Pihema v Pihema
[2020] NZHC 2749
•19 October 2020
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, in that regard, the operation of two Kiwibank accounts that Robert opened and used in relation to Trust funds – (the 00 and 01 accounts) and over the occupation of the homestead.
[9] Prior to the Courts becoming involved, Shireen was living in the homestead with the agreement of whānau members, Jason was living in Australia and Robert was living in Taupo. It appears there were no serious issues within the whānau while those accommodation arrangements were in place. At some point, Mr Brown, who was in a relationship with Shireen, also began staying at the homestead.
[10] Jason returned from Australia in December 2019 and moved into the homestead as a boarder, paying rent to Shireen.
[11] In February 2020, Robert’s partner, Ms Ngawhika, moved into the homestead. Robert was unable to join her permanently at the time but was present at the homestead on various occasions.
[12] Ms Ngawhika stayed initially in the house but then moved into a shed on the property as relations between Jason, Shireen and Mr Brown on the one hand and Ms Ngawhika and Robert on the other hand became more difficult. Trespass notices were served by Robert on Mr Brown and by Jason on Robert and Ms Ngawhika. The Police were called. No charges were brought.
[13] In March 2020, Jason applied to the Māori Land Court for an order under s 240 of the Te Ture Whenua Māori Act 1993 removing Robert as Trustee. That application is still before the Māori Land Court.
[14]Jason, with Mr Brown’s assistance, also applied for an interim injunction:
(a)Requiring Ms Ngawhika to vacate the homestead;
(b)Preventing Robert from undertaking any unilateral dealings with the Trust’s funds or the Trust property; and
(c)Preventing Robert and Ms Ngawhika from interfering with Shireen’s use of the homestead.
First decision of Judge Armstrong
[15] Judge Armstrong of the Māori Land Court heard the application for an injunction on 22 April 2020. Mr Brown appeared at the hearing as a lay advocate for Jason, notwithstanding his personal involvement in the dispute.
[16]In a decision dated 22 April 2020, Judge Armstrong of the Māori Land Court:2
(a)Declined to order Ms Ngawhika to vacate the homestead because he considered that the potential prejudice that Ms Ngawhika would face if required to vacate the household during the COVID-19 emergency outweighed the potential prejudice that Shireen would face if the injunction were not granted.3
(b)Declined to require Robert and Ms Ngawhika not to interfere with Shireen’s use of the homestead because Ms Ngawhika required access to the homestead in order to use its facilities.4
[17]The only injunction Judge Armstrong issued was an order as follows:5
THE COURT HEREBY ORDERS an interim injunction order pursuant to Section 19(1)(b) of Te Ture Whenua Māori Act 1993 prohibiting Robert Neha Pihema from undertaking any unilateral action in relation to the trust property or the trust funds:
2 Above n 1.
3 Above n 1, at [16]-[24].
4 Above n 1, at [32]-[33].
5 Above n 1, at [36].
(a)Robert Pihema is prohibited from making any further payments from the 01 account or the 00 account unless such payments have first been approved by Jason Pihema, and by the Court.
(b)This injunction does not prohibit any payments that are properly due in order to service the mortgage, to pay the rates, or to pay insurance premiums for Lot 18 Deposited Plan 28604.
THIS order is to continue until further order of the Court.
[18] Judge Armstrong also ordered Robert to provide to the Court and to serve on Jason a report:6
(a)Disclosing decisions made and resolutions passed by Robert as trustee;
(b)Providing copies of the bank statements for the Kiwibank accounts since 14 September 2016;
(c)Providing copies of invoices, receipts and other records of payments made from the Kiwibank accounts since 14 September 2016.
[19] Relations between the siblings continued to be fractious. Tensions increased when it became known that Robert intended to move into the homestead with Ms Ngawhika.
