Tito v Tito - [2012] NZCA 493

IN THE COURT OF APPEAL OF NEW ZEALAND

CA856/2011
[2012] NZCA 493

BETWEEN KEVIN TITO
Appellant

AND AROHA TITO AND JOHN ANDREW
Respondents

Hearing: 16 October 2012

Court: Randerson, French and Venning JJ

Counsel: Appellant in person
T Phillips as McKenzie Friend
No appearance for Respondents

Judgment: 29 October 2012 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe order of the Māori Appellate Court is confirmed but the time for holding the general meeting of owners is extended by three months dating from this judgment.
CThe Māori Land Court is to issue directions as to the manner in which the general meeting of owners is convened and conducted.
DThere is no order as to costs.

_______________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Kevin Tito is a trustee and the majority shareholder in the Mangakahia 2B2 No 2A1A Ahu Whenua Trust.
He appeals a decision of the Māori Appellate Court regarding the appointment of the respondents as co-trustees.[1]
[1] Tito – Mangakahia 2B2-No 2A1A (2011) Māori Appellate Court MB 86.
Mr Tito contends that the Appellate Court erred in making those appointments and seeks to have the respondents removed.
More fundamentally, Mr Tito also seeks termination of the Trust. However, as was explained to him in an earlier judgment of this Court granting Mr Tito an extension of time to file the present appeal,[2] and again at the hearing, issues relating to termination of the Trust are beyond the scope of this appeal. The termination was not the subject of the decision from which he appeals.
[2] Tito v Tito [2011] NZCA 539.
Our sole focus therefore is on the validity of the trustee appointments made by the Māori Appellate Court.

Factual background

The Trust was established in 1998 with five trustees pursuant to a Court Order made under s 215 of Te Ture Whenua Maori Act 1993 (the Act) over land comprising 41.1843 hectares.
There are now 20 owners holding 1,020 shares. After his uncle’s death in late 2009/early 2010, Mr Tito’s shareholding increased to 660.375 shares, which represents a 65 per cent shareholding. His sister, Ms Ngaroma Tito, holds 220.125 shares.
The land is leased to a neighbouring dairy farmer at an annual rental of $16,500. The rental is the Trust’s sole source of income.
Unfortunately the Trust has had a somewhat troubled history, characterised by intra-familial conflict and mismanagement.
Concerns about the administration of the Trust prompted Mr Tito to apply in May 2008 to the Māori Land Court under s 19 of the Act for an injunction to restrain the Trust manager from “altering the books to clear his name and retiring as trust manager”. He also applied for an order under s 238(1) to enforce the obligations of the Trust. Subsequently, in October 2008, Mr Tito filed an application for termination of the Trust.
Following several hearings, all three applications were considered by Judge Ambler in a reserved decision dated 23 January 2009.[3]
[3] Tito –…

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 [2012] NZCA 493
Case: [2012] NZCA 493
Decision Date: 29 October 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Tito v Tito involved Kevin Tito, a trustee and majority shareholder in the Mangakahia 2B2 No 2A1A Ahu Whenua Trust, who appealed against a decision of the Māori Appellate Court regarding the appointment of Aroha Tito and John Andrew as co-trustees. Kevin Tito sought the removal of the respondents and more fundamentally, the termination of the Trust. The appeal focused on the validity of the trustee appointments made by the Māori Appellate Court.

The Trust was established in 1998 and has had a troubled history marked by intra-familial conflict and mismanagement. After several hearings and applications, the Māori Land Court ordered that the Māori Trustee be appointed as the responsible trustee for a period of two years, with Kevin Tito, Aroha Tito, and John Andrew as advisory trustees. Kevin Tito appealed the decision to the Māori Appellate Court, which allowed the substance of his appeal and appointed Kevin Tito, Aroha Tito, and John Andrew as responsible trustees on an interim basis until the next general meeting of owners.

The Court of Appeal dismissed Kevin Tito's appeal, agreeing with the Māori Appellate Court that the appointments were valid. The Court held that the Māori Appellate Court was correct in finding that Judge Ambler had erred in appointing the Māori Trustee against the wishes of the owners and in breaching the rules of natural justice. Furthermore, the Court found that Aroha Tito and John Andrew were broadly acceptable as trustees and had the necessary skills and experience to fulfil their roles.

In conclusion, the Court of Appeal dismissed the appeal and confirmed the order made by the Māori Appellate Court. The time for holding the general meeting of owners was extended by three months from the date of the judgment, and the Māori Land Court was directed to issue directions as to the manner in which the meeting was to be convened and conducted. No order was made as to costs.

Orders