Staite v Kusabs - [2017] NZHC 1758

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2009-463-888 [2017] NZHC 1758

BETWEEN
PETER DANIEL STAITE, JEAN

TAIRAU-CARSTON, DEBORAH PAKAU, LEONIE REI NICOLLS AND BRUCE ANDERSON BAMBER AS TRUSTEES OF THE WHAOA NO 1

LANDS TRUST Plaintiffs and Ors

AND

ANDREW MARUTUEHU KUSABS, DONALD MAIRANGI BENNETT, JULIAN KUMEROA KEEPA AND WIREMU WAKA AS TRUSTEES OF THE TUMUNUI LANDS TRUST Defendants and Ors

Hearing: 27 July 2017

Counsel:

D G Chesterman and J P Koning for Plaintiffs
M S McKechnie for Defendants

Judgment:

27 July 2017

(ORAL) JUDGMENT (NO. 2) OF HEATH J

Solicitors:
Koning Webster, Taurnaga Tim Kinder, Putaruru Counsel:
D G Chesterman, Auckland
M S McKechnie, Rotorua

STAITE V KUSABS [2017] NZHC 1758 [27 July 2017]

[1] A case management conference was held today to consider issues remaining outstanding as a result of my judgment of 13 March 2017.1 Counsel submitted helpful memoranda in advance of the conference, for which I thank them. The parties are currently in negotiations in an attempt to resolve all outstanding issues.

[2] Those relating to the boundary and easement, to which I referred as the Reserve claims in my judgment, have not been progressed significantly. However, today, Mr Koning has advised me, on behalf of the Whaoa No 1 Trust (the Whaoa Trust), that an extant application in the Maori Land Court could be used to finalise those issues. Mr McKechnie, for Tumunui Lands Trust (the Tumunui Trust), was concerned that those proceedings had initially sought damages for trespass. As a result of discussions, I am satisfied that the Whaoa Trust does not intend to pursue that aspect of the claim. The purpose is to find a means by which boundary and easement problems can be resolved including, if necessary, the making of a roadway order.

[3] Having explained that situation, I now leave it to Mr McKechnie and Mr Koning to advance that application in the Maori Land Court with as much expedition as practicable.

[4] The second issue concerns an order I made on the Tumunui lease claim. It concerns relief granted by way of rectification in favour of the Whaoa Trust. The formal order in issue is set out in my judgment of 13 March 2017 as follows:

[262] On the Tumunui lease claims:

…

(b) I make an order for rectification of the Tumunui lease to remove the words “or its predecessor since the 13th day of December 1961 and” from the Tumunui lease. The effect of that order is to require rental to be fixed in accordance with the formula in the lease but taking into account only improvements to the land made by the Tumunui Trust since the lease commenced, on 1 July 1992. A consequence of this order is that adjustments will need to be made to the rent fixed for earlier periods.

….

1 Staite v Kusabs [2017] NZHC 416.

[5] Counsel have pointed out to me today that I erred in stating the date of commencement of the lease…

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 [2017] NZHC 1758
Case: [2017] NZHC 1758
Decision Date: 27 July 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Rotorua Registry, the case of Staite v Kusabs was heard. The plaintiffs, trustees of the Whaoa No 1 Lands Trust, brought claims against the defendants, trustees of the Tumunui Lands Trust, concerning boundary and easement issues. The case was part of ongoing negotiations between the parties. The court was required to address two primary issues: the resolution of boundary and easement claims through an existing application in the Maori Land Court and the rectification of an order regarding the commencement date of a lease and the scope of improvements to be considered for rent calculation.

The court identified an error in the previously issued order, correcting the commencement date of the lease to 13 December 1992 instead of 1 July 1992. This correction was made under the slip rule. The court also granted an application to recall the earlier judgment to reconsider the scope of improvements taken into account for rent calculation, considering the period from when the Tumunui Trust went into possession in 1989 to the corrected lease commencement date. This reconsideration was deemed necessary due to the potential significant impact on the case's resolution. The court scheduled a further hearing for 18 September 2017 to address the rectification issue and directed a conference of experts to assist in narrowing the issues for the upcoming hearing.

The court further directed the parties to explore valuation issues related to the improvements and potential surrender of the lease. It encouraged the involvement of the four valuation experts who had previously given evidence. The purpose of this expert conference was to produce a joint witness statement that would clarify agreements and disagreements among the experts. The court invited counsel to file a joint memorandum within 10 working days, considering any necessary consent orders and additional directions for the upcoming hearing. The court reserved its decision on the cost of repair and maintenance of the right-of-way and all questions of costs.

Orders