Ngati Kuri Trust Board v Neho and Petricevic

[2008] NZCA 345

IN THE COURT OF APPEAL OF NEW ZEALAND

CA242/06
[2008] NZCA 345

AND BETWEEN             NGATI KURI TRUST BOARD AND TOM BOWLING MURRAY, HINE LELIEVRE, PAUL ROBSON NORMAN, AARON ELKINGTON, DUNN TAHANA, AND SIMON MURRAY

Appellants

ANDGRAEME NEHO AND THOMAS PETRICEVIC

Respondents

CA244/06

AND BETWEEN             TERI EDWARD NORMAN

Appellant

ANDGRAEME NEHO AND THOMAS PETRICEVICH

Respondents

Hearing:2 September 2008

Court:O'Regan, Robertson and Baragwanath JJ

Counsel:No appearance for Ngati Kuri Trust Board

C C Lawrence for Mr Neho and Mr Petricevic
M D Patel and R H Warren for Mr Murray
I R Millard QC and L M McKeown for Mr Norman
C Y Simes for Ms LeLievre

Judgment:4 September 2008 at 3 pm

JUDGMENT OF THE COURT

A        We make the following orders in relation to CA244/06 by consent:

1.        The appeal by Teri Edward Norman against:

(a)the order that he not be eligible to be nominated, elected or appointed as a member of the Ngati Kuri Trust Board or as a member of any modified or changed Ngati Kuri governance organisation unless and until the Court orders otherwise (Order (3) in the judgment of the High Court);

(b)the order that he pay costs and disbursements to Mr Neho and Mr Petricevich on a 2B basis (Order (51) in the judgment of the High Court)

is allowed and those orders are quashed.

2.The order set out above is without prejudice to the rights of Mr Neho and Mr Petricevich or the Ngati Kuri Trust Board against anyone else.

3.There will be no order for costs in this Court as between Mr Norman and Mr Neho and Mr Petricevich.

B        We make the following orders in relation to CA242/06 by consent:

1.The appeal by Hine LeLievre against the order that she pay costs and disbursements to Mr Neho and Mr Petricevich on a 2B basis (Order (51) in the judgment of the High Court) is allowed and the order is quashed.

2.There will be no order for costs in this Court as between Ms LeLievre and Mr Neho and Mr Petricevich.

3.The security for costs provided in appeal CA242/06 should be released and be returned to Ms LeLievre’s solicitors.

CThe appeal by Tom Bowling Murray in CA242/06 is adjourned to a date to be set by the Registrar.  We reserve leave to apply for any orders required to give effect to a settlement of that appeal.

DThe application for the costs of Mr Neho and Mr Petricevich to be met from the funds of the Ngati Kuri Trust Board is reserved.

REASONS OF THE COURT

(Given by O’Regan J)

[1]       These appeals were due to be heard on 2 and 3 September 2008.  Prior to the hearing the Court was notified that counsel had reached settlements relation to some appellants.  The hearing proceeded with all counsel named above in attendance, and the Court was addressed by counsel on the orders proposed to give effect to the settlements between Teri Edward Norman and the respondents and between Hine LeLievre and the respondents.  The Ngati Kuri Trust Board was not represented and has, until now, taken no steps and we were told that its stance has been to abide the Court’s decision.

[2]       Our concern was to ensure that the orders we made did not amount to findings by this Court overturning findings of the High Court in circumstances where this Court had not heard argument on the merits and was therefore not in a position to make such findings.

[3]       Counsel have confirmed to us that the basis for the making of the consent orders is that the High Court proceeded on the understanding that Mr Norman and Ms LeLievre had been served with the High Court proceedings and were being represented by counsel who then represented the Ngati Kuri Trust Board.  We are satisfied that there was a misunderstanding about that.  It is now apparent that they were not aware that they were parties to the litigation personally and therefore exposed to the possibility of orders being made against them.  We therefore determined that it was appropriate to make the orders to which the relevant parties had consented, which are set out in paras A and B of the judgment.

[4]       Counsel for Ms LeLievre invited the Court to discharge the order made against her in the High Court that she not be eligible to be nominated, elected or appointed to the Ngati Kuri Trust Board or of any modified or changed Ngati Kuri governance organisation unless and until the High Court orders otherwise.  She suggested this Court could exercise the power of the High Court to do so, relying on r 48(4) of the Court of Appeal (Civil) Rules 2005.  This was not part of the settlement between Ms LeLievre and the respondents and counsel for the respondents did not consent to our doing so.  In those circumstances, we did not consider it appropriate to discharge the order, thereby varying the terms of an agreed settlement.  If Ms LeLievre and the Board agree that the order should be discharged in the future, a consent order could be sought from the High Court.

[5]       The appeal by Mr Murray remains on foot, and we make no order in relation to his appeal.  We have, however, issued a separate minute in relation to that appeal, and, in particular, to the participation of the Ngati Kuri Trust Board in that appeal.  We adjourn that appeal to a date to be fixed by the Registrar after 30 October 2008, but we hope that the efforts which are under way to settle the outstanding issues in relation to that appeal bear fruit so that no further fixture is required.  We formally reserve leave to the Ngati Kuri Trust Board, Mr Murray and the respondents to apply for orders to give effect to any settlement among all or some of them.  Any applications should be referred to the present panel for consideration.  We envisage that any such application could be dealt with on the papers, but ask counsel to indicate when making any application if that is acceptable to them.

[6]       Mr Lawrence sought an order that the respondents’ costs of the appeals be met from the funds of the Ngati Kuri Trust Board.  We did not determine that application and reserve leave to the respondents to renew that application when the position of the Ngati Kuri Trust Board is known, and is communicated to the Court.

[7]       The Court’s records indicate that Messrs Paul Norman, Aaron Elkington, Dunn Tahana and Simon Murray were listed as appellants in CA242/06.  They do not appear to taken any steps to pursue the appeal.  If, as we understand to be the case, they do not wish to proceed with their appeals, they should file notices of abandonment.

Solicitors:
Foster Matenga Milroy, Hamilton for Mr Neho and Mr Petricevic
M Patel Law, Hamilton for Mr Murray
Johnston Lawrence, Wellington for Mr Norman
Evans Bailey, Hamilton for Ms LeLievre