Staite v Kusabs - [2012] NZHC 3402

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2009-463-000888 [2012] NZHC 3402

BETWEEN PETER DANIEL STAITE, JEAN TANIRAU-CARSTON, DEBORAH PAKAU, LEONIE REI NICHOLLS AND BRUCE ANDERSON BAMBER Plaintiffs

ANDANDREW KUSABS, DONALD BENNETT, JULIAN KEPA AND WILLIAM WAKA AS TRUSTEES OF THE TUMUNUI LANDS TRUST Defendants

Hearing: 12 December 2012

Appearances: D Chesterman for the Plaintiffs
M McKechnie for the Defendants

Judgment: 14 December 2012

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on
14.12.12 at 11:30am, pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

Solicitors/Counsel:
D Chesterman, Barrister, Auckland – damian@chestermanlaw.co.nz/john@kwlaw.co.nz
M McKechnie, Barrister, Auckland – mmckechnie@xtra.co.nz

PETER DANIEL STAITE, JEAN TANIRAU-CARSTON, DEBORAH PAKAU, LEONIE REI NICHOLLS AND BRUCE ANDERSON BAMBER V ANDREW KUSABS, DONALD BENNETT, JULIAN KEPA AND WILLIAM WAKA AS TRUSTEES OF THE TUMUNUI LANDS TRUST HC ROT CIV 2009-463-000888 [14
December 2012]

Background

[1] The plaintiffs apply for leave to file an amended statement of claim. Leave is sought to add further causes of action, to add two new defendants, to remove the second plaintiff, and to divide the current first plaintiffs into separate first and second plaintiffs. Also directions are being sought by the plaintiffs as to their “representative nature”.

[2] This proceeding was filed on 18 December 2009. The intituling showed the proceeding was filed under the Trustee Act 1956 and Declaratory Judgments Act
1908. The first plaintiffs:

(a) Were appointed trustees of the Whaoa Trust pursuant to s 239 of the

Te Turi Whenua Maori Act 1993 (the 1993 Act).

(b) Are the registered proprietors of Maori freehold land known as

Rotomahana Parikarangi No.8 (RP8).

(c) Were appointed trustees of the Ngati Whaoa Maori Reservation (the

Whaoa Reserve) on 3 November 2009 pursuant to s 338(7) of the

1993 Act.

[3] The second plaintiff is:

(a) A beneficiary of the Whaoa Trust as a beneficial owner of RP8;
(b) Is a beneficiary of the Whaoa Reserve as a member of Ngati Whaoa. [4] The defendants were noted to be “the continuing trustees of the Tumunui

Lands Trust (the Tumunui Trust).

[5] The proceeding described how:

529.8624 hectares to form RP8. At the same time an order was made vesting that land in seven persons including Mr Bruce Bamber (who is the only remaining trustee of RP8) and Mr Edward Moke who died in late 2003.

(b)On 13 December 1985 those trustees as lessors and H Allen Mills & Son Limited (Mr Mills) as lessee, entered into a lease of the RP8 land for 21 years.

[6] The statement of claim pleads, inter alia:

(a) On 18 October 1985 the trustees of the Whaoa Trust and Mr Mills entered into a partial surrender of the memorandum of lease whereby
174.0185 hectares of RP8 was released from the terms of Mr Mills’

lease.

(b)Two weeks later the Maori Land Court made a recommendation that the land released was to be set aside as the Whaoa Reserve for the purposes of a timber reserve, catchment area and a…

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 [2012] NZHC 3402
Case: [2012] NZHC 3402
Decision Date: 14 December 2012

CaseChat Overview and Summary

In this case, the plaintiffs sought leave to amend their statement of claim, add further causes of action, add two new defendants, remove the second plaintiff, and divide the current first plaintiffs into separate first and second plaintiffs. The plaintiffs also sought directions as to their "representative nature". The defendants opposed the application. The court had to decide whether to grant leave to the plaintiffs to file an amended statement of claim. The court considered the relevant rules and principles, and the evidence and submissions of both parties. The court concluded that the plaintiffs had a reasonable explanation for the delay in filing the amended statement of claim, and that the amendment would not prejudice the defendants or cause any injustice. The court also noted that the amendment was necessary to bring the real controversy before the court and to clarify the issues for trial. The court therefore granted the application and reserved costs for fixation in due course.

Orders