DONEY v ADLAM [2022] NZHC 2963

DONEY v ADLAM [2022] NZHC 2963 [11 November 2022]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECIV-2022-470-44[2022] NZHC 2963BETWEEN WILLIAM HENRY DONEY, ALLANRICHARD NIAO, MARTIN LESILYNIAO, CARRIE SAVAGE, KERERUA RAYSAVAGE, ANTHONY TANGIHIASAVAGE and PHYLLIS MONIQUESAVAGE being the Trustees of Lot 39ASection 2A Parish of Matata Block AhuWhenua Trust (known as the SavagePapakāinga Land Trust)Plaintiff/Judgment CreditorAND RAE BEVERLEY ADLAMDefendant/Judgment DebtorHearing: 10 November 2022 (by telephone)Appearances: J W McDougall for Plaintiff/Judgment CreditorL M Vann and N J Jirkowsky for Defendant/Judgment CreditorJudgment: 11 November 2022JUDGMENT OF HARVEY JThis judgment was delivered by Justiceon 11 November 2022 at 11:30amRegistrar/Deputy RegistrarDate: Solicitors:Holland Beckett, TaurangaAnthony Harper, AucklandIntroduction[1] The trustees for the Savage Papakāinga Land Trust have made an applicationto this Court for leave to enforce a judgment debt in their favour, of $15,187.668.41,of which $10,453,491 remains owing, by way of sale orders. The genesis of thejudgment debt is in Māori Land Court proceedings, beginning in 2012, where JudgeCoxhead gave judgment, in 2014, against Ms Adlam personally over findings ofbreach of trust.1 Protracted litigation through the courts, including an unsuccessfulapplication for leave to appeal to the Supreme Court, meant that the judgment debtwas only sealed on 30 May 2022.[2] The application for leave to enforce the judgment debt arises in part due to achange of trustees ordered by Judge Wainwright in March 2022. A hearing is of theenforcement application is scheduled for Monday 14 November 2022.[3] On 7 November 2022, counsel for Ms Adlam sought a brief adjournment of thehearing next Monday. The grounds cited in support of the adjournment request were:(a) to enable the inclusion of comment from a tikanga Māori expert into counsel'ssubmissions in light of the recent Supreme Court decision in Ellis v R;2 and(b) to enable Ms Adlam, who has surgery scheduled for 11 November 2022 and isconcerned that she will not be sufficiently recovered by Monday, to attend thehearing in person.[4] By reply memorandum of the same day, counsel for the trust confirmed thatthe trustees oppose any adjournment. They argue that the application is a furtherexample of Ms Adlam seeking to evade her responsibilities. Moreover, counselcontended that there is no proper basis for raising an application based on tikangaMāori in the context of these enforcement of judgment proceedings, and at this latestage. The trust also submitted that there is insufficient evidence to support theapplication.1 Savage v Adlam – Lot 39A Sec 2A Parish of Matatā (2014) 95 Waiariki MB 176 (95 WAR 176).2 Ellis v R [2022] NZSC 114.[5] A hearing by telephone was convened yesterday, after which I confirmed adecision would issue in writing. Following the hearing, Ms Van also filed twoaffidavits, one from Ms Adlam that updates her financial position, and one from herdaughter, Loren Riddall, addressing an estoppel claim. The affidavits wereaccompanied by two further memoranda of counsel - one provided confirmation ofMs Adlam's surgery and the date she was notified being 2 November 2022. The otherseeking leave to adduce further evidence.[6] The issue for determination is whether the adjournment should be granted, andif so, on what terms? The application for leave to adduce further evidence is alsoconsidered in this decision.Rae Beverley Adlam's submissions[7] In a brief memorandum, Ms Van submitted that the defendant seeks assistancefrom a tikanga Māori expert to incorporate such comment into her submissions in lightof Ellis. Accordingly, the defendant wishes for tikanga to be considered at the hearing.This intention has, however, been complicated by the fact that counsel has been unableto secure the help of a tikanga Māori expert.[8] Added to that counsel contended that Ms Adlam wishes to attend the hearingin person. However, as foreshadowed, she has surgery scheduled on Friday 11November 2022. If that proceeds, then there is a risk that Ms Adlam may not be wellenough to attend the hearing on Monday.[9] At the telephone conference counsel elaborated on these submissions. Ms Vanhighlighted Ms Adlam's belief that the trustees are estopped from forcing the sale ofher two properties. This belief was based on alleged representations made by formertrustees to Ms Adlam. Counsel also contended that Ms Adlam had been seeking toreach a solution with the trustees but those efforts had been largely ignored.