Section 43, Te Ture Whenua Maori Act DONALD BRUCE PARKER CHERYLELAlNEPARKER Applicants. TANIAMAAKA Respondent JUDGMENT OF JUDGE C T COXHEAD

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1 196 Napier MB IN THE MAORI LAND COURT OF NEW ZEALAND TAKITIMU DISTRICT UNDER IN THE MATTER OF BETWEEN AND A A Section 43, Te Ture Whenua Maori Act 1993 Karamu DlB2C2 - Rehearing DONALD BRUCE PARKER CHERYLELAlNEPARKER Applicants TANIAMAAKA Respondent Hearing: 15 May 2008 (Heard at Hastings) Appearances: Mr G W Calver, Counsel for the applicants Ms C Bennett, Counsel for the respondent Judgment: 19 August 2008 JUDGMENT OF JUDGE C T COXHEAD Introduction [1] The genesis of this matter is found in the originating application of Tania Maaka for the removal of Donald Parker, Cheryl Parker and Moana Harmer as trustees from the Karamu DIB2C2 Trust (Karamu Trust). [2] The decision of Deputy Chief Judge Isaac (Maaka v Parker & another(2005) Napier MB (181 NA 1-13) was delivered on 8 July 2005 with the following orders at MB 181 NA 13:

2 196 Napier MB 291 a) Pursuant to section 240/93 Donald Parker, Moana Hanner, Cheryl Parker and Walter Manaena (dec'd) are removed as trustees of the Karamu Trust. b) Pursuant to section 19(1)/93 all rental monies received by Sainsbury, Logan and Williams, Solicitors, are to be held by that firm pending the appointment of new responsible trustees. c) Pursuant to section 242/93, Cheryl Parker is directed to pay all rental monies received from the Karamu DIB2C2 block and held in the term deposit account in the name of Miss C E Parker to the trust account of Sainsbury, Logan and Williams. d) Pursuant to section 40(3)/93 the Registrar is directed to engage a local accountant to inquire into and report as to the financial affairs of the Karamu Trust. [3] Following this decision a number of subsequent steps have been taken based upon Deputy Chief Judge Isaac's decision of8 July These are: a) an application for the appointment of new trustees filed on 30 September 2005 with four new Trustees appointed on 3 November 2005 (Minute Book: 182 NA ); b) a report by David Connack of Dent Robertson & Partners, Chartered Accountants completed on 7 December 2005; c) an application to enforce the order for payment of funds filed on 25 January 2006 with an order for payment of money held in trust transmitted to the District Court for enforcement on 3 February 2006 (Minute Book: 183 NA 59); d) an application for payment and discovery against Donald Parker filed on 2 February On 7 March 2006 Deputy Chief Judge Isaac ordered Donald Parker, pursuant to section 242/93, to pay $19,875.00

3 196 Napier MB 292 to Sainsbury, Logan and Williams. The report of David Cormack of Dent Robertson & Partners, Chartered Accountants (Minute Book: 184 NA 1-3) had disclosed that Donald Parker had received this money as rent while a trustee for the Karamu Trust; e) Deputy Chief Judge Isaac made an order of amendment dated 8 February 2007 (Minute Book: 187 NA ), directing Cheryl Parker to pay the sum of $9, to the trust account of Bisson Moss, Solicitors, Napier (this order deleted and replaced paragraph (c) ofthe original order at Minute Book 181 N A 13.) Applicants [4] The applicants are Donald and Cheryl Parker. [5] The grounds upon which Donald Parker seeks a rehearing in submissions of Counsel dated 7 May 2008 can be summarised as follows: a) he was not aware of the order made by the Court on 7 March 2006 ordering him to pay the sum of $19,875 being the rent monies received by him while a trustee ofthe Karamu Trust; b) there is a need for a full hearing; c) there is a need to ascertain the exact amount owed (if any); d) there is a need to assess section 94(a) and 94(b) of the Judicature Act as to recovery of payments made under mistake oflaw or fact; and e) it is questionable whether Tania Maaka has the status to bring the original application for the removal of trustees and consequential applications for enforcement.

