MAYLENE WAEREA Respondent

Transcription

1 162 Waiariki MB 117 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A UNDER IN THE MATTER OF BETWEEN AND Sections 231, 18(1)() and 240 Te Ture Whenua Māori Act 1993 The Mere Royal Whānau Trust HOHEPA ROYAL Applicant MAYLENE WAEREA Respondent A AND BETWEEN WIKI ROYAL AND HOHEPA ROYAL Applicants AND NUKI NICHOLSON AND CHANTAL NICHOLSON Respondents A AND BETWEEN AND WIKI ROYAL Applicant MAYLENE WAEREA Respondent Hearing: 135 Waiariki MB dated 3 February Waiariki MB dated 8 June Waiariki MB dated 4 November Waiariki dated 2 February 2017 (Heard at Rotorua) Judgment: 11 May 2017 RESERVED JUDGMENT OF JUDGE C T COXHEAD

2 162 Waiariki MB 118 Introduction [1] The Mere Royal Whānau Trust was created in 1996 on succession to Mere Royal, 1 who is the tupuna of the trust. 2 The original trustees and those up to the time of these proceedings were Taka Royal and Maylene Royal (now Maylene Waerea). 3 [2] It is claimed that there has been a lack of proper communication by the trustees with the beneficiaries, that money was taken without authorisation from the trust s bank account, and that one of the trustees should be removed as a result of their failures in the administration of the trust. [3] This decision concerns three applications for: a review of trust; a claim founded on tort; and for the removal of a trustee. Procedural history [4] Hohepa Royal 4 filed an application for a review of the Mere Royal Whānau Trust on 30 November He claimed that no financial report had been received by the beneficiaries since the trust s inception, and that the beneficiaries were unaware of whom the trustees or signatories of the trust were. [5] The application was initially heard on 3 February Prior to the Court hearing, an amendment of the application was made to include the removal of deceased trustee Taka Royal, the removal of Maylene Waerea as trustee, and the appointment of new trustees. [6] At the conclusion of the hearing I directed that a meeting of beneficiaries be held with the assistance of the Court. A chairperson s report and financial report were to be presented, and an election of new trustees held. While I indicated that discussions of the removal of Ms Waerea as a trustee could occur at the meeting, I noted that a separate application would need to be filed. Proper notice was to be given to Ms Waerea along with Also known as Mary Royal. 244 Rotorua MB (244 ROT ). The original order issued on 31 October 1996 also listed Pera Royal as a trustee. Subsequently an enquiry was made and it was discovered that Pera was listed as a trustee in error. An amendment was made on 1 April 1997 to correct the error at 245 Rotorua MB 305 (245 ROT 305). Also known as Hepa Royal. 135 Waiariki MB (135 WAR ).

3 162 Waiariki MB 119 an opportunity for her to respond to the application. I adjourned the matter to allow the meeting to be held. [7] There were difficulties arranging the whānau meeting, due to the remaining trustee and other beneficiaries residing in Australia. I issued directions on 24 and 25 May 2016 for a special Court hearing to be held on 8 June 2016, with the whānau meeting to be held on that morning, prior to the Court hearing. [8] The whānau meeting and Court hearing were both held on 8 June At the meeting, the remaining trustee, Ms Waerea, attended by telephone. The chairperson s report and brief financial summary were presented and two trustees were elected. However, during the subsequent Court hearing issues were raised regarding the financial report and the election of trustees. In response, I appointed the two trustees elected to replace deceased trustee Taka Royal, and directed that any questions for Ms Waerea regarding the administration of the trust be filed with the Court in writing and forwarded to Ms Waerea for response. I also directed that the trustees call a further whānau meeting within four months to address the election of an additional trustee. Ms Waerea could respond to the questions of the beneficiaries either at the further meeting or in writing. [9] A further Court hearing was then held on 4 November In the intervening period, an additional application was filed by the new trustees Wiki Royal and Hohepa Royal on 22 September That application alleged that beneficiaries Nuki Nicholson and Chantal Nicholson had withdrawn money from the trust s bank account without authorisation, and they asked the Court to take proceedings. At the Court hearing I issued timetabling directions for Nuki and Chantal Nicholson to respond to the allegations and allowing opportunity for the applicants to then reply. [10] In relation to the review application, questions from the beneficiaries had been sent to Ms Waerea on 5 September 2016 and she advised that she would respond verbally at the whānau meeting. However, by the time of the Court hearing the further whānau meeting had not been held, and attempts between the trustees to contact each other had been Waiariki MB (143 WAR 20-33). 152 Waiariki MB (152 WAR ).

