Tautari v Thompson
[2025] NZHC 522
•14 March 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2025-488-000012
[2025] NZHC 522
UNDER Part 18 of the High Court Rules 2016, s 133 of the Trusts Act 2019 and s 2 of the
Declaratory Judgments Act 1908
BETWEEN
MARIE TAUTARI, ROBERT
WILLOUGHBY and GLORIA MATENGA
as trustees of KI A ORA NGĀTIWAI TRUST as trustees
Plaintiffs
AND
BELLA THOMPSON as trustee of KI A ORA NGĀTIWAI TRUST
First Defendant
APERAHAMA EDWARDS
Second Defendant…/2
Hearing: 12 March 2025 (heard at Auckland) Appearances:
D Grindle for Plaintiffs
R Harrison for Defendants
Judgment:
14 March 2025
JUDGMENT OF VENNING J
[Application for injunction]
This judgment was delivered by me on 14 March 2025 at 12.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: WRMK Lawyers, Whangarei Counsel: R Harrison, Northland
TAUTARI & ORS as trustees of KI A ORA NGĀTIWAI TRUST v THOMPSON as trustee of KI A ORA NGĀTIWAI TRUST [2025] NZHC 522 [14 March 2025]
AND SIMON MITCHELL
Third Defendant
ROPATA DIAMOND
Fourth DefendantKATHY CALDWELL
Fifth Defendant
[1] Ki A Ora Ngātiwai Trust (KAONT) was established by an Original Deed dated 8 July 1999 and incorporated as a charitable trust on 28 July 1999. A Substitute Deed was enacted on 12 May 2016. The Substitute Deed (Deed) provided the number of trustees was not to be less than three nor more than seven.
[2] At an Annual General Meeting (AGM) of KAONT on 19 December 2024 a resolution was advanced from the floor increasing the number of the trustees from the then four to seven. It was passed. It was followed by a further resolution nominating persons to fill the vacant trustee positions. The majority present at the meeting and entitled to vote elected the second, third, fourth and fifth defendants as the additional trustees. Marie Tautari, Gloria Matenga and Bella Thompson continued as existing trustees. Mr Willoughby, who had been the fourth trustee, had retired by rotation but was not re-elected.
[3] The plaintiffs were concerned at what had occurred at the AGM. They subsequently brought these proceedings. They sought an interim injunction declaring that the outcomes of the AGM relating to the increase in the number of the trustees from four to seven and the election of the second to fifth defendants as trustees to KAONT were invalid and unable to be acted on until further order of the Court. In their statement of claim, the plaintiffs also seek directions under s 133 of the Trust Acts 2019 (the Act) to vary the terms of the Deed. The plaintiffs accept that aspect of their application is a matter for the substantive hearing.
[4] The application for injunctive relief came before the Court on 31 January 2025. On 3 February 2025, Robinson J issued a minute directing that on an interim interim basis and pending further order of the Court:
(a)the plaintiffs and the first defendant are to continue as trustees of the Trust; and
(b)Mr Edwards is to receive board papers (which he is to receive and hold confidentially) and to be permitted to attend meetings of the board of trustees.
General background
[5] The background to the establishment of KAONT is referred to in the preamble to the Trust’s financial statements dated 30 June 2024. KAONT was created in 1999 in response to the widespread health needs across the Ngātiwai rohe. It provides free health services and promotes healthy lifestyles with the ultimate goal of improving the health disparities of all people living in the Ngātiwai rohe. Its area covers from Tapeka Point in the Bay of Islands down the eastern coast of Northland to Waipu, and encompasses the inland areas of Whakapara, Hikurangi and Whangārei. It extends to Great Barrier.
[6] KAONT employs a multi-disciplinary workforce, including doctors, nurse practitioners, registered nurses, enrolled nurses and Community Health workers. While it is based at 420 Kamo Road, Whangārei where it delivers general medical practice services, it also provides weekly and bi-weekly outreach clinics at other independent community locations.
[7] In the year ended 30 June 2024, KAONT had 9,108 client consultations at the GP practice. Its total revenue was $4,221,332 and it had an operating surplus of
$576,152. It has assets, including retained earnings, of $4,984,342.
