Tahi Enterprises Ltd v Taua - [2018] NZHC 516

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-435

[2018] NZHC 516

BETWEEN
TAHI ENTERPRISES LIMITED

First Applicant

DIANNE LEE
Second Applicant

AND

TE WARENA TAUA AND MIRIAMA

TAMAARIKI as executors of the Estate of Hariata Arapo Ewe
First Respondents

TE WARENA TAUA, GEORGE HORI WINIKEREI TAUA, NGARAMA WALKER, HAMUERA TAUA and

MIRIAMA TAMAARIKI as trustees of the Te Kawerau Iwi Tribal Authority
Second Respondents

TE WARENA TAUA, GEORGE HORI WINIKEREI TAUA, NGARAMA WALKER, HAMUERA TAUA and

MIRIAMA TAMAARIKI as trustees of the Te Kawerau Iwi Settlement Trust

Third Respondents

Hearing: 26 and 27 February 2018

Appearances:

M Heard and C Upton for Applicants

J S Langston for Second and Third Respondents First Respondents abide decision of the Court

Judgment:

26 March 2018

JUDGMENT OF LANG J

[on application for representation orders under r 4.24 of the High Court Rules]

TAHI ENTERPRISES LTD v TAUA [2018] NZHC 516 [26 March 2018]

This judgment was delivered by me on 26 March 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

[1] In this proceeding the plaintiffs advance several causes of action. All arise out of dealings the second plaintiff, Ms Lee, had with members of the Te Kawerau ā Maki Iwi (the Iwi) during 2007 and 2008.

[2] The plaintiffs now seek an order under r 4.24 of the High Court Rules 2016 appointing the third defendants, the trustees of the Te Kawerau Iwi Settlement Trust (the Settlement trustees), to represent the members of the Iwi in this proceeding.

[3] The Settlement trustees initially consented to the order being made. Subsequently, however, they reconsidered their position. They now oppose any order being made appointing them as representatives of the Iwi for the purpose of this proceeding.

[4] The current version of the statement of claim contains six causes of action. Four of these relate to two joint venture agreements the first plaintiff, Tahi Enterprises Ltd (Tahi), entered into with members of the Iwi in 2007 and 2008. Ms Lee is the sole shareholder and director of Tahi.

[5] The remaining causes of action are based on transactions between Ms Lee and the first-named first respondent, Mr Te Warena Taua (Mr Taua). These relate to a house property situated at 517 Oruarangi Road, Māngere (the Māngere property).

A. The claim based on the two joint venture agreements

The parties

[6] The plaintiffs allege that Mr Taua is the Chairman and Rangatira/Chief of Te Kawerau ā Maki. Mr Taua and Mrs Ewe, another senior member of the Iwi, were claimants on behalf of the Iwi in three claims filed in the Waitangi Tribunal. Mrs Ewe died on 13 August 2009. The second-named first respondent, Ms Miriama Tamaariki, is the executor of Mrs Ewe’s estate.

[7] The second respondents are the trustees of the Te Kawerau Iwi Tribal Authority (the Tribal Authority trustees), a charitable trust established on behalf of the Iwi under the Charitable Trusts Act…

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.

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Details

Case: [2018] NZHC 516
Decision Date: 26 March 2018

CaseChat Overview and Summary

The plaintiffs in Tahi Enterprises Ltd v Taua sought orders appointing the trustees of two trusts to represent members of the Te Kawerau ā Maki Iwi in a proceeding relating to two joint venture agreements. The plaintiffs also sought orders requiring the trustees to serve notice of the proceeding on all members of the Iwi over the age of 18 years as at 27 June 2007. The Settlement trustees initially consented to the orders but subsequently opposed them. The court considered the appropriate test for determining whether a representative defendant could be appointed in proceedings of this kind. It concluded that the test was whether the parties to be represented had the same interest in the subject matter of the proceeding. The court held that the members of the Iwi could not be said to have the same interest in the proceeding because they were likely to have different defences to the claims. The court also concluded that the appointment of representative defendants would not achieve the usual purpose of removing the need for a multiplicity of proceedings. The application was dismissed.

Orders