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Tahi Enterprises Ltd v Taua

Tahi Enterprises Ltd v Taua

Case [2018] NZHC 3372 18 December 2018

Jurisdiction

Discovery & Disclosure

Civil Litigation & Procedure

Contract Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-0435

[2018] NZHC 3372

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:
Further Submissions:

6 July 2018

26 November 2018 and 29 November 2018

Appearances:

D M Salmon and C Upton for the Plaintiffs

K J Crossland and A Alipour for the Defendants

Judgment:

18 December 2018

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 18 December 2018 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 [2018] NZHC 3372 [18 December 2018]

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

TABLE OF CONTENTS

Para No.

The parties  [3]
The plaintiffs' claims  [10]
The judgment of Lang J  [29]
The plaintiffs' March 2018 claim  [35]
Statements of defence to the plaintiffs'March 2018 claim by the second
and third defendants  [45]
The second defendants' defence  [45]
The third defendants' defence  [53]

The plaintiffs' replies [55]

The third defendants' strike-out application  [62]
The plaintiffs' draft amended statement of claim  [64]
The plaintiffs' discovery application  [75]
The notice of opposition  [76]
Do the rules referred to by the plaintiffs confer jurisdiction to make
the discovery orders sought?  [80]
The parties' arguments on the issue of jurisdiction under r 8.20  [85]
The plaintiffs  [85]
The second and third defendants  [90]
My conclusions on the r 8.20 jurisdiction issue  [94]

The Norwich Pharmacal jurisdiction [99]

The cases decided under r 8.20  [106]
The parties' Norwich Pharmacal arguments  [112]
The plaintiffs  [112]
The second and third defendants  [127]
Plaintiffs' submissions in reply  [145]

DISCUSSION AND CONCLUSIONS [149]

Application to stay any order pending the hearing and determination of
the third defendants' strike-out application [207]
Result [208]

[1] The plaintiffs wish to sue, as additional defendants in this proceeding, the individual members of the Te Kawerau Ā Maki Iwi (the Iwi). They do not have access to the register of members of the Iwi, and they now apply for pre-commencement discovery of that register (or registers) so that they can identify the members and add them as parties. That application is opposed by the second and third defendants, against whom the discovery orders are sought.

[2] An earlier application by the plaintiffs for an order under r 4.24 of the High Court Rules appointing the third defendants as the representatives of all affected Iwi members was dismissed by Lang J in a judgment delivered on 26 March 2018 (the representation judgment).1

The parties

[3] The first plaintiff (Tahi) is an Auckland-based incorporated company.…

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 Tahi Enterprises Ltd v Taua

Details

AGLC: Tahi Enterprises Ltd v Taua [2018] NZHC 3372
Case: [2018] NZHC 3372
Decision Date: 18 December 2018

CaseChat Overview and Summary

The plaintiffs, Tahi Enterprises Limited and Dianne Lee, sought to add the individual members of Te Kawerau Ā Maki Iwi as defendants in this proceeding, but they did not have access to the register of members of the Iwi. They applied for pre-commencement discovery of that register so that they could identify the members and add them as parties. The application was opposed by the second and third defendants. The court found that while the plaintiffs had a bona fide claim, they had not made out a sufficient case for Norwich Pharmacal discovery of the register of Iwi members insofar as it discloses the names or addresses of the under 18s. The court ordered that within 30 working days of the delivery of this judgment the Tribal Authority Trustees were to make available for inspection by the plaintiffs the register of members of the Te Kawerau Ā Maki Iwi, with the names of all Iwi members who were either unborn or under the age of 18 as at 27 June 2007 redacted. The Settlement Trust Trustees were to file and serve an affidavit stating whether they have or have had in their control a register or registers of members of Te Kawerau Ā Maki, and make available for inspection by the plaintiffs any register or registers of Iwi members discovered by them. Again, the register or registers of members were to be made available for inspection with the names of all Iwi members who were either unborn or under the age of 18 as at 27 June 2007 redacted. If such a register or registers had been but were no longer in their control, the Settlement Trust Trustees were to state in their affidavit their best knowledge and belief as to when such register or registers ceased to be in their control, and who now has control of it/them. The plaintiffs were awarded costs on a 2B basis, reduced by 25 per cent to reflect the factors mentioned, plus disbursements as fixed by the Registrar.

Orders