IN THE MĀORI LAND COURT OF NEW ZEALAND TAIRĀWHITI DISTRICT 26 Tairāwhiti MB 128 (26 TRW 128) A Applicant

Transcription

1 IN THE MĀORI LAND COURT OF NEW ZEALAND TAIRĀWHITI DISTRICT 26 Tairāwhiti MB 128 (26 TRW 128) A UNDER Section 239, Te Ture Whenua Māori Act 1993 IN THE MATTER OF Wharekahika C7 & C11 BETWEEN KERRY MCLAUCHLAN Applicant Hearing: 2 December 2011, 19 Tairawhiti MB April 2012, 21 Tairawhiti MB (Heard at Ruatoria) Judgment: 30 October 2012 RESERVED JUDGMENT OF DEPUTY CHIEF JUDGE C L FOX MCLAUCHLAN MLC 26 Tairawhiti MB 128 [30 October 2012]

2 Background [1] Wharekahika C7 & C11 are situated on Wharf Road in Hicks Bay, approximately 186km north of Gisborne. On 12 April 1994, the general land block known as Wharekahika C7 was aggregated with the Māori freehold land block known as Wharekahika C11, 1 thereby creating the aggregated titles of Wharekahika C7 & C11. The total area of the two titles was ha. The land has been particularly associated with the Stainton whanau. [2] Prior to the aggregation, a trust was constituted over Wharekahika C11, and the land was vested in Manu Stainton, Tereanini McGuire and Matehaere Stainton as responsible trustees on 5 April Tereanini (deceased) was later replaced in 1994 by Ngatihau Stainton. 2 The name of that trust was, and the owners still refer to the land as, the Pahou Trust. 3 At the time the aggregation order was made in 1994, the shares were re-vested in the shareholders, but no new trust was constituted over the two titles. [3] Manu Stainton was the biggest shareholder after the aggregation due to his sole ownership of Wharekahika C7. At the time of the aggregation, he told the Māori Land Court that he saw the administration of the both blocks being better run as one block. [4] The trustees administered Wharekahika C11 and Wharekahika C7 together. The problem was that the trust order related solely to Wharekahika C11. In fact, a variation of that trust order was issued by the Māori Land Court on 12 April 1994, and that too was solely in the name of Wharekahika C11. 4 [5] According to the Court record there are now currently a total of 26 shareholders in Wharekahika C11 and C Ruatōria MB 8 (39 RUA 8) 2 39 Ruatōria MB 8 (39 RUA 8) 3 29 Ruatōria MB 78 (29 RUA 78) 4 39 Ruatōria MB 8 (39 RUA 8) 26 Tairāwhiti MB 129

3 Application [6] The Court has before it an application filed under s 239 of Te Ture Whenua Māori Act 1993 relating to the Trust over Wharekahika C11. The Court received the application on 10 October [7] The applicant, Kerry McLauchlan, in her original application was seeking orders to replace Manu Stainton, Ngatihau Stainton and Matehaere Stainton with Diana Forsell, James (Jim) Stainton and Ngatihau Antone Stainton as responsible trustees of Pahou Trust. [8] In her application Ms McLauchlan stated that Manu and Ngatihau Stainton had passed away and Matehaere Stainton had resigned as a trustee. [9] Furthermore, a meeting of the trust was held on 30 January The minutes of that meeting record that the owners present unanimously agreed to the appointment of Ngatihau Antone Stainton, Jim Stainton and Diana Forsell. [10] Following this meeting, shareholder Ada Lindsay Stainton sent the minutes to owners seeking their support of those nominated as trustees. It seems that out of a total of 13 replies, mostly via , these nominations were supported. [11] The 13 replies were from two whanau trust representatives and 11 individual shareholders. These replies were included with the application. The signed trustee forms consenting to their appointment were also filed from the nominated trustees. Court hearings [12] The matter was first before the Court on 2 December 2011 in Ruatōria. 5 At the hearing, Fiona Phillips, a trustee of the Ani Tarewa Whanau Trust objected to the appointment of the trustees due to the lack of notification of the meeting. She notes that the meeting did not take into account the views of all the shareholders including herself. She contended that she was only given two hours notice prior to the beginning of the meeting Tairawhiti MB 110 (19 TRW 110) 26 Tairāwhiti MB 130

4 [13] By letter, Ms Phillips requested that a Court directed meeting take place to assist the whanau of Pahou in moving forward and that a new election for trustees take place. [14] The Court directed that a meeting of owners take place upon the following terms:...i am going to direct that there be a meeting of owners in Gisborne and that it be run by the Registrar of the Māori Land Court pursuant to section 40(1)(e) Te Ture Whenua Māori Act 1993 directing that the Registrar provide notice to all owners and we would appreciate it if we got the addresses that you used as well as sending communication by , they will get notice by surface mail and there can be no dispute then about the outcome of that meeting. The Registrar is to provide a Court report pursuant to section 40 outlining how each of the families voted and what their shareholding is... 6 [15] A Court run meeting of owners was held on 27 February 2012, at the Tairawhiti Māori Land Court. Those owners present were advised that the purpose of the meeting was to elect trustees. They were also advised of the roles and responsibilities of trustees. [16] There were only five owners present. The applicant was present and had proxies for Ada Lindsay Stainton, Manuhou Stainton, Matehaere Stainton, Pauline Harawira and Peehi Stainton. Ellen Stone who is a remainderman was present and had a proxy for Erana Stainton. [17] Nominations for trustees were taken and there was a unanimous decision to nominate Ellen Stainton, Bavin Stainton, Elizabeth Stainton, James (Jim) Stainton and Diana Forsell. These trustees represent three of the families of George Wanoa Stainton. [18] The application was back before the Court on 2 April The section 40 report was presented to the Court with the nominations for trustees. [19] Prior to the Court sitting, notice was received by Diana Forsell withdrawing her nomination as a replacement trustee, thus leaving Ellen Stainton, Bavin Stainton, Elizabeth Stainton and James Stainton Tairawhiti MB 110 (19 TRW 110) 7 21 Tairawhiti MB 130 (21 TRW 130) 26 Tairāwhiti MB 131

