Ngawaka v Ngati Rehua-Ngatiwai Aotea Trust Board

[2017] NZHC 1155

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-259 [2017] NZHC 1155

UNDER

the Trustee Act 1956 and the Charitable

Trusts Act 1957

IN THE MATTER

of an application to remove trustees and direct fresh elections

BETWEEN

STEWART NGAWAKA MARILYN STEPHENS

MARK ANTHONY MCMATH ALLLAN JOH MOORE

HORI TE MOANAROA PARATA ELDERS AND REGISTERED MEMBERS OF NGATI REHUA- NGATIWAI KI AOTEA TRUST BOARD Plaintiffs

AND

NGATI REHUA-NGATIWAI KI AOTEA TRUST BOARD

First Defendant            Continued over

Hearing:	29 May 2017
Counsel:	R Harrison for the Plaintiffs P J Andrew for the First, Second, Third, Fifth and Sixth Defendants No appearance for the Fourth Defendant
Judgment:	29 May 2017

ORAL CONSENT JUDGMENT OF MUIR J

NGAWAKA v NGATI REHUA-NGATIWAI KI AOTEA TRUST BOARD [2017] NZHC 1155 [29 May 2017]

YVONNE JEWEL WIKI Second Defendant

CATHERINE HOPE MUNRO Third Defendant

KRIS MACDONALD Fourth Defendant

NICOLA MARIE ATARIA MACDONALD

Fifth Defendant

RODNEY NGAWAKA Sixth Defendant

Counsel/Solicitors:

R Harrison, Harrison Stone, Auckland

P J Andrew, Barrister, Auckland
S Webster, Koning Webster Lawyers, Papamoa

[1]      This matter came before me at 10.00 am in the Duty Judge list for orders as to directions relating to voting rights and registration for a forthcoming (resumed) Annual General Meeting (AGM) of the first defendant.

[2]      It had previously been mentioned before Gilbert J on 22 May 2017 when he directed that notices of opposition be filed by Friday 26 May 2017 and that the matter “be relisted for mention in the Duty Judge list on Monday 29 May 2017 at 10 am to enable directions to be made for the disposal of the application”.  Despite the terms of that minute, counsel for the applicants assumed, when this matter was called before me, that the substantive hearing would take place today.  I advised him that this would not be the case and that I would need to allocate a hearing date and make orders for disposition.

[3]      I took the opportunity however, to venture some provisional comments about the merits of the application and encouraged counsel and their clients to confer with a view to reaching a consent position.  I accordingly stood the matter down to 2.15.

[4]      I am pleased to record that the discussions between the parties have been successful in resolving their differences.   In the result, they have agreed what I consider an eminently suitable mechanism for establishing entitlements to vote at the forthcoming AGM.

[5]      I therefore make the following orders by consent.

1.Elections NZ (ENZ) will oversee the registration, proxies and election of trustee process.  This will involve the Trust providing ENZ with the database and/or access to it in order to undertake this responsibility independently of the parties to this proceeding.

2.The contact details of the person(s) at ENZ are to be provided to beneficiaries through counsel and on the Trust website as soon as reasonably practicable.

3.        Beneficiaries will be able to contact ENZ directly to:

(a)      inquire about the status of their registration and of whanau members;

(b)inquire about the status and number of proxies submitted by them to the previous AGM and the number and identity of those accepted;

(c)      register on the data base in advance of the AGM and will be assisted by ENZ to enable this to occur; and

(d)Submit   proxies   for   verification   and   confirmation.     The submission of proxies to ENZ shall be at least five days before the AGM and must comply with the material  requirements contained in the proxy precedent on the Trust’s website. As far as possible the precedent form should be used.

4.All proxies submitted to the previous AGM that followed the correct requirements, i.e. submitted on the official proxy form (or one not materially different) by a registered proxy holder and registered proxy and confirmed by the kaumātua previously undertaking this task shall be accepted.

5.A Kaumātua committee, consisting of 10 in total (five from each side) shall be established to work with ENZ to ensure the integrity of the data base and registration especially in relation to whakapapa.

6.ENZ will specify a meeting date and location in Auckland for the Kaumātua  Committee  to  review  the  data  base  and registrations/proxies to assess their integrity and make final and binding determinations on the question of whakapapa and thus those entitled to vote.  The composition of the Kaumātua committee shall not be dictated to by either party and in the event of any differences within the committee they shall be determined by majority vote.  On the day of the next AGM, 24 June 2017 beneficiaries may present in

person and register, the issue of proxies having been determined in accordance with paragraph [3](d) above.

7.The parties shall notify ENZ and each other of their five Kaumātua to make up the committee by 2 June 2017 including contact details.  The involvement of Kaumātaua Committee and any meetings with ENZ to determine whakapapa shall be independent of the parties.

[6]      I congratulate counsel and their clients for having resolved their differences in a way which gives the respective parties ownership of the result referred to in [5(1)-(7)] above.  That seems to me entirely appropriate in the context of the issues

that have divided them to date.

Muir J