The Trust Deed
[8] As the provisions of the Deed are central to this application, I set out the particularly relevant provisions of the Deed which has applied since 12 May 2016:
“the Beneficiaries” means the iwi of Ngatiwai and includes all adults and children of Ngatiwai descent, and whangai determined in accordance with Ngatiwai whakapapa / tikanga, whether or not they are Registered Members of Ngatiwai Trust Board.
…
6.1 Charitable Objects
6.1The principal charitable objects of the Trust shall be:
(a)To provide whether directly or by facilitation appropriate core primary health services to Maori and all other people within the area managed and administered by Ki A Ora Ngatiwai Trust; and
(b)To establish health services delivery within the Ngatiwai area by creating appropriate employment structures and opportunities for Maori to be suitably trained and qualified.
6.2 In interpreting the terms of this Deed and undertaking the rights, powers and duties:
(a)The principal objects in clause 6.1 shall take precedence; and
(b)All other charitable objects shall be pursued to further the principal object.
…
10.Appointment and Removal of Trustees
10.1 The number of Trustees shall be not less than 3 nor more than 7. If at any time there are less than 3 Trustees, the remaining trustees shall appoint a person as soon as reasonably practical, until the following AGM whereupon that person shall resign as Trustee but be eligible to stand for the position of Trustee. The remaining Trustees shall be entitled to act until the number of Trustees appointed is so increased and no act or decision of the Trustees shall be called into question on such account provided that such actions are limited to essential administrative matters only.
10.2 The current Trustees are the Trustees named in this Deed who are signatories to this Deed and shall hold their position but shall retire on a rotation basis set out as follows:
(a)At the 2016 AGM, the two longest services trustees shall retire; and
(b)At the 2017 AGM the remaining two trustees shall retire; and
(c)Notwithstanding their retirement, all trustees are eligible to run for re-election; and
(d)Thereafter, the appointment of Trustees shall take place in accordance with clause 10.3.
10.3 Subject to clause 10.2, the Trustees shall be appointed by the Beneficiaries at an advertised AGM and shall hold that position for a period to conclude at the end of any election process for Trustees held at an AGM on their third anniversary whereupon their term will cease but they shall be available for re-election.
…
14.Meetings
14.1 Within four months of the end of each Financial Year a meeting (“the annual meeting”) shall be called to:
(a)receive and consider the annual report and review the Trust’s activities during the preceding year;
(b)receive, consider and adopt the audited income and expenditure account and balance sheet;
(c)report on the statement of corporate intent for the following year;
(d)appoint an Auditor who shall not be a Trustee;
(e)consider any resolution notice of which shall have been given in writing to the Secretary of the Trustees at least 14 days before the meeting;
(f)general business.
14.2 The Trustees shall otherwise meet together for the conduct of the affairs of the Trust from time to time and shall regulate and conduct their meetings as they think fit and for such purpose they may make such rules and regulations as they consider desirable, including, without limitation, rules and regulations relating to the conduct of telephone meetings.
…
The AGM of 19 December 2024
[9] Notice was given of the AGM to be held on 5 December 2024 (subsequently changed to 19 December 2024). At the time the four trustees were Robert Willoughby (who chaired the meeting), Marie Tautari, Gloria Matenga and Bella Thompson (the first defendant). The meeting was attended by members of the Ngātiwai Trust Board (NTB), Ngātiwai iwi, staff of KAONT, and other interested parties.
[10] When the item general business was reached, Aperahama Edwards raised the issue of increasing the number of trustees to the maximum seven as allowed under the Deed.
[11] A discussion then followed. Mr Willoughby, the Chair, explained that the existing Trustees had met with Mr Edwards and invited him, as Chair of the NTB to assist in facilitating awareness of KAONT services to the NTB’s beneficiaries. It was intended to include a member from the NTB as a trustee in due course. Mr Edwards’ proposal was supported by Ms Thompson, but Ms Tautari spoke against it.
[12]A note of the minutes records the following:
·The subject of the number of trustees currently on the [KAONT] Board and as stated in the Trust Deed, the ability to increase the number from four trustees to seven was tabled for discussion.
·To provide background, the Chair shared that the [KAONT] trustees had approached Aperahama Edwards to discuss the possibility of adding a fifth trustee to the [KAONT] Board. This was not going to be an immediate change. Later in the discussion, the Chair reiterated there should be a ‘steady as she goes’ approach to increasing the number of Trustees.
