WHATA & ORS v HUGHES [2021] NZHC 1443

WHATA & ORS v HUGHES [2021] NZHC 1443 [22 June 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2017-463-139[2021] NZHC 1443BETWEEN GEORGINA WHATA & ORS as the currenttrustees of the Whakapoungakau 24(Tikitere) TrustPlaintiffsAND SUNISA HUGHESFirst DefendantBRYAN GEORGE HUGHESSecond DefendantTĀTOU HOLDINGS LIMITEDThird DefendantTĀTOU INTERNATIONAL LIMITEDFourth DefendantHearing: 19 and 20 October 2020Appearances: M T Kyriak and T G Kyriak for the PlaintiffsG J Judd QC and K J Patterson for the DefendantsJudgment: 22 June 2021JUDGMENT OF DUFFY JThis judgment was delivered by me on 22 June 2021 at 4.00 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors/Counsel:Kryiak Law, AucklandKen Patterson, Solicitor, TaurangaG J Judd QC, Auckland[1] This judgment should be read together with the judgment I delivered in thisproceeding on 10 February 2020.1 In that judgment I denied the defendants'application to strike out the plaintiffs' second amended statement of claim and Iadjourned the defendants' application to stay the proceeding. I gave the plaintiffs timeto file an amended statement of claim and I ordered that if no amended statement ofclaim was filed and served by the specified date the stay of proceedings would takeeffect as sought.[2] On 27 March 2020 the plaintiffs filed a third amended statement of claim.Various issues of procedure arose. These are recorded in minutes I issued, none ofwhich need to be substantially traversed here. By 15 July 2020 the parties had reachedan agreed position, which they recorded in a joint memorandum of that date. Theysought a hearing to determine whether the proceeding is presently stayed and todetermine a joinder application brought by the plaintiffs. When these matters camebefore me for hearing I was advised by the defendants that they no longer oppose thejoinder application. They accepted that if I found the proceeding should not be stayedthen joinder was appropriate. Alternately, if I found the proceeding was stayed thatwould render the joinder application redundant. Because the joinder application hingeson whether the proceeding is stayed or not, I shall deal with the arguments about stayfirst and joinder second.Is the proceeding stayed?[3] The arguments the defendants make in support of their contention theproceeding should be stayed are in substance the type of arguments associated with astrike out application. Essentially the defendants argue that the opportunity I gave theplaintiffs in the judgment of 10 February 2020 to replead their claims against thedefendants has not been taken because the plaintiffs' proposed new statement of claimdoes not disclose a reasonably arguable cause of action. The relevant document towhich this criticism attaches is the draft fourth amended statement of claim. Thedocument is in draft because it includes claims against Tikitere Holdings Limited(Tikitere Holdings), for whom the plaintiffs seek joinder. The defendants no longer1 Eru v Hughes [2020] NZHC 122.take any issue with the pleading being in draft form. All their criticisms are nowdirected at its substance.Background[4] It is helpful to understand the factual background to this dispute, which is fullyset out in the judgment of 10 February 2020.[5] The plaintiffs are the current trustees of the Whakapoungakau 24 (Tikitere)Trust (the Tikitere Trust), which is an Ahu Whenua trust under the Te Ture WhenuaAct 1993. As trustees they are the legal owners of a 32-hectare block of MāoriFreehold land (Whakapoungakau Block 24) situated in the Tikitere geothermal fieldin Rotorua. The land contains a significant geothermal resource that is both a tribaltaonga and a commercially exploited geothermal park known as Hell's Gate.[6] The first to fourth defendants are natural and legal persons. In July 1996 wereinvolved in establishing a joint venture with the then sole trustee of the Tikitere Trust,now the late Wahiao Raymond James Gray (known as Jim Gray), and an advisorytrustee of that Trust, now the late Kotahitanga Tait. The purpose of the joint venturewas to develop and operate Hell's Gate as a commercial tourist venture. To this endWhakapoungakau Block 24 was leased to Tikitere Holdings, which was a registeredcompany that was established to operate the Hell's Gate tourist venture. This leaseruns until 2035. A written joint venture agreement was also executed; it provided thatthe third defendant Tātou Holdings Limited (Tātou) was to contribute $120,000 toTikitere Holdings and the Tikitere trustee was to allocate the "intangible benefits ofthe thermal attraction and buildings and improvements to the value of $120,000 toTikitere Holdings. Tātou and the trustee/s of the Tikitere Trust were each to receivein return a 50 per cent shareholding in Tikitere Holdings. The profits Tikitere Holdingsearned for the tourist venture would then have been available for equal distributionbetween the two shareholders.[7] The implementation of the written joint venture agreement was frustrated by asolicitor's failure to register correctly the 50 per cent shareholding in Tikitere Holdingsthat was intended for the trustee of the Tikitere Trust. Rather than registering thisshareholding in the name of the trustee, it was registered under the name of the TikitereTrust, which is contrary to s 92 of the Companies Act 1993, which prohibitsregistration of shares in the name of a trust. Regrettably the error was not detected byCompanies Office staff, who implemented the illegal registration rather than rejectingit. Those involved in the establishment of the joint venture seemingly did not realiseit rested on the flawed premise that the trustees of the Tikitere Trust were 50 per centshareholders in Tikitere Holdings, with all the rights held by persons with that numberof shares in the company. Once established Tikitere Holdings began running the Hell'sGate venture. Over the following years the Tikitere trustees (the Trustees) allegedlyreceived some financial return that was over and above the lease payments forWhakapoungakau Block 24.