IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A A A Applicant

Transcription

1 147 Taitokerau MB 241 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A A A UNDER IN THE MATTER OF BETWEEN AND Sections 19, 43 and 238, Te Ture Whenua Māori Act 1993 Te Komiti 1B2B2 Ahu Whenua Trust JOHN PAERAU Applicant THE TRUSTEES OF TE KOMITI 1B2B2 AHU WHENUA TRUST Respondents Hearing: Counsel: On the papers (Heard at chambers, Whangarei) Mr B Tupara, for the applicant Mr R Harte, for the respondents Judgment: 30 March 2017 JUDGMENT OF JUDGE M P ARMSTRONG ON COSTS Copies to: Barney Tupara, Ranfurly Chambers, btupara@xtra.co.nz Rob Harte, PO Box 4007, Whangarei 0141, rob@harte.co.nz

2 147 Taitokerau MB 242 Introduction [1] On 22 June 2016, I dismissed an application by John Paerau seeking to enforce the obligations of the trustees of the Te Komiti 1B2B2 Ahu Whenua Trust. Mr Paerau sought a rehearing of that application. On 13 December 2016, I dismissed the application seeking a rehearing. [2] The respondent trustees now seek an award of costs in relation to both proceedings. Mr Paerau opposes any award of costs. The issues in this case are: whether costs should be awarded, if so, in what amount, and against whom. Background [3] Te Komiti 1B2B2 ( the block ) is hectares of Maori freehold land. There are 297 beneficial owners in the block who together hold shares. The block is vested in the Te Komiti 1B2B2 Ahu Whenua Trust ( the trust ). The trustees of the trust are Connie Watts, Edie Ashby Nielson, Kathleen Mahanga Popata, Marsh Wirihana Grey, Te Wehi Pairama and Wayne Gary Harris ( the trustees ). 1 [4] Mr Paerau is not an owner in the block. Rather, Mr Paerau is a beneficiary of the Te Iringa (Edith) and Bill Kidwell Whānau Trust ( the whanau trust ) which holds shares in the block. The history of the proceeding [5] On 1 August 2014, Mr Paerau filed an application seeking to enforce the trustees obligations in relation to this trust ( the substantive application ). 2 The substantive application was first heard on 27 January During the course of that hearing, Mr Paerau advised that he was seeking an urgent interim injunction to prevent the trustees from granting a lease over the block pending the determination of the substantive application. As such, I adjourned the substantive application, and directed Mr Paerau to Taitokerau MB (144 TTK 146). A Taitokerau MB (97 TTK 84).

3 147 Taitokerau MB 243 file an application seeking an injunction ( the injunction application ). 4 the injunction application on 28 January Mr Paerau filed [6] The injunction application was heard on 30 January After hearing from the parties, I issued an oral decision dismissing the injunction application. 7 [7] On 23 March 2015, I convened a telephone conference concerning the substantive application. I issued directions timetabling the filing of evidence and set the substantive application down for hearing. [8] The substantive application was heard on 22 June Mr Paerau failed to attend the hearing. I dismissed the substantive application for want of prosecution. 9 [9] On 12 August 2016, Mr Paerau filed an application seeking a rehearing of the substantive application ( the rehearing application ). 10 The rehearing application was set down to be heard on 1 December [10] On 28 November 2016, counsel for Mr Paerau, Mr Tupara, sought an adjournment of the rehearing application. The request for an adjournment was opposed by the trustees. On 29 November 2016, I granted the adjournment and set the rehearing application down for a new hearing date. 11 [11] The rehearing application was then heard on 13 December On the day of the hearing, Mr Tupara sought to file a statement of evidence from Mr Paerau. Mr Harte opposed this evidence being filed. I determined that the statement of evidence was not to be received on the record. After hearing submissions from counsel, I dismissed the rehearing application on the grounds that: I was not satisfied that the rehearing application should be accepted out of time, and even if it was, I was not satisfied that a rehearing should be granted Ibid. A Taitokerau MB (101 TTK 259). Paerau Te Komiti 1B2B2 Ahu Whenua Trust (2015) 95 Taitokerau MB 280 (95 TTK 280). 132 Taitokerau MB (132 TTK 88). Ibid. A Taitokerau MB 50 (142 TTK 50). 144 Taitokerau MB (144 TTK 126).