·Bella Thompson shared her view on the need to increase the number of trustees and indicated it was time for the Ngātiwai Trust Board to work closer with the [KAONT] Board.
·Marie Tautari stated that since the Trust’s inception in 1995, [KAONT] has been running well, and funders are pleased with the outcomes from the current contracts. She did not see a need to increase the trustees to seven, noting that four trustees have been managing effectively. The purpose of meeting with Aperahama was to try and ensure there were no service gaps. Given the current political environment, caution should be applied, and the number of trustees should not be increased to seven.
·The current trustees’ efforts were acknowledged for building the [KAONT] however it was noted that there was still work to be done and there were whānau who couldn’t access support.
·Discussion was had regarding the process of an election being held and how it would take place.
A resolution was then moved by Mr Edwards, seconded by Tia Randell, to increase the KAONT trustees from four to seven.
[13]The minutes then record that:
·The initial vote took place; however, concerns were raised regarding the age of the attendees who voted. It was agreed that voters had to be 18 years of age or older, and a second vote took place.
·A second vote took place and the resolution was carried.
·With the resolution being carried, the Chair advised that an election for the new trustees would be held at a Special AGM, [he was] supported by two current trustees.
·The vote was not delayed, and an election was held.
·The motion to vote for the four trustee positions was tabled, and an impromptu election took place with Ian Peters as the Returning Officer.
[14] There were five nominees for the four positions: Mr Willoughby (who stood again), Mr Edwards, Simon Mitchell, Ropata Diamond and Kathy Caldwell. The voting outcome was as follows:
(a)Mr Edwards – 23 votes;
(b)Simon Mitchell – 17 votes;
(c)Ropata Diamond – 19 votes;
(d)Kathy Caldwell – 17 votes;
(e)Robert Willoughby – 15 votes.
[15] The 2nd to 5th defendants were duly elected and confirmed as trustees. Mr Willoughby, who had chaired the meeting, but had stood down on rotation, was not re-elected.
Principles
[16] The principles to apply on an application for interim injunction are well settled. In Klissers Farmhouse Bakeries Ltd v Harvest Bakers Ltd,1 the Court of Appeal confirmed the question whether an interim injunction should issue is determined by reference to three broad criteria:
(a)Is there a serious question to be tried?
(b)Where does the balance of convenience lie?
(c)What do the overall interests of justice require.
1 Klissers Farmhouse Bakeries Ltd v Harvest Bakers Ltd [1985] 2 NZLR 129 (CA).
Plaintiffs’ case
[17] Mr Grindle submitted that the introduction of the definition of beneficiaries in the Deed and the change to the provisions dealing with the election of trustees had created an internal conflict with the charitable objects of cl 6 which required KAONT to provide health services “to Maori and all other people within the area …”. He noted that the definition of beneficiaries was restricted to “all adults and children of Ngātiwai descent”.
[18] Mr Grindle suggested that providing healthcare to persons not of Ngātiwai descent may be ultra vires and outside the powers created by the Deed and the Deed needed clarification. He noted that the Deed did not contain a power to enable the trustees to vary it. Accordingly, the plaintiffs have brought these proceedings to amend the Deed to enable the charitable objects of the Trust to be better put into effect and remove ambiguity. In the meantime, the plaintiffs sought orders declaring the election of the additional trustees as invalid, or at least sought a continuation of the interim interim orders.
[19] As noted above, the application to vary the Deed forms the second part of the plaintiffs’ claim which is not before the Court on this application for injunction. I accept that the issue raised forms part of the background to what occurred at the AGM, however.
[20] Mr Grindle then referred generally to the historical friction which had arisen between the NTB and KAONT which appears to go back to events that occurred as long ago as 1995. Despite that, as he noted, prior to the 2024 AGM KAONT and Mr Edwards, the current Chair of NTB, had been in discussion about the possibility of Mr Edwards becoming a fifth trustee.