4 196 Napier MB 293 [6] Cheryl Parker seeks a rehearing on the same grounds as Donald Parker except that she claims she was not aware of orders made by the Court on 8 July [7] The Parkers' grounds for rehearing were changed and added to at the hearing on 15 May 2008 when Counsel for both Parkers submitted: a) there has been no application for repayment of the sums paid to the Parkers; b) there is no statement of claim that complies with rule 14 of the Maori Land Court Rules; and c) neither of the Parkers were aware that orders for payment of money were being sought against them. Respondent [8] The Respondent is Tania Maaka (Ms Maaka). Ms Maaka's arguments can be summarised as: a) the Parkers were aware of Court proceedings concerning their actions as trustees and this is evident in the order ofthe Court and evident in the Court minutes; b) given that the Parkers were aware that the hearing of 3 June 2005 (Minute Book: 181 N AI) was to proceed, it is incumbent on the Parkers to ascertain what orders, if any, were made shortly after the hearings and not to apply for a rehearing over 2 years after the substantive proceedings; c) the Parkers have had sufficient notice from the Court and Counsel for Ms Maaka; and

5 196 Napier MB 294 d) the 2006 proceedings are applications for enforcement and applications for payment and orders of discovery that were granted on the papers as a natural consequence of the originating application for which the Parkers had knowledge. Section 43 ofte Ture 'Vhenua Maori Act 1993 [9] The relevant parts of section 43 of Te Ture Whenua Maori Act 1993 (the Act) state: 43 Rehearing (1) Subject to subsection (2) of this section, on an application made in accordance with the rules of Court by any person interested in any matter in respect of which the Court has made an order, the Judge by whom the order was made or any other Judge may order a rehearing upon such terms as the Judge thinks reasonable. and in the meantime may stay the proceedings. (2) A rehearing under this section shall not be granted on an application made more than 28 days afier the order, unless the Judge is satisfied that the application could not reasonably have been made sooner. [10] In granting a rehearing it is important to consider if the circumstances of the case in their totality give rise to a miscarriage of justice that justifies a rehearing. The Court has the ultimate discretion in granting a rehearing. [11] So what principles does the Court take into account? Rule 493 of the District Court Rules 1992 and Rule 494 of the High Court Rules provide some useful guidance about the principles for granting a rehearing. [12] Circumstances in which Courts may hold there has been a miscarriage of justice that justifies a rehearing would include but are not limited to: a) where a judgment has been obtained by any unfair or improper practice of the successful party to the prejudice of the opposite party; or

6 196 Napier MB 295 b) where material evidence has been discovered since the hearing which could not reasonably have been foreseen or known before the hearing; or c) where any witness has been guilty of such misconduct as to affect the result of a hearing; or d) whenever it appears necessary to avoid possible injustice to the applicant and that course can be followed without injury or prejudice to the opposite party at Najro v Central Canterbwy Electric Power Board [1964] NZLR 293,294. [13] An application for a rehearing will not be allowed merely for the purposes of repairing omissions in the presentation of the earlier case or for reshaping that case at Realtycare Corporation Ltd v Cooper(1989) 2 PRNZ 426. [14] Counsel for the Parkers also referred me to the decisions of RusseJJ v Cox [1983] NZLR 654 and Patterson v Wellington Free Kindergarten Association Inc [1966] NZLR 975. [15] The Parkers have put forward a number of matters which they submit in the circumstances of this case, give rise to a miscarriage of justice that justifies a rehearing. I will consider each ofthose matters. Notice [16] The central issue in this matter is notice. Both the Parkers claim that they had no notice of the orders being made against them. Donald Parker claims he had no notice of the order of 7 March 2006 and Cheryl Parker claims she had no notice of the order of8 July [17]!vIr Calver, Counsel for the Parkers, submitted at the hearing that the Parkers accept they had notice of the application for a review of the Trust and the removal of Trustees heard on 3 June However, they had no notice that orders for repayment of monies were going to be made.

