KUSABS AND ORS AS TRUSTEES OF THE TUMUNUI LANDS TRUST v STAITE AND ORS AS TRUSTEES OF THE WHAOA NO 1 LANDS TRUST [2022] NZCA 270

KUSABS AND ORS AS TRUSTEES OF THE TUMUNUI LANDS TRUST v STAITE AND ORS ASTRUSTEES OF THE WHAOA NO 1 LANDS TRUST [2022] NZCA 270 [28 June 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA652/2017[2022] NZCA 270BETWEEN ANDREW MARUTUEHU KUSABS ANDORS AS TRUSTEES OF THE TUMUNUILANDS TRUSTAppellantsAND PETER DANIEL STAITE AND ORS ASTRUSTEES OF THE WHAOA NO 1LANDS TRUSTRespondentsHearing: 5 August 2021Court: Cooper, Brown and Williams JJCounsel: M S McKechnie and A F S Vane for AppellantsD G Chesterman, J P Koning and R P Nolan for RespondentsJudgment: 28 June 2022 at 10.30 amJUDGMENT OF THE COURTAn order is made for recall of the judgment Kusabs v Staite [2019] NZCA 420.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] The respondents, the trustees of the Whaoa No 1 Lands Trust (Whaoa) applyfor an order recalling and reopening the judgment of this Court delivered on9 September 20191 allowing an appeal from the High Court and setting aside that1 Kusabs v Staite [2019] NZCA 420.Court's order for rectification of a lease.2 The application is opposed by the appellants,the trustees of the Tumunui Lands Trust (Tumunui).[2] Notwithstanding that Whaoa did not challenge the High Court's rejection ofrescission as a remedy, Whaoa contends that this Court's decision left Whaoa withouta remedy by omitting to address the issue whether Mr Moke was conflicted and inbreach of his fiduciary duty of loyalty and, if he was, to consider whether somealternative relief to rectification should have been ordered. Absent the considerationsto which we next refer, we would not have considered that the circumstances of thiscase satisfied the third category of Horowhenua County.[3] However in a judgment dated 18 February 2020 declining Whaoa leave toappeal, the Supreme Court provided a clear signal as to the desirability of this Courtre-engaging with the dispute, stating:3[14] Taking the latter aspect first, Mr Chesterman for the applicants pointsout that the trustees of the Tumunui Trust in their amended notice of appeal inthe Court of Appeal put both the finding of breach of fiduciary duty and theappropriateness of granting rescission in issue. In light of that indication, wedid canvas with Mr Chesterman whether consideration had been given toseeking a recall of the Court of Appeal's judgment on the ground these issueswere live.[15] For present purposes, the relevance of the fact that these questionswere not addressed in the Court of Appeal is that this Court would effectivelybe dealing with them as a court of first instance. There are practical and otherdifficulties in our doing so. For example, in terms of equitable damages, theparties do not agree as to whether or not further evidence would be required.Nor, if leave was granted, would we have the benefit of the views of the Courtof Appeal on these questions.[16] Given these constraints on the prospective appeal, we do not considerit is necessary in the interests of justice for the matter to be heard in thisCourt. The application for leave to appeal is accordingly dismissed. But wedo so on the basis that leave is reserved to the applicants to make a furtherapplication for leave to appeal to this Court if an application is made to theCourt of Appeal asking that Court to re-visit the matter but without success.[4] In these particular circumstances we grant the application for recall of ourjudgment.2 Staite v Kusabs [2017] NZHC 416.3 Staite v Kusabs [2020] NZSC 6.[5] The parties are in agreement that should the recall application be granted thefollowing issues arise for determination:(i) Whether there was a breach of fiduciary duty by Mr Moke in light ofTumunui's proposed limited interest exception;(ii) If there was a breach, is a remedy warranted and, if so, which remedy:equitable damages or rescission?(iii) Whether a hearing is required to determine remedy and, if so, whetherin the High Court or the Court of Appeal.Solicitors:Le Pine & Co, Taupo for AppellantsKoning Webster, Papamoa for Respondents