4 162 Waiariki MB 120 unsuccessful. I directed a further meeting be facilitated by the Court immediately following the hearing, with Ms Waerea to attend by telephone. [11] The further whānau meeting was held following the Court hearing on 4 November Archie Royal was elected as an additional trustee. The questions regarding the administration of the trust were put to Ms Waerea and she provided responses. The meeting minutes record a lot of discussion and disagreement. Those present agreed that the best way forward was for the trustees to meet as soon as possible and discuss the matters fully, with a view to then meeting regularly and communicating information back to the whānau. The trustees then held a trustees meeting on 5 November [12] A final hearing was subsequently held on 2 February Further submissions had been filed by the parties in relation to the application concerning the withdrawal of trust money. A third application had also been filed by Wiki Royal on 8 November 2016 for the removal of Ms Waerea as a trustee. During the hearing, all three applications were discussed. At the conclusion of the hearing I reserved my decision in relation to the applications, indicating that it would issue in due course. Review of trust application Submissions of Hohepa Royal [13] Hohepa Royal sought a review of the Mere Royal Whānau Trust on the basis that the beneficiaries had not received any financial reports since the inception of the trust, and that they were not aware of whom the current trustees or signatories on the trust account were. Hohepa Royal argued that the whānau trust has been in existence for 20 years and during that time the trustees had an obligation to consult with and notify the beneficiaries regarding any changes and activity with the trust, which has not occurred. Submissions of Nuki Nicholson [14] Ms Nicholson submitted that, as a beneficiary of the trust, she was not aware that there were any issues or concerns with the administration of the trust. She argued that Waiariki MB (157 WAR ).

5 162 Waiariki MB 121 Hohepa Royal, as with all the other beneficiaries, is aware of who the signatories of the trust account are, especially since Hohepa Royal is himself one of the signatories. [15] Ms Nicholson argued that the whānau hui had not been held with all beneficiaries and trustees and there had been insufficient notice of the meeting and application. She submitted that these proceedings could have been avoided, as all issues raised could have easily been addressed by discussions with the beneficiaries and trustees at a whānau hui. Submissions of Maylene Waerea [16] Although Ms Waerea did not participate directly in the Court hearings, she attended the Court facilitated meetings by way of telephone and provided documents to the Court. [17] In her report, Ms Waerea identified that the purpose of establishing the trust was to ensure that the land interests of Mere Royal stayed within the family and were not further fragmented through succession. She says that no guidelines were agreed by the beneficiaries when the trust was set up and there has been no further correspondence or communication since that time. While she acknowledged the lack of communication, she highlighted that it was also open to the whānau to contact her to obtain information. [18] Ms Waerea submitted that, given the lack of guidelines, no grants have been made from the trust to mokopuna of Mere Royal and she is not aware of any approaches made to the former trustee Taka Royal for such grants to mokopuna or other beneficiaries. She noted that the trust has a custom and practice of returning koha, which is a tikanga that requires the whānau to give pūtea to tangihanga of those whānau who have contributed to theirs, in the same, similar or larger amounts. Ms Waerea advised that payment of such koha has been authorised from the trust account since it began. She says that Taka Royal and Nuki Nicholson were the only family members who attended tangi and land meetings on the whānau s behalf. [19] In relation to the trust s bank account, Ms Waerea advised that the account is held with Westpac and was originally set up with three signatories, being herself and Taka Royal as the trustees, along with their father William Royal. When William passed away, Hohepa Royal was added as a signatory in When Taka Royal moved to Australia in

