Rangitukunga v Koning - [2015] NZCA 24

IN THE COURT OF APPEAL OF NEW ZEALAND

CA212/2014
[2015] NZCA 24

BETWEEN	RAPATA TE HAA RANGITUKUNOA Applicant
AND	JOHN PIETER KONING AND HIRIA REWETI Respondents

Hearing:	9 February 2015
Court:	Ellen France P, Randerson and White JJ
Counsel:	Applicant in person A Isac for Respondents
Judgment:	24 February 2015 at 4 pm

JUDGMENT OF THE COURT

AThe application for an extension of time is dismissed.
BThe applicant must pay the respondents costs for a standard application on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Ellen France P)

Introduction

This is an application for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 to appeal a decision of Lang J. Lang J made orders giving effect to a settlement reached between the parties during the course of a hearing.[1]

Background

[1]Rangitukunoa v Koning HC Tauranga CIV-2013-470-281, 5 November 2013 (Orders of Lang J).

The current litigation arises from events dating back to the 1990s relating to a residential Māori freehold property at Matapihi owned by the applicant, Mr Rangitukunoa, and his wife.
Two mortgages were registered over the property. The second mortgage in favour of Trust Bank Bay of Plenty Ltd (Trust Bank) was in arrears and a mortgagee sale scheduled for 23 August 1991. The mortgagee sale was averted when Mr Rangitukunoa’s uncle, Mr Reweti, arranged for the full amount (some $43,000) secured by the mortgage to be repaid to Trust Bank. Rather than discharge the mortgage, a transfer of it to Mr Reweti was arranged. The transfer of the second mortgage to Mr Reweti was registered against the title in October 1992.
Mr Reweti died in 1995. Arrears remained outstanding under the mortgage. Mr Rangitukunoa’s solicitors offered to settle the matter on a without prejudice basis in early 1998. That offer was rejected by the solicitor acting for the estate. The executors and trustees of the estate arranged a mortgagee sale auction which was to take place in June 2004. The auction was cancelled when an offer by Mr Rangitukunoa and his wife to pay $50,000 in settlement was accepted. However, no payment was ever made.
The next relevant event occurred in March 2007 when the first respondent, Mr Koning, was appointed as the sole executor and trustee of the estate. Mr Koning is a lawyer. In his capacity as executor and trustee, Mr Koning made an application to the Māori Land Court for an order for possession based upon rights contained in the Trust Bank mortgage. He sought an order for possession rather than sale and intended that income from the land be utilised to repay the arrears. The Māori Land Court concluded that Mr Koning was entitled to an order for possession.[2]
[2]Koning v Smith – Matapihi 1A3D4C1 (2011) 18 Waikato Maniapoto MB 220 (18 WMN 220).
Mr Rangitukunoa appealed to the Māori Appellate Court. The appeal was allowed but an order substituted under a different section of Te Ture Whenua…

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 Rangitukunga v Koning

Details

AGLC: Rangitukunga v Koning [2015] NZCA 24
Case: [2015] NZCA 24
Decision Date: 24 February 2015 at 4 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Rapata Te Haa Rangitukunoa to extend the time for filing a notice of appeal against a decision of Lang J. The case involved a dispute over a residential Māori freehold property at Matapihi, owned by Mr Rangitukunoa and his wife, with two mortgages registered over the property. The second mortgage, initially held by Trust Bank Bay of Plenty Ltd, was transferred to Mr Reweti, Mr Rangitukunoa’s uncle, who later died. Arrears remained under the mortgage, and Mr Koning, appointed as the sole executor and trustee of the estate, sought an order for possession. The Māori Land Court and Māori Appellate Court found in favour of Mr Koning, leading to the settlement agreement in the High Court. Mr Rangitukunoa filed an application for an extension of time to appeal Lang J’s orders, which was dismissed.

The legal issues before the Court were whether the extension of time should be granted under rule 29A of the Court of Appeal (Civil) Rules 2005, considering the reasons for and length of the delay, the conduct of the parties, and the extent of any prejudice caused by the delay. The Court examined whether the proposed appeal had merit and if granting the extension would meet the overall interests of justice.

The Court found that Mr Rangitukunoa's application for an extension of time was not filed until almost five months after Lang J pointed out that the matter would have to be pursued in the Court of Appeal. The Court concluded that Mr Rangitukunoa had agreed to the settlement reluctantly but understood its terms. The record showed that Mr Rangitukunoa had initiated the discussion of a possible settlement and there was no evidence of intimidation by the Judge. The Court determined that the proposed appeal was without merit as it would not succeed in setting aside the consent order. Consequently, the application for an extension of time was dismissed, and Mr Rangitukunoa was ordered to pay the respondents' costs for a standard application on a band A basis and usual disbursements.

Orders