Second decision of Judge Armstrong
[20] Following an application from Jason for further orders, in an oral decision dated 3 July 2020, Judge Armstrong:7
(a)Declined to order Ms Ngawhika to vacate the homestead because he considered there had been no material change of circumstances since his previous decision;8 and
(b)Declined to make an order to enforce Robert’s obligations as trustee.9
6 Above n 1, at [37](a)-(c), pursuant to ss 37(3) and 238(1) of Te Ture Whenua Maori Act 1993.
7 Pihema v Pihema and Ngawhika Lot 18 DP 28604 (NA31C/245) 214 TTK MB 124.
8 Above n 7, at 130.
9 Above n 7, at 132.
[21] Judge Armstrong found that Robert was seeking to preserve Trust property by occupying the homestead, paying rent and servicing the mortgage, although he noted that Jason had filed evidence to show that multiple loan repayments had been missed while Robert had been managing the accounts.10 The Judge found that Robert had breached his obligations as trustee by unilaterally deciding to occupy the homestead without Jason’s consent.11 However, the Judge did not consider that the interests of justice or the interests of the wider beneficiaries promoted the injunction sought, particularly when Jason and Shireen had contributed to the Trust’s difficulties by not paying rent for a period.12
[22] In his decision of 3 July 2020, Judge Armstrong recorded that once he had received all relevant financial information, he intended to appoint an accountant to review the accounts in order to obtain a clear picture of what funds had been received, which funds belonged to the Trust, how those funds had been expended and whether the trustees had met their obligations to the Trust and in relation to servicing the mortgage over the homestead.13
Police called to homestead
[23] The Police were called following an altercation at the homestead on 20 August 2020. Jason was charged with assaulting Robert. Jason was bailed to an address in Kawakawa. The bail conditions require Jason not to go within 100 metres of the homestead and not to contact Robert except when attending the Māori Land Court.
Order of Chief Judge of Māori Land Court
[24] On 21 August 2020, the Chief Judge of the Māori Land Court made an order in accordance with s 85 of the Te Ture Whenua Maori Act transmitting to the High Court the interim injunction made by Judge Armstrong on 22 April 2020 prohibiting Robert from undertaking any unilateral action in relation to the Trust property.14
10 Above n 7, at 132.
11 Above n 7, at 131.
12 Ibid.
13 Above n 7, at 132.
14 Pihema v Pihema and Ngawhika Lot 18 DP 28604 (NA31C/245) 209 TTK 175-184.
Third decision of Judge Armstrong
[25] In a minute dated 31 August 2020, Judge Armstrong declined an application made by Mr Brown, apparently on Jason’s behalf, to cancel the interim injunction he had made on 22 April 2020 and to issue a permanent injunction.15
[26] In his minute, Judge Armstrong rejected Mr Brown’s assertion that circumstances had changed significantly since his oral decision of 3 July 2020.16 The Judge noted that Mr Brown appeared to dispute various findings he had made in his oral decision.17 The Judge said Mr Brown could not attempt to adduce further evidence to try to convince the judge to change his mind.18
[27] Judge Armstrong noted that Robert’s occupation of the property was in breach of the interim injunction.19 However, the Judge held that that was not a significant change in circumstance because that was clearly contemplated at the hearing on 3 July 2020 and was referred to in his decision.20 The Judge recorded that, to the extent Mr Brown and Jason continued to assert that Robert was breaching the interim injunction already granted, they could seek to enforce that injunction.21
The current application
[28] The current application seeks the arrest of Robert and Ms Ngawhika and a sequestration order against Ms Ngawhika’s property.
[29] In his affidavit in support of the application, Jason rehearses some of the events that have happened since March 2020 and which have been considered by Judge Armstrong in his three decisions. In addition, Jason refers to and exhibits:
(a)Trespass notices issued by Jason against Robert and Ms Ngawhika and by Robert against Jason, Shireen and Mr Brown;
15 Pihema v Pihema and Ngawhika Lot 18 DP 28604 (NA31C/245) 214 TTK MB 124.
16 Above n 15, at [2]-[4].
17 Ibid.
18 Ibid.
19 Above n 15, at [4].
20 Ibid.
21 Above n 15, at [5].
(b)Cease and desist notices issued by Jason against Robert;
(c)An invoice for $203,000 that Jason has issued to Ms Ngawhika for her trespass;
(d)A complaint Mr Brown made to the Police in September 2020 about an event that took place in March 2020; and
(e)A letter Mr Brown has written to Robert setting out Mr Brown’s deep unhappiness with Robert’s actions.