[21] As to the serious question to be tried Mr Grindle noted that the plaintiffs accepted KAONT could not be operated in a vacuum, and that they required a mandate for making changes to the Deed but submitted the problems caused by the Deed and its inherent conflict are real and require determination by the Court. The manner in which the governance protocols for KAONT were hastily and arbitrarily, in the plaintiffs’ submission, effectively changed at the 2024 AGM by the increase in the
number of trustees without proper dialogue or due diligence supported the view that an interim injunction should be imposed, at least in accordance with the interim interim order previously imposed until the substantive matter was resolved. Mr Grindle submitted that the Court could, if necessary, support an interim order by resort to its inherent jurisdiction to supervise the Trust by reference to s 8 of the Act.
[22] On the issue of the balance of convenience, Mr Grindle submitted that the status quo should prevail until the substantive hearing. The defendants would not be disadvantaged. KAONT could continue to fulfil its objectives and deliver healthcare so that the balance of convenience favoured the grant of the injunction.
[23] As to the overall justice, Mr Grindle submitted that until the substantive matter was resolved KAONT could continue to undertake its primary mahi. The time to the substantive hearing would enable KAONT, Ngatiwai and the community to have hui and address the issues arising from the Deed.
Serious question
[24] The authorities referred to in McGechan on Procedure,2 establish a number of principles that apply to the issue of whether the plaintiff can establish a serious question that ought to be tried. Whether there is a serious question to be tried is an issue which calls for judicial evaluation rather than the exercise of a discretion.3
[25] A plaintiff seeking interlocutory injunctive relief must provide sufficient evidence to satisfy the Court there is a real prospect of succeeding in the claim for the permanent relief sought.4
[26] While the Court will not resolve conflicts of evidence on affidavits, the Court should consider the merits of the plaintiffs’ claim in fact and in law and, if necessary, examine the legal issues involved. If, on the facts presented the law can give the plaintiff no remedy then the plaintiff cannot obtain interim relief.5
2 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR7.53.05].
3 NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90 at [13].
4 Re Lord Cable (deceased) v Waters [1976] 3 All ER 417 (Ch) at 431.
5 Shotover Gorge Jetboat Ltd v Marine Enterprises Ltd [1984] 2 NZLR 154 (HC) at 157.
[27] To succeed on their application for interim relief in this case the plaintiffs must satisfy the Court that there is a serious question to be tried that the resolutions increasing the number of trustees from three to seven and the subsequent appointment of the second to fifth defendants as the additional four trustees were unlawful and invalid.
[28] Mr Grindle raised a number of arguments to support the plaintiffs’ case they had a seriously arguable case that the increase of number of trustees from four to seven and the election of the second to fifth defendants as additional trustees was irregular, unlawful and invalid.
[29] First, he took the point there was no notice of the resolutions as was required by cl 14.1(e). However, Mr Grindle had to acknowledge that it was not the practice of KAONT to give notice of resolutions to be passed at the AGM. A number of resolutions, apart from the ones in issue, were passed at the AGM in December 2024. The notice of meeting promulgated by the trustees prior to the meeting did not give notice of any of those resolutions. It was not the practice to do so.
[30] On the specific issue of the election of trustees, again it was not the practice to give notice of resolution regarding the election of trustees. The Deed provided for the rotation, retirement and re-election of trustees. Despite that, no notice of resolution regarding the election had been given prior to previous AGMs. For example, the minutes of the 2023 AGM record resolutions from the floor moving that, although Gloria Martin (Matenga) resigned, she was re-elected to the position of trustee and similarly, that Marie Tautari and Bella Thompson stood down as per the rotation and were re-elected as trustees.
[31] In the case of Tamihere v Taumaunu,6 Heath J rejected a similar submission regarding the lack of notice. Heath J held:
[65] Given the informality with which meetings of this type are often conducted, it would, in my view, be far too formalistic to invalidate an election of trustees solely on the ground that notice of the resolution to vote for seven trustees was not given in advance of the meeting. That is because of the absence of evidence that the remaining and retiring trustees communicated to
6 Tamihere v Taumaunu HC Auckland CIV-2005-404-6958, 21 December 2005.
the Whanau, by published notice of the Annual General Meeting, the number of trustees they were entitled to elect. Without evidence of notification of that decision, no resolution in advance of the meeting challenging that could have possibly been expected.
[32]In my judgment similar reasoning applies to the present case.
