Doney v Adlam

• Jurisdiction: New Zealand
• Judge: Harvey,Harvey J
• Judgment Date: 01 March 2023
• Neutral Citation: [2023] NZHC 363
• Court: High Court
• Docket Number: CIV-2022-470-44

[2023] NZHC 363

IN THE HIGH COURT OF NEW ZEALAND

TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TAURANGA MOANA ROHE

Harvey J

CIV-2022-470-44

I Waenga Ia-Between

William Henry Doney, Allan Richard Niao, Martin Lesily Niao, Carriage Savage, Kererua Ray Savage, Anthony Tangihia Savage and Phyllis Monique Savage being the Trustees of Lot 39A Section 2A Parish of Matata Block Ahu Whenua Trust (known as the Savage Papakāinga Land Trust)

Te Kaitono-Plaintiff/Judgment Creditor

and

Rae Beverley Adlam

Te Kaiurupare-Defendant/Judgment Debtor

Kanohi kitea-Appearances:

J W McDougall and M Hunia for Plaintiff/Judgment Creditor

L M Van and N J Jirkowsky for Defendant/Judgment Debtor

Indigenous, Trusts — application for substitution of judgment creditor and leave to issue enforcement proceedings — relevance of Tikanga principles — estoppel — High Court Rules 2016

The trust's application for substitution of judgment creditor and for leave to issue enforcement proceedings, including a sale order, against A, were granted.

TE WHAKATAUNGA A KAIWHAKAWA MATAMUA Harvey

Judgment (No. 2) of Harvey J

This judgment was delivered by me on 1 March 2023 at 2.30 pm

pursuant to r 11.5 of the High Court Rules.

Date:

(Deputy) Registrar

Contents

Hei tīmatanga kōrero	[1]
Introduction
Kōrero whānui	[5]
Background
Ko te hātepe e pā ana ki te tono nei	[10]
Procedural history
Me whakaae ki te tono kia tīni ngā taratī – Should the application to substitute trustees be granted?	[14]
Ngā kōrero a te Kaitono – Applicants' submissions	[14]
Ngā kōrero a te Kaiurupare – Respondent's submissions	[15]
Kōrerorero	[16]
Discussion
Me whakaae ki te tono kia whai hua ai te whakataunga – Should the application for leave to enforce the judgment be granted?	[17]
Ngā kōrero a te Kaitono – Applicants' submissions	[17]
Ngā kōrero a te Kaiurupare – Respondent's submissions	[25]
Te Ture	[38]
The Law
Kōrerorero	[46]
Discussion
He tikanga Māori e pā ana ki tēnei tono – Is tikanga Māori relevant to this application?	[57]
Ngā kōrero a te Kaiurupare – Respondent's submissions	[57]
Ngā kōrero a te Kaitono – Applicant's submissions	[67]
Te Ture	[75]
The Law
He whaitake te tikanga i tēnei kēhi?	[81]
How is tikanga relevant in this case?
He aha ngā tikanga e pā ana ki tēnei kēehi?	[86]
What principles of tikanga apply?
Ka whakakorengia te mana whenua te tūrangawaewae o Mrs Adlam mēnā ka hokona te whenua?	[108]
Will the properties' sale sever Mrs Adlam's mana whenua and turangawaewae?
Whakataunga	[111]
Decision

Hei tīmatanga kōrero

Introduction

1 The trustees of the Savage Papakāinga Land Trust apply for substitution of judgment creditor and leave to issue enforcement proceedings against Rae Beverley Adlam. The application concerns the enforcement of a judgment issued by the Māori Land Court in 2014 where Mrs Adlam was ordered to repay various amounts totalling approximately $15 million. 1 To date, the trust has received $4.7 million, although Mrs Adlam asserts that they have in fact received more. The trustees now seek to enforce the outstanding judgment debt including by way of sale of two properties owned by Mrs Adlam in Tauranga and at Pukehina in the Bay of Plenty.

2 Mrs Adlam opposes the orders sought by the trustees. While she does not oppose the substitution of trustees, she does oppose the ongoing enforcement of the judgment against her on two principal grounds. First, that the trustees are estopped from enforcing the judgment based on representations made to her by former and current trustees during the course of the proceedings. In good faith, Mrs Adlam claims, she relied on those representations to her detriment.

3 Secondly, Mrs Adlam argues it would not be in the interests of justice for the judgment to be enforced against her on the basis of delay. She claims that the trustees have refused to meaningfully engage in settlement negotiations or alternative dispute resolution processes. Mrs Adlam also submits that the trustees have delayed taking steps to such a degree that it would be now unjust to have her effectively rendered homeless as a seventy-six-year-old superannuant with limited assets and income. She asks that the application for enforcement be refused or alternatively be stayed or set aside. Counsel also raised the issue of tikanga.