4 147 Taitokerau MB 244 [12] As noted, the trustees now seek an award of costs in relation to these proceedings. The Law [13] Section 79 of Te Ture Whenua Māori Act 1993 (the Act) states: 79 Orders as to costs (1) In any proceedings, the court may make such order as it thinks just as to the payment of the costs of those proceedings, or of any proceedings or matters incidental or preliminary to them, by or to any person who is or was a party to those proceedings or to whom leave has been granted by the court to be heard. (2) The court may make an order under subsection (1) for the payment of costs by or to any person notwithstanding that that person is then deceased. (3) Where the court is satisfied that any party to the proceedings has acted, not only on his or her own behalf, but on behalf of other persons having a similar interest in the proceedings, the court shall have the same power to make an order for the payment of the costs of those proceedings by those other persons as it has under subsection (1) in respect of that party. (4) At any stage of any proceedings, the court may require any party to deposit any sum of money as security for costs, and, in default of that deposit being made, the court may stay or dismiss the proceedings either wholly or in respect of the party so in default. (5) When any sum has been so deposited as security for costs, it shall be disposed of in such manner as the court directs. (6) In any proceedings, the court may make an order charging the whole or any part of the costs of the proceedings, and of any charges, fees, or expenses that, in the opinion of the court, were reasonably and properly incurred by any party to the proceedings or by any other person for the purposes of or in relation to the proceedings, upon any land or interest in land or any revenues derived from any land or interest in land to which the proceedings relate, whether or not any other order is made in the proceedings in relation to the land. (7) Any order made under this section for the payment of costs or imposing a charge for costs may, when made in open court, either specify the sum or sums so payable or charged, or leave the amount to be determined by taxation in accordance with the rules of court; but, in the latter case, the order as drawn up and sealed shall specify the sum or sums so determined by taxation.

5 147 Taitokerau MB 245 [14] The principles concerning an award of costs were summarised by the Māori Appellate Court in Nicholls v Nicholls Part Papaaroha 6B Block: 13 [8] The principal authorities in this Court concerning costs are Riddiford v Te Whaiti in Manuirirangi v Paraninihi Ki Waitotara Incorporation, Vercoe v Vercoe, Samuels v Matauri X and Phillips v Trustees of Mohaka A4 Trust. These decisions are authority for the following general principles: (a) (b) (c) (d) (e) the Court has an unlimited discretion in the award of costs; costs follow the event and a successful party should be awarded a reasonable contribution to the costs that were actually and reasonably incurred; the Court has an important role in attempting to facilitate amicable relationships between parties who are invariably connected by whakapapa to both the land and each other and on occasion that aim will be frustrated by an award of costs. Even so where litigation has been pursued in accordance with conventional principles then the starting point will be that costs are appropriate; if a party has acted unreasonably for instance by pursuing a wholly unmeritorious and hopeless claim or defence a more liberal award may well be made in the discretion of the judge, but there is no invariable practice; and an award of costs at the level of 80% was warranted in the Riddiford case due to the difficult nature of the arguments, their lack substance, the unsuccessful party s lack of realism, the parties legal situation, the degree of success achieved by the respondent and the time required for effective preparation. [15] I adopt the principles set out in this decision. Discussion Should I grant an award of costs? [16] Generally, costs follow the event, and a successful party should be awarded a reasonable contribution to the costs that were actually and reasonably incurred. However, as noted in Nicholls, this Court has an important role in attempting to facilitate amicable relationships between parties who are connected by whakapapa to the land and each other. On occasion, an award of costs will frustrate this aim. 13 Nicholls v Nicholls Part Papaaroha 6B Block [2011] Māori Appellate Court MB 64 (2011 APPEAL 64).