[8] Over time and following a change of trustees in 2015, the new trustees beganto question the level of return they were receiving from Tikitere Holdings. Theirdisquiet culminated in them commencing this proceeding in 2017. At that time, theysought to enforce rights that would have been available to them if they wereshareholders of Tikitere Holdings. On the strike out application I found they could notenforce such rights, but they were given the opportunity to replead their claims basedon causes of action that are not dependent on them holding shares in Tikitere Holdings.They have taken this opportunity and their new proposed causes of action are set outin the draft fourth amended statement of claim (4th ASOC). This claim pleads 12 suchcauses of action.[9] The defendants contend the 4th ASOC is flawed and should not be accepted. Inparticular, it does not fulfil the directions I gave in the strike out judgment where theplaintiffs were given the opportunity to file an amended statement of claim and if theydid not the proceeding would be stayed. Put shortly, the defendants contend the 4thASOC fails to disclose a reasonably arguable cause of action and therefore theproceeding is stayed.Legal basis of claims against the defendants and Tikitere Holdings[10] To begin with it is helpful to identify the legal basis for the plaintiffs' claim/s.These spring from a failed written joint venture agreement that could not proceed inits intended form through the failure to register Mr Gray as a 50 per cent shareholderof Tikitere Holdings.2 At the material time he was the sole trustee of the Tikitere Trust,and therefore the person in whose name those shares should have been registered.[11] The legal basis of the plaintiffs' claim/s against the defendants and TikitereHoldings is that following the failed joint venture Mr Gray and successive trustees ofthe Tikitere Trust allegedly participated in the Hell's Gate tourist venture together withTātou and Tikitere Holdings under the common understanding that, and as if, theTrustees were part of this venture and were therefore entitled to share in its profits, onbehalf of the Tikitere Trust. Those circumstances and the consequential way in whichthe three groups of persons3 dealt with and related to each other from the time thefailed original written joint venture agreement was executed are such as to amount inlaw to either:(a) a variation of the original written joint venture agreement comprisingthree groups of persons each of which owed fiduciary duties to theother; with the variations arising from circumstances, and conduct ofthe Tikitere trustees at the relevant time and Tātou as well as impliedterms; or(b) in the alternative, the type of non-contractual joint venture arrangementthat equity typically recognises from circumstances when personsjointly pursue a business purpose without completely settling on andarticulating the legal form of that arrangement, and which gives rise toeach of them owing fiduciary duties to the others.[12] The plaintiffs allege that throughout the life of the joint venture the way inwhich Tātou and Tikitere Holdings conducted themselves on several occasions andcontinue to do so was in breach of the fiduciary duties Tātou and Tikitere Holdingsowe to the Tikitere trustees.4 The other defendants are alleged to have acted as2 There is no dispute that 50 per cent of the shares in Tikitere Holdings were intended to be held forthe benefit of the beneficiaries of the Tikitere Trust.3 Being: (a) whoever were Tikitere trustees at the relevant time; (b) Tātou; and (c) Tikitere Holdings.4 These occasions are particularised in the 4th ASOC. There is also implicitly apparent the continuedrefusal of Tātou and Tikitere Holdings to recognise they are in a joint venture with the plaintiffsand should be sharing profits earned from this joint venture with the plaintiffs.accessories to the alleged breaches of fiduciary duty and are therefore liable under thelaw of accessory liability in equity for either knowing receipt or dishonest assistance.[13] Generally the plaintiffs seek equitable relief from the defendants and TikitereHoldings in the form of declarations the defendants and Tikitere Holdings holdproperty derived from their equitable breaches/wrongdoing on a constructive trust forthe benefit of the Tikitere trustees, or an inquiry into the financial affairs and conductof the defendants and Tikitere Holdings, or an account of profits or equitablecompensation.[14] The law and the legal basis for making claims like this is well settled. Thefocus in the present case is whether the plaintiffs can prove the necessary factual basisto support their claims. There is the ancillary question, which is currently pressing, asto whether they can articulate their claims well enough to meet the requirements of thelaw of pleadings.[15] The plaintiffs' ability to maintain their claims is important in two respects.First, there is the question of their ability to recover relief for past alleged wrongdoingby the defendants; and secondly there is the question of how they will proceed in thefuture vis-á-vis the Hell's Gate tourist venture. Unless they can establish their claimsfor a joint venture with Tātou and Tikitere Holdings, the plaintiffs' role in the Hell'sGate tourist venture will be limited to no more than being the lessee of the land fromwhich the venture operates, in which case the income the plaintiffs can expect toreceive will be limited to the rental paid under this lease.The 4th ASOC[16] I acknowledge there are ostensibly several problems with this pleading. It isoverly long, running to 81 pages. At times it appears to plead evidence rather thanfactual allegations. These features make it difficult to grapple with the pleading. It ishelpful to summarise the essence of the pleading as this allows for a betterunderstanding of the claims the plaintiffs make.