6 162 Waiariki MB , Nuki Nicholson was added, although she subsequently stepped down and was replaced by her daughter Chantal Nicholson. Nuki Nicholson was later reinstated as a signatory as a result of Taka Royal s ill health. When Taka Royal passed away in 2015, Ms Waerea removed herself as a signatory so the account could continue to operate with three signatories. The current signatories are therefore Hohepa Royal, Nuki Nicholson and Chantal Nicholson, although only two signatories are required for transactions. Mrs Waerea advised that she does not receive bank statements and, in terms of transaction receipts, she simply noted that Nuki Nicholson may have details of the transactions. She stated however that, as trustee, she is always consulted on financial transactions. The Law [20] Section 231 of the Act provides: 231 Review of trusts (1) The trustees or a beneficiary of a trust (other than a kai tiaki trust) constituted under this Part may apply to the court to review the terms, operation, or other aspect of the trust. (2) There can be no more than 1 review of a trust within a period of 24 consecutive months. (3) The court may, on any review, (a) (b) (c) confirm the trust order for the trust without variation; or exercise its powers under section 244; or terminate the trust if the court is satisfied that there is a sufficient degree of support for termination among the beneficiaries. [21] In Proprietors of Mangakino Township v Māori Land Court, the Court of Appeal noted that s 231 calls for a general review of the trust s governance and management of its assets on behalf of the beneficial owners, and went on to consider the scope of such review. 9 [21] In carrying out a general review of this kind the Court ought to concentrate on the broader picture and not become drawn into matters of detail, but it is in our view impossible to see any bright line between matters of governance and policy, on the one hand, and questions of operational management, on the other. As McGechan J appreciated and as is reflected as well in comments of Judge Savage 9 Proprietors of Mangakino Township v Māori Land Court CA65/99, 16 June 1999.

7 162 Waiariki MB 123 during one of the hearings, it comes down to a question of common-sense how far into the affairs of a trust the Maori Land Court should burrow. Certainly its primary focus ought to be on the policies that the trust is pursuing and on how in a general way those policies are being implemented, but in order to see whether a policy is working at ground level in the best interest of the beneficiaries the Court can hardly avoid some consideration of particular operational matters. [22] There is indeed a danger that by concentrating too much on detail the Court could distract itself from the real issues facing a trust, which may require its direction, but we see no way in which the extent of the Court s investigations can be prescribed and limited as a matter of law. Even if any such prescription could be found, it would be of no continuing relevance as soon as the Court invoked its powers under s238: [23] There is no reason why the Court could not proceed under this section or use other powers available to it under the Act at the same time as it was proceeding with a review. [24] There is an armoury of powers given to the Court in relation to trusts under Part XII so that it can carry out its guardianship role and there is good reason to read ss231 and 351, which apply to the particular situation of a general review, in a manner consistent with those powers. [22] The Court s supervisory powers in relation to trusts are extensive. In conducting a review, the Court endeavours to concentrate on higher level matters of policy rather than issues of day to day operation, although in some circumstances there may be a need to review matters of operational management. 10 This however should only be as a last resort, where the Court considers there is a reasonable apprehension of risk to the assets of the trust, or where some serious allegation has been made that requires the intervention of the Court, particularly through the application of s 238 of the Act for the enforcement of obligations of trust. 11 Discussion [23] The issues raised in the review of trust application mainly centre around the lack of communication and consultation by the trustees regarding trust matters. Given that the sole remaining trustee, Ms Waerea, resides in Australia, as do several other whānau members, there was some difficulty arranging hui, and it was evident that this has contributed somewhat to the administration issues Corrigan Ngatihine H2B (2014) 71 Taitokerau MB 72 (71 TTK 72). Eriha v Munro - Kairakau Lands Trust (2014) 32 Takitimu MB 84 (32 TKT 84).