[10] In addition, Ms Van submitted that Ms Adlam's presence could assist in theefficient disposal of the proceedings, should she be required to provide instructions orrelevant information to counsel. For these two principal reasons, counsel sought abrief adjournment.Savage Papakāinga Land Trust's submissions[11] Mr McDougall submitted that the substantive application concerns the trusteesenforcing the balance of an original judgment of $11,200,000 (plus interest) againstthe defendant issued by the Māori Land Court in 2014, Savage v Adlam – Lot 39A Sec2A Parish of Matatā.3 That application is opposed by Ms Adlam on the basis that, asmentioned above, the trustees are estopped from enforcing the debt due to allegedrepresentations that it would not do so.[12] A hearing of the trustees' application was originally scheduled for 5 October2022 at Hamilton with a pre-hearing timetable agreed between the parties. Ms Adlamwas directed by the Court on 26 July 2022 to file her opposition by 5 August 2022 anda synopsis of submissions by 30 September 2022. This timetable, counsel contended,has not been complied with by Ms Adlam, and she remains in breach in the case ofsubmissions. Following that, on 28 September 2022 the parties were advised that theOctober hearing had been vacated and a replacement fixture for 14 November 2022was confirmed.[13] The trustees argued that the opportunity for considering evidence whethertikanga is relevant and what principles are engaged was the time pre-hearing directionswere made or soon after; not a week before the hearing. In addition, counsel contendedthat while it may be convenient for Ms Adlam to raise issues of tikanga and seek adeferral, there is no proper basis for doing so. Namely, Ms Adlam's notice ofopposition of 26 August 2022 does not rely on any tikanga principles or any mattersresembling them. Further, there is no controlling statute or principles where tikangamay be inherently relevant. Neither does Ms Adlam's affidavit refer to suchprinciples. Counsel argued that there is no foundation to consider the incorporation oftikanga in this case.[14] As to the second ground for adjournment, Ms Adlam's personal attendance atthe hearing, counsel submitted that Ms Adlam's presence is not required for thehearing. She is not needed to give oral evidence or to be cross-examined. There are3 Savage v Adlam – Lot 39A Sec 2A Parish of Matatā (2014) 95 Waiariki MB 176 (95 WAR 176).also the dual options of attendance by AVL if she wishes to witness the hearing or theprovision of the hearing transcript.[15] In summary, the trustees argued that no prejudice would be caused by MsAdlam's absence. Further, while the Ellis decision was released after the timetablewas agreed, it cannot now be a basis to defer the allocated hearing to enable tikangaevidence to be given. Counsel argued that Ms Adlam has not acted reasonably nordone everything practical to avoid seeking an adjournment. Finally, as the trusteeshave made personal arrangements to attend the hearing, deferring it at this point willcause them some prejudice.[16] Essentially, Mr McDougall submitted that the request is a continuation of MsAdlam's conduct throughout the related proceedings to avoid accountability and delayenforcement. The trustees are also sceptical about the authenticity of her positiongiven the history and lack of detail supporting the application.[17] Accordingly, the trustees request that the hearing proceed on 14 November2022. They seek a direction that that Ms Adlam's submissions be filed by 5 pm onWednesday 9 November 2022.Discussion[18] Of the total judgment debt amount, approximately $4.7 million has beenreceived by the trust from Ms Adlam. Understandably, the trustees, in seeking to fulfiltheir duties under the law, wish to enforce that judgment. Judge Wainwright also madeit plain that the trustees were obliged to fulfil their responsibilities and, in effect,protect the trust assets, by enforcing the judgment.4[19] As foreshadowed, Ms Adlam opposes the enforcement proceedings on variousgrounds as set out in her notice of opposition augmented by her supporting affidavit.In any event, those matters are for argument before this Court next week. Moreimportantly, the present application for adjournment has been made on the basis offirst, the relevance of tikanga principles following the issuing of the Ellis decision and4 272 Waiariki MB 289 at 310 (272 WAI 289 at 310).secondly, because of Ms Adlam's surgery and potential unavailability. What must alsobe borne in mind is that, less than a week out from the hearing, which itself had beenrescheduled, this adjournment request has been made.