[17] The 4th ASOC refers to a written joint venture agreement dated 19 July 1996(the 1996 JV). In the judgment I delivered on 10 February 2020, I found:The written joint venture agreement expressly states it is between Mr Gray astrustee and Mr Tait as advisory trustee of the Tikitere Trust and TātouHoldings.5 I accept that the written joint venture agreement is expresslypremised on the joint venture being implemented by Tikitere Holdings; withTātou Holdings and the sole trustees [sic] of the Tikitere Trust each holding50% of the shares in Tikitere Holdings.6[18] Because the "sole trustees of the Tikitere Trust" never held 50 per cent of theshares in Tikitere Holdings I found that the 1996 JV "could not have proceeded in thefashion provided for in the written agreement because in law the Tikitere Trust wasnot and is not legally capable of holding shares in Tikitere Holdings." I also foundthat the correct legal position vis-á-vis the shareholding was that Tātou held 50 percent of the shares and the remaining 50% were in law unallocated.7[19] As to the effect on the joint venture of the Trustees not being legal shareholdersin Tikitere Holdings I found as follows:Regarding the plaintiffs, a finding that at the relevant times shares in TikitereHoldings have only ever been held by Tātou Holdings simply means that thechosen legal form in the written joint venture agreement for how it would beoperated never came to pass. Accordingly, that joint venture never operated,which means it cannot be sued upon. But that does not exclude the existenceof some other joint venture agreement.[20] The 4th ASOC is the plaintiffs' attempt at repleading their claim against thedefendants based on the existence of a joint venture agreement that is different fromthat which was contemplated on 19 July 1996 when the written agreement wasexecuted.[21] The new pleading approaches the existence of a joint venture in two ways.First, the plaintiffs allege that the written joint venture agreement dated 19 July 1996was subsequently varied by the circumstances and subsequent conduct of the parties.Here the plaintiffs rely on the July 1996 joint venture written agreement having legaleffect by reason of the alleged subsequent variations. Secondly, and in the alternative,the plaintiffs plead the existence of a new separate unwritten joint venture agreement.I deal with each in turn.5 See clause 1 of the written joint venture agreement.6 See clauses 2 and 4 of the written joint venture agreement.7 The shareholding has changed since then. From 31 July 2020 the Companies Office Registershows Tātou as the sole shareholder holding 100 per cent of the shares.The written joint venture agreement as varied by conduct[22] At paragraphs [12] and [13] of the 4th ASOC the plaintiffs plead thecircumstances that led to the execution of the 1996 JV and the written terms of thatagreement, which included provision for the trustees of the Tikitere Trust and Tātouto each receive 50 per cent of the shares in Tikitere Holdings.[23] At paragraph [14] of the 4th ASOC the plaintiffs plead that at the relevant timesthe trustee/s of the Tikitere Trust never received shares in Tikitere Holdings as wasprovided for in the 1996 JV, but that instead 50 per cent of the shares in TikitereHoldings were incorrectly registered in the name of the Tikitere Trust.[24] At paragraphs [15] and [16] of the 4th ASOC the plaintiffs plead that after theexecution of the 1996 JV by Mr Gray (who was then the sole trustee of the TikitereTrust) and Tātou there was a course of conduct over the following years between: (a)those who held office as trustees of the Tikitere Trust; (b) Tikitere Holdings and (c)Tātou that was consistent with those persons being in a joint venture together, and suchconduct either expressly or impliedly had the effect of varying the written terms of the1996 JV.[25] With the above allegations the plaintiffs essentially assert the 1996 JVcontinues to have legal effect, through the variations made by the conduct of theparties. Various examples of that course of conduct are provided as particulars in the4th ASOC:(a) Various meetings that occurred between 1996 and 1999 at which thejoint venture was discussed between either the shareholders or directorsof Tikitere Holdings and Mr Gray the then trustee of the Tikitere Trust;8(b) A financial report of Tikitere Holdings dated 31 March 2007 identifiedTātou and the Tikitere Trust as shareholders in Tikitere Holdings;98 Fourth Amended Statement of Claim (4th ASOC), at [15](a).9 4th ASOC, at [15](g). This can be taken as an indication that Tikitere Holdings, Tātou and thetrustees of the Tikitere Trust viewed themselves as participants in a business venture together asopposed to the trustees being no more than lessee of the land where the venture was located.(f) At a public occasion (the presentation of the New Zealand TourismAwards 2007) Tātou described Tikitere Holdings as a 50/50 partnershipbetween the landowners Tikitere Trust, and an investment managementcompany Tātou;(g) On 4 October 2006 the five successive trustees of the Tikitere Trust andTikitere Holdings entered into a new deed of lease dated 4 October2006 for the exclusive occupation of the land on which the Hell's Gatebusiness was operating; (which can be regarded as conduct consistentwith those persons being in a joint venture together);(h) On 24 September 2012 at a meeting of directors of Tikitere Holdingsthere was discussion regarding the appointment of a then trustee of theTikitere Trust as an additional director of Tikitere Holdings to maintaina 50 per cent representation of directors on board from Tātou and theTikitere Trust;10(i) At a meeting on 16 November 2012 the then trustees of the TikitereTrust, recorded the approval of a general security agreement on theassets of Tikitere Holdings in favour of its lender and noted that theTikitere Trust was a 50/50 joint venture party to Tikitere Holdings;11(j) From time to time Tikitere Holdings has made payments of companyprofits to a bank account referenced to the Tikitere Trust, including on17 June 2016 ($250,000), on 15 October 2017 ($44,126) on 8 August2017 ($97,134) and on 11 October 2018 ($451,784) with the same sumsbeing paid by way of company dividends to Tātou on the same dates;12(k) On 13 September 2018 Tātou gave notice to the then trustees of theTikitere Trust that the trust was in breach of the joint venture and that10 4th ASOC, at [15](j).11 4th ASOC, at [15](k).12 4th ASOC, at [15](1).it had 30 days from the date of receiving the notice to remedy thealleged breach.13[26] At [16] of the ASOC the plaintiffs plead that the circumstances pleaded at [12]to [15] of the 4th ASOC have either expressly or by implication varied the terms of the1996 JV in the following way:(a) The parties to the 1996 JV are now Tātou, the trustees of the TikitereTrust and/or their successors and Tikitere Holdings.