7 196 Napier MB 296 [18] In one sense the Parkers' argument is that they knew of the 3 June 2005 hearing but were not aware ofthe possible orders that could follow from the hearing and they should have been given notice of those orders. [19] The Court order of 8 July 2005 that Cheryl Parker complains of was an order in the decision of the 3 June 2005 hearing. After Deputy Chief Judge Isaac heard the matter on 3 June 2005, he delivered a reserve decision on 8 July That decision included an order, pursuant to section 242 of the Act, for Cheryl Parker to pay all rental monies received from the Karamu D1B2C2 block and held in a term deposit account in the name of Miss C E Parker to the trust account of Sainsbury, Logan and Williams (this order has been amended, see paragraph 3 of my judgment). [20] The Court order of 7 March 2006 that Donald Parker complains of was, in my view, directly related and consequential to the 3 June 2005 hearing. As Deputy Chief Judge Isaac stated at Minute Book: 184 N A 2: Essentially it has all been covered in the prior decision that related in tenns of the money to Cheryl. There was a removal made of both of them and an issue that Cheryl had received fimds. W7Iat I will do is make an order under Section 242 ordering Donald Parker to pay the amount of $ Ordering that money be paid by Donald to Messrs Sainsbury, Logan and Williams, Solicitor and that will then tie in with the other order w"hich was made back in July 2005 [21] The matters now being raised by both Parkers are matters that were discussed at the 3 June 2005 hearing and flowed into the consequential orders. To rehear the matters relating to the orders of 8 July 2005 and 7 March 2006 would necessitate rehearing all the matters presented at the hearing of 3 June [22] In terms of notice, the real issue in my view becomes did the Parkers receive notice of the 3 June 2005 hearing? I do note that the issue of notice to the Parkers was covered in detail in the decision of Deputy Chief Judge Isaac in

8 196 Napier MB 297 Maaka v Parker & another (2005) Hastings 181 NA 1-13 at 181 NA 3-4. I will deal with notice to each ofthe Parkers separately. Notice to Cheryl Parker [23] In her affidavit, Cheryl Parker claims she shifted house in June 2006 and was not aware of any order being made against her on 8 July [24] Nowhere in her evidence does Cheryl Parker claim not to have received notices from the Court prior to her shifting in June This being the case she would have received a number of notices sent by the Court to her. These would have included the application to remove her and her brother as trustees; the panui notice for 3 March 2005 sent to her on 27 January 2005; and the notice of the Court hearing of 3 June 2005, sent to her on 9 May [25] At the hearing before me, through their Counsel, Cheryl and Donald Parker now accept they received notice, although it is unclear as to how they received notice, of the 3 June 2005 hearing. They must have received notice because on 23 May 2005 the Parkers sent a letter (from both of them) to the Court, apologising for not being able to attend the hearing. [26] I also conclude from the evidence that given Cheryl Parker did not move residence until June 2006 she would have received: a response to her and her brother's letter of23 May 2005; minutes of the 3 June 2005 hearing; and the decision of Deputy ChiefJudge Isaac which was sentto her on 8 July Notice to Donald Parker [27] Donald Parker in his affidavit states: To the best of my information, recollection and belief I did not receive any correspondence from the ivftiori Land Court during 2006.

9 196 Napier MB 298 [28] Further on at paragraph 12 he states: Had I known about the Court hearings then I would have asked for time off work to come down to Hawkes Bay to appear at Court. [29] It is unclear from the evidence and submissions as to which Court hearing he is referring to. [30] Donald Parker does not dispute anywhere in his evidence that in 2005 he received notification of Court matters. Importantly, in 2005 the Court sent him minutes of the 3 June 2005 hearing and the 8 July 2005 decision of Deputy Chief Judge Isaac. [31] The letter that the Parkers sent to the Court dated 23 May 2005 gives their addresses as 61 Wilson Road, Flaxmere, Hastings and 31 Shrimpton Road, Haumoana. It is noted that all notices, minutes, decisions and applications of the Court have been sent to these two addresses. Rule 12 of the Maori Land Court Rules and Section 242 of the Act [32] Counsel for the Parkers also argued that the proper approach for Ms Maaka would have been to have made a formal application for payment of a sum of money claimed as set out by Rules 12 and 14 of the Maori Land Court Rules. [33] The Parkers submit that there was no such application before the Court for the payment of a sum of money claimed and therefore Deputy Chief Judge Isaac did not have jurisdiction to make orders for payment of money. [34] The difficulty for the Parkers with this submission is that both orders against them were made pursuant to section 242 of the Act where section 242(1) states: 242 Orders for payment of l1wney held in trust (1) The Court, on the application of any person interested or of its own motion, may order that any money held in trust for any il/faori, or any money derived from any Maori land and held in trust, by any trustee, Government department, officer of the Public Service, corporation, solicitor, or