[30] Jason also refers to and exhibits a Police Summary of Facts relating to the incident that led to the assault charge against Jason. Among other things, the Summary of Facts states:
The Victim (i.e. Robert) believes he has exclusive rights to the house and has been trying to evict his siblings and police have been called on a number of occasions to keep the peace.
[31] Robert filed two affidavits in reply. The first affidavit was filed before Davison J directed that Jason’s application be served on Robert and, in effect, sought an audience before the Court before any decisions were made.
[32] In his second affidavit, Robert acknowledges that trespass notices have been served by the brothers against each other and by Robert against Mr Brown. The affidavit also asserts that Mr Brown has harassed Robert and threatened Robert’s children. Robert denies, however, that he has acted unilaterally when making decisions with respect to Trust business and says he has acted in the full knowledge of Trust beneficiaries. He also refers to and exhibits a memorandum of understanding which he, as Trustee, entered into with Ms Ngawhika regarding occupation of the homestead. Under the memorandum, which was dated 16 March 2020 but appears to have been executed in July 2020, Ms Ngawhika agreed to pay weekly rent and to maintain the property.
The parties to the application
[33] Initially, the application to this Court was made jointly by Jason and Mr Brown. Jason and Mr Brown also filed a joint memorandum in support of the application and Mr Brown filed a second separate memorandum prior to the hearing.
[34] Mr Brown’s involvement in the proceeding is problematic. The application seeks to enforce an injunction made by the Māori Land Court in a proceeding to which Mr Brown was not a party. The order made by Judge Armstrong was against Robert in his capacity as trustee and for the purpose of preserving Trust property. Mr Brown is not a trustee or beneficiary of the Trust and is not a member of the Pihema family. As I discuss later, I consider Mr Brown’s active involvement in the dispute between the two brothers to have unhelpful, not least because he has presumed to act as an adviser to and advocate for Jason while being personally involved in the dispute.
[35] However, and contrary to the view I expressed at the hearing, I accept that it is arguable that Mr Brown is a person who benefits from or has an interest under the injunction issued by the Māori Land Court in terms of s 16(2)(b) of the Contempt of Court Act. I reach that conclusion based on:
(a)Mr Brown’s assertion, in his memorandum and in Court, and which was not disputed by Robert, that Mr Brown used to reside at the homestead, presumably at the invitation of Shireen; and
(b)Robert’s evidence that he served a trespass notice on Mr Brown.
[36] Even so, I consider it inappropriate that Mr Brown is a party to an application which concerns a whānau trust in which he has no legal or beneficial interest. Such interest as Mr Brown has in the order made by the Māori Land Court is remote now that Shireen has vacated the homestead and Mr Brown is resident at another address. I also consider it improper for Mr Brown to have brought the application in his own name when he appeared as lay advocate for Jason at the hearing of the Māori Land Court.
[37] For these reasons, and in accordance with r 4.56 of the High Court Rules 2016, I have directed that Mr Brown be struck out as an applicant.
[38] Despite that decision, and despite the fact that Mr Brown has no right of audience before the Court, I allowed Mr Brown to sit with Jason and to address the Court in an effort to ensure that all relevant perspectives were heard.
Applicable law
[39] Under s 85(2) of the Te Ture Whenua Māori Act, an injunction issued by the Māori Land Court that is transmitted to the High Court by the Chief Judge of the Māori Land Court and filed in the High Court in accordance with s 85(1) of that Act, shall be deemed to be issued by the High Court and may be enforced by the High Court in accordance the practice of that Court.
Contempt of Court Act
[40] The Contempt of Court Act entered into force on 26 August 2020 in accordance with s 2(b) of that Act.
[41]Section 3(1) of the Contempt of Court Act provides:
The principal purposes of this Act are to—
(a)promote and facilitate the administration of justice and uphold the rule of law; and
(b)maintain and enhance public confidence in the judicial system; and
(c)reform the law of contempt of court.
[42] Section 3(2) of the Act provides that for these purposes, the Act enables courts to make certain orders and impose certain sanctions so that, among other things, orders made by the courts are enforceable.
