Page v Te Runanga o Wharekauri Rekohu Incorporated

[2019] NZHC 2823

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-227

[2019] NZHC 2823

UNDER

Part 18 of the High Court Rules 2016

IN THE MATTER

of section 25 of the Incorporated Societies Act 1908

BETWEEN

PAULA PAGE, LOIS CROON and JOHN KAMO

First Plaintiffs

NGĀTI MUTUNGA O WHAREKAURI IWI TRUST BOARD
Second Plaintiff

AND

TE RŪNANGA O WHAREKAURI REKOHU INCORPORATED

Defendant

Hearing:	31 October 2019
Counsel:	J V Ormsby and T J McGuigan for Plaintiffs No appearance for Defendant
Judgment:	1 November 2019

JUDGMENT OF CHURCHMAN J

[1]        The defendant is an incorporated society which was incorporated on 21 July 1988. It is one of three historical entities formed in the 1980s and 1990s to deal with the assets and affairs of the Ngāti Mutunga o Wharekauri Iwi (the iwi).

[2]The first plaintiffs are members of the iwi and also members of the defendant.

[3]        The second plaintiff is the entity that is the mandated iwi organisation for the iwi under the Māori Fisheries Act 2004. It also holds the mandate to negotiate with

PAGE & ORS v TE RŪNANGA O WHAREKAURI REKOHU INCORPORATED [2019] NZHC 2823

[1 November 2019]

the Crown on behalf of the iwi in relation to the settlement of claims under the Treaty of Waitangi.

[4]The second plaintiff was formed for purposes which included:

(a)acquiring assets from any previous entities representing Ngāti Mutunga o Wharekauri;

(b)being the repository of the collective Tino Rangatiratanga of Ngāti Mutunga o Wharekauri;

(c)being recognised as the mandated iwi organisation for fisheries settlement purposes under the Māori Fisheries Act 2004; and

(d)to hold the mandate to negotiate on behalf of the iwi in respect of the settlement of claims under the Treaty of Waitangi.

[5]        In the 1980s and 1990s, there was division between the three historical entities as to which one could represent Ngāti Mutunga o Wharekauri. The three entities were the defendant, Ngāti Mutunga o Wharekauri Incorporated (the Society), and Ngāti Mutunga o Wharekauri Trust (the old Trust).

[6]        In September 2003, an Agreement of Intent (AOI) was entered into between the defendant and the old Trust providing that a single iwi organisation would be set up to replace the existing entities and would represent the collective interests of the iwi. Subsequent hui involving the members of the iwi endorsed this agreement.

[7]        The agreements reached were not implemented and an order was obtained from the High Court enabling the assets of both the old Trust and the Society to be distributed to the second plaintiff.

[8]        The defendant failed to co-operate with the agreement leading to further High Court litigation. In April 2009, the High Court appointed a trustee to report on the financial position of the defendant. Retired Māori Land Court Judge (Heta) Kenneth

Hingston was appointed as chairperson of the defendant to remain until the 2010 annual general meeting.

[9]        The outcome sought in the Court orders was not achieved. The defendant remained under the control of a small number of iwi members including Charles Edward Tuuta and Stephen George Tuuta. It appears that these individuals sold assets of the defendant (part of a fishing quota) to fund unsuccessful litigation against the iwi Trust.

[10]      On 23 February 2015, the defendant was struck off the Incorporated Society’s register and has not been restored.

[11]      The first plaintiffs have endeavoured to obtain information about the running of the defendant but have been unsuccessful. Notwithstanding the fact that the defendant was struck off the Register of Incorporated Societies, there has been no resolution of its affairs. No statements of account have been prepared since 31 October 2009, no elections occurred every third successive year as was required by the constitution, and the last annual general meeting recorded on the Register of Incorporated Societies was held on 18 July 2010.

[12]      As a result of the dysfunction in relation to the operation of the defendant and concern over the possible unauthorised use of the assets by certain members of the defendant, the plaintiffs have applied under s 27 of the Incorporated Societies Act 1908 to the High Court for the defendant to be put into liquidation.

[13]      Under s 27, an order will be made where the requirements under s 25 are met. These requirements include:

(a)if the Society suspends its operations for the space of a year;

(b)if the members of the Society are reduced in number to less than 15;

(c)if the Society is unable to pay its debts;

(d)if the Society carries on any operation where any member makes any pecuniary gain contrary to the provisions of the Incorporated Societies Act 1908; and

(e)if the High Court or a Judge thereof is of the opinion that it is just and equitable that the Society should be put into liquidation.

[14]      I find that criteria (a) and (e) above have been met. It is also clear that, notwithstanding the intervention of the High Court in 2008, the defendant has not taken steps to comply with its constitution, including in relation to elections, the holding of an AGM or the preparation of financial statements. No such statements have been produced since the year ending 31 October 2009.

[15]      I am satisfied that it is appropriate for the defendant to be wound up and a liquidator appointed. In order for that to happen, it is necessary for it to be reinstated to the register of Incorporated Societies.

[16]      I am also satisfied that, on winding up, it is appropriate that all assets of the defendant, of whatever nature, be transferred to the second plaintiff.

[17]      The Court has been provided with signed notices of consent to act as liquidators by David Ian Ruscoe and Malcolm Russell Moore.

[18]      While it is a matter for the liquidators as to what steps they take in the liquidation, the Court is concerned that there appears to be evidence upon which it could be concluded that assets of the defendant have been sold or otherwise disposed of for unauthorised or improper purposes. If the liquidators, in the course of the liquidation, conclude that this has, in fact, occurred, they may wish to embark on litigation to recover those losses from the individuals responsible.

Outcome

[19]I direct that:

(a)Te Rūnanga o Wharekauri Rekohu Incorporated is restored to the register of Incorporated Societies and, upon restoration, is placed into liquidation pursuant to s 25 of the Incorporated Societies Act 1908;

(b)David Ian Ruscoe and Malcolm Russell Moore are appointed liquidators of Te Rūnanga o Wharekauri Rekohu Incorporated pursuant to s 25 of the Incorporated Societies Act 1908;

(c)all property of Te Rūnanga o Wharekauri Rekohu Incorporated be vested in Ngāti Mutunga o Wharekauri Iwi Trust, including the following real property:

(i)the property legally described as Section 2 Block XV Te Whanga Survey (Certificate of Title WN31B/359);

(ii)fish quota owned by Te Rūnanga o Wharekauri Rekohu Incorporated (395,080 shares of blue cod (BC04) and 3,000 shares of jack mackerel (JMA1)); and

(iii)all documents, records, correspondence, computer systems or other storage  devices  currently  believed  to  be  located  at  Te Rūnanga o Wharekauri  Rekohu  Incorporated’s  office  at  1 Met Lane, Waitangi, Chatham Islands, 8942.

(d)leave is reserved to the first and second plaintiffs to return to the Court for further orders if necessary; and

(e)the draft vesting order dated 31 October 2019 submitted to the Court is approved.

Churchman J

Solicitors:

WynnWilliams, Christchurch for Plaintiffs