Pokere-Phillips v Trustees of Te Hanataua Trust
[2025] NZCA 319
•15 July 2025 at 12 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA385/2024 |
| BETWEEN | DONNA POKERE-PHILLIPS |
| AND | TRUSTEES OF TE HANATAUA TRUST |
| Court: | Mallon and Cooke JJ |
Counsel: | Applicant in person |
Judgment: | 15 July 2025 at 12 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time is declined.
BThe applicant must pay the respondent costs for a standard application on a band A basis, together with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mallon J)
Introduction
The applicant, Donna Pokere-Phillips, filed an appeal in this Court against a decision of the Māori Appellate Court that upheld a costs order in the Māori Land Court.[1] The appeal was deemed abandoned for non-compliance with the requirement to apply for a hearing date and to file the case on appeal within the requisite timeframe.[2] She now applies for an extension of time.[3]
Background
[1]Pokere-Phillips v Scott – Ōuri 1A3 (2024) Māori Appellate Court MB 84 (2024 APPEAL 2023/7) [appeal decision] and Pokere v Bodger – Ōuri 1A3 (2023) 468 Aotea MB 163 (468 AOT 163) [costs allocation decision]. There are discrepancies between the trustees listed on the various judgments relevant to this appeal. The documents currently filed with this Court do not clarify why or who the present correct trustees are. For that reason, and because this is a preliminary judgment relating to security for costs, we refer only to the “Trustees of Te Hanataua Trust”.
[2]Court of Appeal (Civil) Rules 2005 (the Rules), r 43(1) and (1A).
[3]Rule 43(2).
Te Hanataua Trust is an ahu whenua trust that holds land in South Taranaki. The trustees sought to demolish a whare on trust land. Ms Pokere-Phillips, and her now late father, James Pokere, tried to stop them. They alleged that the whare was akin to a marae and that, in ordering the demolition, the trustees breached tikanga and the Trusts Act 2019. A rāhui was put in place by Ngāruahine Kaumātua Kaunihera, a committee of elders, to stop the demolition while the proceeding was heard.[4] It was agreed the whare would not be demolished until further order of the Māori Land Court.[5]
[4]Pokere v Bodger – Ōuri 1A3 (2022) 459 Aotea MB 210 (459 AOT 210) [Māori Land Court decision] at [1].
[5]At [4].
Because the applicants relied on tikanga, the Māori Land Court appointed Dr Ruakere Hond under s 32A of the Te Ture Whenua Māori Act 1993 (the Act) as pūkenga, or an additional member of the Court, because of his specialist knowledge of Taranaki tikanga.[6] Unsurprisingly, Dr Hond was from Taranaki.
[6]At [4], citing Pokere v Bodger – Ōuri 1A3 (2022) 450 Aotea MB 128 (450 AOT 128).
The Māori Land Court was asked to determine:[7]
(a)An application to challenge the decision about the whare, as well as orders terminating that part of the trust where the whare is situated and to vary the terms of the trust to reflect that.
(b)An application seeking an order setting aside the whare, the land it sits on, and a nearby urupā, as a Māori reservation.
(c)An application for an interim injunction to stop the demolition of the whare.
[7]At [5]–[7].
On 14 December 2022, after a careful analysis of the appropriate tikanga vis‑à‑vis trustees and the history of the whare, the Māori Land Court dismissed the applications.[8] The Court did however invite the trustees to a consider a wānanga as part of their final steps to remove the whare.[9] Shortly after this, it appears that the whare was demolished.
[8]At [140]–[142].
[9]At [143].
On 4 May 2023, after inviting submissions on costs, the Māori Land Court awarded costs of $18,443.73 (60 per cent of the actual costs) against the unsuccessful applicants.[10] Again Dr Hond served as pūkenga, providing his specialist knowledge of tikanga to the Court. Cost orders were made final on 6 June 2023, comprising of $9,221.86 of costs personally payable by Ms Pokere-Phillips pursuant to s 79 of the Act and $9,221.86 covered by the Māori Land Court Special Aid Fund pursuant to s 98(3)(a).[11]
[10]Pokere v Bodger – Ōuri 1A3 (2023) 466 Aotea MB 120 (466 AOT 120) [costs award] at [41].
[11]Costs allocation decision, above n 1.
Ms Pokere-Phillips appealed the costs orders to the Māori Appellate Court under s 58 of the Act. On 14 May 2024 the Court dismissed the appeal and held:[12]
(a)The appeal was limited to the final costs award made on 6 June 2023, not the earlier costs decision of 4 May 2023.[13]
(b)It was not in the interests of justice to admit new evidence and to consider the new issues relating to that evidence.[14]
(c)There was no basis to say that Dr Hond had any relevant conflict of interests that indicated the Court decided the issue of costs on anything other than its merits.[15]
(d)There was no error in the final costs award decision.[16]
Appeal in this Court
Filing of appeal
[12]Appeal decision, above n 1, at [58].
