Porter v Glavish - [2024] NZHC 3497

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2024-404-488

[2024] NZHC 3497

UNDER Part 18 of the High Court Rules 2016

IN THE MATTER OF

The Ngā Maunga Whakahii o Kaipara Development Trust

BETWEEN

HOANI NERI PORTER, GLENDITH MERCIA SAMSON and EVE BRIAR STEENSON

Plaintiffs

AND

RANGIMARIE NAIDA GLAVISH,

MARGARET TANIA TUKERANGI, TRISYA MARIA HEMANA, TRACY DAVIS,

CHERIE DAWN POVEY, MARY JANE SHERARD, TAMAKI MERCER AND

DEBRA STAR BREWER as trustees of the Ngā Maunga Whakahii o Kaipara Development Trust

Defendants

Continued…

Hearing: 6 and 7 August 2024

Appearances:

V T M Bruton KC, N L Walker and T T H Hullena for the beneficiary plaintiffs

I T F Hikaka, H E McQueen and M S Bowie for the Majority Marae Trustees

Judgment:

21 November 2024

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 21 November 2024 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

PORTER AND OTHERS v GLAVISH AND OTHERS [2024] NZHC 3497 [21 November 2024]

AND

BETWEEN

AND

MARGARET TANIA TUKERANGI, TRISYA MARIA HEMANA, TRACY DAVIS and DEBRA STAR BREWER

Counterclaim Plaintiffs

HOANI NERI PORTER, GLENDITH MERCIA SAMSON, EVE BRIAR STEENSON, RANGIMARIE NAIDA

GLAVISH, CHERIE DAWN POVEY, MARY JANE SHERARD and TAMAKI MERCER

Counterclaim Defendants

[1] The Ngā Maunga Whakahii o Kaipara Development Trust (the Development Trust) is a post-settlement governance entity created for Ngāti Whātua o Kaipara, following settlement with the Crown of breaches of Te Tiriti o Waitangi. There is disharmony in the Trust. One group of beneficiaries believes the Trust is so dysfunctional that the Court should replace the existing trustees with court-appointed independent trustees. Another group believes there should be an election for trustees. And the groups disagree, in the first place, about who the current trustees are.

[2] The plaintiffs are three beneficiaries of the Development Trust. They seek orders that all current trustees be replaced with two court-appointed independent trustees (the Replacement Application). They also seek declarations as to whether, on the proper interpretation of the Trust’s trust deed, trustees whose terms have expired remain in office until the election of replacement trustees (the Interpretation Issue).

[3] Of the eight defendants, five are indisputably current trustees of the Development Trust. The three other defendants were elected as trustees, but their terms have expired. There is a dispute as to whether they remain in office pending the election of replacement trustees. Four of the five undisputed trustees have defended the claim: Ms Tukerangi, Ms Hemana, Ms Brewer and Mr Davis (the Majority Marae Trustees). The other four defendants support the plaintiffs’ claim. The Majority Marae Trustees have also brought a counterclaim against the plaintiffs and the other defendants, seeking a declaration that there be an election for trustees and a declaration on the Interpretation Issue.

[4] This judgment deals with questions that the parties agreed to have decided separately from, and in advance of,…

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 Porter v Glavish

Details

AGLC: Porter v Glavish [2024] NZHC 3497
Case: [2024] NZHC 3497
Decision Date: 21 November 2024

CaseChat Overview and Summary

The High Court of New Zealand considered a dispute involving the Ngā Maunga Whakahii o Kaipara Development Trust (the Development Trust), a post-settlement governance entity created for Ngāti Whātua o Kaipara. The plaintiffs, three beneficiaries of the Development Trust, sought orders to replace all current trustees with two court-appointed independent trustees and declarations regarding the interpretation of the Trust Deed concerning the terms of trustees. The defendants, five current trustees of the Development Trust, defended the claim and brought a counterclaim for declarations on the same interpretation issue and whether an election should be held forthwith. The court had to decide whether trustees whose terms had expired remained in office until replacement trustees were elected, whether an election should be held forthwith, and if so, how the election should be conducted. The court concluded that trustees whose terms had expired did not remain in office until replacement trustees were elected. It found that the trustees were required to hold an election forthwith, but the court should exercise its discretion not to make directions compelling an election, given the circumstances. The court made directions for the trustees to conclude the existing election process and allowed provisional voting to update the Register of members. The court also reserved leave for further directions if needed.

Orders