[33] Next, cl 14 of the Deed is a procedural provision. It does not prohibit or invalidate resolutions that are accepted without prior notice. Further, cl 10 provides for trustees to retire by way of rotation without any formal notice regarding their possible re-election.
[34] Mr Grindle relied on the distinction between the Trust and a Society. He referred to the Commentary by Mr von Dadelszen in Laws of Societies in New Zealand:7
As previously discussed, charitable trust boards with trustees and charitable societies with membership are fundamentally different legal entities. While both types of charitable entity must at all times act in a manner consistent with their charitable objects, they are legally dissimilar in form:
• A trust board is not in law an organisation structured along democratic lines, nor is it susceptible to democratic processes; while
• A charitable society with members is an organisation structured along democratic lines and is susceptible to democratic processes.
[35] However, in the Waipareira Trust case, Heath J accepted the submission on behalf of the plaintiffs in the case before him that:8
[w]hile the distinction drawn by Mr von Dadelszen may well be appropriate in cases where the rules governing the Trust do not provide for a democratic structure, the distinction is inapt when specific rules have been adopted to create a democratic mode.
[36] Next, Mr Grindle submitted there was an argument that cl 10 was void for uncertainty or alternatively it should be ruled ultra vires as it purported to give voting rights to the world at large.
7 Mark von Dadelszen, Laws of Societies in New Zealand: incorporated, unincorporated, and charitable (Butterworths, Wellington, 2000).
8 Tamihere v Taumaunu, above n 6, at [34].
[37] In Canterbury Orchestra Trust v Smitham,9 Richmond P and Cooke J considered that a clause in the rules which provided that “everyone present at the meeting shall … be entitled to speak and vote” to be void for uncertainty. The rules provided for notice of the meeting to be advertised in the local press. The notice of the meeting was notice to the world and anyone could have attended the meeting and have voted. It was on that basis that Richmond P considered there was a strong argument the clause was void for uncertainty. In the present case the class who could vote for trustees was a restricted class. It was restricted to the defined beneficiaries.
[38] There is, however, a related issue. In the Canterbury Orchestra Trust v Smitham case Cooke J considered the prospect that minors could vote at the meeting to support the conclusion the clause was invalid. The clause in the present case does define beneficiaries to include children. However, it is certainly not clear that the clause has the effect that “minors” as opposed to children were intended to have the vote and, in any event, when that issue was directly raised at the meeting in December 2024, the vote was retaken to confirm that none of the minors present (who apparently only numbered four or five) had their votes taken into account. Further, again as Heath J noted in the Tamihere v Taumaunu case, where the trust instrument expressly conferred decision-making powers on those beneficially interested in the Trust, those rules must prevail. He considered that approach to be consistent with the approach of Richmond P and Cooke J.10
[39] Next, Mr Grindle suggested that the resolutions were passed under duress. With respect however, the evidence does not support that particular submission.
[40] The evidence in support of the injunction was provided by Ms Tautari, Lynette Stewart, the Chief Executive Officer of KAONT, and Mr Peters. Ms Tautari said that Mr Edwards and his supporters were adamant the vote should take place immediately without the need for any formal election process and were determined to proceed with the vote immediately. She considers the conduct of the NTB members attending the AGM was very unruly and says the meeting lacked governance or structure. She considers the NTB members used “bullying tactics” at every step.
9 Canterbury Orchestra Trust v Smitham [1978] 1 NZLR 787 (CA).
10 Tamihere v Taumaunu, above n 6, at [38].
[41] Ms Stewart considered there was no informed debate and given the aggressive nature of the attendees the existing trustees did not get the opportunity to explain their position. She says that when she rose to speak she was told to sit down.
[42] With respect, however, the minutes do not support those allegations. As noted, the proposals were supported by one of the four trustees and the Chair of the meeting, Mr Willoughby, accepted the resolutions from the floor. I note he has not made an affidavit. At the least, the Chair can be said to have acquiesced in the process.
[43] While Ms Stewart expressed concern about the voting process, Mr Peters, who has aligned himself with the plaintiffs, actually effectively acted as scrutineer for the votes and confirmed the voting. As noted, he said there was quite strong debate that followed the resolution to increase the trustees but that within the AGM:
[t]he strength of feeling for change exhibited by the majority present was so strong that there was no way to resist their demands and certainly based on the numbers of people in attendance any motion they desired could be passed on a majority basis.