[43] Section 3(3) of the Act abolishes specified common law contempts but preserves the inherent jurisdiction of the High Court to punish for contempt of Court in circumstances where the Act does not apply.
Section 16 of the Act provides:
16 Certain court orders and undertakings may be enforced
This section applies to—
(a)any interim or final order, decision, decree, direction, or judgment of a court (a court order) to do or abstain from doing something, except as provided in section 17:
(b)any undertaking given to the court if, on the faith of the undertaking, the court has sanctioned a particular course of action or inaction.
(2)A court may enforce the court order or undertaking against the party, non-party, or other person bound by the order or undertaking by taking action provided for in subsections (3) and (4) on application by—
(a)the party who sought the order or undertaking being enforced; or
(b)a person who benefits from, or has an interest under, the order or undertaking; or
(c)the Solicitor-General, if the Solicitor-General is satisfied that there is a high degree of public interest in enforcing the order or undertaking.
(3)The court—
(a)must not proceed further under this section unless it is satisfied that other methods of enforcing the court order or undertaking have been considered and are inappropriate or have been tried unsuccessfully; and
(b)if so satisfied, must make a finding as to whether it is proved beyond reasonable doubt that—
(i)the court order or undertaking being enforced has been made in clear and unambiguous terms and is clearly binding on the person; and
(ii)the person had knowledge or proper notice of the terms of the court order or undertaking being enforced; and
(iii)the person has, without reasonable excuse, knowingly failed to comply with the court order or undertaking being enforced.
(4)On finding beyond reasonable doubt that the requirements of subsection (3)(b)(i) to (iii) are met, the court may—
(a)do any of the following:
(i)issue a warrant committing the person or a director or an officer of the body corporate, as the case may be, to a term of imprisonment not exceeding 6 months:
impose a fine,—
(A)in the case of an individual, not exceeding
$25,000; or
(B)in the case of a body corporate, not exceeding
$100,000:
(iii)order the individual or a director or an officer of the body corporate, as the case may be, to do community work, not exceeding 200 hours, as the court thinks fit:
(b)if the court is the High Court, make a sequestration order in accordance with the rules of court.
(5)An applicant may apply under subsection (2) on 1 or more occasions to enforce the same court order or undertaking, and the court may take further action under subsections (3) and (4) as it thinks necessary to enforce the order or undertaking.
(6)Any enforcement action under this section does not operate to extinguish or affect the liability of the person to comply with a court order or an undertaking.
[45] Under s 5 and sch 1 cl 2(2) of the Act, s 16 applies to any order that was made before the commencement of the Act.
Analysis
[46] The injunction order made by Judge Armstrong has been transmitted to the High Court by the Chief Judge of the Māori Land Court for the purpose of enforcement in accordance with s 85(1) of the Te Ture Whenua Māori Act.22 It follows that that order is deemed to be an order of the High Court and may be enforced in accordance with s 16 of the Contempt of Court Act. However, any enforcement of that order is limited to the terms and scope of the order.
22 Above, n 14.
Application against Ms Ngawhika
[47] The application against Ms Ngawhika cannot succeed. No order has been made against Ms Ngawhika by the Māori Land Court so there is no deemed order of this Court to enforce against Ms Ngawhika.
Application against Robert
[48] Judge Armstrong’s injunction prohibited Robert from undertaking any unilateral action in relation to the Trust property and Trust funds. Robert denies that he has acted unilaterally. He says his actions were taken with the full knowledge of the Trust’s beneficiaries. However, it is clear from Judge Armstrong’s decision of 22 April 2020 that his use of the term “unilateral action” was intended to cover decisions made by Robert, who is a trustee, without the knowledge and consent of Jason, his fellow Trustee.
[49] In deciding to occupy the homestead without Jason’s consent, Robert has acted unilaterally with respect to Trust property and in breach of the injunction made by Judge Armstrong. Judge Armstrong found to this effect in his decision of 3 July 2020.
