Tuuta v Kamo - [2019] NZHC 3026

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-927

[2019] NZHC 3026

UNDER Section 51 of the Trustee Act 1956 and the Court’s inherent jurisdiction

BETWEEN

STEPHEN GEORGE TUUTA

Plaintiff

AND

JOHN KAMO and OTHERS

First to ninth defendants

Hearing: 24 October 2019

Appearances:

Z T Mora for plaintiff

J V Ormsby and T J McGuigan for defendants

Judgment:

20 November 2019

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

TABLE OF CONTENTS

Introduction [1]

The defendants’ application for an order for security as to costs [7]

The threshold test [11]

The discretionary factors [29]

The plaintiff’s application in relation to discovery [31]

Orders [56]

TUUTA v KAMO [2019] NZHC 3026 [20 November 2019]

Introduction

[1] In this proceeding the plaintiff, Mr Stephen Tuuta, sues nine defendants. The defendants are Ngāti Mutunga o Wharekauri Iwi Trust Inc (the eighth defendant), a charitable trust incorporated under the Charitable Trusts Act 1957, and six current (the first to fifth and ninth defendants) and two former (the sixth and seventh defendants) trustees.

[2] The plaintiff’s statement of claim is a substantial document. It runs to 33 pages. In it the plaintiff makes a series of allegations against the board of trustees, and the individuals cited, of breach of trust. A core allegation relates to a resolution passed on 14 February 2017 in which the board sought to confirm the position of the then chairperson. The plaintiff says that this resolution was unlawful and ineffective because the chairperson did not meet residency qualifications contained in the deed of trust. This is the foundation of further allegations as to the subsequent actions of the board. But there are also allegations of independent breaches.

[3] In the end, all of these allegations are directed at demonstrating that the board of trustees has been and remains dysfunctional.

[4] The plaintiff pleads three causes of action. The first seeks declaratory relief pursuant to the Court’s inherent jurisdiction as to the lawfulness or otherwise of the board of trustees’ actions, while the second and third seek, alternatively under s 51 of the Trustee Act 1956 and the Court’s inherent jurisdiction, an order removing the current trustees and appointing an independent trustee.

[5]There are two interlocutory applications before the Court:

(a)An application dated 1 August 2019 by the defendants pursuant to r 5.45 of the High Court Rules 2016 for an order for security for costs;

(b)An application dated 25 September 2019 by the plaintiff pursuant to r 8.25 of the High Court Rules for an order setting aside claims to privilege and confidentiality by the defendants in relation to their discovery.

[6]Both applications are opposed.

The defendants’ application for an order for security as to costs

[7]Rule 5.45 of the High Court Rules provides:

(1)Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—

(a)that a plaintiff—

(i)is resident out of New Zealand; or

(ii)is a corporation incorporated outside New Zealand; or

(iii)is a subsidiary (within the meaning…

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 Tuuta v Kamo

Details

AGLC: Tuuta v Kamo [2019] NZHC 3026
Case: [2019] NZHC 3026
Decision Date: 20 November 2019

CaseChat Overview and Summary

In Tuuta v Kamo, the High Court of New Zealand heard an application for security for costs made by the defendants in a proceeding brought by the plaintiff against the defendants. The plaintiff, Mr. Stephen Tuuta, sued nine defendants, including a charitable trust and its trustees, for breach of trust. The defendants sought an order for security for costs, arguing that the plaintiff would be unable to pay a costs award if the plaintiff were to be unsuccessful in the proceeding. The plaintiff opposed the application, providing limited information about his financial position. The Court considered the threshold test for an order for security for costs and the discretionary factors relevant to the exercise of the Court's discretion. The Court found that there was no credible evidence that the plaintiff would not be able to meet a costs award, and therefore dismissed the defendants' application for security for costs. The Court also considered the plaintiff's application to set aside the defendants' claims to privilege and confidentiality in relation to certain documents. The Court found that the defendants could not claim privilege in respect of relevant documentation held by them in their capacity as trustees, and that the defendants' claims to confidentiality were not sufficiently justified. The Court directed that the defendants discover the documents in question and resolved to adjourn the plaintiff's application for an order setting aside the defendants' claims to confidentiality in respect of other documents. Costs were reserved.

Orders