8 162 Waiariki MB 124 [24] Since the review application was filed there have been: (a) Two whānau meetings facilitated by the Court. Ms Waerea attended both meetings by telephone. At the first meeting, Ms Waerea provided a chairperson s report, which gave an overview of the administration of the trust and included a brief financial summary for the period from December 2015 to May At the second meeting, Ms Waerea responded to further questions from the beneficiaries regarding the administration and financial accounts of the trust. (b) New trustees appointed. At the whānau meeting held in June 2016, those present agreed that there should be a total of three trustees, with two trustees elected at the meeting to replace Taka Royal. Subsequently however, there was a request for a further trustee to be appointed, and at the whānau meeting in November 2016 an additional trustee was elected. There will now be four trustees. The trustees have already held a trustees meeting and appear to have made a commitment to regular meetings and provision of information to the beneficiaries in the future. [25] The trust order is very brief and does not provide the trustees with any guidance on trustee obligations or other powers, including the holding of meetings and reporting to the beneficiaries. The trustees should consider amending the trust order to a wide powers trust order. [26] From the evidence, it is clear that there has been a distinct lack of communication between the trustees and beneficiaries. While I accept that communication goes both ways and that the location of some of the family and sole trustee in Australia complicates matters, the beneficiaries do have a right to know what is happening with the trust, and I would have expected at least some communication with the beneficiaries over the last 20 years. This lack of communication has in turn created some uncertainty around the validity of the trust spending, which was not helped by the fact that Ms Waerea does not appear to retain financial records for the trust in the way of bank statements and receipts.

9 162 Waiariki MB 125 [27] In saying that, financial statements have recently been provided and that report does not show any issues of misappropriation or matters of that nature. Two new trustees have been appointed and one more is to be appointed. Two whanau hui have been conducted albeit the Court was required to facilitate the hui. [28] The review is now completed. Application for claim founded on tort Applicants submissions [29] Wiki Royal and Hohepa Royal filed an application asking the Court to take proceedings against Nuki Nicholson and Chantal Nicholson, beneficiaries of the trust, for the unauthorised withdrawal of money from the trust s bank account. [30] The applicants submitted that a withdrawal slip from Westpac bank shows that $8, was withdrawn from the trust s account by Nuki Nicholson and Chantal Nicholson on 8 June They noted that the withdrawal was made on the same day that the Court appointed two additional trustees to the trust. [31] The applicants further advised that they attempted to contact Ms Waerea to discuss the withdrawal and determine whether she was aware of it, however at the time they filed the application no response had been received from Ms Waerea. Submissions of Nuki Nicholson and Chantal Nicholson [32] Nuki Nicholson and Chantal Nicholson refuted the allegations of theft made by Wiki and Hohepa Royal and submitted that such allegations are completely untrue, defamatory, and seriously detrimental to their characters. [33] Nuki Nicholson and Chantal Nicholson submitted that they are both authorised signatories on the bank account of the Mere Royal Whānau Trust held at Westpac bank. On or about 7 June 2016, they received instructions from Ms Waerea to withdraw $8, from the Westpac account and transfer the money in full to the Mere Royal Whānau bank account held at ASB bank. They advised that the funds remained in a

