Staite v Kusabs - [2020] NZSC 6

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 102/2019
[2020] NZSC 6

BETWEEN	PETER DANIEL STAITE, JEAN TANIRAU‑CARSTON, LYNETTE KATHLEEN PALMER AND CHYNELLE PICARD AS TRUSTEES OF THE WHAOA NO 1 LANDS TRUST Applicants
AND	ANDREW MARUTUEHU KUSABS, DONALD MAIRANGI BENNETT, JULIAN KUMEROA KEEPA AND WIREMU WAAKA AS TRUSTEES OF THE TUMUNUI LANDS TRUST First Respondents ANDREW MARUTUEHU KUSABS AND DONALD MAIRANGI BENNETT AS RETIRED TRUSTEES OF THE TUMUNUI LANDS TRUST Second Respondents

Hearing:	5 February 2020
Court:	O’Regan and Ellen France JJ
Counsel:	D G Chesterman and J P Koning for Applicant M S McKechnie and A F S Vane for Respondents
Judgment:	18 February 2020

JUDGMENT OF THE COURT

AThe application for leave to amend the application for leave to appeal is granted.

BThe application for leave to appeal is dismissed with leave reserved as set out in [16] below.

CNo order as to costs.

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REASONS

Introduction

The applicants, as trustees of the Whaoa No 1 Lands Trust (the Whaoa Trust), seek leave to appeal a decision of the Court of Appeal allowing an appeal by the respondents, as trustees of the Tumunui Lands Trust (the Tumunui Trust).[1] The Court of Appeal set aside an order for rectification made by the High Court of a lease of Māori freehold land executed by the Whaoa Trust in favour of the Tumunui Trust.[2]

Background

[1]Kusabs v Staite [2019] NZCA 420, (2019) 20 NZCPR 445 (Cooper, Brown and Williams JJ) [CA judgment].

[2]Staite v Kusabs [2017] NZHC 416 (Heath J) [HC judgment].

The background to the lease and the proceeding is set out in the judgment of the Court of Appeal and we need not repeat that detail.[3] It is sufficient to note the following matters. First, there were discussions between the parties as trustees of their respective ahu whenua trusts in the late 1980s about the Tumunui Trust acquiring the then current lease over the land. Tumunui went into possession of the land in mid‑1989 and began work to convert the dry stock farm to a dairy unit before any formal arrangement was concluded. In fact, no assignment of the lease was executed. Rather, as the High Court Judge recorded, discussions “morphed into negotiations about the terms on which Tumunui Trust would take a new lease over the land”.[4]
[3]CA judgment, above n 1, at [1]–[30].
[4]HC judgment, above n 2, at [57]. See also CA judgment, above n 1, at [15].
The new lease was ultimately executed in 1994. Subject to rights of renewal, the lease may run to 2032. Under the lease rental payments are calculated as follows:
… at a yearly rental calculated on the basis of five dollars per centum of the capital value of the said land according to a special valuation carried out by Valuation New Zealand for the purpose at the expense of the lessee … provided always that for the purposes of such valuation there shall be deducted from the said capital value…

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 Staite v Kusabs

Details

AGLC: Staite v Kusabs [2020] NZSC 6
Case: [2020] NZSC 6
Decision Date: 18 February 2020

CaseChat Overview and Summary

The applicants, as trustees of the Whaoa No 1 Lands Trust, sought leave to appeal a decision of the Court of Appeal. The Court of Appeal had allowed an appeal by the respondents, as trustees of the Tumunui Lands Trust, setting aside an order for rectification made by the High Court of a lease of Māori freehold land executed by the Whaoa Trust in favour of the Tumunui Trust. The applicants sought rescission of the lease on the basis that the involvement of Edward Moke, a trustee of both trusts, in discussions over the lease was a breach of Mr Moke’s fiduciary duty of loyalty to the Whaoa Trust of which the Tumunui Trust had knowledge. The Whaoa Trust claimed the lease terms were favourable to the Tumunui Trust and unfavourable to the Whaoa Trust both because of the duration of the lease and the rental being considerably below market value. The applicants sought either rescission of the lease or damages from the Tumunui Trust. The Court of Appeal allowed the appeal and set aside the order for rectification, finding that rectification was not available because the evidence did not support a finding that the parties had a common intention that the rental provision in the lease should have been in the revised form the Judge had ordered. The applicants sought leave to appeal and argued that they should not have been left without a remedy, in the form of either rescission or equitable damages. The applicants also sought leave to amend the application for leave to add a further factor which they say supports their argument as to the public importance of these issues, namely, the discussion of the Treaty of Waitangi in the preamble to Te Ture Whenua Maori Act 1993. The respondents opposed leave, saying that the leave criteria were not met and that the Court of Appeal correctly set aside the order for rectification because there was no common mistake. The Court of Appeal did not err in not considering any alternative remedy. The Court found that given the practical and other difficulties in the prospective appeal, it was not necessary in the interests of justice for the matter to be heard in this Court. The application for leave to appeal was accordingly dismissed, but leave was reserved to the applicants to make a further application for leave to appeal to this Court if an application was made to the Court of Appeal asking that Court to revisit the matter but without success. Leave was granted to the applicants to amend the notice of application for leave to appeal. No order as to costs was made.

Orders