[13]At [31].
[14]At [37].
[15]At [42].
[16]At [55]–[57].
Ms Pokere-Phillips’ notice of appeal was accepted for filing on 17 June 2024.[17] The notice of appeal stated that the appeal was against the Māori Appellate Court decision of 14 May 2024.
Security for costs applications
[17]Te Ture Whenua Māori Act 1993, s 58A(1) provides “a party to an appeal under s 58 may appeal to the Court of Appeal against all or part of the determination of the Māori Appellate Court on the appeal.”
On 10 July 2024 Ms Pokere-Phillips applied for an order dispensing with security for costs. The application was declined by the Deputy Registrar of this Court on 10 October 2024. Ms Pokere-Phillips applied for a review of this decision on 11 October 2024. The review was declined by Palmer J on 12 December 2024.[18] Ms Pokere‑Phillips applied for a “stay of enforcement” of the decision requiring security for costs on 13 December 2024. This was considered to be moot because, for reasons which we will turn to, on 19 December 2024 the Deputy Registrar deemed the appeal to be abandoned.
Deemed abandonment
[18]Pokere‑Phillips v Trustees of Te Hanataua Trust [2024] NZCA 657 [review decision].
Rule 43 of the Court of Appeal (Civil) Rules 2005 (the Rules) provides:
43 Appeal abandoned if not pursued
(1)An appeal is to be treated as having been abandoned if the appellant does not apply for the allocation of a hearing date and file the case on appeal within 3 months after the appeal is brought.
…
(1B)The Registrar may, on an informal application made before the end of the 3-month period referred to in subclause (1), extend that period by periods up to 1 month if—
…
(b)a party has applied to the Registrar under rule 35(6) in relation to security for costs … and the application has not yet been determined or was determined within the previous month; or
(c)a party has applied for a review of a Registrar’s decision on an application referred to in paragraph (b) and the review has not yet been determined or was determined in the previous month; or
…
(2) The Court, on an interlocutory application, may—
(a)grant an extension of the period referred to in subclause (1); and
(b) grant 1 or more further extensions of any extended period.
(3)The Court may extend a period or an extended period under subclause (2) only if the application for the extension is made—
(a) before the period or extended period ends; or
(b) within 3 months after the period or extended period ends.
…
Pursuant to r 43(1), and subject to any extensions granted under r 43(1B) or (2), Ms Pokere-Phillips needed to have filed the case on appeal and applied for the allocation of a hearing date by 17 September 2024 or her appeal would be treated as abandoned.
Ms Pokere-Phillips received a reminder about this on 16 August 2024. On 9 September 2024 she applied for, and was subsequently granted, an extension of time because her application to dispense with security for costs was pending at that time.[19] This extension was granted until 17 October 2024. On 11 October 2024 she received a further extension through to 18 November 2024 because she was seeking a review of the Deputy Registrar’s decision declining to dispense with security and that had not been determined.[20] On 5 November 2024 she received a third extension through to 18 December 2024 because the review was still to be determined.[21] With the third extension having lapsed, on 19 December 2024 the Deputy Registrar deemed the appeal abandoned.
Present application
[19]Pursuant to r 43(1B)(b) of the Rules.
[20]Rule 43(1B)(c).
[21]Rule 43(1B)(c).
On 29 January 2025 Ms Pokere-Phillips filed an application for an extension of time.[22] The grounds for her application are that:
(a)The holiday break created logistical and administrative challenges due to the closure of court services during the Christmas and New Year period, which impacted her ability to meet procedural deadlines in an unspecified manner.
(b)She has been distracted by ongoing legal matters in the Family Court regarding a family member’s welfare guardianship, property management, and ongoing care.
(c)She thought that her application for a stay of enforcement of the security for costs order also extended the time she had to file her case on appeal.
[22]Rule 43(3)(b).
In a supporting affidavit, Ms Pokere-Phillips said that, despite these challenges, she has taken steps to pursue this appeal and acted promptly once she became aware of the procedural missteps.
The application is opposed by the respondents, the trustees of Te Hanataua Trust. They say that Ms Pokere-Phillips is fully responsible for the repeated delays, the appeal has no prospect of success, and that the extended delays are causing costs to the Trust. They say that the underlying issue has now been resolved, given the whare was demolished.
Leave criteria
On an application for an extension of time the ultimate question is what the interests of justice require in the particular circumstances of the case.[23] Relevant considerations include: the length of the delay; the reasons for the delay; the conduct of the parties, particularly of the applicant; any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and the significance of the issues raised by the proposed appeal, both to the parties and more generally.[24]
[23]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40]. Although Almond v Read concerned an extension of time in which to bring an appeal under 29A of the Rules, this Court has confirmed that the principles are equally applicable to applications for an extension of time to file the case on appeal under r 43, see Rabson v Attorney General [2017] NZCA 350 at [9].
