Staite v Kusabs - [2014] NZHC 1183

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2009-463-888 [2014] NZHC 1183

UNDER
the Trustee Act 1956 and the Delcaratory

Judgments Act 1908

BETWEEN

PETER DANIEL STAITE, JEAN TANIRAU-CARSTON, DEBORAH PAKAU, LEONIE REI NICHOLLS and BRUCE ANDERSON BAMBER as trustees and as representatives of the beneficiaries of the Whaoa No.1 Lands Trust

First Plaintiffs

PETER DANIEL STAITE, JEAN TANIRAU-CARSTON, BRUCE ANDERSON BAMBER, DAVID TE NOHI, JAN NIKORA, LUCKY JR PEHI, OONAGH BERENICE MARINO, TERESSA HURIHANGANUI and DOROTHY RAROA as trustees and as representatives of the beneficiaries of the Ngati Whaoa Maori Reservation

Second Plaintiffs

AND

ANDREW MARUTUEHU KUSABS, DONALD MAIRANGI BENNETT, JULIAN KUMEROA KEPA and WILLIAM WAKA as trustees of the Tumunui Lands Trust

First Defendants Continued page 2

Hearing: 10 and 11 February 2014

Appearances:

D Chesterman and H Koning for the Plaintiffs
M McKechnie for the Defendants

Judgment:

30 May 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on Friday 30 May 2014 at 10.00 am pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar Date:………………………….

STAITE & ORS v KUSABS & ORS, [2014] NZHC 1183 [30 May 2014]

ANDREW MARUTUEHU KUSABS and DONALD MAIRANGI BENNETT as trustees of the Tumunui Lands Trust Second Defendants

EDIE TE HUNAPO MOKE and PIPI PHEOBE MOKE as personal representatives of the Estate of Edward Paurini Moke, as a former Trustee of the Whaoa No. 1 Lands Trust and the Ngati Whaoa Maori Reservation
Third Defendants

[1] This proceeding was commenced on 17 December 2009. Leave to amend the statement of claim, and to join parties, was granted by Associate Judge Christiansen on 14 December 2012. The amended claim (in which the original single cause of action had been supplemented by five more) was subsequently struck out by the learned Associate Judge on 25 July 2013.1 The plaintiffs now seek review of that decision.

[2] The proceeding is centrally concerned with a lease signed in 1994 between the Whaoa No. 1 Trust (the Whaoa Trust) and the Tumunui Lands Trust (the Tumunui Trust) in relation to a block of Maori freehold land known as Rotomahana Parekarangi 8 (RP8) (the Tumunui Lease).

[3] The first plaintiffs are the present day trustees of the Whaoa Trust. The Whaoa Trust was constituted under s 438 of the Maori Affairs Act 1953 and continues as an ahu whenua trust under s 354 of Te Ture Whenua Maori Act 1993. The Whaoa trustees are the registered proprietors of the land that is the subject of the Lease.

[4] The second plaintiffs are the trustees of the Ngati Whaoa Maori Reservation Trust (the Reserve Trust). At all material times the Whaoa Trust and the Reserve Trust had the same trustees. The beneficiaries of the two Trusts are not, however, the same. The reservation land that is the subject of the Reserve Trust is contiguous with the land that is the subject of the Tumunui Lease.

[5] All plaintiffs are said to be named both as trustees and “as representatives of the beneficiaries”…

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 [2014] NZHC 1183
Case: [2014] NZHC 1183
Decision Date: 30 May 2014

CaseChat Overview and Summary

The proceeding in question was commenced on 17 December 2009, seeking review of the decision to strike out the amended claim, which had been supplemented by five additional causes of action. The amended claim was subsequently struck out by the Associate Judge, who found the claims to be frivolous, vexatious, and an abuse of process. The plaintiffs now seek review of that decision.

The legal issues before the court were whether the Associate Judge's decision to strike out the amended claim was correct, and whether the claims should be struck out on other grounds.

The court found that the Associate Judge's reasoning was flawed in several respects. The court found that the plaintiffs were not required to provide evidence to support their claims at the strike-out stage, and that the existence of a potential laches defence did not justify striking out the claims. The court also found that the Associate Judge had not given separate consideration to the fifth and sixth causes of action, which were not based in equity and to which the doctrine of laches could not apply.

The court considered the merits of each cause of action and concluded that some of the claims should be struck out, while others should remain. The first and second causes of action should be struck out in their entirety as against the first and second defendants, but remain against Mr Moke's estate. The third cause of action should be struck out as against all defendants, while the fourth cause of action should remain insofar as it relates to the first and second defendants. The fifth and sixth causes of action should remain.

As to costs, the court considered that neither the plaintiffs nor the first and second defendants had wholly succeeded, and that costs should lie where they fell.

The court also briefly noted the Supreme Court's grant of leave to appeal the Court of Appeal's decision in Naera, which appeared to be material to what remained of the plaintiffs' claims. The fact that those questions were now at large might give the plaintiffs further pause in terms of their resolve to pursue proceedings which seemed likely only to deepen the regrettable rifts that had recently arisen between the parties.

Orders