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Naera v Fenwick

Naera v Fenwick

Case [2013] NZCA 353 8 August 2013

Statutory Interpretation

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA542/2011
[2013] NZCA 353

BETWEEN	JILLIAN NAERA First Appellant
KEREAMA PENE Second Appellant
ANAHA MOREHU Third Appellant
WARRICK MOREHU Fourth Appellant
ERIC HODGE Fifth Appellant
AND	PIRIHIRA FENWICK, WIREMU KINGI AND HIWINUI HEKE First Respondents
TAI ERU Second Respondent

Hearing:	26 March 2013
Court:	Arnold, Stevens and White JJ
Counsel:	F E Geiringer for Appellants D G Hurd and J C Jeffries for Respondents
Judgment:	8 August 2013 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal is allowed in part.
BThe case is remitted to the Māori Land Court for further hearing on any matters arising from the conflict of interest issue.
CThe appeal is otherwise dismissed.
DThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

Para No

A joint venture is formed [1]
First issue – interpretation of cl 3(a) of the trust order [9]

Subsidiary point – geothermal steam  [22]
Scope of objects clause  [28]
Our evaluation on scope of cl 3(a)  [33]

Second issue – could the joint venture agreements be
entered into under cl 3(b)? [39]

Third issue – did the trust order variations comply with
s 244 of the Act? [42]

Fourth issue – consultation [48]

Fifth issue – conflicts of interest [53]

Factual background  [54]
Relevant provisions of the Act and the trust order  [58]
Was the issue of the effect of the trustees’ conflicts of interest
on the validity of the agreements raised before the Māori
Land Court?  [61]
Māori Land Court decision  [64]
Decision of the Appellate Court  [69]
Submissions  [71]
Discussion on conflicts of interest  [83]
Applicable legal principles  [85]

Sixth issue – removal of trustees [105]

Māori Land Court findings [108]
Appellate Court [109]

Our views [114]

Result and costs [119]

A joint venture is formed

This appeal concerns the future use of a block of 32.0923 hectares of Māori freehold land known as Whakapoungakau 24 (the trust land). It is administered by the Whakapoungakau 24 Ahu Whenua Trust (the Trust), commonly known as the Tikitere Trust. The Trust was established by trust order in 1999 under the Te Ture Whenua Māori Act 1993 (the Act) and as of 2009 had some 1,222 beneficial owners. The respondents are the trustees.
In November 2008 the Trust, via a subsidiary, Tikitere Geothermal Power Ltd, entered into a joint venture agreement, known as the Tikitere Project Agreement (the Agreement), with the intention of establishing a geothermal power station. The other parties to that agreement were the Paehinahina Mourea Trust and the Manupirua Ahu Whenua Trust. To facilitate the entry into the Agreement, the trustees sought and obtained from the Māori Land Court variations to the trust order in 2004 and 2006. These variations allowed the trustees to enter into joint ventures and to develop the area as a geothermal tourism park.
The appellants are some of the beneficial owners of the trust property. They object to the actions of the trustees and argue that…

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 Naera v Fenwick

Details

AGLC: Naera v Fenwick [2013] NZCA 353
Case: [2013] NZCA 353
Decision Date: 8 August 2013 at 2.30 pm

CaseChat Overview and Summary

Naera v Fenwick is an appeal from the Māori Land Court and the Appellate Court, which concerned the future use of a block of Māori freehold land. The appeal was heard by Arnold, Stevens and White JJ. The appellants, who are some of the beneficial owners of the trust property, object to the actions of the trustees. They argue that the trustees had no power to enter into the joint venture agreement. The Court considered six issues, of which the fifth issue related to the conflicts of interest of some trustees. The Court concluded that the approach taken by the Māori Land Court and the Appellate Court on this issue was incorrect. It found that any application by the appellants to have the agreement set aside would be arguable. However, it was not appropriate for the Court to determine this issue without further evidence from all interested parties. For this reason, the Court remitted the case to the Māori Land Court for further consideration of this issue. The appeal was allowed in part and otherwise dismissed. The Court found no cause to differ from the conclusion of the Māori Land Court that the trustees should not be removed. As the fifth appellant, who conducted the appeal on behalf of the other appellants, was legally aided, there was no order as to costs.

Orders