10 162 Waiariki MB 126 temporary holding account at ASB. On 27 October 2016, they received further instructions from Ms Waerea to transfer the money back to the Westpac account, which was subsequently processed by the bank on 4 November [34] Nuki Nicholson and Chantal Nicholson argue that they acted in accordance with a directive from the trustee Ms Waerea. The proper banking procedures were followed, as they, being two authorised signatories, were present at the time of the withdrawal. Further, they argue that neither they, nor anyone else, personally gained from the transaction. Submissions of Maylene Waerea [35] By way of response to the applicants, Ms Waerea confirmed that she was aware of the withdrawal of the money and that it was she who requested the money be withdrawn. She stated that it was withdrawn based on her conclusion that the newly appointed trustees, Wiki Royal and Hohepa Royal, would be going to the bank, and she advised them it would remain withdrawn until a fourth trustee had been elected. [36] Ms Waerea also highlighted concerns over allegations she says were made by Wiki Royal to other trusts, organisations, iwi and whānau, that the Mere Royal Whānau Trust was taking action against Nuki Nicholson for wrongly withdrawing a substantial amount of funds and selling land. Applicants reply submissions [37] Wiki Royal and Hohepa Royal did not accept the response or that the actions of Nuki Nicholson and Chantal Nicholson were justified. They queried why Hohepa Royal was not notified of the withdrawal as the additional signatory, and argued that any decisions regarding the Mere Royal Whānau Trust should be made after consultation with the beneficiaries and trustees. They submitted that both Nuki Nicholson and Chantal Nicholson were present at the Court hearing on 8 June 2016 when the Court appointed them as trustees and question why they then continued with the withdrawal of trust funds. [38] Wiki Royal and Hohepa Royal also expressed their concern at the apparent existence of an additional account at ASB bank purporting to be an account of the Mere

11 162 Waiariki MB 127 Royal Whānau Trust, and queried why Nuki Nicholson and Chantal Nicholson had told Westpac bank that the account held there was not a whānau trust account. The Law [39] Section 18(1)(d) of the Act provides: 18 General jurisdiction of court (1) In addition to any jurisdiction specifically conferred on the court otherwise than by this section, the court shall have the following jurisdiction: (d) to hear and determine any proceeding founded on contract or on tort where the debt, demand, or damage relates to Maori freehold land: [40] In order to invoke the jurisdiction of the Court under s 18(1)(d) the proceeding must be founded on contract or tort and the debt, demand, or damage must relate to Māori freehold land. 12 Discussion [41] The first difficulty for the applicants is the way in which the application is currently framed. The application simply asks the Court to take proceedings against Nuki Nicholson and Chantal Nicholson for their unauthorised withdrawal of money from the trust account, alleging that this amounts to theft. However, it is the applicants who take proceedings rather than the Court, and this Court does not deal with criminal matters. If the applicants thought the withdrawal of trust funds amounted to theft, then the proper action would have been to refer the matter to the Police. 12 See Churton v Trustees of Mangaporou Trust (2003) 132 Aotea MB 219 (132 AOT 219); Gardiner v Gorringe Tauwhao Te Ngare Block (2008) 93 Tauranga MB 63 (93 T 63) and Kotahitanga Log Haulage Limited v Forest Distribution Limited Mangaroa and Other Blocks Incorporated (2015) 121 Waiariki MB 149 (121 WAR 149).

12 162 Waiariki MB 128 [42] The second difficulty is that, while there may be an applicable claim in tort, this has not been sufficiently identified or specified by the applicants. Ms Waerea has admitted that Nuki Nicholson and Chantal Nicholson withdrew the money on her authority, seemingly to prevent use by the two new trustees until a fourth trustee had been appointed. As Ms Waerea is not herself a signatory, withdrawal of the money needed to be actioned by at least two of the three current signatories. In any case, the money has since been returned to the trust s account. [43] At the hearing, Wiki Royal accepted that Nuki Nicholson and Chantal Nicholson were signatories and had withdrawn the money on the authority of Ms Waerea as trustee. The real issue however, appeared to be the way in which this was carried out and the fact that the newly appointed trustees were not consulted. [44] While I agree that the actions of Ms Waerea and the Nicholsons in withdrawing the trust funds was ill-advised and without proper process, I consider that the Court cannot take the proceedings further as they currently stand. If the applicants do wish to pursue the matter they will need to file the appropriate application. [45] By way of final comment, I note that, while the money has now been returned, the fact that it was deemed necessary by Ms Waerea to withdraw the money is telling, as are the actions of Wiki Royal and Hohepa Royal when they went to the bank and unilaterally changed the account signatories. These actions, together with the tone and manner of communication between the trustees, as before, raise questions as to whether the trustees will be able to communicate appropriately with each other and work together effectively for the benefit of the trust and its beneficiaries. [46] This application is dismissed. Removal of trustee application Applicant s submissions [47] Wiki Royal filed an application to remove Maylene Waerea as trustee on the basis that she is not fulfilling her obligations as a trustee. The application claims as follows:

