Taua v Tahi Enterprises Ltd - [2020] NZCA 639

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA160/2019
[2020] NZCA 639

BETWEEN	TE WARENA TAUA, GEORGE HORI WINIKEREI TAUA, NGARAMA WALKER, HAMUERA TAUA AND MIRIAMA TAMAARIKI AS TRUSTEES OF THE TE KAWERAU IWI TRIBAL AUTHORITY First Appellants TE WARENA TAUA, GEORGE HORI WINIKEREI TAUA, NGARAMA WALKER, HAMUERA TAUA AND MIRIAMA TAMAARIKI AS TRUSTEES OF THE TE KAWERAU IWI SETTLEMENT TRUST Second Appellants
AND	TAHI ENTERPRISES LIMITED First Respondent DIANNE LEE Second Respondent

Hearing:	9 June 2020
Court:	Cooper, Gilbert and Courtney JJ
Counsel:	K J Crossland, J S Langston and M K Mahuika for Appellants M Heard and C Upton for Respondents
Judgment:	11 December 2020 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

B The appellants must pay the respondents costs calculated for a standard appeal on a band A basis and usual disbursements.

C The cross-appeal is dismissed.

DThe cross-appellants must pay the cross-respondents’ costs calculated for a standard appeal on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Cooper J)

Introduction

This appeal is about discovery. The issue raised is whether the High Court was correct to order the disclosure of the names of members of an iwi for the purposes of allegations intended to be made against them of breaches of contract, unjust enrichment and related claims.
The proceeding commenced by Tahi Enterprises Ltd (Tahi) and Ms Dianne Lee[1] alleges that Te Kawerau ā Maki, the first appellants and Mr Te Warena Taua wrongly purported to cancel a joint venture agreement executed in June 2007. Under that agreement, Tahi made various payments totalling $1.3 million to support the advancement of claims for redress by Te Kawerau ā Maki under the Treaty of Waitangi. As an alternative, Tahi alleges unjust enrichment and seeks equitable compensation.
[1]We refer to Tahi and Ms Lee collectively as Tahi in respect of claims brought by both parties, and to Ms Lee alone in respect of claims in which she is the sole plaintiff.
Ms Lee is the sole shareholder and director of Tahi. In a separate cause of action she alleges breach of a residential property agreement in respect of which she seeks specific performance or damages in lieu of specific performance. She also advances a separate claim solely against Mr Taua for arrears of rental and specific performance.
Tahi’s claims are pleaded against the named first and second appellants as trustees of the Te Kawerau Iwi Tribal Authority and the Te Kawerau Iwi Settlement Trust respectively. We will refer to them collectively as the Trustees or, where it is appropriate to distinguish between them, as the Tribal Authority Trustees and the Settlement Trust Trustees. In a second amended statement of claim, which was before the High Court in draft form, those parties were respectively the second and third defendants. The first defendants were Mr Taua and Miriama Tamaariki as executor of the estate of Hariata Arapo Ewe. The first defendants did not participate…

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 Taua v Tahi Enterprises Ltd

Details

AGLC: Taua v Tahi Enterprises Ltd [2020] NZCA 639
Case: [2020] NZCA 639
Decision Date: 11 December 2020 at 10.30 am

CaseChat Overview and Summary

The appeal in this case concerns whether the names of members of an iwi should be disclosed for the purposes of allegations intended to be made against them of breaches of contract, unjust enrichment and related claims. The appeal is from the High Court where Associate Judge Smith ordered the disclosure of the names of members of an iwi. The appeal is dismissed. The Court found that the names of iwi members over 18 at the relevant date should be disclosed as it was necessary in the interests of justice to do so, so that the claims against them could be pursued. The Court found that the names of iwi members under 18 at the relevant date should not be disclosed as it would be contrary to the interests of justice to do so. The Court found that the Judge was correct to reduce the costs he would otherwise have ordered to be paid to the respondents by 25 per cent, because the claim for disclosure of the names of those under 18 or unborn at the relevant date had been successfully resisted.

Orders