(b) Under this JV the trustees of the Tikitere Trust are entitled to receive50 per cent of the profits of Tikitere Holdings.(c) The business of the joint venture was still to be the operation anddevelopment of Hell's Gate[27] At [16] the 4th ASOC also pleads that it was an implied term of the 1996 JV (asvaried) that any person who is a party to the JV and who is also a trustee of the TikitereTrust holds all of their interest in or entitlements arising from the JV in their capacityas trustee of that trust and that each such person consents to and shall be deemed tohave assigned all of their interest or entitlements arising from the JV in any newtrustees appointed from time to time as trustees of the Tikitere Trust as and from thedate on which the appointments are made.14 I shall return to this aspect of the ASOClater.15[28] At [16] the plaintiffs contend that the conduct of the trustees of the TikitereTrust, Tātou and Tikitere Holdings demonstrates they have acted in a way that isconsistent with and shows they had consented to variations of the terms of the 1996JV agreement.13 4th ASOC, at 15(n).14 The allegation is a particular that appears on p 20 of the marked up version of the 4th ASOC. Itappears at (v), (1) and (2) on that page.15 See [41] and [100] herein.[29] At [16] the plaintiffs rely on the implied and express variations to the 1996 JV.They allege the conduct of Tikitere Holdings, the trustees from time to time of theTikitere Trust and Tātou is consistent with all parties accepting that Tikitere Holdingswas a party to the 1996 JV. Particulars of this conduct are as follows:(a) Trustees of the Tikitere Trust and Tikitere Holdings executed a deed oflease for the land at Hell's Gate as required by clause 2.2 of the written1996 JV.(b) Tikitere Holdings operated and developed Hell's Gate as a JV inaccordance with the 1996 JV as required by clause 2.1 of thatagreement.(c) Tikitere Holdings made payments of company profits to the bankaccount the Trustees held for the benefit of the Tikitere Trust.[30] The plaintiffs plead that it was an express term of the written 1996 JVagreement that the trustees of the Tikitere Trust shall receive a 50 per cent shareholdingin Tikitere Holdings. Further, that clause 11 of that agreement provides that thedivision of profit of Tikitere Holdings shall be according to the percentage of sharesheld by shareholders and payment of the share of profits due to the shareholders ofTikitere Holdings will be made no later than three months after the end of the financialyear. It is then pleaded that despite this express requirement in the written 1996 JVagreement the trustees of the Tikitere Trust have not received a 50 per centshareholding, or any shareholding, in Tikitere Holdings. Nonetheless, TikitereHoldings by its conduct has over time made payments of profits to the bank accountthe trustees hold for the Tikitere Trust. Based on those allegations the plaintiffs pleadthat it is therefore necessary to imply a term in the written 1996 JV agreement to theeffect that Tikitere Holdings is obliged to pay, and the Trustees are entitled to receive50 per cent of the profits of Tikitere Holdings.[31] The essential effect of paragraphs [15] and [16] is to plead that the written 1996JV agreement was varied either expressly or impliedly by the particularised conductset out in those paragraphs. This left redundant the written provision for the trusteesof the Tikitere Trust to be shareholders of 50 per cent of the shares in Tikitere Holdings.This also replaced this written provision with unwritten provisions which saw this jointventure agreement now operate with three parties: (a) trustees of Tikitere Trust; (b)Tātou; and (c) Tikitere Holdings. Under the 1996 JV as varied Tikitere Holdings wasto be the party running the business and the profit the company made from thisbusiness was to be shared on a 50/50 basis between the trustees of the Tikitere Trustand Tātou.[32] Conceptually the effect of paragraphs [15] and [16] is not difficult tounderstand. However, the problem with paragraphs [15] and [16] is that together theyspan seven pages of the 4th ASOC. Paragraph [15] contains subparagraphs that runfrom (a) to (m). Paragraph [16] contains subparagraphs that run from (a) to (c) eachof which contains its own set of subparagraphs, some of which go from (i) to (vii).[33] I am satisfied that paragraphs [12] to [16] of the 4th ASOC if properly pleadedare capable of disclosing the alleged existence of a written joint venture agreementthat includes variations by implied terms and by the parties' conduct. However, intheir present state these paragraphs contain a mass of details, some of which arepresented as particulars, but which seem to me to be evidence. I accept that it wouldbe a nightmare to plead a statement of defence to paragraphs [15] and [16] of the 4thASOC in its present form.[34] In accordance with strike out principles I have assumed the factual allegationsare capable of proof. I am satisfied that the various allegations in paragraphs [15] and[16] if properly pleaded disclose a reasonably arguable case for the 1996 JV agreementhaving been varied by conduct and by implied terms that would see its legalframework altered to take account of the fact the intended 50 per cent shares in TikitereHoldings never legally passed to the trustees of the Tikitere Trust. However, somecareful and skilful drafting needs to be done to present these allegations in a consideredand coherent way.Alternative written joint venture agreement[35] In paragraph [17] the plaintiffs plead in the alternative that if theexpress/implied variations by conduct to the 1996 JV agreement that include TikitereHoldings as a joint venture party to that agreement are not established, thennevertheless the circumstances and conduct of the Tikitere trustees, Tātou and TikitereHoldings at all material times is consistent with those persons being in a joint venturearrangement (the JV arrangement) that includes: (a) the trustees of the Tikitere Trustand their trustee successors; (b) Tātou and (c) Tikitere Holdings. Under this JVarrangement Tikitere Holdings is to operate and develop Hell's Gate as a joint venturewith the trustees of the Tikitere Trust and Tātou in circumstances where all personsare parties to the JV arrangement.