NGATI KURI TRUST BOARD V G NEHO AND T PETRICEVICH AND ORS HC WN CIV 2003-485-2776

NGATI KURI TRUST BOARD V G NEHO AND T PETRICEVICH AND ORS HC WN CIV 2003-485-2776

The Court found that Murray, Lelievre, Paul Norman and Teri Norman engaged in concerted dishonest conduct—misrepresenting authority (Rata/CAN), conspiring to suppress investigation, and orchestrating access to Board funds—which amounted to serious breaches of fiduciary duty warranting removal; the appointment of Elkington was invalid because clause 5, section VII applies only when vacancies as defined in section IV have reduced members below quorum; remedy required appointment of the Maori Trustee as interim trustee, a court-directed special general meeting to elect a replacement Board and negotiators, and disqualification of the removed trustees from reappointment until the Court orders...

Citation
openlaw-f7ecc9cb_d0ed_4bb9_9892_ae9c407e4d9d.pdf
Parties
Plaintiff / First Counterclaim Defendant: Ngati Kuri Trust Board; Defendant (discontinued): Bank of New Zealand Limited; Defendant / Counterclaimant: Graeme Neho; Defendant / Counterclaimant: Thomas Petricevich; Defendant (discontinued): Louis McIlwee; Second Counterclaim Defendant: Tom Bowling Murray; Second Counterclaim Defendant: Hine Lelievre; Second Counterclaim Defendant: Teri Edward Norman; Second Counterclaim Defendant: Mohi Tahana; Second Counterclaim Defendant: Paul Robson Norman; Second Counterclaim Defendant: Aaron Elkington; Second Counterclaim Defendant: Bundy Waitai; Second Counterclaim Defendant: Dunn Tahana; Second Counterclaim Defendant: Simon Murray; Second Counterclaim Defendant: Boydy Waitai
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 October 2006
Procedural Posture
Declaratory Judgment / Civil Trust Dispute / Final Judgment After Trial (judgment Delivered 6 October 2006)
Outcome
Counterclaim succeeded in part; four trustees removed and suspended, interim Maori Trustee appointed, replacement Board to be elected at court-directed Special General Meeting, costs awarded against removed trustees
Legal Topics
Removal of Trustees, Breach of Fiduciary Duty, Misconduct and Conspiracy, Validity of Internal Elections and Constitution (3/3/5 Rule), Quorum and Vacancy Appointment (clause 5, Section Vii), Misapplication of Negotiation Funds, Interim Trustee and Remedial Court Orders, Costs
Trusts Equity Maori Law / Treaty of Waitangi Negotiations Civil Procedure Property and Corporate Representation Removal of Trustees Breach of Fiduciary Duty Misconduct and Conspiracy +5 more

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Parties

Ngati Kuri Trust Board

Plaintiff / First Counterclaim Defendant

Bank of New Zealand Limited

Defendant (discontinued)

Graeme Neho

Defendant / Counterclaimant

Thomas Petricevich

Defendant / Counterclaimant

Louis McIlwee

Defendant (discontinued)

Tom Bowling Murray

Second Counterclaim Defendant

Hine Lelievre

Second Counterclaim Defendant

Teri Edward Norman

Second Counterclaim Defendant

Mohi Tahana

Second Counterclaim Defendant

Paul Robson Norman

Second Counterclaim Defendant

Aaron Elkington

Second Counterclaim Defendant

Bundy Waitai

Second Counterclaim Defendant

Dunn Tahana

Second Counterclaim Defendant

Simon Murray

Second Counterclaim Defendant

Boydy Waitai

Second Counterclaim Defendant

Procedural Posture

Declaratory Judgment / Civil Trust Dispute / Final Judgment After Trial (judgment Delivered 6 October 2006)

Legal Issues

  1. 1 Whether the 5 April 2003 Board election complied with the 3/3/5 constitutional rule and was valid
  2. 2 Whether appointment of Aaron Elkington on 4 September 2003 was intra vires under clause 5 section VII (quorum vacancy rule)
  3. 3 Whether the Rata/CAN contract and associated conduct amounted to corruption, conflict of interest and dishonesty by trustees

Ratio Decidendi

The Court found that Murray, Lelievre, Paul Norman and Teri Norman engaged in concerted dishonest conduct—misrepresenting authority (Rata/CAN), conspiring to suppress investigation, and orchestrating access to Board funds—which amounted to serious breaches of fiduciary duty warranting removal; the appointment of Elkington was invalid because clause 5, section VII applies only when vacancies as defined in section IV have reduced members below quorum; remedy required appointment of the Maori Trustee as interim trustee, a court-directed special general meeting to elect a replacement Board and negotiators, and disqualification of the removed trustees from reappointment until the Court orders...

Court Disposition

Counterclaim succeeded in part; four trustees removed and suspended, interim Maori Trustee appointed, replacement Board to be elected at court-directed Special General Meeting, costs awarded against removed trustees

Orders

  • Tom Bowling Murray, Hine Lelievre, Paul Robson Norman and Teri Edward Norman removed as Board members
  • Every remaining Board member suspended until replacement Board elected at Special General Meeting