[50] Mr Muston, Robert’s counsel, submitted that Judge Armstrong had already decided that further action against Robert was unnecessary when, in his decisions of 3 July 2020 and 31 August 2020, Judge Armstrong declined to impose further orders against Robert. However, those decisions were in the context of applications for further orders. As Judge Armstrong made clear in both decisions, enforcement of the injunction was a matter for the Chief Judge of the Māori Land Court, in terms of whether to refer the injunction to the High Court, and, if the injunction was so referred, for the High Court. In other words, just because Judge Armstrong declined to impose further orders on Robert is not itself a reason for this Court not to take action to enforce the injunction. As noted above, in his minute of 31 August 2020, Judge Armstrong recorded that it was open to Jason to seek to enforce the injunction.
[51]As Brewer J said Booth v Tito:23
23 Booth v Tito [2020] NZHC 1071.
[11] The rule of law underpins our democracy. It means that everyone is subject to the law and must abide with it. The job of the Courts is to apply the law to disputes between the parties and to decide them. In civil disputes such as this, the decisions of the Courts are binding on the parties unless properly challenged or set aside. That must be so. If parties were free to disregard orders of the Court without proper penalty, then there would be anarchy. The strong would dominate the weak, there would be no rule of law and our democracy would disappear.
[12] This is the reason why the summary contempt of Court jurisdiction exists. It enables the Courts to quickly bring to account those who ignore Court orders
[52] Brewer J accepted, however, that whether or not the Court should hold the defendant in that case in contempt depended on the extent of the contempt, the motives of the defendant and the prejudice suffered by those affected by the defendant’s noncompliance with Court orders.24 In other words, not every instance of non- compliance warrants the exercise of the Court’s contempt powers.
[53] That point is reinforced by the Contempt of Court Act, which was not in force when Booth v Tito was decided. It is clear from s 16 of that Act that the Court has a discretion as to whether to enforce a court order. In addition, s 16(3) stipulates that the Court must not take any action to enforce a Court order unless:
(a)The Court is satisfied that other methods of enforcing the court order have been considered and are inappropriate or have been tried unsuccessfully; and
(b)The Court has made a finding as to whether it has been proved, beyond all reasonable doubt (that is, to the criminal standard of proof) that:
(i)The order has been made in clear and unambiguous terms and is clearly binding on the person subject to the order; and
(ii)The person subject to the order has, without reasonable excuse, knowingly failed to comply with the order.
24 At [20].
Questions to be decided
[54] Having regard to the requirements of s 16, the questions to be decided for the purposes of the present case are:
(a)Was the order clearly binding on Robert?
(b)Was the order made in clear and unambiguous terms?
(c)Can the Court be satisfied beyond reasonable doubt that Robert has, without reasonable cause, knowingly failed to comply with the order?
(d)Can the Court be satisfied that other methods of enforcing the order have been considered and are inappropriate or have been tried unsuccessfully?
(e)If the answer to all of the above questions is “yes”, should the Court exercise its discretion to order the arrest of Robert, having regard to the extent of the contempt, the motives of Robert and the prejudice suffered by those affected by Robert’s noncompliance with the order?
Was the order clearly binding on Robert?
[55]The answer to that question is “yes’. Robert is named twice in the order.
What was the order made in clear and unambiguous terms?
[56] The first part of the order is stated generally: it prohibits Robert “from undertaking any unilateral action in relation to the trust property or the trust funds”. However, that general prohibition is followed by a colon and two sub-paragraphs. The question that arises is whether the general prohibition is qualified by and limited to the scope of the following sub-paragraphs.
[57] The first subparagraph prohibits Robert from making any further payments from the 01 account or the 00 account unless those payments have been approved by Jason and by the Court. The second subparagraph provides that the injunction does
not prohibit payments to service the mortgage or to pay rates or insurance premiums. It could be argued, therefore, that the purpose of the injunction was limited to financial payments and was not concerned with the occupation of the homestead, despite the broad terms of the general prohibition.
[58] However, it is clear from Judge Armstrong’s judgment of 22 April 2020 that the purpose of the injunction was to stop Robert from making further unilateral decisions about the occupation of the homestead, in particular by Ms Ngawhika, as well as the use of the 00 and 01 bank accounts.
