IN THE MĀORI LAND COURT OF NEW ZEALAND TAIRAWHITI DISTRICT A Joanna Alberta Brown and Helen Renner Applicants

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1 36 Tairawhiti MB 78 IN THE MĀORI LAND COURT OF NEW ZEALAND TAIRAWHITI DISTRICT A UNDER Section 239, Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN AND Appointment of trustees to Pipituangi A Ahu Whenua Trust Joanna Alberta Brown and Helen Renner Applicants Maree Rose Brownlie and Thomas Brownlie Respondents Hearing: 32 Tairawhiti MB dated 7 August Tairawhiti MB dated 2 October 2013 (Heard at Ruatoria) Judgment: 23 December 2013 RESERVED JUDGMENT OF DEPUTY CHIEF JUDGE C L FOX

2 36 Tairawhiti MB 79 Introduction [1] On 26 April 2013 Joanna Brown and Helen Renner filed an application to appoint Elizabeth Weusten and Michael Schultz as additional trustees for Pipituangi A Trust. [2] That application is opposed by several of the beneficiaries of the Trust on the basis that the additional trustees are family members of the existing trustees and their appointment would create a conflict of interest. Issue [3] Whether the Court should appoint Elizabeth Weusten and Michael Schultz as additional trustees for Pipituangi A Trust. Background [4] Pipituangi A block is Māori freehold land comprising hectares. There are currently 18 owners in the block holding a combined shareholding of shares. The block is held under an ahu whenua trust known as the Pipituangi A Trust. The Trust was created in The current trustees are Helen Renner and Joanne Brown who were appointed in Procedural History [5] This application was first heard on 7 August 2013 in Ruatōria. 3 The applicants appeared in support of the application. Objections were raised as to the fact that the two nominees are whānau of the current trustees. Those objecting expressed a desire that members from outside that whānau be appointed or possibly Te Tumu Paeroa (the Māori Trustee). I adjourned the matter for the trustees to discuss with the Māori Trustee the possibility of Te Tumu Paeroa becoming a responsible trustee or agent for the Trust. [6] The matter came back before the Court on 2 October A letter had been received from Te Tumu Paeroa indicating they would be happy to be appointed as an agent for the Trust Ruatōria MB 94 (26 RUA 94). 170 Gisborne MB 23 (170 GIS 23). 32 Tairawhiti MB 193 (32 TRW 193).

3 36 Tairawhiti MB 80 [7] Correspondence had also been received from a number of beneficiaries expressing their disagreement with Te Tumu Paeroa being appointed. The Trustees reiterated their wish for the nominees to be appointed rather than Te Tumu Paeroa. The respondents continued to support the appointment of Te Tumu Paeroa as an agent for the Trust. Submissions for the applicants [8] The applicants submit that: a) They are ageing and the appointment of additional trustees would enable work to continue to be done; b) The nominees were appointed at a properly convened hui held on 19 May 2012; c) There is a majority of support on a shareholding basis for the nominees; d) The objectors could have attended and put forward their own nomination for Trustees but chose not to do so; e) This is yet another attempt to upset the running of the Trust; and f) The services of Te Tumu Paeroa are not required as they are unduly expensive. Submissions for the respondents [9] The respondents oppose the appointment of additional trustees on the basis that: a) The nominees are related to the current Trustees. Should they be appointed it will mean Joanne Brown, her daughter and her son in-law will all be trustees as well as Helen Renner and her daughter and this would create a conflict of interest; b) Insufficient notice was given that there were going to be nominations for new Trustees at the hui;

4 36 Tairawhiti MB 81 c) Te Tumu Paeroa should be appointed as an agent for the Trust to ensure there is no conflict of interest. Law [10] Section 239 of Te Ture Whenua Māori Act 1993 provides that the Court may add to or reduce the number of trustees or replace one or more of the trustees. Additional considerations are provided by s 222(2), which requires the Court to have regard to the ability, experience and knowledge of the individual before appointing them a trustee of a trust constituted under Part 12. The Court must also be satisfied that the appointment of that individual is broadly acceptable to the beneficiaries. 239 Addition, reduction, and replacement of trustees 222 (1) The Court may at any time, on application, in respect of any trust to which this Part applies, add to or reduce the number of trustees or replace 1 or more of the trustees. (2) The Court, in deciding whether to appoint any individual or body to be a trustee of a trust constituted under this Part of this Act, (a) Shall have regard to the ability, experience, and knowledge of the individual or body; and (b) Shall not appoint an individual or body unless it is satisfied that the appointment of that individual or body would be broadly acceptable to the beneficiaries. Discussion [11] The special meeting of owners was held on 19 May 2012 in Tauranga. The meeting was advertised in the Gisborne Herald on 28 April 2012 noting the appointment of two additional trustees as an agenda item and date for which correspondence is to be received. [12] Eight out of a total of 18 beneficiaries or representatives of the beneficiaries were present at the meeting. They held a combined shareholding of out of a total of shares in the block. (approximately 85% of the shareholding). Apologies were received from 3 owners namely E Jones, K Pollock and D Sainty. Those present at the meeting voted in favour of the nominees.

5 36 Tairawhiti MB 82 [13] Written objections were received from Dianne Sainty, Katherine Pollock, Maree Brownlie, Thomas Brownlie and Evan Jones. Objections were also recorded in Court by the representative of the McConnell Whānau Trust, Vivian Rose (McConnell) who wanted the Māori Trustee appointed. The grounds of objection included that there had been no prior notification for additional trustees, that the nominees are close relatives of the existing trustees and that at the previous AGM the majority owners had voted for Te Tumu Paeroa to be responsible Trustee for the Trust. Decision [14] I consider that the proposed nominations for appointment pursuant to this application, while broadly acceptable to the majority of the owners are not likely to be able to administer this trust in a non-partisan and unbiased manner given their relationship with the other incumbent trustees. Furthermore, I consider that any such appointment would cause further uncertainty and disharmony between all the owners. This Trust has been subjected to too much litigation in recent years, and the answer to that is not to allow one or two sides of the whānau to dominate the Trust. As per s 17, particularly those matters listed in subsections (c), (d) and (e), I must seek to achieve the objectives of determining this matter fairly and by protecting minority interests in the land from an oppressive majority. [15] The situation may have been different had the current trustees retired, but they have not. Instead they seek to have the additional support of new trustees as they are getting older, among other reasons. [16] I also consider that given the dysfunction on this Trust the Māori Trustee Te Tumu Paeroa, should have been appointed as an agent but I am unable to be satisfied that the requirements of s 183 (5)(b) and s 185 (3)(c) can be met. These provisions require that any appointment be broadly acceptable to the owners. Order [17] The application A is dismissed for the reasons I have given above and that order is to issue forthwith pursuant to r. 7.5(2)(b) of the Māori Land Court Rules 1994.

6 36 Tairawhiti MB 83 Copy of judgment to the applicant and interested parties. Pronounced in Open Court at 11:30am in Gisborne on the 23 rd day of December C L Fox DEPUTY CHIEF JUDGE