13 162 Waiariki MB 129 (a) There have been no annual or bi-annual whānau meetings; (b) There have been no financial reports; (c) There has been no communication for 20 years; (d) There has been no communication with beneficiaries to notify them of the change of signatories for the trust s bank account; (e) Ms Waerea gave authority to Nuki Nicholson and Chantal Nicholson to withdraw funds from the trust s bank account without consulting the new trustees; and (f) Ms Waerea has been unavailable to attend hui on at least four occasions, being 8 June 2016, 8 October 2016, 15 October 2016 and 4 November [48] Mr Royal subsequently advised the Court that Ms Waerea had sent a message offering to resign if she received $4, Submissions of Maylene Waerea [49] In response, Ms Waerea referred to the Court hearing held on 8 June 2016 where she provided a chairperson s report to the Court, which included a financial report, and where minutes of a whānau meeting held on that day were also presented to the Court. Ms Waerea also submitted that questions surrounding the issue of the signatories were answered at the whānau hui held on 4 November 2016, where she advised that she alone gave authority for the signatories to be changed. [50] In terms of the lack of communication, Ms Waerea submitted that due to the review of trust application, communication has taken place with beneficiaries during 2016 either by the Court or by way of whānau hui. For the years prior to this, she says that both she and Taka Royal were open to communication with beneficiaries; however the beneficiaries have not communicated with the trustees either. Ms Waerea asked the Court to note that

14 162 Waiariki MB 130 Wiki Royal lived next door to Taka Royal but to her knowledge never made any queries regarding the trust. [51] Ms Waerea advised that since her first notification regarding the applications, she has attempted to make every effort to be in attendance at the Court hearings or whānau hui, but this has often been difficult due to the nature of her employment circumstances. On the occasions where she could not attend Court hearings in person, she notified the Court and requested attendance by telephone. Ms Waerea also advised that she attempted to arrange meetings with the other trustees but often received no response, which is evidenced by e- mail trails she filed with the Court. [52] Ms Waerea argued that the new trustees appear to have no intention of communicating with her and other beneficiaries and she urged the Court to consider the trust remaining under review. The Law [53] Section 240 of the Act provides: 240 Removal of trustee The court may at any time, in respect of any trustee of a trust to which this Part applies, make an order for the removal of the trustee, if it is satisfied (a) (b) that the trustee has failed to carry out the duties of a trustee satisfactorily; or because of lack of competence or prolonged absence, the trustee is or will be incapable of carrying out those duties satisfactorily. [54] It is well established that the prerequisite for removal of a trustee is not a simple failure or neglect of duties, but a failure to perform their duties satisfactorily. An assessment of the trustee s performance is essential to consider the impact of a trustee s actions on the beneficiaries and any apprehension of risk to the trust assets Rameka v Hall [2013] NZCA 203 at [27] - [33]. See also Bramley v Hiruharama Ponui Incorporation (2006) 11 Waiariki Appellate MB 144 (11 AP 144); Ellis v Faulkner - Poripori Farm A Block (1996) 57 Tauranga MB 7 (57 T 7) at 15.

