Tito v Tito
[2013] NZCA 7
•14 February 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA856/2011 [2013] NZCA 7 |
| BETWEEN KEVIN TITO |
| AND AROHA TITO AND JOHN ANDREW |
| Court: Randerson, French and Venning JJ |
| Counsel: Applicant in person |
| Judgment: 14 February 2013 at 10.00 am |
(On the papers)
JUDGMENT OF THE COURT
AThe application for a stay is dismissed.
BLeave is granted to Mr Tito to renew his application for a stay should the Supreme Court grant him leave to appeal or a date for the general meeting of owners become imminent.
CThere will be no order as to costs.
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REASONS OF THE COURT
(Given by French J)
Introduction
On 29 October 2012, this Court issued a judgment[1] dismissing Mr Tito’s appeal against the decision of the Māori Appellate Court.[2] The decision concerned the appointment of interim trustees in the Mangakahia 2B2 No 2A1A Ahu Whenua Trust. This Court upheld the validity of the trustee appointments made by the Māori Appellate Court and extended the time for holding a general meeting of owners for three months. We also ordered that the Māori Land Court was to issue directions as to the manner in which the general meeting of owners was to be convened and conducted.
[1] Tito v Tito [2012] NZCA 493
[2] Tito – Mangakahia 2B2-No 2A1A (2011) Māori Appellate Court MB 86.
Dissatisfied with that outcome, Mr Tito filed an application on 15 January 2013 in the Supreme Court for leave to appeal.
On 4 February 2013 Mr Tito filed an application in this Court seeking a stay of proceedings pending the outcome of his appeal to the Supreme Court. The stay application has been prompted by concerns about the holding of the general meeting which under the terms of our judgment was to have been held before 28 January 2013. Although the meeting has not yet taken place[3], the Māori Land Court has indicated it will proceed as directed unless a stay is ordered.
[3]A date was apparently fixed for November, but was later abandoned because the Māori Land Court had not issued its directions.
The stay application, which is opposed, is expressed to be made under r 12(3) of the Court of Appeal (Civil) Rules 2005. However, r 12(3) does not confer any power on this Court to stay proceedings pending an appeal to the Supreme Court. Such a power is however conferred under r 30(2) of the Supreme Court Rules 2004 and we are accordingly willing to treat the application as having been made under that rule.
In our view, at this juncture a stay is not necessary in order to preserve Mr Tito’s position. No date has yet been agreed for the general meeting and it is likely the Supreme Court will shortly determine the leave application. If Mr Tito is denied leave, then that is the end of the matter. If on the other hand, leave is granted, or a date for the general meeting is imminent, then the application for stay could be renewed.
The application for a stay is accordingly dismissed, with leave granted to Mr Tito to renew his application for a stay should the Supreme Court grant him leave to appeal or a date for the general meeting of owners become imminent.
There will be no order for costs.
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