Staite v Kusabs - [2013] NZHC 1851

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2009-463-000888 [2013] NZHC 1851

UNDER
the Trustee Act 1956 and the Declaratory

Judgments Act 1908 and the Land Transfer
Act 1952

BETWEEN

PETER DANIEL STAITE, JEAN TANIRAU-CARSTON, DEBORAH PAKAU, LEONIE REI NICOLLS and BRUCE ANDERSON B AMBER as trustees of the WHAOA NO 1 LANDS TRUST

First Plaintiffs

AND

ANDREW MATUTUEHU KUSABS, DONALD MAIRANGI BENNETT, JULIAN KUMEROA KEEPA and WIREMU WAAKA as trustees of the TUMUNUI LANDS TRUST

First Defendants

Continued over/...

Hearing: 16 July 2013

Appearances:

M McKechnie for the Applicants/Defendants
D Chesterman for the Plaintiffs/Respondents

Judgment:

25 July 2013

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on
25.07.13 at 4:30pm, pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

P D STAITE, J TANIRAU-CARSTON, D PAKAU, L R NICOLLS and B A BAMBER as trustees of the WHAOA NO 1 LANDS TRUST v A M KUSABS, D M BENNETT, J K KEEPA and W WAAKA as trustees of the TUMUNUI LANDS TRUST & ORS [2013] NZHC 1851 [25 July 2013]

PETER DANIEL STAITE, JEAN TANIRAU-CARSTON, BRUCE ANDERSON BAMBER, DAVID TE NOHI JAN NIKORA, LUCKY JR PEHI, OONAGH BERENICE MARINO as trustees and representatives of the beneficiaries of the NGATI WHAOA MAORI RESERVATION
Second Plaintiffs

ANDREW MATUTUEHU KUSABS and DONALD MIRANGI BENNETT retired as trustees of the TUMUNUI LANDS TRUST
Second Defendants

EDIE TE HUNAPO MOKE and PIPI PHOEBE 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 judgment concerns the defendants’ application for strikeout of the plaintiffs’ first amended statement of claim.

The proceeding

[2] The proceeding was initially filed on 17 December 2009. It was an 8 page document comprising 40 paragraphs and contained a single cause of action of an alleged breach of the Rule against Self-dealing.

[3] The named plaintiffs were noted as being trustees of the Whaoa No.1 Lands Trust (the Whaoa Trust) and the Ngati Whaoa Maori Reservation, and Mr P D Staite. The defendants were named trustees of the Tumunui Lands Trust.

[4] On 19 July 2012 the plaintiffs filed an application for leave to file an amended statement of claim, to add new defendants, and to remove and add a second plaintiff.

[5] The proposed amended statement of claim was a 41 page document comprising 161 paragraphs and containing six causes of action.

[6] The application to leave to file the amended statement of claim was opposed.

[7] My judgment upon that application issued on 14 December 2012. It reviewed a not uncomplicated history of issues now emerging concerning the lease by the Tumunui Trust of Maori freehold land owned by the Whaoa Trust for 42 years from 1 June 1990. When the Tumunui Trust took over the land in question from the previous tenant it converted its use from dry stock grazing to a dairy unit and had completed…

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 [2013] NZHC 1851
Case: [2013] NZHC 1851
Decision Date: 25 July 2013

CaseChat Overview and Summary

This case concerns an application by the defendants to strike out the plaintiffs' first amended statement of claim. The plaintiffs, as trustees of the Whaoa No.1 Lands Trust and the Ngati Whaoa Maori Reservation, allege that the defendants, as trustees of the Tumunui Lands Trust, breached the rule against self-dealing when they negotiated and entered into a lease agreement for Maori freehold land owned by the Whaoa Trust. The defendants opposed the application for leave to file the amended statement of claim, and the court granted leave on the basis that new material had been discovered and that it was too early to investigate limitation issues. The defendants' strike out application permits a closer analysis of the provability of the pleadings, the quality of those pleadings, and limitation issues. The court held that the plaintiffs' proceeding will be struck out against all defendants. The plaintiffs' claims are vague and unparticularised, and there is no evidence to support their claims of a poor lease bargain or of any influence exerted by Mr Moke. The court found that the parties' business arrangement had endured for about 18 years until this proceeding was filed, and that there is no suggestion of evidence available to the plaintiffs to prove their case. Costs are reserved.

Orders