Te Kahungunu O Otepoti Trust v Pitman

[2021] NZHC 2827

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-114

[2021] NZHC 2827

UNDER

The Trustee Act 1956 and/or the Court’s Equitable Jurisdiction

IN THE MATTER

of Te Kahungunu o Otepoti Trust

BETWEEN

TE KAHUNGUNU O OTEPOTI TRUST

First Plaintiff

AND

HINEPAHAUARIKI KYRA WILSON, IHIPERA WAIKARE BELLA MORRELL and MAERA MEI WHITE

Second Plaintiffs

AND

BARNIE RUTENE PITMAN

Defendant

Hearing:	(Determined on the papers)
Counsel:	A W Belcher for Plaintiffs
Judgment:	21 October 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

(as to the appointment of litigation guardians)

TE KAHUNGUNU O OTEPOTI TRUST v PITMAN [2021] NZHC 2827 [21 October 2021]

[1]                The second plaintiffs are, or were, formerly trustees of the first plaintiff Charitable Trust.

[2]                The defendant was also a trustee of the Charitable Trust until his resignation on 2 July 2019. The defendant, however, remains registered proprietor of the land held by the second plaintiffs, which the second plaintiffs wish to transfer to the first plaintiff. It is alleged that the defendant is not co-operating in a transfer of the land.

[3]                This proceeding seeks vesting orders or orders requiring the defendant to transfer the land to the first plaintiff along with costs.

[4]                The proceeding was filed at the end of December 2020 but, since then, counsel became aware that two of the plaintiffs, Ihipera Waikare Bella Morrell (Bella) and Maera Mei White (Maera), both lack capacity to make decisions about this proceeding.

[5]                There is medical evidence establishing that Bella and Maera lack capacity to manage their personal care and affairs.

[6]                Given that evidence, Bella and Maera are incapacitated persons for the purposes of r 4.30 of the High Court Rules 2016 (the Rules) and must therefore have litigation guardians, unless the Court directs otherwise.

[7]                Rule 4.35(2)(b) of the Rules provides that the Court may appoint a litigation guardian if it is satisfied the proposed litigation guardian is able fairly and competently to conduct proceedings on behalf of the incapacitated person, does not have interests adverse to those of the incapacitated person, and consents to appointment.

[8]                The proposed litigation guardian for Bella is her daughter, Tia Nita Neha (Tia). On the basis of Tia’s affidavit, I am satisfied she meets the criteria for appointment.

[9]                Accordingly, I order that Tia Nita Neha is appointed litigation guardian for Ihipera Waikare Bella Morrell.

[10]            Similarly, in relation to Maera, the proposed litigation is her daughter, Leah Janeen Haua (Leah). On the basis of Leah’s affidavit, I am satisfied she meets the criteria for appointment.

[11]            Accordingly, I order that Leah Janeen Haua is appointed litigation guardian for Maera Mei White.

[12]            Rule 4.36(1) of the Rules requires the application to be served on the person for whom the litigation guardian is to be appointed unless the Court directs otherwise.

[13]            Having heard from Mr Belcher, in support of the application, I am satisfied it is appropriate to dispense with the need for the application to be served on the incapacitated persons as such would only cause them distress.

[14]            Accordingly, there is an order in terms of para [1] of the without notice application for appointment of litigation guardians dated 20 October 2021 and an order dispensing with the need for the application to be served on the incapacitated persons.

Postscript

[15]            I note in the intituling of all documents filed, under “In the Matter” there appears to be an extra “g” in the word “Kahungungu” and I order that the intituling be corrected to read “Kahungunu”.

Associate Judge Lester

Solicitors:
Klinkert Law, Dunedin

Copy to counsel:

A W Belcher, Barrister, Dunedin