5 [20] The Court received correspondence from the applicant stating that she wished to withdraw her support for Baven and Elizabeth, contrary to her position at the Court run meeting. [21] The Court also received correspondence from Ada Lindsay Stainton who wished to record her disapproval of the appointment of James (Jim) and Elizabeth Stainton. This letter was read to the Court. [22] Ada made certain allegations concerning the roles played by James and Elizabeth Stainton on a whanau incorporation. She particularly stressed how the incorporation was put into liquidation. She expressed her concern that it was not until the Court run meeting was closed, that representatives were told that proxies could have been used. The implication was that the outcome of the vote could have been different. [23] At the Court hearing those who were the subject of Ada s allegations, were asked if they wanted to respond. The Court noted that Māori incorporations are very difficult to manage and the requirements are very stringent. It was further stated that just because a Incorporation is dissolved, it does not necessarily represent mismanagement. [24] The Court adjourned this matter for a reserved judgment. I am going to reserve my judgment and I will issue a full written judgment and I am going to get her to put forward any names of someone that she believes should be appointed and get your views on that as well before I issue my final decision. So I would not go ahead and appoint anyone without everybody in the block notified and then if you have any objections I need to know about those... 8 [25] On 20 June 2012, the application was referred to Chambers by the case manager, who noted that Ada had been given the opportunity to provide names to be considered as trustees. Unfortunately, and after two and a half months, she had not done so and had thus, it was suggested, forfeited this opportunity. [26] As I have been on Waitangi Tribunal duties and sabbatical leave, I have only just been able to return to this matter Tairawhiti MB 130 (21 TRW 130) 26 Tairāwhiti MB 132

6 Relevant Law [27] This is an application under s 239 of Te Ture Whenua Māori Act 1993 for the appointment of replacement trustees, namely Manu Stainton (deceased), Ngatihau Stainton (deceased) and Matehaere Stainton (resigned). When considering an application under s 239, the Court will have regard to s 222(2). That provision requires that the Court, in deciding whether to appoint any individual or body to be a trustee of a trust constituted under Part 12, shall have regard to the ability, experience and knowledge of the individual or body and 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. [28] So long as the experience of the nominated trustees satisfies the s 222 (2) test, I can appoint Ellen Stainton, Bavin Stainton, Elizabeth Stainton, and James Stainton for the following reasons. The: total shareholding in the block is shares; number of owners present at the meeting run by the Registrar was 9; shareholding present was shares or 14.85%; nine owners were represented by proxy or 16.67%; shares represented by proxy totalled 35.49%; total shares represented was or 50.34% ; total number of owners represented was 17; vote was unanimous. The fact that there has since been a withdrawal of support by the applicant cannot change the result of the meeting. Her withdrawal of support has been based upon grounds that lack any substance and do not affect whether the candidates are suitable for appointment; trustees nominated were from three different family lines; and 26 Tairāwhiti MB 133

7 nominated trustees agreed to send in their curriculum vitae. However, they have not yet provided these. I need a curriculum vitae from all those nominated and these are to be filed four weeks from the date of this judgment. [29] Thus, it should be clear that I am not persuaded by the opposition, that the people proposed to be appointed as trustees should not be appointed. In particular, I am satisfied that the allegations raised by Ada Lindsay Stainton as the basis for objecting to the appointment of some of the nominated trustees should not be accorded any significant weight. I, therefore, will appoint those nominated at the court run meeting of owners. [30] Once the trustees are appointed, they will need to tidy up the title to this aggregated block. That requires an application to vary the existing trust over Wharekahika C11 so that it covers the aggregated titles, Wharekahika C11 and C7. Order and Direction [31] There is an order under s 239 appointing Ellen Stainton, Bavin Stainton, Elizabeth Stainton, and James Stainton as replacement trustees for Manu Stainton (deceased), Ngatihau Stainton (deceased) and Matehaere Stainton (resigned). The appointment of these people is conditional upon each one of them filing a curriculum-vitae demonstrating their suitability to be appointed as trustees within four weeks of the date of this judgment. They must also undertake a trustee training session with the Advisory Service of the Māori Land Court within 6 months of their appointment. [32] Once appointed, and within one month thereafter, the trustees should file with the Māori Land Court in Gisborne, an application under s 244 seeking a variation of the Te Pahou Trust Order, to cover the aggregated titles Wharekahika C11 and C7. [33] In closing I note, that I have deliberately not required that there be a termination of the existing Trust and the creation of a new one, as what was intended by the Māori Land Court in 1990 and 1994, was that one trust be constituted over the aggregated titles. I could 26 Tairāwhiti MB 134

8 have used s 86 to require an amendment to the trust order, but considered that there should be notice of my intention to correct, what is clearly a mere technical difficulty. Pronounced in Open Court in Gisborne on 30 October C L Fox DEPUTY CHIEF JUDGE 26 Tairāwhiti MB 135