[59] I am satisfied, therefore, that it was clear and unambiguous from the order, and from the judgment making the order, that Robert was prohibited from making unilateral decisions about the occupation of the homestead and about the use of the 00 and 01 bank accounts – except to the extent needed to service the mortgage and pay rates and insurance.
Did Robert, without reasonable cause, knowingly fail to comply with the order?
[60] Despite the clear terms of the order, when making the order Judge Armstrong declined to require Ms Ngawhika to vacate the homestead, even though her occupation was one of the reasons for the application for the order. In addition, after the order was made but before Robert moved into the homestead, Judge Armstrong declined to make further orders to restrain Robert, even though the Judge knew of Robert’s intention to move into the homestead with Ms Ngawhika. The Judge noted that Robert was seeking to protect the homestead by occupying it, paying rent and servicing the mortgage. The Judge also declined to make further orders after Robert had moved into the homestead.
[61] It is at least possible, perhaps likely, that Robert concluded from that sequence of events that he had judicial tolerance of his moving into the homestead, despite the clear terms of the order and despite Judge Armstrong making it clear in his later decisions that Robert had breached the injunction by moving into the homestead. If so, that could amount to reasonable cause not to comply with the order.
[62] On the basis of the information available, therefore, I cannot be satisfied that Robert, “without reasonable cause”, “knowingly” failed to comply with the order. I certainly cannot be satisfied of that question beyond reasonable doubt, as is required by s 16(3)(b)(iii) of the Contempt of Court Act.
[63] Because I cannot answer “yes” to this question, that is enough to dispose of Jason’s application. However, for completeness, I also consider the other questions identified in [54] above.
Have other methods of enforcing the order been considered, are such other methods inappropriate, or have they been tried unsuccessfully?
[64] From the information available, it does not appear that other methods of enforcing the order have been considered or have been tried unsuccessfully. I do not have sufficient information to enable me to conclude whether other methods of enforcing the order may be inappropriate.
Should the Court exercise its discretion to order the arrest of Robert?
[65] This question requires consideration of the three factors considered by Brewer J in Booth v Tito: the extent of the contempt, Robert’s motives and the prejudice suffered by those affected by Robert’s noncompliance with the order.
The extent of the contempt
[66] Robert has clearly acted in breach of the order by occupying the homestead. The fact that he is living in the shed rather than homestead itself does not significantly mitigate the breach. He still needs to use the house and his partner and her family are living in the house.
[67] It also appears Robert is making life difficult for Jason and Shireen by taking steps to exclude Mr Brown, who is or was Shireen’s partner, and by demanding, or arranging for, the removal of property that Jason and Shireen have stored at the homestead.
[68] Robert told the Court the property he seeks to remove is not Trust property and that he is taking steps to tidy up the place and to stop undesirable activities, including the consumption of methamphetamine. However, Robert has no greater right than Jason, his fellow trustee, to decide who resides at the homestead and what property is stored at the homestead. Nor does he have a right to decide unilaterally what property Shireen stores at the property because she was an authorised occupant. Unilateral action by Robert to trespass Mr Brown and to require the removal of property belonging to Jason and Shireen, or of any other person whose property is stored at the homestead with the consent of Jason or Shireen, compounds the contempt.
[69] Although Shireen did not appear before the Court, both Robert and Jason acknowledged that Shireen has felt caught between the two brothers and has been so unhappy at what has been going on that she has felt the need to vacate the homestead and move elsewhere. That also compounds the contempt.
Robert’s motives
[70] Judge Armstrong found that Robert’s motive in occupying the homestead was to preserve Trust property by occupying the homestead, paying rent and servicing the mortgage. By implication, the Judge accepted that there was no malice in Robert’s actions.
[71] I do not differ from Judge Armstrong regarding Robert’s motives. I also accept that Robert has consulted other whānau members with regard to his actions. In addition, no objection can be taken to steps taken to improve the property and prevent illegal and harmful activities such as the consumption of methamphetamine – although Robert’s assertions are the only evidence of these matters.