[24]Almond v Read, above n 23, at [38].
The merits of the proposed appeal may also be relevant, but any consideration of the merits must be relatively superficial.[25] There will be some instances in which the merits will be overwhelmed by other factors, such as the length of the delay and prejudice to the respondent, and so will not require consideration.[26] An extension of time may be refused where the lack of merit is readily apparent and the appeal is clearly hopeless.[27]
Discussion
[25]At [39(c)].
[26]At [39(a)].
[27]At [39(c)].
As to the length of the delay, the application for an extension was filed relatively promptly after the appeal was deemed abandoned. However, it is also relevant that the extension application relates to requirements to file the case on appeal and for the allocation of a hearing date that were originally due by 17 September 2024.
As to the reasons for the delay for the period from the filing of the appeal until 18 December 2024 when the last extension expired, they are partly explained by the application to dispense with security and the application for review which she was entitled to pursue. As for the period after this, Ms Pokere-Phillips says that in December 2024 she was engaged in welfare guardianship and property management issues due to the declining health of a family member. Additionally, the closure of court services over Christmas and New Year caused logistical and administrative challenges. And she says she mistakenly thought her appeal would be preserved by her stay application.
As to the conduct of Ms Pokere-Phillips, the application for a stay of the security for costs decision indicates that she does not wish to and likely cannot pay the required security. The Deputy Registrar’s decision determined that it was likely Ms Pokere-Phillips was impecunious and the appeal appeared to have low prospects of success and so was not an appeal that a reasonable and solvent applicant would proceed with. Palmer J agreed with this assessment in the review decision.[28] Ms Pokere-Phillips’ application for a stay and the present application for an extension therefore appear to be simply delaying the inevitable, namely that her appeal will be struck out for nonpayment of the security.[29]
[28]Review decision, above n 18, at [15].
[29]Pursuant to r 37(1) of the Rules.
There is some prejudice to the respondents in that it received a costs award on 6 June 2023 and two years later it has not been received that award. Moreover that costs award relates to a dispute over the decision to demolish a whare that was determined in the respondents’ favour on 14 December 2022. The pursuit of this appeal through the grant of an extension adds further delay to achieving finality in respect of this matter. Additionally, the respondents have incurred costs in responding to this application for an extension.
As to the significance of the issues, while there is no doubt that Ms Pokere‑Phillips feels strongly about the demolition of the whare, this appeal is about a costs award of $9,221.86, not the demolition.
As to the merits, this is a case where they are relevant. As mentioned, these have already been considered by the Deputy Registrar on the application to dispense with security and in Palmer J’s review of the Deputy Registrar’s decision. We add that:
(a)Many of the grounds (and relief sought) relate to issues other than costs, including: the distress the destruction of the whare caused her; allegations that the trustees did not inform her before demolishing the whare and acted in bad faith; allegations that the Māori Appellate Court refused to consider new evidence relating to the underlying proceeding, did not recognise the actual ownership of the whare, and favoured the trustees’ architect over her father’s evidence; allegations that the Trust failed to preserve its trust assets; and the submission that the case is important generally as it concerns the application of tikanga.
(b)The grounds that relate to the costs award do not have merit. Ms Pokere-Phillips says she was unable to find a lawyer, but she did find a lawyer—Sue Grey. She says the costs award unfairly included disbursement costs for the demolition of the whare but, as the Māori Appellate Court explained, the relevant costs—including fencing and security for the site—were incurred because of the delay caused by the Ms Pokere‑Phillips’ challenges to the demolition.[30] She also claims the lower court applied the wrong test in assessing costs which is not correct. Given the proposed appeal is a second costs appeal, it is very unlikely that the Court of Appeal will interfere with the lower court’s decision.[31]
(c)As to the claim that there is a reasonable apprehension of bias in relation to Dr Hond, Palmer J considered this in the review of the Deputy Registrar’s decision and said:[32]
[14] … Ms Pokere-Phillips did not object to the pūkenga at the substantive hearing. She did not object to the pūkenga in relation to the costs determination until after the costs were awarded against her. She did not provide any material to the Māori Land Court or, on appeal to the Māori Appellate Court, about the alleged conflict. She points to a website as justifying her concern but has not provided any evidence to this Court about the alleged conflict of interest either.
[30]Appeal decision, above n 1, at [56].
[31]Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523.
[32]Review decision, above n 18.
In the light of these factors, particularly the further delay this will cause for an appeal that is unlikely to be able to be pursued and is any event without merit, we conclude that an extension of time is not in the interests of justice. We therefore decline the application.
Result
The application for an extension of time is declined.
The applicant must pay the respondent costs for a standard application on a band A basis, together with usual disbursements.
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