Tito v Tito

[2021] NZCA 164

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA678/2020
 [2021] NZCA 164

BETWEEN	KEVIN JOHN TITO Appellant
AND	AROHA AWHINA TITO Respondent

Court:	Brown and Goddard JJ
Counsel:	Appellant in person Respondent in person
Judgment: (On the papers)	5 May 2021 at 11.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time is declined.

BThere is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

1. The applicant, Mr Tito, applies under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal against a judgment of the Māori Appellate Court delivered over ten years ago on 23 February 2011.[1]  The respondent, Ms Tito, opposes the application.

Relevant background

[1]Tito – Mangakahia 2B2 No 2A1A [2011] Māori Appellate Court MB 86 (2011 APPEAL 86) [Māori Appellate Court decision].

1. The Mangakahia 2B2 ahu whenua trust (the Trust) was established on 5 February 1998.  It administers the Mangakahia 2B2 No 2AIA block which comprises 41.1843 hectares.  Mr Tito holds a substantial percentage of the shares in the Trust’s land. 

2. On 27 November 2009 the Māori Land Court appointed the Māori Trustee as responsible trustee against the express wishes of the beneficial owners.[2]  Then on 4 February 2010 the Māori Land Court extended the period of the Māori Trustee’s trusteeship from two to three years without giving notice to or hearing from Mr Tito.[3]

   [2]Tito – Mangakahia 2B2 No 2A1A (2009) 143 Whangarei MB 271 (143 WH 271).

   [3]Tito – Mangakahia 2B2 No 2A1A (2010) 1 Taitokerau MB 8 (1 TTK 8).

3. The Māori Appellate Court allowed Mr Tito’s appeal in the decision of 23 February 2011, the subject of the current application, in which the orders of 27 November 2009 and 4 February 2010 were quashed.[4]  The Court appointed Mr Tito, Ms Tito and John Andrews as responsible trustees on an interim basis until the holding of the next general meeting of owners and directed that the trustees were to call such a meeting within 12 months.

   [4]Māori Appellate Court, above n 1, at [61].

4. Mr Tito appealed to this Court contending that the Māori Appellate Court was wrong to appoint Ms Tito and Mr Andrew as trustees.  He also sought an order for dissolution of the Trust and the vesting of the land solely in him.  This Court dismissed Mr Tito’s appeal but extended the time for holding the general meeting by three months.[5] 

   [5]Tito v Tito [2012] NZCA 493.

5. An application for leave to appeal to the Supreme Court was declined.[6]

   [6]Tito v Tito [2013] NZSC 19.

6. Some of the history of this matter in the period subsequent to this Court’s previous judgment is recorded in two judgments included in the materials filed by Ms Tito in support of her opposition to the application:

   (a)the judgment of Judge Doogan in the Māori Land Court dated 20 August 2018:[7] and

   (b)the judgment of Brewer J in the High Court dated 21 May 2020.[8]

Discussion

[7]Tito v Andrew – Mangakahia 2B2 No 2A1A (2018) 178 Taitokerau MB 193 (178 TTK 193).

[8]Booth v Tito [2020] NZHC 1071.

1. In essence the grounds of Mr Tito’s proposed appeal concern the eligibility of Ms Tito to be a trustee and criticism of her performance as a trustee.[9]  Mr Tito seeks an order removing Ms Tito as a trustee.  He also appears to seek endorsement of his intention to terminate the Trust. 

   [9]Mr Andrew retired as a trustee on 6 April 2013.

2. The notice of appeal makes no reference to the previous judgments of this Court or the Supreme Court.  Neither does the application for an extension of time to appeal.  Indeed Mr Tito’s affidavit dated 23 November 2020 in support of his application for leave implies that he has not previously appealed from the Māori Appellate Court judgment.  It states:

   1.   I failed to appeal the Reserved Decision of the Maori Appellate Court made on 23 February 2011 within the required 20 working days, and I now make application to appeal that decision based on the following grounds: 

   …

   2.   Had I known then, what I know now, I would have filed an appeal then.

3. Surprisingly Ms Tito’s notice of opposition also makes no reference to the previous appeal.  The application is opposed on the ground that all matters pertaining to the Trust land have been and are being heard in the Taitokerau Māori Land Court. 

4. Having exercised his appeal right previously, it is not open to Mr Tito to bring a second appeal.  This Court’s judgment delivered on 29 October 2012 is final and leave cannot be granted to argue the appeal a second time.  If Mr Tito wishes to revisit any of the matters that were, or could have been, raised in the course of his earlier appeal to this Court, the appropriate procedure is an application for recall of the earlier judgment.[10]

   [10]See Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [25]; and Uhrle v R [2020] NZSC 62 at [15]–[17].

5. Hence, as there can be no second appeal, the application for an extension of time to do so must necessarily be declined.

Result

1. The application for an extension of time to appeal is declined.

2. There is no order for costs.