Tahi Enterprises Limited v Taua - [2019] NZHC 630

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-0435

[2019] NZHC 630

BETWEEN
TAHI ENTERPRISES LIMITED

First Plaintiff

DIANNE LEE
Second Plaintiff

AND

TE WARENA TAUA and MIRIAMA

TAMAARIKI as executor of the estate of HARIATA ARAPO EWE
First Defendants

Cont…/2

Hearing: 22 March 2019

Appearances:

C Upton for the Plaintiffs

K J Crossland for the Second and Third Defendants

Judgment:

29 March 2019

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 29 March 2019 at 11.00am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
LeeSalmonLong, Auckland Shieff Angland, Auckland

TAHI ENTERPRISES LTD v TAUA [2019] NZHC 630 [29 March 2019]

TE WARENA TAUA, GEORGE HORI WINIKEREI TAUA, NGARAMA WALKER, HAMUERA TAUA and
MIRIAMA TAMAARIKI as trustees of the TE KAWERAU IWI TRIBAL
AUTHORITY
Second Defendants

TE WARENA TAUA, GEORGE HORI WINIKEREI TAUA, NGARAMA WALKER, HAMUERA TAUA and
MIRIAMA TAMAARIKI as trustees of the TE KAWERAU SETTLEMENT TRUST
Third Defendants

[1] On 18 December 2018 I gave a reserved judgment (the judgment) on an application by the plaintiffs for discovery before action.1 The application, which was primarily based on r 8.20 of the High Court Rules, sought discovery of the register of members of Te Kawerau Ā Maki Iwi (the Iwi). The plaintiffs' purpose in making the application was to ascertain the names of all Iwi members, so that they could be joined as additional defendants in the proceeding.

[2] In the judgment, I ordered the second and third defendants (the Trustees) to discover the register of members, but I directed that the register when produced for inspection was to have the names of all Iwi members who were either unborn or under the age of 18 as at 27 June 2007 (the Under 18's) redacted.

[3] The Trustees now apply for leave under s 56(3) of the Senior Courts Act 2016 (the Act) for leave to appeal against the judgment. The plaintiffs have responded with an application for leave to cross-appeal, contending that I erred in deciding that the names and addresses of the Under 18's should be redacted from the register of members the Trustees were ordered to disclose.

1 Tahi Enterprises Ltd v Taua [2018] NZHC 3372.

Applications for leave to apply against interlocutory decisions in the High Court

[4]Section 56 of the Act materially provides:

56 Jurisdiction

…

(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

…

(5)If the High Court refuses leave to appeal under subsection (3), the Court of Appeal may grant that leave on application made to the Court of…

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.

Keep reading for free

Create a free CaseChat account to read Tahi Enterprises Limited v Taua and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NZHC 630
Decision Date: 29 March 2019

CaseChat Overview and Summary

The case of Tahi Enterprises Limited v Taua before the High Court of New Zealand involved the plaintiffs seeking discovery before action, specifically the register of members of Te Kawerau Ā Maki Iwi, to ascertain the names of all Iwi members for the purpose of joining them as additional defendants. The court granted the application but ordered the redaction of names of Iwi members who were either unborn or under the age of 18 as at 27 June 2007. The Trustees of Te Kawerau Ā Maki Iwi applied for leave to appeal against the judgment, and the plaintiffs applied for leave to cross-appeal, arguing that the court erred in deciding that the names and addresses of the Under 18's should be redacted from the register of members. The legal issues involved whether the appeal and cross-appeal should be granted under s 56(3) of the Senior Courts Act 2016 and the significance or implications of any arguable error of fact or law. The court considered the principles to be applied on applications under ss 56(3) and (5) of the Act, and concluded that the application for leave to appeal should be granted due to the high significance or implication of any arguable error of law and the genuinely arguable legal issue. The court also granted leave for the cross-appeal as there was arguably an error of law in effectively refusing the joinder of the Under 18's by refusing the discovery order sought in respect of them.

The final orders were that the Trustees were to file and serve their appeal within 10 working days, and the plaintiffs were to commence their cross-appeal within 10 working days of service on them of the Trustees' appeal. The costs on the respective leave applications were reserved.

Orders