6 147 Taitokerau MB 246 [17] Mr Paerau is a beneficiary of the whānau trust, which in turn is a beneficiary of this trust. As such, it could be argued that an award of costs is not appropriate in this case as it may frustrate the ongoing relationship between the trustees and one of their beneficiaries. However, this has to be weighed against the approach Mr Paerau adopted in this proceeding. Mr Paerau filed an application seeking to enforce the trustees obligations. Mr Paerau then filed an application seeking an urgent interim injunction against the trustees. Both of those applications were dismissed. Mr Paerau then filed the rehearing application which was also dismissed. These applications have been conducted in a manner akin to civil litigation in the mainstream courts. This supports that the conventional approach applies and that costs should follow the event. [18] Mr Tupara argues that costs should not be awarded as these issues should have been resolved through alternative dispute resolution. Mr Tupara contends that, upon being served with the substantive application, the trustees should have sought to resolve the issues kanohi ki te kanohi instead of proceeding before the Court. Mr Tupara submits that such an approach would have avoided significant legal costs from being incurred. [19] What Mr Tupara fails to mention, is that I raised this very issue at the first hearing of the substantive application. On 27 January 2015, I had the following exchange with Mr Paerau: 14 Court: Okay. Well in terms of proceeding from here, Mr Paerau, what is it that you are seeking? Do you think there would be any benefit in some form of mediation to see whether these matters could be resolved with perhaps a Courtappointed facilitator, or are you simply seeking to have a hearing on these matters? So to assist in those types of discussions, if the parties were inclined to do so, I could look at appointing an independent person to try and facilitate those discussions to see if the matters can be resolved by consent. But that is only going to be useful if that is something that the parties are interested in pursuing if they see value in attempting to resolve it that way. If the parties do not want to do that, then the option is to simply start timetabling this matter towards a hearing so that you can present the claims that you wish to make. Mr Otene and the other trustees can respond and I will make a decision on it. J Paerau: Okay, I think that would be the best way to go forward. Court: To simply proceed to hearing? Taitokerau MB (97 TTK 84) at

7 147 Taitokerau MB 247 J Paerau: Yes. [20] Mr Paerau filed these applications. Mr Paerau was offered the opportunity to try and resolve these issues directly with the trustees, with the assistance of a court appointed mediator. Mr Paerau did not want to take this option but instead chose to proceed to hearing. Mr Tupara s submission on this issue has no foundation or merit. [21] Mr Tupara further submits that costs should not be awarded as the costs sought are punitive, there is an absence of tikanga and whanaungatanga, and an injustice is being promulgated on Mr Paerau. [22] Mr Tupara contends that there was an absence of whanaungatanga when the substantive application was heard. He argues that the substantive application could have been adjourned to enable Mr Paerau to attend but this opportunity was not afforded to him. Mr Tupara further submits that Mr Paerau was prevented from presenting his evidence at the rehearing application, and as such, the necessary weight could not be attached to that evidence. Mr Tupara contends that Mr Paerau has been the victim of an injustice, and an award of costs will exacerbate that injustice. [23] It is hard to escape the conclusion that Mr Tupara is arguing that costs should not be awarded in this case, because he (or Mr Paerau) disagree with my decisions where I: (a) Refused to grant an adjournment of the substantive application and instead dismissed the application for want of prosecution; (b) Refused to allow new evidence to be presented on the day of the rehearing application; and (c) Dismissed the rehearing application. [24] These are not proper grounds to argue against an award of costs. If Mr Tupara, or Mr Paerau, disagree with the decisions I have made in this proceeding, they can challenge those decisions by way of appeal or otherwise. It is not open to Mr Tupara or Mr Paerau to challenge the substance of those decisions in arguing against an award of costs.

