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

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].

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.
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).
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].
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.
An application for leave to appeal to the Supreme Court was declined.[6]
[6]Tito v Tito [2013] NZSC 19.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tito v Tito

Details

AGLC: Tito v Tito [2021] NZCA 164
Case: [2021] NZCA 164
Decision Date: 5 May 2021 at 11.00 am

CaseChat Overview and Summary

In the case of Tito v Tito, the appellant, Kevin John Tito, sought an extension of time to appeal against a judgment of the Māori Appellate Court delivered in 2011. The respondent, Aroha Awhinia Tito, opposed the application. The appeal was predicated on the eligibility of Ms Tito to be a trustee and her performance as such. Additionally, the appellant sought to terminate the trust and vest the land solely in himself. The application was opposed on the basis that the appellant had already exercised his right to appeal, and the Court of Appeal’s judgment from 2012 was final. The Court of Appeal found that as there could be no second appeal, the application for an extension of time must necessarily be declined.

The legal issues before the Court were whether the appellant was entitled to an extension of time to appeal the Māori Appellate Court’s decision and whether he could bring a second appeal after having already exercised his right to appeal. The Court examined the grounds of the proposed appeal and the procedural history of the case, including the appellant's previous appeal to the Court of Appeal and the subsequent application for leave to appeal to the Supreme Court. The Court found that the appellant had already exercised his right to appeal and that the Court of Appeal’s judgment was final.

The Court of Appeal held that the application for an extension of time to appeal was declined as it was not open to the appellant to bring a second appeal. The Court noted that the grounds for the proposed appeal were essentially the same as those considered in the previous appeal. The Court also held that if the appellant wished 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 would be an application for recall of the earlier judgment. Consequently, the application for an extension of time to appeal was declined, and there was no order for costs.

The final orders of the Court of Appeal were that the application for an extension of time to appeal was declined, and there was no order for costs. This decision underscores the principle that once an appeal has been exercised and a judgment has been rendered, a second appeal on the same grounds cannot be entertained without exceptional circumstances.

Orders