Ngati Tahinga and Ngati Karewa v The Attorney-General of New Zealand
[2002] NZCA 154
•27 June 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA73/02 |
| BETWEEN | NGATI TAHINGA AND NGATI KAREWA TRUST AND N N CLARK AND OTHERS AS TRUSTEES |
| Appellants |
| AND | THE ATTORNEY-GENERAL OF NEW ZEALAND |
| First Respondent |
| AND | I H MCKINNON |
| Second Respondent |
| Hearing: | 17 June 2002 |
| Coram: | Keith J Blanchard J Glazebrook J |
| Counsel: | J E Dorbu for the Appellants A R Burns for the First Respondent |
| Judgment: | 27 June 2002 |
| JUDGMENT OF THE COURT DELIVERED BY KEITH J |
An application for special leave to appeal
This is an application for special leave to appeal out of time against an interim judgment given by Randerson J on 5 November 2001. In that judgment he made orders removing the three remaining validly appointed members of a trust and appointing the Public Trustee as interim trustee until further order. He also declared the purported appointment of five other persons as trustees to be invalid and of no effect. He made those decisions on applications by the Attorney-General under s51 of the Trustee Act 1956 and Mr McKinnon under s68 of that Act. Mr McKinnon was one of a group of people who for at least twelve years had been endeavouring to obtain their inclusion on the roll of preferential beneficiaries of the trust.
The application for special leave was made on 15 April 2002. It was opposed by the Attorney-General. Counsel for Mr McKinnon filed a memorandum supporting that opposition and abiding the decision of the Court. The leave application was supported by an affidavit by Ngaire Nicola Clark, one of the three trustees who have been removed. She was an original trustee of the trust established in 1985 as was her husband, Graham Uerata Clark, who was also removed. The third trustee to be removed was Te Warena Taua, who had been appointed in 1992 by Anderson J in the course of earlier High Court proceedings.
Mrs Clark’s affidavit gave reasons for the delay in filing the appeal. It related in part to advice which she said the trustees had been given by their trial counsel following the High Court judgment. We need not enter into those reasons or an associated application by the Attorney-General, supported by Mr McKinnon, for an order that that counsel be required to give evidence relating to the discussions and meetings he had with the applicants. Rather, we go directly to the merits of the appeal. The discretion to grant special leave to appeal out of time under R 5 of the Court of Appeal (Civil) Rules 1997 is very wide and flexible. The overall consideration is the justice of the case. It is within the scope of that discretion to determine that the appeal would be hopeless (see eg Prudential Building and Investment Society Canterbury (In liquidation) v Hankins (1991) 5 PRNZ 160, 162, and the authorities referred to there). For the reasons we now give we consider that this appeal would be hopeless and against the interests of justice.
Mr Dorbu, in resisting that proposition, criticised several features of the Judge’s reasoning which would be challenged in various of the grounds of appeal which had been filed. Before we consider those features we outline relevant provisions of the trust deed made on 13 June 1985 and the associated private Act of Parliament to which the deed is scheduled : New Zealand Mission Trust Board (Port Waikato Maraetai) Empowering Act 1986.
The trust and the Act
The trust concerns lands in the Port Waikato area and associated moneys and investments. The land was the residue of ancestral lands of Ngati Karewa and Ngati Tahinga which were transferred by chiefs of the two sub-tribes in 1839 to the Committee of Missionaries of the Church of England. The chiefs’ understanding was that the land was to be used for a mission station and school for the benefit of their own people and that the mission station and school would be provided and maintained by the Committee of Missionaries or their successors. Because there had not been a mission station or a school on the land since 1853 it was just and desirable that the land, money and investments be transferred by the New Zealand Mission Trust Board (to which the properties had earlier been transferred) to trustees to be held on certain charitable trusts. There was doubt whether the transfer from the board to the trustees established under the deed of trust of 1985 could be effected otherwise than by legislation and accordingly the private Act of Parliament was enacted. That Act gave the board all power to transfer to the trustees all the property derived from or for the time being representing the land, moneys and investments described in the trust deed. On that transfer, the trusts upon which the property transferred had been held by the board were extinguished and the property was then to be held by the trustees upon the trusts and with the powers declared in the trust deed. The trusts were declared to be charitable trusts and the trustees to be a leasing authority within the meaning of the Public Bodies Leases Act 1969.
The beneficiaries of the trust are “the Maori people of New Zealand, but so that preference is given to the peoples of the sub-tribes of Ngati Karewa and Ngati Tahinga and their descendants and families” (cl 2). The trust property is held upon trust to promote the education, vocational training and religious and spiritual welfare and relief of poverty of and the provision of health care for indigent or impoverished beneficiaries (cl 3). The trustees have broad powers to achieve the stated objects (cls 4 and 5) and cl 6 expressly provides that those powers are “set forth by way of illustration only and are not in any way restrictive of the powers of the trustees”.
There are to be between five and seven trustees (cl 13(5)). Trustees can cease to be trustees in certain prescribed circumstances (cls 11 and 12). They can be replaced and new trustees appointed only by a general meeting, the notice of which is to specify the event or events occasioning the need to appoint a new trustee, or new trustees, as well as any other business to be transacted (cl 11). Between three and eight weeks notice is to be given of general meetings (cl 13(1)).
The quorum necessary for the transaction of business by the trustees is four “unless and until unanimously decided by resolution of all the trustees” (cl 9(1)). A trustee is not prevented by reason only of being a beneficiary, but is not to take part in any discussion by the trustees or vote on any question in which he or she or his or her spouse or child has a material or pecuniary interest as a beneficiary, nor shall he or she be counted in the quorum present at the meeting when any such question is decided (cl 7(3)).
