Pihema v Pihema - [2020] NZHC 2749

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV 2020-488-000077

[2020] NZHC 2749

IN THE MATTER of the Contempt of Court Act 2019

BETWEEN

JASON TODD PIHEMA

Applicants

AND

ROBERT NEHA PIHEMA

Respondent

Hearing: 12 October 2020

Appearances:

Applicant in person

Respondent in person, with assistance from C Muston

Judgment:

19 October 2020

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 19 October 2020 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
C Muston, Barrister, Whangārei

PIHEMA v PIHEMA [2020] NZHC 2749 [19 October 2020]

Introduction

[1] Jason Pihema and Kenneth Brown have applied under the Contempt of Court Act 2019 and the High Court Rules 2016 for an order for arrest against Jason’s brother, Robert Pihema. They have also applied for an order for arrest against Robert’s partner, Laurayno Ngawhika, and any other person under Robert’s authority, and for sequestration of Ms Ngawhika’s property.

[2] The application was made without notice and in reliance on an interim injunction against Robert made by Judge Armstrong in the Māori Land Court on 22 April 2020.1

[3] By minute dated 6 October 2020, Davison J directed that the application be served on Robert and placed in the Duty List for a first call and timetabling orders. However, Jason and Mr Brown then sought an urgent hearing of the application, alleging there was extreme urgency because of an escalation of conflict.

[4] By minute dated 7 October 2020, Walker J set down the application for hearing before me on 12 October 2020.

[5] Mr Muston, who was appointed by Walker J to assist the Court, appeared on behalf of Robert. I also heard directly from Robert, and from Jason and Mr Brown, even though Mr Brown was not properly a party to the proceeding and had no right of audience before the Court.

Relevant background

[6] The Owen and Te Tuhi Pihema Whānau Trust (Trust) was established in September 2016 by order of the Māori Land Court. Jason and Robert are the trustees. Their brother, Owen Pihema, is an advisory trustee. The beneficiaries of the Trust are the descendants of Owen and Te Tuhi Pihema, the brothers’ parents. In addition to Jason, Robert and Owen, the beneficiaries include two other siblings, Shireen Pihema and Pius Te Wake, and the children of the siblings.

1 Pihema v Pihema and Ngawhika 209 Lot 18 DP 28604 (NA31C/254) 209 TTK MB 175.

[7] In February 2019, the Trust was varied to include Lot 18, DP 28604, which is general land (that is, not Māori land) formerly owned by the brothers’ late mother, Te Tuhi Pihema. That land contains the whānau homestead, located at 5 Otiria Road, Moerewa. The property is subject to a mortgage to the BNZ Bank.

[8] The current application, and the related proceeding in the Māori Land Court, relate to a dispute between Jason and Robert over the management of the Trust and,…

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 Pihema v Pihema

Details

AGLC: Pihema v Pihema [2020] NZHC 2749
Case: [2020] NZHC 2749
Decision Date: 19 October 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Jason Pihema, along with Kenneth Brown, sought an order for the arrest of Robert Pihema, Robert’s partner Laurayno Ngawhika, and any other person under Robert’s authority. The application also sought sequestration of Ms Ngawhika’s property. The application was made under the Contempt of Court Act 2019 and the High Court Rules 2016, relying on an interim injunction against Robert made by Judge Armstrong in the Māori Land Court on 22 April 2020. The central legal issues were whether the court could enforce the Māori Land Court’s injunction under the Contempt of Court Act, and if so, whether the court should exercise its discretion to order Robert’s arrest. The court found that while the injunction was binding on Robert and clear in its terms, it could not be satisfied beyond reasonable doubt that Robert knowingly failed to comply with the order without reasonable cause. Even if it could, the court determined that arresting Robert would not be an appropriate means of purging his contempt given the context and purpose of the order, which was to preserve Trust property pending the Māori Land Court’s decision on Jason’s application for Robert to be removed as a Trustee. The application for orders for the arrest of Robert Pihema and Laurayno Ngawhika and for related orders was declined.

Orders