[36] Here the plaintiffs are essentially claiming that the failure to properly assign50 per cent of the shares in Tikitere Holdings to the trustee/s of the Tikitere Trust hasresulted in the joint venture envisaged by the 1996 JV being abandoned and a newunwritten joint venture arrangement having taken the place of the 1996 JV. This newarrangement is alleged to have arisen from the circumstances and the conduct ofTikitere trustee/s, Tātou and Tikitere Holdings. In support of this allegation theplaintiffs plead the following particulars:(a) The trustees of the Tikitere Trust allocated the intangible benefits of thethermal attraction and buildings and improvements of Hell's Gate tothe joint venture.(b) Tātou contributed the sum of $120,000 to the joint venture.(c) The annual profits of Tikitere Holdings derived from the operation anddevelopment of Hell's Gate were to be distributed equally to theTrustees and Tātou.(d) A deed of lease dated 19 July 1996 was entered into between the thentrustees of the Tikitere Trust as trustees for the owners of the land andTikitere Holdings as tenants for the exclusive occupation of the landwithin the term of the lease expiring on 17 December 2025.(e) A new deed of lease dated 4 October 2006 was entered into betweenthe then trustees of Tikitere Trust as trustees for owners of the land andTikitere Holdings for a further term of 30 years with a commencementdate of 18 December 2005 and expiry date of 17 December 2035.(f) By written agreement dated 17 July 1996 between Tikitere Holdingsand Tātou, Tātou agreed to take overall responsibility for themanagement and marketing of Hell's Gate (the management contract).(g) On 26 September 1999 the directors of Tikitere Holdings (which thenincluded the first defendant, Sunisa Hughes, and Mr Gray) resolved toextend the term of the management contract to the life of the lease toTikitere Holdings over the land.[37] The pleading in paragraph [17] relating to the JV arrangement is confusinginsofar as it refers back to earlier paragraphs which now plead the 1996 JV agreementcontinuing to have effect, but as varied by the conduct of the parties. The referencesin paragraph [17] back to the earlier paragraphs in the pleading which rely on the 1996JV agreement continuing to have effect are unhelpful and confusing insofar as theycreate an impression that the JV arrangement still relies on the 1996 JV, rather than onthe manner in which the Tikitere trustees, Tikitere Holdings and Tātou have conductedthemselves over the years since 1996. However, the same references are not unhelpfulwhen they are understood simply to be relying on the same factual allegations that aremade earlier to support the claim based on the 1996 JV agreement being varied bysubsequent conduct. Seen in this way, as between paragraphs [15] and [16] on the onehand and paragraph [17] on the other, the plaintiffs are relying on the same conduct tosupport the existence of either the 1996 JV agreement as varied by subsequentconduct, or a new JV arrangement which equity recognises from the circumstances. Iconsider the latter interpretation to be the intended interpretation. It is the only wayof sensibly reading paragraphs [15] and [16] with paragraph [17]. However, that isnot to say better pleading is not required. The apparent confusion between thoseparagraphs needs to be clarified.[38] Paragraph [17] is relatively succinct. It covers no more than one page and ithas no more than three subparagraphs. It is the reference back to paragraphs [15] and[16] which make paragraph [17] confusing.[39] I am satisfied that approached generously and by someone who has anunderstanding of the legal basis of the plaintiffs' claims, paragraph [17] discloses afoundation for an alternative cause of action based on an unwritten joint venture. Ialso consider that assuming the allegations are capable of proof this alternative causeof action is reasonably arguable.[40] Further, I am also satisfied that it is reasonably arguable that both forms ofalleged joint venture could give rise to fiduciary duties which the respective jointventure participants could owe to each other. Whether such duties can exist in thepleaded circumstances is a legal question that does not need to be pleaded. However,the framing of the allegations to establish either a variation of the original written 1996JV agreement or an alternate JV arrangement needs to be redone in a way that simplyand succinctly states the material facts relied upon to establish either form of jointventure.[41] One matter that is omitted from paragraph [17] is the inclusion of an allegationthat reflects that it was an understanding of the JV arrangement that trustees who atone time were members of the JV arrangement would be deemed to have assigned alltheir interest or entitlements arising from the JV arrangement to their successortrustees. This allegation referred to at [27] herein relates to the pleaded 1996 JV asvaried. It represents an attempt by the plaintiffs to maintain a chain of transfer ofinterest and entitlements, including the choses in action they sue upon in thisproceeding. Its absence from the pleaded JV arrangement leaves that arrangementwithout a basis for such transfer having occurred.Claims for breach of fiduciary duty and accessory liability in equity[42] The 4th ASOC does not plead the existence of specific fiduciary duties. It doesplead breaches of fiduciary duties, from which some insight can be gained as to theplaintiffs' reliance on the existence of such duties. However, the 4th ASOC shouldhave specified the various fiduciary duties the plaintiffs allege they were owed underthe two joint ventures they plead.