[72] That said, I am concerned that Robert presumes and behaves as if he has the right to direct the future of the homestead regardless of the views and interests of his brother and other siblings. Robert told the Court that the account in the Police Summary of Facts was not correct in recording that Robert believes he has exclusive rights to the house and has been trying to evict his siblings. This Court is in no position to reach a firm conclusion on the point. It seems unlikely, however, that the Police would have recorded that position without Robert indicating to the Police something
along those lines, particularly when Robert was the victim of the incident to which the Police were responding.
[73] For these reasons, and having regard to Robert’s actions to date, I have a concern that Robert’s motives may extend beyond protecting the Trust’s property and may extend to seeking to securing control of the property for himself and his family, even if I am unable to reach a firm conclusion on that matter on the basis of the evidence before me. Lest there be any doubt, therefore, I record that Robert does not have any exclusive right to the homestead or any exclusive right to decide who occupies the homestead. As long as he and Jason are the two trustees, neither can unilaterally make decisions about the Trust and its property, even if they find it difficult to cooperate.
Prejudice to those affected by Robert’s noncompliance with the order
[74] There is clear prejudice to Shireen, who was the lawful occupant of the homestead, arising out of Robert’s occupation of the homestead and the tensions that ensued. I consider that the actions of Jason and Mr Brown have exacerbated those tensions but that does not relieve Robert of his responsibility for the prejudice caused to Shireen.
[75] There is also prejudice to Jason and to Mr Brown, as the invitee of Shireen and Jason, even if Jason’s current exclusion from the homestead under his bail conditions arises from his alleged assault on Robert.
Conclusions on whether to exercise the Court’s discretion
[76] Based on the above analysis, I am satisfied there would have been a sufficient basis for the Court to have ordered a remedy under s 16(4) of the Contempt of Court Act if it had been proved beyond reasonable doubt that Robert had, without reasonable cause, knowingly failed to comply with the injunction ordered by Judge Armstrong.
[77] As I indicated at the hearing, however, I would not have ordered Robert’s arrest. Based on the information before me and having regard to the purpose of the
order and the context in which it was made, I consider that arresting Robert would not have been an appropriate means of purging his contempt.
[78] It is plain from Judge Armstrong’s three decisions that the purpose of the order is to preserve the property of the Trust pending decisions to be made by the Māori Land Court on Jason’s application for Robert to be removed as a Trustee. That application has yet to be decided.
[79] Until the application has been decided, Robert and Jason have a responsibility as trustees to cooperate in the interests of the beneficiaries. It is apparent that neither is living up to that responsibility. Robert has been acting unilaterally. Jason and Mr Brown have been focused on achieving a court-directed victory over Robert. As I said to both brothers at the hearing, neither can succeed without the cooperation of the other. Obtaining Court orders for Robert’s arrest does not assist that cooperation.
[80] For these reasons, I do not consider any useful purpose would be served by ordering Robert’s arrest and I would not have made such an order.
[81] That said, Robert can now be in no doubt that in occupying the homestead, even if he is sleeping in the shed, and in taking steps to exclude others who are lawfully on the property, he is in breach of the injunction made by Judge Armstrong. That injunction is still in effect and is now an order of the High Court. As is clear from s 16(5) of the Contempt of Court Act, further applications can be made to enforce that order.
[82] If Robert continues to be in breach of the order or takes further steps that are inconsistent with that order, such as denying Shireen or Jason access to the homestead or removing their property without their consent, he will be acting in breach of the order and may be subject to further orders of this Court if the requirements of s 16(3) are satisfied. Those orders can include fines as well as an order for arrest.
[83] I do not encourage an application for a further order. It is unlikely that court intervention will assist resolution of the differences between the two brothers. It is more likely to exacerbate those differences. Yet those differences have to be resolved
in the interests of the beneficiaries and for the good of the whānau. That is why I told Mr Brown at the hearing that he needs to step back from this dispute, regardless of his wish to look out for Shireen’s interests. I do not consider Mr Brown’s involvement and his inclination to seek legal solutions to matters that bear on intra-whānau dynamics to have been helpful.
Result
[84] The application for orders for the arrest of Robert Pihema and Laurayno Ngawhika and for related orders is declined.
G J van Bohemen J
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