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Nichols v Nichols

Nichols v Nichols

Case [2021] NZSC 8 19 February 2021

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 76/2020
[2021] NZSC 8

BETWEEN	GEORGE TAMA NICHOLLS Applicant
AND	MARK STEVEN NICHOLLS, AIRINI PIRIHIRA TUKERANGI, DELACE WILLIAM JAMES, KAHUTOROA MATAIA TUKERANGI, VIV TAMA NICHOLLS, ANITA MARI NORMAN AND SARAH JANE NICHOLLS AS TRUSTEES OF THE AHU WHENUA TRUST KNOWN AS THE W T NICHOLLS TRUST Respondents

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	J P Kahukiwa for Applicant D E Wackrow and C M T Linstead‑Panoho for Respondents
Judgment:	19 February 2021

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B There is no order as to costs.
____________________________________________________________________

REASONS

The applicant is a beneficial owner in 27 multiply-owned Māori freehold land blocks (the land) vested in the trustees of the W T Nicholls Trust. The Trust is an Ahu Whenua Trust under s 220 of Te Ture Whenua Maori Act 1993 (the Act). From 2010, the applicant operated a coastal holiday park for profit on that part of the land situated at Oamaru Bay, north of Coromandel town. He had taken over the holiday park business from his brother, who is also a beneficial owner in the land. The brother had operated the holiday park since 2007.
The W T Nicholls Trust was established in 2011, a year after the applicant took over the park. The trustees brought proceedings against the applicant and his brother seeking their removal from the land and requiring them to account to the Trust for income from the camping ground since its inception. The brothers opposed the proceedings generally on the basis that the Māori Land Court had no jurisdiction to require them to give an account. In December 2012, the Māori Land Court made orders excluding the brothers from the land. In December 2017, following a lengthy process in which the Court supervised a taking of account, the Court ordered:[1]
(a)that the brothers pay the trustees $442,593.00, less their share as co‑owners, in relation to income obtained prior to the formation of the trust; and
(b)that the applicant alone account to the trustees for $391,824.00 obtained after the Trust was established.
[1]Nicholls v Nicholls – Koromatua 3A (2012) 154 Waikato Maniapoto MB 128 (154 WMN 128) (Judge Coxhead) at [82]–[83].
Appeals by the applicant to the Māori Appellate Court and the Court of Appeal were dismissed in December 2018[2] and August 2020.[3] He now seeks leave to appeal to this Court.

The judgments below

[2]Nicholls v Nicholls – Koromatua 3A [2018] Māori Appellate Court MB 604 (2018 APPEAL 604) (Judge Wainwright, Judge Harvey and Judge Armstrong).

[3]Nicholls v Nicholls [2020] NZCA 346 (Brown, Clifford and Gilbert JJ) [CA judgment].

It is necessary for these purposes only to summarise the findings of the Court of Appeal, as they are broadly consistent with those of the Māori Land Court and the Māori Appellate Court. The Court of Appeal identified five issues for resolution as follows:[4]
(a)Does a co-owner of property have a…

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 Nichols v Nichols

Details

AGLC: Nichols v Nichols [2021] NZSC 8
Case: [2021] NZSC 8
Decision Date: 19 February 2021

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application for leave to appeal from George Tama Nicholls against the decision of the Court of Appeal in relation to a dispute involving multiple owners of Māori freehold land. The Court of Appeal had previously dismissed appeals by the applicant and his brother against orders requiring them to account for income derived from the land to the trustees of the W T Nicholls Trust. The applicant argued that the Māori Land Court lacked jurisdiction to order the giving of account and that the trustees did not have the power to seek remedies against co-owners for money they may have received.

The legal issues before the Court were whether co-owners have a duty to account to other co-owners for income derived from the property, whether the Māori Land Court has jurisdiction to make such an order, and whether the trustees had the power under s 220(2) of Te Ture Whenua Maori Act 1993 to seek remedies against co-owners. The Court of Appeal had answered these questions in the affirmative. The applicant challenged these findings, arguing that the Court of Appeal's decision involved important matters of principle regarding the jurisdiction of the Māori Land Court, and that a substantial miscarriage of justice may occur unless the appeal is heard.

The Supreme Court found that the proposed grounds of appeal had insufficient prospects of success, and that no matter of general or public importance arose in this application. Consequently, the application for leave to appeal was dismissed. The Court made no order as to costs, considering the applicant's application for legal aid and the pending application to reconsider the refusal of that application.

Orders