[43] At paragraph [22] the plaintiffs plead that following execution of themanagement contract the control of the joint venture business effectively passed to thecontrol of Ms Hughes, the second defendant Brian George Hughes, Tātou and TikitereHoldings.16 This allegation is part of the factual background on which the plaintiffsrely when they plead their claims for breach of fiduciary duty and accessory liabilityin equity.[44] Particulars to support this allegation are pleaded at paragraphs [22](a) to (e).These particulars essentially describe steps whereby Ms Hughes and Mr Gray asdirectors of Tikitere Holdings decided that Ms Hughes would be responsible formanaging the accounts of Tikitere Holdings and Tātou would assume total control overthe financial resources of Tikitere Holdings. In support of these allegations variousexamples of the shift of control from Tikitere Holdings to Tātou or to Ms Hughes areoutlined in the various subparagraphs of [22]. At [23] the plaintiffs plead that thedirectors of Tikitere Holdings resolved that in the event of Mr Gray ceasing to be atrustee of the Tikitere Trust he would become a new independent director of TikitereHoldings.[45] The plaintiffs essentially plead that since the shift which gave Tātou totalcontrol of the financial resources of Tikitere Holdings, Ms Hughes, who is a directorof Tātou maintained financial control of Tikitere Holdings to the exclusion of thetrustees of the Tikitere Trust up to 29 November 2017. Further, that all resolutions ofTikitere Holdings between December 1995 and 1 September 2014 were made by MsHughes and Mr Gray as directors of that company, with Bryan Hughes acting inattendance at board meetings in his capacity as general manager or chief executive ofTikitere Holdings. What the plaintiffs omit to allege here is their complaint that thismovement of control to Tātou was contrary to the terms of either the 1996 JV as variedor the joint venture arrangement and that insofar as Mr Gray agreed to this shift ofcontrol he was acting in breach of his duties as a trustee of the Tikitere Trust. This gapin the pleading needs to be corrected if the plaintiffs intend to pursue this line ofargument.16 See [28](f) and (g) herein.[46] Paragraphs [24] to [28] appear to me to be references to evidence by which theplaintiffs would seek to prove there was self-dealing by Tātou and Tikitere Holdings.On this basis there is no good reason for their inclusion in the 4th ASOC.[47] Then at [29] the plaintiffs plead that from July 1996 onwards there wasconcealment and inadequate record keeping by Ms Hughes and Mr Gray as directorsof Tikitere Holdings. This is part of the original pleading where the Trustees purportedto exercise their rights as shareholders of Tikitere Holdings. Five particulars of suchconduct are provided. The plaintiffs do not plead what the consequences of thisconduct was in relation to the duties Mr Gray owed as a trustee of the Tikitere Trust.Neither do they plead whether Ms Hughes' conduct as a director of Tātou has placedthat company in breach of the fiduciary duties it owed to the Trustees under the jointventure. This needs to be clarified. Until paragraph [29] is made relevant to the newlegal basis for the plaintiffs' case against the defendants the allegations made thereinhave no purpose.[48] At [30] the plaintiffs allege that Tikitere Holdings failed to properly prepareannual accounts and to provide receipts to shareholders. Three particulars of suchconduct are provided. This allegation was inserted in the original pleading and it hasnot been updated to take account of the different legal duties now alleged to have beenbreached. This needs to be done otherwise this paragraph has no legal purpose.[49] At [31] the plaintiffs plead that Tikitere Holdings failed to maintain adequatebooks and records to enable directors and shareholders to review financial transactionsof the company before 2015. Three particulars of such conduct are provided. Thisparagraph has the same problem as paragraphs [29] and [30].[50] Paragraph [32] alleges a failure on the part of Tikitere Holdings to maintain aregister of shareholders in breach of s 87(1) and s 87(2) of the Companies Act 1983.This paragraph has not been updated to take account of the new legal basis of theplaintiffs' case.[51] Paragraph [33] alleges a failure until September 2018 for Tikitere Holdings tomaintain an interest register in accordance with s 189(1)(c) of the Companies Act. At[34] the plaintiffs plead that in 2015 Tirun Kanji, chartered accountant of Auckland,was appointed a director of Tikitere Holdings nominated by the "Tikitere Trust." It issaid Mr Kanji sought information about the operation of Tikitere Holdings from MsHughes, but she withheld that information. This paragraph has not been updated totake account of the new legal basis of the plaintiffs' case.[52] Paragraphs [29] to [33] of the 4th ASOC, save for the addition of paragraph[32] were part of the original pleading. They provide a background which allegesTikitere Holdings failed to keep good financial accounts. These allegations areindirectly relevant to the new allegations because without proper financial records theplaintiffs could not ensure they received the profit share they were entitled to undereither the 1996 JV agreement as varied by subsequent amendment or the alternativeJV agreement. However, as mentioned earlier these paragraphs need to be re-draftedto take account of the new legal basis on which the claims are now being brought.[53] The pleading then alleges a number of what it describes as related partytransactions. These run from [35] to [65]. The transactions outlined therein allegethat such transactions have been to the benefit of certain persons, including Mr Gray,Ms Hughes and Tātou, to the exclusion of Tikitere Holdings. Put shortly, theseallegations are that others, including the aforementioned persons, acted in a self-dealing manner which led to them being unjustly enriched at the expense of TikitereHoldings.[54] The unspoken premise is that such irregular conduct deprived TikitereHoldings of profit it would otherwise have made. Part of this profit would then havebeen available for distribution to the trustees of the Tikitere Trust under either the 1996JV agreement as varied by subsequent conduct or the JV arrangement. The omissionto plead this premise needs to be rectified. Because the plaintiffs are not shareholdersof Tikitere Holdings, they cannot claim that self-dealing actions on the part of MrGray, Ms Hughes and Mr Hughes were in breach of the fiduciary duties those personsowed in their roles as directors/manager to Tikitere Holdings.