10 196 Napier MB 299 accountant be paid to the person or persons beneficially entitled to the money, or to any other person, as the Court may direct, on behalf of the person or persons so entitled [35] Section 242(1) specifically allows the Court to make orders on its own motion, This allows for the efficient administration of justice, [36] The money being held by Cheryl and Donald Parker is clearly money derived from Maori land and held by them in their capacity as the then trustees of the Karamu Trust. The orders of 8 July 2005 and 7 March 2006 specifically refer to rent money of the Karamu DIB2C2 block. [37] Deputy Chief Judge Isaac rightly found at Minute Book 181 NA 12 that the rental money held by Cheryl Parker is the property of all beneficial owners. The same is the case with the rental money held by Donald Parker. They are therefore Trust monies. [38] It would be inequitable to allow either of the Parkers to assert full ownership of the rental monies. They were and are accountable to the Trust for the rental money. Given these monies are trust money they as former Trustees held those monies, although in their own private bank accounts, in Trust for all beneficial owners. It was therefore appropriate for the Court to make orders for the money derived from the Karamu DIB2C2 block and held in trust by the Parkers to be paid to the trust account of Sainsbury, Logan and Williams. Status of Tania Maaka to bring the application [39] The Parkers question the status of Ms Maaka to bring the original application for the removal of trustees as she was not a trustee of the Trust at the time of making application. [40] Section 37(1) of the Act provides: 37 Exercise ofjurisdietion generally

11 196 Napier MB 300 (1) Subject to any express provisions of this Act or of the rules of the Court relating to the making of applications, the jurisdiction of the Court may be exercised on the application of- (a) (b) Any person claiming to have an interest in the matter,' or The Minister or the Chief Executive or a Registrar, [41] Ms Maaka is one of the larger shareholders in the Karamu DIB2C2 Block She is a beneficial owner in the land block She is a person who claimed to have an interest in the administration of the block It is not uncommon, in this Court, for beneficiaries to take matters to Court when they have concerns as to the administration of a Trust It is clear that Ms Maaka had the status to bring the application and was vindicated in doing so given her successful application for the removal of the Parkers as Trustees, The amount of rent money owed by the Parkers [42] Another submission the Parkers put forward is that a rehearing is needed to resolve what rent money if any is owed to the Trust [43] In his decision of 8 July 2005 Deputy Chief Judge Isaac directed the Registrar to engage a local accountant to inquire into and report as to the financial affairs of the Karamu Trust [44] lvir Cormack of Dent Robertson & Partners, Chartered Accountants completed his report on 7 December 2005, The report notes Mr Cormack contacted Donald Parker before he completed the report. [45] lvir Cormack's report concluded that a total of $19, had been paid to Donald Parker on behalf of the beneficiaries. It was on the basis of this report that Deputy Chief Judge Isaac made the subsequent order for Donald Parker to pay $19, to the trust account of Sainsbury, Logan and Williams.

12 196 Napier MB 301 Payments made under mistake oflaw [46] The Parkers submit that a rehearing is necessary to consider if payments have been made under mistake oflaw or fact and if this is the case whether they are recoverable, The Parkers referred the Court to sections 94A and 94B of the Judicature Act 1908, [47] I agree with Counsel for Ms Maaka that section 94A and 94B of the Judicature Act are largely irrelevant in this case, [48] Even if the sections were relevant, it cannot be said that the Parkers have received the money in good faith, The Trustees were removed for many breaches of trust, including the fact that rental payments received from the block have not been invested and were held in Cheryl Parker's private bank account, As Deputy Chief Judge Isaac at Minute Book 181 NA 9 put it: In summary, the trustees have failed to fulfil their duty to undertake proper investment of the Trost fiinds and they have failed to mange the rental received ffom the land in such a way as to benefit all the beneficial owners, [49] If there are payments made under mistake of law or fact they would be the payments of rental monies to Cheryl Parker and Donald Parker. Both claim that they received the money as their family's share of trust income, Where the mistake arises is in the fact that both mistakenly thought they held the money for some, but not all, of the beneficiaries of the Karamu DIB2C2 block. However the money was the property of all beneficiaries and it is equitable to conclude the money was held on trust for all beneficiaries, Conclusion [50] I have carefully considered all matters and in considering all the circumstances in their totality there has been no miscarriage of justice that justifies a rehearing,

13 196 Napier MB 302 [51] This is a situation where Trustees have been derelict in their role, not only as Trustees, but also in their personal capacity in defending themselves. While being on notice they have failed to attend a hearing for their removal as Trustees and now complain of the consequential orders that flow from their removal. It is time to put this Trust back in order. [52] The application for rehearing is dismissed Pronounced in open Court at 11.50am in Wellington on the 19 th day of August 2008 C TCoxhead JUDGE