent relies on comments made by one of the applicants, Ariana Mere Catherine Marsden, on a social media site to the effect that the land had been stolen. As well as references in other social media posts to the alleged unsuitable background of another person who is not a party to the proceeding. It is said that once those two factors are considered it follows that the applicants will be found to be unsuitable appointees.
[21] The first respondent submits that there is no prejudice to the applicants in having the suitability issue determined first, as it will need to be determined in the context of the proceedings in any event. It is the first respondent’s submission that determination of the suitability question in his favour will bring an end to the application.
[22]For the applicants they make the following points.
[23] There is no lack of standing of the applicants to apply to be trustees. Any person has standing to apply to be a trustee. The application for appointment is made pursuant to s 114 of the Trusts Act 2019 or under the Court’s inherent power to control the conduct of trusts.
[24] The applicants also dispute the issue of suitability. They say that their suitability is not an issue that could or should be determined as a preliminary question.
[25] A significant factor in the applicants’ favour is that a ruling on the suitability question will not be dispositive of the proceedings. Reference to the statement of claim filed by the applicants makes this clear.
[26] The applicants seek orders that three of them be appointed as trustees of the trust or, in the alternative, that there is the appointment of such other trustees as the Court thinks fit.
[27] It follows from this that even if there was to be a separate question finding that the applicants were not suitable to be appointed trustees, that would not be the end of the matter. The proceeding would continue to determine the issue of whether the Court should remove the first respondent and appoint new trustees in his stead. That issue would still need to be determined irrespective of the outcome of the finding as to the applicants’ suitability.
[28] The applicants take issue with them being “painted with the same brush” as other members of the wider whānau. They say that the first respondent has provided no evidence in support of his argument that they, as opposed to Ariana or other members of their whānau, are unsuitable possible appointees. Whilst she is one of the applicant group, Ariana Marsden does not seek to be appointed a trustee. The applicants say that the first respondent has provided no evidence at all that they are unsuitable to be appointed trustees.
[29] They also argue that the application for a split hearing is nothing more than an attempt to focus the issues away from the conduct of the trust and the first respondent.
[30] The fact is that the Trust is not lawfully operating. There are admittedly insufficient trustees. There has been an insufficient number of trustees since 2021. Whilst he says he has taken steps to find new trustees and attempts to blame the Marsden whānau for his inability to do so, the evidence in relation to the steps he took is only marginally instructive.
[31] The first respondent has had four years to regularise the Trust’s affairs and has not yet done so. Compliance with trust filings is non-existent. His argument that the Trust wishes to be free of the proceedings so as to regularise its operation is not borne out by his conduct. The Court’s intervention is required.
[32] Further, the applicants say that conducting the hearing without splitting the issues will take little extra time as opposed to doing it in two parts. I agree.
[33] Counsel submits that the hearing time for the full determination of the originating application will be no more than three to four days and certainly not in excess of a week.
[34] Having considered the submissions on the issue of the split trial, I consider that this is not a case where separating the issues will be dispositive of the issues required to be determined at the substantive hearing, nor do I consider that determining the standing and suitability issues discretely will expedite the resolution of issues in the proceeding such that two separate hearings is justified.
[35] Determining the issue of the applicants’ suitability still leaves the issues of whether other trustees should be appointed and who they should be and whether the first respondent should be removed.
[36] I consider that the most significant factor against the granting of a separate determination order is that resolving the standing or suitability issues will not be dispositive. Other issues will remain. There is no efficiency or finality in separating the questions.
[37] Whether new trustees should be appointed will involve many of the issues that also need to be considered in the substantive proceeding. They include the history and conduct of the trust, the first respondent’s behaviour and steps taken as the sole trustee, whether new trustees should be appointed and if so, who they should be. That necessarily includes a consideration of whether the applicants should be appointed or, if not, who should be.
Decision on application under rule 10.15
[38] I do not consider that the first respondent has displaced the presumption that all matters should be heard together at the one time. The first respondent has not demonstrated that there is any good reason for the separate determination of the identified questions in this matter. I therefore decline the application.
Applicants’ application for general discovery
[39] The applicants seek an order for general discovery under r 8.7. Discovery is available in an originating application in accordance with rr 7.43A and 19.11.
[40] Whilst opposed, the focus of the first respondent’s submissions was the separate determination question. The first respondent submits that he is not opposed to discovery.
[41] The real concern expressed for the first respondent if there was to be a general discovery order was an allegation of dysfunction between the parties and the inability of the applicants to control dissemination of documents provided on discovery.
[42] Counsel submits that in ordering discovery the Court should consider whether the applicants are suitable to receive that information. That is not the test; the applicants are entitled to discovery as party to the proceeding. The confidentiality or protection given to discovered documents is a separate inquiry.
[43] In response to the concern about confidentiality, the applicants make the following points.
[44]The Trust is (or was) a registered charitable trust and not a private trust.
[45] Charitable trusts have a higher degree of transparency given that they exist to benefit the public. Before losing its charitable status, the Trust was obliged to disclose officer details, financial statements and annual returns. It was the failure to file such annual returns that led to the registration being lapsed. The point is, however, that if the Trust was a properly compliant charitable trust it would have to disclose that sort of information in the public domain anyway.
[46] Second, relevant documents are subject to the implied undertaking that they can only be used for the purposes of the litigation and not for any other purpose without permission of the party disclosing it or with leave of the Court. The first respondent has concerns about whether that undertaking is able to be enforced. However, even if that was a demonstrated concern in relation to dissemination of
documents, such documents could not be used in other litigation due to the existence of that implied undertaking.
[47] Third, confidentiality concerns can be managed by the inclusion of any such documents in Part 3 of the list. Suitable arrangements to preserve legitimate confidentiality may be made between counsel who of course have a duty to operate on matters relating to discovery.
[48] It follows from this that I do not consider that the alleged confidentiality issues are any reason not to grant orders for general discovery.
[49] I also do not consider that the extent of general discovery is onerous. No application for tailored discovery has been made.
[50] I therefore make an order that the parties’ complete general discovery under r 8.7.
[51]General discovery is to be completed by both parties by 5 December 2025.
Result
[52] The first respondent’s application for a separate hearing under r 10.15 is declined.
[53] The applicants’ application for an order for general discovery under r 8.7 is granted.
[54] The applicants have been successful on their application and successful in resisting the application made by the first respondent. They are entitled to costs on both applications.
[55] If the parties are unable to agree on costs, which I consider should be categorised as 2B costs, the applicants may file a memorandum not exceeding five pages (including attachments) setting out their application for costs. The first respondent may file a memorandum opposing costs or making submissions on costs
of no more than five pages (including attachments) within five working days of receipt of the applicants’ memorandum.
[56]Costs will be determined on the papers.
Associate Judge Cogswell
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