8 147 Taitokerau MB 248 [25] This extraordinary approach is continued further by Mr Tupara who seeks to adduce new evidence from the bar. In his submission on costs, Mr Tupara attempts to introduce on the record the evidence that I refused to receive when the rehearing application was heard on 13 December I have already determined that this evidence is not to be received, and that position has not changed. Mr Tupara s approach is not only misguided, it demonstrates that he has failed to grasp basic principles of judicial process. [26] Mr Tupara further argues that a decision on costs should be deferred pending the outcome of a complaint to the New Zealand Law Society against Mr Paerau s former legal advisor. I reject this approach. If Mr Paerau argues that his former counsel is responsible for all or part of the outcome in these proceedings, he can raise that with the Law Society or initiate separate proceedings advancing such a claim. [27] For these reasons, I consider that no proper basis exists to depart from the conventional approach, and costs should be awarded in this case. What award of costs should be granted? [28] The costs sought by the trustees come in three categories: the costs claimed by Mr Harte, the costs claimed by Te Tumu Paeroa, and the costs claimed by the trustees. Mr Harte submits that actual costs across these categories total $15, Mr Harte seeks an award of 80 percent of those costs, being $12, [29] Mr Tupara does not address the issue of quantum in any detail. He contends that the costs claimed by Te Tumu Paeroa are over the top and should not be allowed. Mr Tupara further submits that Te Tumu Paeroa has been the subject of criticism in proceedings before the Waitangi Tribunal, 16 is acting in a non-treaty compliant way towards the applicant, and is a commercial opposition with a focus on making money off the backs of the Maori people. Once again, both the logic and the relevance of this submission are questionable See memorandum of counsel on costs filed by Mr Tupara dated 13 January 2017 at paras 4 to 15, and 144 Taitokerau MB 126 (144 TTK 126) at 128 to 132. Particular reference is made to Te Paparahi o Te Raki Inquiry (Wai 1040).

9 147 Taitokerau MB 249 [30] Mr Tupara does not address the amount of costs charged by Mr Harte, the costs claimed by the trustees, or the percentage of costs which should be awarded in this case. [31] Mr Harte s costs concerning the substantive application total $6, His costs concerning the rehearing application total $5, Mr Harte has filed copies of his invoices concerning these costs. Those invoices provide a breakdown of the work that Mr Harte undertook, the time spent, and costs incurred, for each task. [32] I am satisfied that Mr Harte s costs were actually and reasonably incurred. As counsel, his costs can properly be considered in any award of costs. [33] There is a question over whether an award can or should be made in relation to the costs claimed by Te Tumu Paeroa and the trustees. Generally, an award of costs relates to legal costs, though that is not always the case. Section 79(1) of the Act states: 79 Orders as to costs (1) In any proceedings, the court may make such order as it thinks just as to the payment of the costs of those proceedings, or of any proceedings or matters incidental or preliminary to them, by or to any person who is or was a party to those proceedings or to whom leave has been granted by the court to be heard. [34] As such, an award of costs is not limited to legal costs but rather the cost of the proceeding. Despite that, the general rule is that lay litigants should not be paid for their time and trouble unless there are exceptional circumstances. 17 [35] In Ngamoki-Cameron The Proprietors of Mangaroa & Other Blocks Inc 18 Judge Harvey granted an award of costs in favour of Mr Ngamoki-Cameron, a lay litigant, who represented himself at least for part of the proceeding. [36] The costs claimed concerning Te Tumu Paeroa relate to Mr Otene s preparation of evidence and memoranda on behalf of the trustees in the lead-up to the hearing of the substantive application on 22 June Mr Otene is a solicitor, although he is not currently in practice. He is employed by Te Tumu Paeroa as a consultant. Prior to this Reeves v Gardiner Waikawa Village Sections 15A, 15B and 15C (2011) 8 Te Waipounamu MB 194 (8 TWP 194); Riddiford v Te Whaiti (2001) 13 Takitimu Appellate Court MB 184 (13 ACTK 184). Ngamoki-Cameron The Proprietors of Mangaroa & Other Blocks Inc (2015) 119 Waiariki MB 225 (119 WAR 225).

10 147 Taitokerau MB 250 proceeding, the trustees engaged Te Tumu Paeroa to assist with the administration of the trust. In the substantive application, Te Tumu Paeroa were named as a party by Mr Paerau. Mr Otene appeared before the Court assisting the trustees to respond to the applications filed. Te Tumu Paeroa has charged the trust for the time incurred in providing this assistance. Mr Harte was instructed to represent the trustees at the hearing on 22 June 2016, and has continued as counsel for the trust for the remainder of the proceeding. [37] I consider that there are exceptional circumstances concerning the costs charged by Te Tumu Paeroa. While he was not engaged as counsel, Mr Otene acted on behalf of the trustees in a role akin to that of counsel. The cost for that assistance has been charged to the trust. An invoice from Te Tumu Paeroa has been filed which totals $1, I consider that these costs are reasonable and should be taken into account when awarding costs in this proceeding. [38] The final category of costs relates to the trustees costs for attending the hearings on 22 June 2016 and 13 December These costs include accommodation, meals and attendance costs and total $1, There is nothing exceptional concerning these costs. These are normal costs that would be incurred by any party required to attend court proceedings. I do not consider that exceptional circumstances apply and no award should be made in relation to these costs. [39] I now turn to consider what level of costs should be awarded. Mr Harte argues that the circumstances of this case are comparable to that in Riddiford. He contends that an award of 80 percent of total costs is appropriate due to: (a) the lack of substance to Mr Paerau s arguments; (b) the difficulty in responding to the type of arguments brought; (c) Mr Paerau s unrealistic approach and his failure to appear; (d) the time required for effective preparation; and (e) the degree of success achieved by the trustees.