[55] However, the plaintiffs can plead the factual basis of the alleged self-dealingconduct and the harm it caused to Tikitere Holdings as a foundation, to support claimsthat Tātou and Tikitere Holdings, through the aberrant and disloyal conduct of theirdirectors/manager (being Mr Gray for Tikitere Holdings and Ms Hughes and MrHughes for Tātou), were in breach of fiduciary duties that Tātou and Tikitere Holdingsowed to the Tikitere trustees under either the 1996 JV agreement as varied oralternatively the JV arrangement. Those duties of good faith and loyalty extended toTātou and Tikitere Holdings being required to ensure that their respectivedirectors/manager did not use those positions to advance their self-interest at theexpense of the joint venture parties.[56] Then at [66] and [67] the plaintiffs plead that Ms Hughes and Mr Hughes havewithdrawn money from Tikitere Holdings without proper authority or disclosure andimproperly used that money in a self-dealing manner for their own purposes, or forthe purpose of Tātou International Ltd (Tātou International). This alleged dealing washarmful to Tikitere Holdings, because it reduced the profits otherwise available toTikitere Holdings, which in turn would have been paid in part to the trustees of theTikitere Trust. The allegations relating to the unauthorised use of money end with thepleading that such unauthorised use has reduced the amount of profits of TikitereHoldings in respect of which the successor trustees and the plaintiffs are entitled to a50 per cent share.[57] At [68] to [70] there are allegations of unauthorised use of money for mortgagepayments and/or property improvement. The persons responsible for thisunauthorised use are not identified. However, the relevant funds are from the accountof Tikitere Holdings and were paid to a third party to whom the fourth defendant(Tātou International) is said to be indebted. This action is said to have enriched TātouInternational at the expense of Tikitere Holdings, which in turn would have reducedthe profit available for distribution under the 1996 JV agreement. This allegation is inits original form and needs to be updated to take account of the present legal basis onwhich the plaintiffs base their case.[58] At [71] there is an allegation of a failure to distribute a share of profits to theTikitere trustees. Here it is alleged that notwithstanding Tikitere Holdings operatingthe joint venture business since 1996 and returning profits on earnings before tax forthe financial years ending 31 March 2004 to 31 March 2012, 31 March 2014 and 31March 2015, Tikitere Holdings did not distribute profits to the Trustees between 1996and 31 March 2015.[59] At [72] the plaintiffs contrast such conduct with that following the appointmentof Mr Kanji as a director of Tikitere Holdings on 21 April 2015. Following hisappointment profits were distributed by Tikitere Holdings to the Trustees on 17 June2016 $250,000; on 5 October 2017 $44,126; on 8 August 2017 $97,134 and on 11October 2018 $451,784. This allegation may be evidence rather than a materialallegation of fact to establish the causes of action that are pleaded later in the 4thASOC.[60] The plaintiffs then plead at [73] that despite Tikitere Holdings earning profitsof approximately $2m in the 2018/2019 financial year, no profits from that period havebeen distributed by Tikitere Holdings to the Trustees, which is in breach of theobligations of the joint venture. This is followed by a reference to subparagraphs[16](b) and [16](c) of the 4th ASOC. Again, no attempt has been made to update thisparagraph to take account of the present legal basis on which the plaintiffs base theircase. This needs to be done because in its original form the joint venture depended onTikitere trustees holding 50 per cent of the shares in Tikitere Holdings, which they donot.[61] However, paragraphs [35] to [65] and [66] to [73] remain relevant to the 4thASOC if those paragraphs are read in the context of the new allegations of the 1996JV as varied by subsequent conduct, or the alternative JV arrangement. Read in thisway the paragraphs can be understood as allegations that the irregular conductdescribed therein has deprived Tikitere Holdings of profit that it could otherwise havepaid in part under either form of joint venture to the trustees of the Tikitere Trust. Thisunspoken premise needs to be specifically and fully articulated in the pleading. Thedrafter of the pleading has failed to make the allegations in paragraphs [35] to [65] and[66] to [73] relevant to the newly pleaded joint ventures.[62] If paragraphs [35] to [65] and [66] to [73] are to remain in the pleading theyneed to be tidied up to be made relevant to the newly pleaded forms of the jointventure. Otherwise as matters stand these paragraphs clearly have no connection tothe alternative JV arrangement. As to the 1996 JV agreement, it is not clear whetherthese paragraphs relate to the original form of that joint venture (which is nowredundant so the paragraphs should be struck out) or whether they can be read asessentially referring to the 1996 JV agreement as varied by subsequent conduct. If thelatter this needs to be made clear. Not enough attention has been paid to tyingparagraphs [35] to [65] and [66] to [73] (which were part of the earlier pleading) tothe new forms of joint venture that are pleaded in the 4th ASOC.[63] The next part of the 4th ASOC focuses on the various causes of action theplaintiffs bring against the defendants and Tikitere Holdings.First cause of action[64] The first cause of action, at paragraph [74], alleges that Ms Hughes, MrHughes, Tātou and Tikitere Holdings managed and controlled the joint venturebusiness. Accordingly, they assumed positions of trust and confidence such that theyowed fiduciary obligations to the plaintiffs and their predecessor trustees of theTikitere Trust. Particulars are then provided as to how each of those persons came toowe fiduciary duties to the plaintiffs and their predecessor trustees.