Staite v Kusabs
[2017] NZHC 1758
•27 July 2017
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 DefendantsJudgment:
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 as 1 July 1992. The date was 13 December 1992. I make an order under the slip rule substituting 13 December 1992 for the date of 1
July 1992 set out in that order.
[6] A more substantive issue, which is likely to have a significant effect on the way in which the proceeding might be resolved overall, arises out of the date chosen by me, now properly recorded as 13 December 1992. From findings in my judgment, it is clear that the Tumunui Trust went into possession of the land sometime in 1989. It did so without a formal assignment of the lease then in force, that had been entered into under what I called the Mills lease. The question is whether improvements undertaken by Tumunui Trust since the time it went into occupation should be taken into account under the rectified lease contemplated by my order.
[7] The point is important because the dairy conversion took place between the date on which Tumunui Trust went into occupation in 1989 and the date on which the lease commenced, 13 December 1992.
[8] Following discussions, Mr McKechnie made an oral application to recall the judgment so that the date from which improvements should be taken into account is reconsidered. No order has been sealed. I am satisfied that the issue raised amounts to the type of “very special reason” that will give rise to an application for recall as
set out in Wild CJ’s judgment in Horowhenua County v Nash (No 2).2 I grant the
application on condition that Mr McKechnie file a formal application identifying the specific order that he seeks. That shall be filed and served by 4pm on 1 August
2017.
[9] In light of the need to reconsider that issue, I set this proceeding down for a further hearing of one day at 10am on Monday 18 September 2017, in Hamilton. At
that time I will hear counsel on whether any different order should be made to that set out in my earlier judgment.
[10] There appear to be two valuation issues that could usefully be explored in the meantime. They may assist the parties in facilitating any settlement depending on the outcome of the recall application. They involve identifying the value of the improvements undertaken by Tumunui Trust, either from the 1989 date or 13
December 1992, which would then be taken into account for the purpose of calculating rent under the lease. The second involves a value that might be ascribed to the lease if it were to be surrendered in the near future as part of any settlement arrangement. While that is quintessentially a matter of negotiation and may not necessarily be something on which I could make an order in this proceeding, it may be helpful for experts to confer on that.
[11] Four valuation experts gave evidence at the hearing of this proceeding in July and August 2016. They were Mr McLaughlin, Mr Larmer, Mr Tizard and Mr Craven. It would be helpful if those four experts could all be involved in the process of calculating the amounts involved.
[12] I have indicated to counsel that I would be prepared to direct a conference of expert witnesses for this purpose. Such a conference would be directed under r 9.44 of the High Court Rules. I discussed the nature of that type of conference in Hojsgaard v Chief Executive of Land Information New Zealand,3 in a decision given last week.
[13] As will be seen from that judgment, there is a need to specify the issues on which the experts are to confer, to determine whether legal advisers should be present and whether any person should be appointed to act as a convenor of the meeting.
[14] The purpose of the conference of experts is to narrow issues for determination. Not only does the joint witness statement required by r 9.45 deal
with matters on which the experts agree but it is also required to identify those points on which they disagree, with reasons for those disagreement being recorded.
[15] I invite counsel to consider those issues and to file a joint memorandum within the next 10 working days. If a consent order can be sought, a draft order should be annexed to the memorandum. If it were sought on a consent basis, I shall make the order on the papers without further inquiry. If there were disagreement, either as to whether an order should be made or its terms, the joint memorandum shall set out the positions taken by each party. I will then decide what further order should be made having regard to those written submissions.
[16] Counsel should also consider whether any other directions are required in anticipation of the 18 September 2017 hearing. They too should be identified in the joint memorandum.
[17] Mr Chesterman, for the Whaoa Trust, did inquire whether I was prepared to make an order in respect of liability in relation to the cost of repair and maintenance of the right-of-way with which I dealt in para [253] of my judgment. I declined to do so because of the inter-relationship between that issue and those which will need resolution in the Maori Land Court. That question can be considered further in due course, if necessary.
[18] I reserve leave to apply, if necessary.
[19] All questions of costs are reserved.
P R Heath J