Mr Dorbu put at the forefront of the trust’s problems the establishment of the role of preferential beneficiaries, that is those who are members of either of the sub-tribes of Ngati Karewa or Ngati Tahinga. Clause 10 reads as follows:
10.(1) THE trustees shall forthwith give public notice of the formation of this trust by advertisement in the New Zealand Herald summarising the general objects of the trust and inviting persons claiming to be members of either of the sub-tribes of Ngati Karewa and Ngati Tahinga to submit their written whakapapa and any other relevant personal details including dates of birth to the trustees at an address to be given in the advertisement.
(2) THE trustees shall as soon as practicable thereafter cause to be prepared a roll containing the names and addresses of all beneficiaries of the age of 18 years and upwards being members of the sub-tribes of Ngati Karewa and Ngati Tahinga and shall from time to time make all such additions and corrections to the roll as may be necessary.
(3) IT shall be the responsibility of each such beneficiary to ensure that his or her name is included in the roll and to supply to the trustees his full postal address for the time being and each such beneficiary shall have the right to inspect the roll at any reasonable time.
(4) THE trustees shall have jurisdiction to determine whether any person applying for inclusion in the roll is qualified for inclusion.
Both Anderson and Randerson JJ ruled that the trustees do not have to have before them written whakapapa by persons claiming to be on the preferential roll before they decide that the person is qualified for inclusion. That view of cl 10 is plainly right. It is up to the trustees to determine on the basis of the evidence which they find satisfactory that the person qualifies for inclusion, and in fact the trustees have included on the roll of beneficiaries persons who had not submitted that material.
We now turn to three material matters on which Randerson J ruled and which Mr Dorbu put at the centre of his argument.
Appointment of trustees
Randerson J reached inevitable and clear findings on the evidence, which was not contested in the High Court and to which no proper challenge was made in this, that the five alleged appointments of the board of trustees were invalid. Those findings were based, first, on the requirement in the trust deed that only a properly called general meeting of beneficiaries could make the appointment and, second, on the fact that no such meetings had been called to make the five appointments. We cannot see any prospect of an appeal against those findings succeeding.
The preferential roll
In 1991 there were only thirty persons on the preferential roll. They included twelve members of the Clark family, seven members of the Hoete family and eight members of the Waiti family. (Ms Nicolette Hoete and Mrs Bella Waiti were two of the invalidly appointed trustees.) At a hearing of the Maori Land Court on 7 March 1991 it was agreed that a further 114 people named in a list would be added to the preferential roll but that did not happen. By the time of the hearing before Randerson J in October 2001, the roll had expanded to only 130 names against evidence that up to 2,500 may be eligible. The Judge concluded, having reviewed the evidence as a whole, that the trustees had not conscientiously, fairly and objectively carried out their task in a timely manner. He gave as his reasons
• the failure to explain the delay;
• the vague and unconvincing replies by various of the trustees to questions about the process;
• the admission to the preferential roll of members of the three families referred to above simply because they were known and without any research being required; while the Judge accepted that there will undoubtedly be differences between those who are known and those who are not, he concluded that those who are put in the “not known” category have not been treated in a fair and timely manner;
• most important, the evidence as a whole established that a high degree of hostility had been shown by the trustees (or some of them) to those who might be called the McKinnon interest.
Again we cannot see any prospect of an appeal against those findings succeeding.
The loan to Mr and Mrs Clark
A meeting of trustees in 1998 approved a loan of $150,000 to Mr and Mrs Clark for the purpose of helping them to buy a property for their own use. Mr and Mrs Clark did not vote on the resolution. Since there were only four trustees present at that meeting the resolution was invalid because the quorum requirement had not been satisfied. There were two later attempts to forgive the loan. At the first of the two meetings a resolution to reduce the quorum was adopted but that was ineffective since one of the trustees was not present and a unanimous decision was required (cl 9(1)), para [8] above). That attempt accordingly failed for want of a quorum. At the second meeting which purported to forgive the loan again the quorum was not present. Accordingly, as Randerson J said, there was no valid authorisation of the loan nor of the later attempts to write it off. Prima facie the full sum advanced, less any reduction shown to have been validly made, remained the property of the trust and should be restored to it.
Again, there is no basis at all in the material properly before us to indicate that an appeal against these findings would be other than hopeless.
The order under s51
It was on the basis of the above matters and also the failure to have available proper minutes and accounts which, moreover, had not been audited as required by the deed, that the Judge decided to exercise the power conferred by s51 of the Trusteeship Act to remove the trustees and to make the interim appointment of the Public Trustee.
Randerson J concluded that the reality was that the trust has not been operating in a satisfactory manner and has not done so for some years. He acknowledged that the Clarks had laboured long and hard to achieve the return of the ancestral land to its people and to secure establishment of the trust. They had also acted, along with Mr Taua, in what they believed to be the best interests of the trust. But for the reasons which he gave, and which we have summarised, he saw no alternative but to remove the trustees. It was inexpedient, difficult or impractical to replace them without the assistance of the court. We can see no basis at all for a successful appeal against that order nor, as we have indicated, the reasons which he gave in support of it.
Result
It accordingly follows that we dismiss the application for special leave to appeal.
Mr Burns, for the Attorney-General, indicated that, at this stage as at the earlier stages of the proceeding, he would not be applying for costs but the situation might be different in the event of any further litigation. He said that $170,000 out of a trust fund of $500,000 had been expended on legal costs. He also said that the Clarks were appealing as beneficiaries or as individuals and could not act on behalf of the trust and accordingly the intituling of the proceeding was not accurate. Mr Dorbu made it plain that the appellants were not relying on trust funds to make the present application. We make no order as to costs.
Solicitors
Crown Solicitor, Auckland for the Attorney-General
Walters Williams, Auckland for Mr McKinnon
T J Darby, Auckland for the Applicants
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