Te Aute Trust Board v Hauraki
[2014] NZCA 344
•23 July 2014 at 10:30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA451/2013 [2014] NZCA 344 |
| BETWEEN | THE TE AUTE TRUST BOARD |
| AND | JOHN DOUGLAS TAMATI HOKO-WHITU-ATU HAURAKI AS TRUSTEE OF THE NGAWAPURUA AND RUA ROA TRUSTS WAIAPU BOARD OF DIOCESAN TRUSTEES |
| Court: | Randerson, Harrison and White JJ |
Counsel: | B Morley for Appellant |
Judgment: | 23 July 2014 at 10:30 am |
JUDGMENT OF THE COURT
AThe application for joinder by Mr Richard Tatere is granted and he is joined as third respondent.
BThe application by the second respondent for leave to adduce further evidence on appeal is granted.
C Directions are given in the terms set out in [8].
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
The Court convened by teleconference on 21 July 2014 as directed in the Minute of Randerson J dated 15 July 2014. The purpose of this judgment is to deal with the issues raised as summarised in that Minute and to give consequential directions.
The application for joinder by Mr Richard Tatere
After hearing counsel and considering the submissions made, we make an order that Mr Richard Tatere be joined as third respondent in this appeal. Mr Tatere is one of the residuary beneficiaries in whose favour the Maori Appellate Court has made orders. He will, through counsel, provide the only effective opposition since the appeal is substantially supported by the first and second respondents.
Application to adduce further evidence on appeal by the second respondent Mr Hauraki
Since the earlier Minute of 15 July 2014, Mr Hauraki has filed a formal application for leave to adduce further evidence on appeal accompanied by two affidavits: one by himself and the other by an accountant, Mr N L Ivamy. The affidavits cover two issues:
(a)Financial information which it is said was not before the lower courts and which is said to be relevant to the appeal.
(b)Evidence that the land which is the subject of the trusts at issue are not tipuna whenua (ancestral land) of the Tatere whanau and evidence that Hepa Tatere was not a whangai of Doc Tatere.
Mr Morley for the appellant supports the introduction of this further material. He says that the appellant’s main contentions are that the appellant and the second respondent did not consent to the disputed variation of trust and that if consents were given, they were properly withdrawn. It is only if these arguments fail that estoppel becomes an issue. The material which Mr Hauraki seeks to introduce is mainly relevant to the estoppel issue. Mr Webster for the second respondent essentially supports Mr Morley’s position.
Mr Watson for Mr Richard Tatere opposes the introduction of this additional evidence on the basis that some of it was already before the lower courts and that the issues are, in any event, irrelevant. If the further material is permitted, then Mr Watson does not consider it would be necessary for any additional financial material to be adduced in response beyond the reconstructed accounts referred to by Mr Hauraki; the financial materials already before the lower courts; and relevant parts of the evidence transcript. We understand that Mr Tatere contests the whakapapa issues but is unlikely to seek to introduce any evidence on those issues in this Court, given our views expressed below.
We are concerned that this appeal should not be allowed to expand beyond the scope of the present notice of appeal. The Court will not be willing to determine disputed questions of fact which are not suitable for determination on appeal nor will this Court determine disputed issues of whakapapa which are beyond this Court’s expertise. If it is determined that any such issues are relevant, then it is likely an order will be made referring those issues back to the lower courts for determination.
On this strict understanding, we grant Mr Hauraki’s application to adduce further evidence subject to a final determination of relevance after we have heard the appeal.
Directions
After discussion with counsel and Mr Hauraki, we make the following directions:
(a)Mr Hauraki is to file and serve the reconstructed financial statements for the two trusts and the Tatere partnership for the years 2004–2012 by Wednesday 23 July 2014.
(b)Mr Morley is to file and serve the additional volumes of the case on appeal including the financial information referred to in this judgment by Friday 25 July 2014.
(c)The appellant is to file and serve its submissions by Tuesday 29 July 2014.
(d)The first and second respondents are to file and serve their submissions by Monday 4 August 2014 (these submissions should be directed solely to any additional points beyond those covered by the appellant’s submissions).
(e)Mr Richard Tatere as third respondent is to file and serve his opposing submissions by Friday 8 August 2014.
(f)If any unexpected difficulties arise, any party may seek a further telephone conference.
We confirm the fixture to hear this appeal on 13 August 2014 and record Mr Morley’s advice that he expects argument will be completed comfortably within the one day allocated even with the admission of the new evidence. Counsel should confer and advise the Court if this estimate needs to be revised. If necessary, the Court would consider starting the hearing at 9.30 am on 13 August.
Possible disqualification issue
As confirmed at the telephone conference, Randerson J has very recently been informed that Mr Grant Hope is the Secretary of the Te Aute Trust Board. Randerson J has regular dealings with Mr Hope in connection with the affairs of the Melanesian Mission Trust Board and the associated New Zealand Advisory Council. Mr Hope is the secretary of both those bodies. Randerson J had no prior knowledge of Mr Hope’s involvement in the Te Aute Trust Board and has no knowledge of the affairs of that Board nor of the affairs of the Waiapu Board of Diocesan Trustees.
At the Court’s request counsel have provided the names of the previous and current trustees of the Te Aute Trust Board and the Waiapu Board of Diocesan Trustees. In respect of Te Aute, there are no known disqualifying relationships with any of the current or former Board members. Similarly with the Waiapu Board. Randerson J has had some dealings in the past with Robin Nairn (a former Waiapu trustee) in connection with the Melanesian Mission but not for about three years.
Since Randerson J has had no previous knowledge of the affairs of either the appellant or the second respondent; has no relevant connection with any of the trustees; and has had dealings with Mr Hope only in respect of a completely unrelated trust board based in Auckland, the Court does not at present see any reason for Randerson J to disqualify himself from sitting on this appeal.
However, the views of the parties are sought as to whether there is any objection and, if so, on what basis. Any objection should be notified to the Court no later than Monday 28 July 2014.
Solicitors:
Hesketh Henry, Auckland for Appellant
Sainsbury Logan & Williams, Napier for Second Respondent
Leo Watson, Napier for Richard Tatere
0
0
0