New Zealand Maori Council v Federation of Maori Authorities Inc

[2015] NZHC 1376

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-405 [2015] NZHC 1376

UNDER

the Trustee Act 1956

BETWEEN

THE NEW ZEALAND MĀORI

COUNCIL First Applicant

SIR EDWARD TAIHAKUREI DURIE Second Applicant

AND

FEDERATION OF MĀORI AUTHORITIES INC Respondent

Hearing:	17 June 2015
Counsel:	F E Geiringer for First and Second Applicants N Burley and L McKeown for Respondent S A Barker for other trustees
Oral Judgment:	17 June 2015

ORAL JUDGMENT OF THE HON JUSTICE KÓS

[1]      This  is  another  episode  in  long-running  litigation  concerning  the  Crown Forestry Rental Trust.   Justice Williams and I have now delivered a series of judgments concerning the powers of trustees, duties of the Māori Appointor1  and, more recently, appointing both trustees and alternate trustees under the Trust Deed in lieu of the Māori Appointor (given its de facto incapacity by reason of dissension).2

[2]      Sir Edward Durie was appointed trustee on 27 June 2012.   His three year term expires on 30 June 2015.  Terms under the Trust Deed are finite.  Appointment

does not continue until reappointment or replacement.  There has been a practice in

1      The Māori Appointor comprises the New Zealand Māori Council and the Federation of Māori

Authorities and is tasked with the appointment of the three Māori trustee members of the Trust.

2      New Zealand Māori Council v Foulkes [2014] NZHC 2757.

SIR EDWARD TAIHAKUREI DURIE v FEDERATION OF MĀORI AUTHORITIES INC [2015] NZHC 1376

[17 June 2015]

the past of the Māori Appointor appointing trustees for two terms of three years.  As yet there is no agreement on the reappointment of Sir Edward.  The New Zealand Māori Council has now applied under s 51 of the Trustee Act 1956 for Sir Edward to be reappointed trustee for a further term of three years.3

Application for interim relief

[3]      The matter before the Court today is an application by the New Zealand Māori  Council  and  Sir Edward for orders that  his  current  term  as  a trustee be extended until resolution of the substantive application for reappointment.   That application is for hearing before me on 24 August 2015.

[4]      Constructively,  the  Federation  of  Māori Authorities  does  not  oppose  the

application for interim reappointment.

Discussion

[5]      The application is made under High Court Rule 7.53.   Procedurally that is somewhat curious.   Rule 7.53 refers expressly to grant of an injunction.   An injunction is an equitable remedy to restrain a potential violation of rights.  There is no suggestion here that any rights of Sir Edward have been or may be violated.  He has no entitlement to reappointment.  He has some procedural rights as to process, but it is unclear how they are being, or may be, violated.

[6]      However while reliance on r 7.53 appears inapposite, I am prepared to accept that the equitable jurisdiction giving the High Court oversight of the administration of trusts means that I have inherent jurisdiction to make orders akin to interim relief under s 10 of the Judicature Amendment Act 1972.

[7]      I am persuaded in this case that it is appropriate to make such an order.  The

reason for that is that where a trustee’s term expires an alternate appointed under r

3      The application is on terms providing however that the Māori appointor may apply to the Court during the term of this appointment for approval of the substitution of another suitable person upon whom they are together agreed.  That formula follows [21] of my judgment of 6 November

2014; New Zealand Māori Council v Foulkes (No 2) [2014] NZHC 2757 at [21].

6.9 of the Trust Deed is unable to act in their place.4   In short, there is no place for the alternate to fill.   I accept it is desirable to maintain the balance of the trust at three Crown trustees and three Māori trustees until a permanent appointment can be made.   There is some evidence before me that the Trust is currently functioning efficiently and cordially. That is certainly an improvement on recent history.

Result

[8]      There will therefore be an order appointing Sir Edward Durie trustee of the

Crown Forestry Rental Trust for the period 1 July 2015 to 24 August 2015.

[9]      In the circumstances costs on a category 2 band B basis are to be paid by the

Trust on this application.

Further orders and directions

[10]     The following further orders and directions are made.

[11]     First,  the  Federation  of  Māori  Authorities  is  made  respondent  in  this

proceeding.

[12]     Secondly, leave is granted to the New Zealand Māori Council to file this proceeding by way of originating application. There is no opposition to that course.

[13]     Thirdly, the following timetable directions are made:

(a)      The trustees are to file a report with the Court on whether the Trust is now working effectively following recent appointments by the Court to the Trust.  That report is to be filed by 19 July 2015.  It need not be in sworn affidavit form.  It should be signed by a suitably authorised

representative of the Trust for that purpose.

4      New Zealand Māori Council v Foulkes Minute (No 8) CIV-2013-485-455, 6 August 2014 at [4].

(b)The Federation of Māori Authorities may file and serve any notice of opposition and supporting affidavits on the New Zealand Māori Council’s application by 5 August 2015.

(c)      The Federation of Māori Authorities may also advance, in this present application, a candidate or candidates of its own for appointment (together with supporting affidavit), also to be filed and served by

5 August 2015.

(d)      Any response from New Zealand Māori Council is to be filed and

served by 17 August 2015.

(e)       The New Zealand Māori Council’s submissions are to be filed and

served by 17 August 2015.

(f)      The Federation of Māori Authority’s submissions are to be filed and served by 19 August 2015.

[14]     Leave is given to the other trustees (for whom Mr Barker today appeared) to appear and be heard at the hearing of the substantive application if they wish.

Stephen Kós J

Solicitors:

Johnston Lawrence, Wellington for Respondent

Buddle Findlay, Wellington for Respondent