Tongaaw'ikau v Turahui

[2020] NZHC 140

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2018-443-77

[2020] NZHC 140

UNDER

section 85(2) of Te Ture Whenua Maori Act 1993

IN THE MATTER

of the Māori Freehold Land known as Araukuku 15 Block contained in CFR 484137 (Taranaki Registry) and an order of the Māori Land Court by way of an

injunction in respect of the trustees of Araukuku 15 Black (Ngarongo Marae) (‘the applicants’) and Christopher Turahui and Kaneva Turahui (‘the respondents’)

BETWEEN

CLIVE MOSES TONGAAW’IKAU,

KATHRYN CHAPMAN, EMA HARNEISS, HENRY WENSOR, SANDRARIRI TE- ONO NGATAI AND WARREN JOHN NICHOLLS

Applicants

AND

CHRISTOPHER TURAHUI AND KANEVA TURAHUI

Respondents

Hearing:

11 February 2020

Appearances:

M E M Walden for Applicants

J M Woodcock for the Respondents

Judgment:

12 February 2020

JUDGMENT OF COOKE J

[1]                 This matter was brought before me yesterday afternoon in my capacity as Duty Judge. Following orders of this Court issued by Clark J on 3 December 2019, the applicants were granted possession of the relevant land, being the Ngarongo Marae,

TONGAAW’IKAU v TURAHUI [2020] NZHC 140 [12 February 2020]

and arrest orders were made against the respondents for wilful and inexcusable disregard of earlier orders.

[2]                 A Sheriff’s warrant to arrest the defendants was issued on 3 February 2020 as the respondents had not vacated the property following Clark J’s order for possession. Mr Kaneva Turahui was not at the property when the warrant was executed, but     Mr Christopher Turahui was and he was arrested and brought before me.

[3]The next step in the procedure is set out in the High Court Rules 2016. Rule

17.85 provides:

17.85   Power to commit to prison for disobedience

(1)A court may commit to prison a party brought before the court on an arrest order unless the party complies with the original court order.

(2)A court may commit a party to prison under subclause (1) for a term that—

(a)the court considers necessary; and

(b)is allowed by law.

[4]                 At the hearing Mr Christopher Turahui was able to be represented by the duty solicitor Ms Woodcock. She was able to speak to Mr Turahui after I explained the potential implications of r 17.85. I had indicated that the next step was to consider whether Mr Turahui should be committed to prison, and I wanted to know whether Mr Turahui was prepared to give undertakings that he would not return to the land.

[5]                 After a short adjournment Ms Woodcock indicated that Mr Turahui had given his word that he would not go back, and that he gave undertakings to that effect. She explained that there may be some occasions when he would need to go back to special occasions where he may seek  permission  to  do  so,  and  that  is  acknowledged.  Mr Turahui also spoke for himself. He said that he had not been in occupation of the land, but only went back from time to time to mow the lawns. He confirmed that he gave his guarantee that he would not return to the land.

[6]                 Ms Walden for the applicants explained that the trustees had now resumed possession, and were in the process of changing the locks as well as removing rubbish

and other items left at the property. She indicated that her instructions were to accept the undertaking, and not to seek orders that Mr Turahui be committed to prison.

[7]                 In those circumstances I agreed with this way forward and I do not commit Mr Turahui to prison in accordance with r 17.85.  I repeat the warning that I gave  Mr Turahui at the hearing that if he did return he could be expected to be subject to arrest again, and if he was arrested again then he could face a term of imprisonment.

[8]                 In terms of the warrant to arrest Mr Kaneva Turahui, given that he was not on the property I direct that the arrest warrant that has been issued not be actioned at this stage. Again if he were to return he can expect to be arrested and brought before the Court.

[9]                 At the conclusion of the hearing I indicated my decision, that Mr Christopher Turahui was no longer under arrest, and that I would confirm my decisions in writing.

Cooke J

Solicitors:
Govett Quilliam, New Plymouth for the Plaintiffs