[20] On the second ground of adjournment, I agree with the trustees' submissions.Ms Adlam's attendance in person is not essential. Doubtless, while she mayunderstandably wish to attend, as counsel for the trustees points out, that attendance isnot critical. In any case, the transcript will be available and, with prior notice, it maybe possible for her to attend by AVL.[21] On the first ground for adjournment, it will be remembered that the substantiveapplication concerns the enforcement of the judgment of the Māori Land Court. Inthis context, I also agree with the trustees that the time for tikanga arguments waswhen the case was before the Māori Land Court and Māori Appellate Court. Or at thevery latest, at the time pre-hearing directions were made in relation to the presentapplication. At first blush, and without the benefit of further submissions, it is difficultto see how tikanga principles in the context of the enforcement of the judgment areengaged.[22] Moreover, as the plaintiff has argued, the proceedings that began in 2012 werecontested by both Ms Adlam and the trustees all the way to the Supreme Court.Although as counsel points out, while Ms Adlam was unsuccessful in the Māori LandCourt, she prevailed in the Māori Appellate Court when the proceedings were remittedback for hearing to the Māori Land Court.5 However, what is not in dispute is that theMāori Appellate Court decision was overturned by the Court of Appeal which in effectreinstated Judge Coxhead's decision.6 As foreshadowed, Ms Adlam's application forleave to appeal to the Supreme Court was then refused.7 The trustees are thereforeentitled to enforce the judgment, just as Ms Adlam has the right to resist thatapplication.5 Adlam v Savage [2015] Maori Appellate Court MB 59, [2015] NZAR 746 (MAC).6 Adlam v Savage [2016] NZCA 454.7 Adlam v Savage [2017] NZSC 11.[23] In any event, the parties, and especially the trust's long suffering beneficiaries,who have been deprived of the balance of the judgment debt for several years, areentitled to finality. After a decade of protracted and costly litigation, it must be thetime to bring these proceedings to an end.[24] Even so, I accept that Ms Adlam should at least be given the opportunity tohave her counsel consult a tikanga expert so that her submissions might reflect whatshe considers are relevant principles in the context of the enforcement application.Further, while I also accept Mr McDougall's submissions that, in the normal course ofevents, it would not be necessary for Ms Adlam to attend, as the enforcementapplication could have the result of forcing her from her home, I can well understandher desire to attend the hearing. Equally importantly, I accept that several of thetrustees have themselves made arrangements to attend the hearing on Monday and thatthey should not be inconvenienced further.[25] As canvassed with counsel, I consider that the most efficient way to deal withMs Adlam's requests is twofold. First, the hearing on Monday will proceed asscheduled with all counsel in attendance to make submissions. Secondly, theproceedings will then be adjourned to 3.30 pm on Friday 25 November next either atTauranga or by AVL to enable Ms Van to present any further submissions she considersrelevant, having consulted with a tikanga expert. By that stage, I anticipate Ms Adlamwill have recovered sufficiently to be able to attend that hearing either in person or byAVL.[26] I also agree that Ms Adlam's submissions must be filed urgently, given that thehearing will proceed on Monday. Ms Van is to file submissions for Monday's hearingby 4 pm Friday.[27] Finally, even through Mr McDougall has not filed any submissions, given theshort time frames involved, I consider that it will assist in the efficient determinationof the present application if updated details of Ms Adlam's financial position areaccepted for filing and that the strength of the estoppel claim is properly assessed,based in part, on the assertions set out in the evidence of Ms Riddall.Decision[28] The Savage Papakāinga Trust's application for enforcement of judgment willproceed on Monday 14 November 2022 as originally scheduled to hear counsels'submissions.[29] The proceedings will then be adjourned to 3.30 pm on Friday 25 November toat Tauranga or by AVL to enable Ms Van for Ms Adlam the opportunity to make furthersubmissions. Mr McDougall for the trust will then have a right of reply at that hearing.[30] Ms Van is directed to file her submissions for the Monday hearing by 4 pmFriday 11 November 2022. She is further directed to file her submissions for the 25November 2022 hearing by 4 pm on Friday 18 November 2022.[31] The application to adduce further evidence is granted.Harvey J