11 147 Taitokerau MB 251 [40] As noted, Mr Tupara has not addressed the appropriate level of any award if one is to be made. [41] I accept that there is some comparison between the current proceedings and the circumstances in the Riddiford case. Mr Paerau has made numerous allegations against the trustees, many of which were not supported by substantive evidence. There was a lack of substance and realism in the arguments brought by, or on behalf of, Mr Paerau, particularly regarding the rehearing application. Mr Paerau s conduct has also been questionable: he failed to comply with timetabling directions, he failed to appear at the hearing of the substantive application, and he sought to introduce new evidence on the day the rehearing application was heard. I also accept that significant time was required to prepare for, and respond to, the applications on behalf of the trustees. The trustees have also been successful in relation to all three applications brought by Mr Paerau. [42] Based on these circumstances, it is open to the Court to grant an award as high as 80 percent in this case. However, in exercising my discretion, I consider that a more measured approach is required. Weighing all of the relevant facts, I consider that an award of 60 percent of actual costs is appropriate. [43] The actual costs concerning Mr Harte and Te Tumu Paeroa total $13, An award of 60 percent of those costs is $8, Who should be liable to pay the award of costs? [44] Mr Paerau has filed and prosecuted these applications. At various times, he has argued that he brought the proceedings on behalf of the whānau trust. Mr Harte submits that costs should be awarded jointly and severally against Mr Paerau and the trustees of the whānau trust. [45] Section 79(3) of the Act states: (3) Where the court is satisfied that any party to the proceedings has acted, not only on his or her own behalf, but on behalf of other persons having a similar interest in the proceedings, the court shall have the same power to make an order for the payment of the costs of those proceedings by those other persons as it has under subsection (1) in respect of that party.

12 147 Taitokerau MB 252 [46] Accordingly, it is open to the Court to grant an award of costs against both Mr Paerau and the trustees of the whānau trust. However, I do have a concern as to whether Mr Paerau had actual authority to bring these proceedings on behalf of the whānau trust. [47] An affidavit has been sworn by Eileen Walker on 25 November Mrs Walker is one of the trustees of the whānau trust. She states: 9. To the best of my knowledge, the trustees of Te Iringa Edith and Bill Kidwell Whānau Trust have not given John Paerau any authority to act in our name in proceedings against the trustees of Te Komiti 1B2B2. I have never received any report from John Paerau about his application as a trustee. 10. Annexed marked B is a copy of the Māori Land Court s minute of 97 Taitokerau MB 102/3. At the top of 103, it says Martha told the Court on January 2015 that I as trustee supported John Paerau taking this action. I did not. 11. I am aware from Rob Harte that the Trust is facing a costs application against it as John Paerau s application was struck out when he did not appear and he has brought this further proceeding to try to reinstate his application. I did not authorise the whānau trust being part of this action, and I think any liability for costs should stay with John Paerau. [48] In these circumstances, I do not consider that it is appropriate to grant an award against the trustees of the whānau trust. It was Mr Paerau who filed and prosecuted these applications and he should bear the liability of the costs award which is now made. Decision [49] Pursuant to s 79 of Te Ture Whenua Māori Act 1993, I grant an order that John Paerau must pay costs of $8, to the trustees of the Te Komiti 1B2B2 Ahu Whenua Trust. Pronounced in open Court in Whangarei at 11:04 am on Thursday this 30 th day of March M P Armstrong JUDGE