4 The issues for determination are, first, should the application to substitute trustees be granted? Secondly, should the trustee's application for leave to enforce the judgment be granted? Tikanga Māori is also considered in this judgment.

Kōrero whānui

Background

5 Mr McDougall set out the background to the proceedings in the trust's chronology attached to his submissions, none of which was contested by Mrs Adlam's counsel, apart from the issues of whether the parties had engaged in out of Court settlement discussions, alternative dispute resolution and whether representations were made in the context of estoppel.

6 In summary, the litigation began in December 2008 when by consent Mrs Adlam was suspended as a trustee. The formal hearings before the Māori Land Court commenced in October 2012 and a judgment was issued in April 2014 ordering Mrs Adlam's removal as a trustee and that she repays $2.4 million plus interest of $823,550.29 along with another $11.2 million to the trust. 2 That was followed by proceedings before the Māori Appellate Court in August 2014. That Court issued a decision on 26 March 2015 ordering that the case be remitted back to the Māori Land Court over quantum issues. 3 On 22 September 2016, the Court of Appeal issued its decision on a further appeal, setting aside the orders of the Māori Appellate Court and reinstating, effectively, the judgment of the Māori Land Court. 4 The Supreme Court dismissed Mrs Adlam's leave to appeal application on 17 April 2017. 5

7 Before then, on 10 March 2017, the trustees made demand for payment and proposed the sale of Mrs Adlam's properties to meet part of the repayment due to the trust. New trustees were then appointed by the Māori Land Court on 21 December 2017: Graeme Niao, Kererua Savage, Carrie Savage, William Doney, Alan Niao, Martin Niao and Jason Dowie. 6 Meetings were held with Mrs Adlam on 27 April and 13 June 2018. Following that, the trustees wrote to Mrs Adlam on

16 July 2018 to propose how to proceed with settlement discussions regarding the debt due

8 On 30 August 2018, the District Court issued a final charging order over Mrs Adlam's properties. Correspondence was sent to Mrs Adlam by the trustees on 9 November 2018 asking for release of escrow funds being held by solicitors and a statement of means. The trustees confirmed enforcement would proceed in the absence of repayment. Mrs Adlam then swore an affidavit as to her means on 28 June 2019. On 27 August, Judge Mabey ordered a variation to the charging order over Mrs Adlam's properties and for the escrow funds to be paid into court. By 2 October 2019, the trustees agreed that Mr Niao was to become to sole point of contact with Mrs Adlam. A further affidavit of means was provided by Mrs Adlam on 8 October 2019. On 22 October, Mrs Adlam made a final settlement proposal. The next day the District Court released the escrow funds to the trustees.

9 Between 6 November 2019 and 15 March 2020, the trustees say they considered new counsel and further enforcement proceedings against Mrs Adlam. On 2 June 2020, the trustees' solicitors wrote to Mrs Adlam's solicitors advising that unless a repayment proposal was made then enforcement proceedings would commence. On 14 November 2020, a meeting of trust beneficiaries was held where a presentation on trust business including enforcement against Mrs Adlam was made by Mr Niao. Mrs Adlam was also given the opportunity to address the meeting, referring in her view to the findings of the courts below on “technical” breaches of trust, as the draft minutes record. 7

Ko te hātepe e pā ana ki te tono nei

Procedural history 10

10 The present application was filed on 22 July 2022. Mrs Adlam's notice of opposition was filed on 26 August 2022. The final judgment for $10,453,491 was sealed by the High Court on 30 May 2022. On 23 June 2022, Moore J issued a minute setting the application down for a half day fixture at the earliest available date after

23 September 2022. 8 He also issued timetabling directions. 9 Then on 26 July 2022, Associate Judge Sussock issued a minute setting out timetabling directions and scheduling a hearing for 5 October 2022. 10

11 The 5 October 2022 fixture could not proceed and so a new date was allocated being 14 November 2022. On 7 November 2022 Mrs Adlam's counsel sought an adjournment on two grounds. First, that in light of the Supreme Court decision Ellis v R, counsel needed time to secure the expertise of a tikanga Māori expert to determine how that decision in tikanga might influence the submissions of Mrs Adlam. 11 Secondly, counsel confirmed that Mrs Adlam was scheduled for surgery on 11 November 2022 and may not be sufficiently recovered to attend the hearing on 14 November 2022.

12 A telephone conference was arranged on 10 November 2022 where submissions were made by counsel. On 11 November 2022, I issued the decision confirming my earlier intimation that the hearing on 14 November 2022 would proceed as scheduled and that it would then be adjourned to 25 November 2022 to enable Mrs Adlam to recover sufficiently and to also to give opportunity for Ms Van, Mrs Adlam's counsel, to secure the input of a tikanga Māori expert as foreshadowed. 12

13 The hearings took place on 14 and 25 November 2022. I confirmed that a written judgment would issue in due course. I also raised with counsel the fact...