| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI |
| SC 9/2021 [2021] NZSC 182 |
| BETWEEN | TE WARENA TAUA, GEORGE HORI WINIKEREI TAUA, NGARAMA WALKER, HAMUERA TAUA AND MIRIAMA TAMAARIKI AS TRUSTEES OF TE KAWERAU IWI TRIBAL AUTHORITY |
| AND | TAHI ENTERPRISES LIMITED |
| Hearing: Further memorandum: | 19 November 2021 |
Court: | Winkelmann CJ, Glazebrook, O’Regan, Ellen France and Williams JJ |
Counsel: | K J Crossland, M K Mahuika and J S Langston for Appellants |
Judgment: | 15 December 2021 |
JUDGMENT OF THE COURT
AThe appeal is allowed to the extent that, by consent, the orders made in the High Court and the Court of Appeal granting discovery of the register of iwi members are set aside and the other orders set out below at [16] are substituted.
BLeave is reserved to the parties and any member of the iwi to apply to the High Court for modifications of these orders. The High Court may make such orders, including any additional or ancillary orders.
CThere is no order as to costs in this Court. The costs orders made in the Court of Appeal on the appeal in that Court in favour of the respondents are set aside. The respondents must pay the appellants costs in that Court calculated for a standard appeal on a band A basis and usual disbursements. The costs orders made in the High Court stand.
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REASONS
(Given by Ellen France J)
Introduction
This appeal concerns proceedings alleging breaches of contract, unjust enrichment and related claims brought by Tahi Enterprises Ltd (Tahi), the first respondent, and Ms Dianne Lee, the second respondent. Ms Lee is the sole shareholder and director of Tahi.[1] The claims relate to a joint venture agreement and other dealings between Tahi and members of Te Kawerau ā Maki (the iwi) during 2007 and 2008.
[1]Like the Court of Appeal, we refer to Tahi Enterprises Ltd (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.
Progress in the proceedings has stalled while the parties have sought to resolve issues about who is entitled to speak for whom. An earlier attempt to obtain representation orders was dismissed by Lang J.[2] The respondents, in the draft second amended statement of claim, had also advanced claims against fourth and fifth defendants. These were persons unable to be named. The respondents subsequently sought an order for disclosure of the names of the intended fourth and fifth defendants. The High Court ordered the disclosure of the names of iwi members over the age of 18 when the joint venture agreement was entered into.[3] Those orders were upheld on appeal to the Court of Appeal.[4] The appellants were…
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- Case
- [2021] NZSC 182
- Decision Date
CaseChat Overview and Summary
The Court found that the discovery orders were not the appropriate means to resolve the issues. Instead, the Court agreed with the parties' consent to representation orders, which would better serve the interests of justice by ensuring that the relevant parties could be brought before the Court to answer the formulated claims. The Court set aside the discovery orders and substituted them with representation orders, allowing the Settlement Trust Trustees to represent the iwi members in the proceedings. The Court also determined the costs, setting aside the Court of Appeal's costs orders in favour of the respondents and substituting them with costs in favour of the appellants. The costs orders in the High Court were left unchanged.
In summary, the appeal was allowed to the extent that the discovery orders were set aside and replaced with representation orders. The Court also addressed the costs, setting aside the Court of Appeal's costs orders and substituting them with costs in favour of the appellants while leaving the High Court's costs orders unchanged.
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