[44] It is clear that people attending the AGM had different views and those views were strongly held. Nevertheless, the meeting was orderly, at least to the extent that the chairperson, Mr Willoughby accepted the motions and put them to the vote in both instances. Further, one of the trustees, Ms Thompson, supported the motions.
[45] Next, as Mr Grindle himself noted, the plaintiffs’ case in relation to increasing the number of trustees from four to seven was not as strong as the issue as to the appointment of the additional trustees. But in reality, there is little difference between the two as a matter of process.
[46] Although it is not a point Mr Grindle took specifically, it does not appear a full record of attendees was taken but as Mr Harrison submitted, in any event, that was not a requirement under the Trust Deed nor an established practice at previous AGMs.
[47] The fact two of the three existing trustees have brought these proceedings does not of itself mean that the process adopted at the meeting was irregular or invalid so as to vitiate the resolution passed by a clear majority at the meeting who were entitled
to vote to increase the number of trustees to seven within the rules of the Deed and to elect further trustees to those positions.
[48] In the circumstances I do not consider the plaintiffs are able to meet the threshold of a serious question to be tried as to the validity of the decisions to increase the number of trustees to seven and to elect the second to fifth defendants to those positions.
Balance of convenience
[49] Even if the Court had found there was a serious question to be tried the balance of convenience does not favour continuing the interim interim orders and effectively ignoring the will of the majority at the AGM.
[50] Although Mr Grindle submitted the defendants would not be disadvantaged by the further interim interim orders, the will of the parties at the meeting would be frustrated and further, I accept Mr Harrison makes a valid point that the second to fifth defendants, while all are members of the Ngātiwai, come from different backgrounds and represent different interests within that tribe. To that extent, even though Mr Edwards is Chair of the NTB, he does not represent the interests of the other three additional trustees.
[51] Further, to the extent the challenge to the other trustees is on the basis there was no proper vetting process the evidence before the Court supports the view they are all well qualified to hold the position. If there was a difficulty or an issue with their personal background, given the application now before the Court I am sure there would be evidence of it before the Court. There is none.
[52] A particular concern and the theme underlying the plaintiffs’ case, is the concern that the new trustees will drive and support the interests of the Ngātiwai iwi as opposed to complying with the broader objects of the Trust, which include the interests of other members of the community who live within the rohe. That concern is apparent from Ms Tautari’s evidence:
I am concerned that the new elected trustees will use their voting majority to make decisions that are for the benefit of Ngatiwai and not in accordance with
the KAONT Trust deed and that all of the work that KAONT has done over many years to establish a highly functional and highly regarded healthcare provider will be irreparably damaged.
[53] However, that concern is speculative at present. On the evidence of Ms Thompson, those not of Ngatiwai descent will continue to be able to access the health services. To turn them away would be inconsistent with Tikanga as well as the Deed. I accept that on the evidence expressly before the Court from the defendants who have been elected as additional trustees, that they intend to adhere to the objective of the Trusts. If Ms Tautari and Ms Matenga consider that the new trustees are acting in a way contrary to the objects of the Trust, which are quite clear, there is a remedy. They would have the right to bring the matter to the Court. A trustee acting in breach of the objects of the Trust would be personally subject to sanction and penalty.
Interests of justice
[54] I consider the overall justice of the case favours the defendants’ position. The decisions complained of were taken at an AGM that was properly called, the meeting was chaired by a former trustee and the decisions made were supported by the clear majority of those entitled to vote on the relevant motions.
Result
[55] The interim interim orders are set aside and the application for interim injunctive relief is dismissed.
[56] The Registrar is to allocate the substantive proceedings a case management conference before an Associate Judge for further direction.
Costs
[57] It is unfortunate that the parties have been put to the expense of litigation in this Court on this issue when clearly KAONT has, on the face of it, been very successful in providing health services to those within the community in accordance with its objectives to date.
[58] In the circumstances, just as Heath J did in the Tamihere v Taumaunu,11 case and at Mr Harrison’s suggestion, even though the defendants have succeeded, I direct that costs are to lie where they fall.
Venning J
11 Tamihere v Taumaunu, above n 6.
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