15 162 Waiariki MB 131 Discussion [55] The Mere Royal Whānau Trust has been in existence for approximately 20 years and was constituted on succession to Mere Royal. The two original trustees, Taka Royal and Maylene Waerea have remained as trustees since the trust s inception. When Taka Royal passed away in 2015, Ms Waerea became the sole remaining trustee until I appointed additional trustees in [56] There has not been adequate communication with the beneficiaries. While it may be acknowledged that communication works both ways, there should have been some communication and meetings with beneficiaries in the 20 years since the trust was constituted. This is not a failure of only Ms Waerea but both original trustees. [57] Ms Waerea has not kept sufficient trust records. Trustees have a duty to keep and render accounts and provide information. When information was requested from Ms Waerea she provided very minimal information, especially regarding the financial information of the trust. She admitted that she does not receive the bank statements and had no idea regarding receipts, referring beneficiaries to Nuki Nicholson who is not a trustee. [58] After examining the information provided by Ms Waerea, I do have concerns regarding some aspects of the trust s administration. [59] The fact that Ms Waerea, formerly as the sole trustee, does not receive the trust s bank statements and appeared to have no knowledge of whether or where the receipts are retained, is concerning. At the whānau meeting she referred the beneficiaries to Nuki Nicholson, who is not a trustee. [60] The fact that Ms Waerea is not a signatory is also very concerning, especially considering she was at one time the sole remaining trustee. None of the three signatories at that time were trustees. [61] It is also concerning that for a period none of the three signatories were trustees, including Ms Waerea as the sole trustee. This may call into question the duty of trustees not to delegate their powers, and the duty of diligence and prudence. Although Ms Waerea

16 162 Waiariki MB 132 has stated that she maintains approval over financial transactions, there has been no evidence presented to support this, and from a cursory glance it could appear that Nuki Nicholson really runs the trust. [62] The location of Ms Waerea in Australia, does appear to be an ongoing issue in terms of communication with beneficiaries, as it is clear that there are problems reaching Ms Waerea. This was evident by the fact that she was very hard to reach for the Court hearings and although indicated she would attend, advised at the last minute that she could not. Going forward a better process will need to be put in place for her and the other trustees availability, such as a regularly scheduled time to meet. [63] There are mitigating factors. There is no evidence that any of the failures have put the assets of the trust at risk. The trust order is very brief and provides no real guidelines for the trustees in terms of their obligations, particularly for communication with beneficiaries. For sometime Ms Waerea appears to have shouldered the responsibility for running the trust on her own. The beneficiaries appear not to have sought any information in the intervening 20 years. [64] Ms Waerea has failed to perform some of her duties satisfactorily. However, the impact her actions on the beneficiaries, while annoying to some, has not resulted in any loss or harm to a beneficiary. Importantly, her performance as a trustee has not put the trust assets at risk. Her performance as a trustee has not been perfect - but I am of the view that her overall performance has not been to a standard that requires her removal. [65] Ms Waerea will continue to be a trustee. The application for her removal is dismissed. [66] I am concerned as to whether the trustees will be able to work together. The new trustees appear to be very hostile towards Ms Waerea. However, I am hopeful that they will be able to work through their differences. The trustees have already meet. This is a positive step forward. They must remember that they are whanau - the whanau of Mere Royal and as trustees they need to work together for the benefit of all the beneficiaries.

17 162 Waiariki MB 133 [67] In terms of Mr Archie Royal s appointment as a trustee I note that on 8 June 2016 I had directed that the trustees call a further whānau meeting within four months to address the election of an additional trustee. A further whānau meeting was held following the Court hearing on 4 November At that meeting Mr Archie Royal was elected as an additional trustee. Decision [68] I make the following orders: (a) Pursuant to s 239 of the Act, Archie Royal also known as Ati Royal is appointed as an additional trustee; (b) The application for review of trust is concluded; (c) The application for a claim founded in tort is dismissed; (d) The application for removal of Ms Waerea as a trustee is dismissed. Pronounced at pm in Rotorua on the 11 th day of May C T Coxhead JUDGE