[65] Paragraph [75] alleges that the plaintiffs and their predecessors as trusteesreposed their trust and confidence in Ms Hughes, Mr Hughes, Tātou and TikitereHoldings to use their involvement and control over the joint venture business for theproper management of that business.[66] Paragraph [76] pleads that Ms Hughes, Mr Hughes, Tātou and TikitereHoldings breached their fiduciary duties by their self-dealing wrongful conduct whichhas resulted in them being unjustly enriched by funds that were wrongly diverted tothem, and which has also resulted in the plaintiffs and their predecessor trusteessuffering loss. The breaches are then particularised in eight subparagraphs. Theparticulars of loss and unjust enrichment are particularised in seven subparagraphs.Those paragraphs emphasise the Trustees' (and their predecessors') vulnerability andreliance on others who were controlling the joint venture business: namely, Ms Hughesas director of Tātou, Mr Hughes as general manager of Tātou, Tātou, and TikitereHoldings. It is not clear whether Ms Hughes and Mr Hughes are themselves allegedto owe fiduciary duties to Tikitere trustees, which precludes Ms Hughes and MrHughes from self-dealing; or whether Tātou owed a fiduciary duty under the jointventure to Tikitere trustees to ensure that Tātou's director/manager did not act in a self-dealing way that could harm the parties to the joint venture. Whether Tātou's directorand manager could themselves owe fiduciary duties to other joint venture parties is alegal question which is arguable. Another view is that Tātou's fiduciary duties to theother joint venture parties include Tātou ensuring that its director/manager do notparticipate in self-dealing conduct that is harmful to the other joint venture parties.Put this way the alleged self-dealing conduct of Ms Hughes and Mr Hughes coupledwith Tātou taking no action to restrain this conduct would be a breach of fiduciary byTātou vis-á-vis the other parties to the joint venture.[67] The relief sought includes the usual equitable remedies associated with claimsfor breach of fiduciary duty and unjust enrichment: orders for inquiry into the profitsthe defendants have received; orders for accounts of profits, and; declarations thatprofits are held on a constructive trust for the benefit of the plaintiffs. In thealternative, equitable compensation is also sought.[68] The second cause of action is brought against Ms Hughes, Mr Hughes andTikitere Holdings, who are alleged to have provided dishonest assistance to Tātou.This cause of action repeats the earlier allegations and then pleads that Ms Hughes,Mr Hughes and Tikitere Holdings were dishonest assistants in transactions wherebyTātou, in breach of its fiduciary duties under the joint venture, diverted amounts to bedetermined at trial, from the plaintiffs and successor trustees to Mr Hughes andMs Hughes. Such diversions are alleged to be a breach of the fiduciary duty owed byTātou to the plaintiffs and the "successor" trustees in relation to the specified relatedparty transactions.[69] Paragraph [78] of the 4th ASOC pleads that the dishonest assistance providedby Ms Hughes, Mr Hughes and Tikitere Holdings to Tātou has caused the plaintiffsand the "successor" trustees to suffer loss and the recipients of the diverted funds have,in turn, been unjustly enriched.[70] Declarations that Ms Hughes, Mr Hughes and Tikitere Holdings are liable asdishonest assistants in relation to property subject to breach of fiduciary duties and arenow liable to account to the plaintiffs in respect of such dishonest assistance aresought. In the alternative, equitable compensation is sought.[71] The second cause of action as pleaded makes sense. However, the referencesto the plaintiffs and "successor trustees" means the pleading, in its present form, failsto address how predecessor trustees were affected by the alleged dishonest assistance.The second cause of action is different from the first cause of action in that the latterpleads that the plaintiffs and their "predecessor trustees" have suffered the variousbreaches of fiduciary duties and are entitled to relief. Whereas the second cause ofaction refers to the plaintiffs and "successor trustees" without attempting to includepredecessor trustees.[72] The alleged acts of dishonest assistance in the second cause of action appearto me to have occurred (at least in part) at a time when predecessor trustees held officeas trustees of the Tikitere Trust. For this cause of action to work the allegations ofdishonest assistance and the harm they have caused to trustees of the Tikitere Trustneed to be related to those trustees who were then in office at the time the various actsof alleged dishonest assistance occurred. It will then be a matter for the plaintiffs toprove that the choses in action that accrued in the trustees who held office at the timeof the alleged dishonest assistance have now passed to the present trustees, who nowsue as plaintiffs in the proceeding.[73] The third cause of action is based on allegations that Ms Hughes andMr Hughes are knowing recipients from Tātou and Tikitere Holdings. This cause ofaction is brought as a further or alternative cause of action against Ms Hughes andMr Hughes. The plaintiffs repeat the paragraphs in the 4th ASOC leading up to andincluding the first cause of action. Then at paragraph [79], they plead that Ms Hughesand Mr Hughes are each knowing recipients of amounts to be determined at trial, beingamounts directed to them by Tātou and Tikitere Holdings in breach of the fiduciaryduty owed to the plaintiffs and successor trustees by Tātou and Tikitere Holdings inrelation to the alleged related party transactions.[74] At paragraph [80] it is pleaded that Ms Hughes and Mr Hughes knew of thebreach of fiduciary duty owed to the plaintiffs and the "successor trustees" by Tātouand Tikitere Holdings. At paragraph [81] it is pleaded that is a consequence of theknowing receipt by Ms Hughes and Mr Hughes the plaintiffs have suffered loss andthose defendants have been unjustly enriched. Particulars of the loss and unjustenrichment are identified by a reference to the particulars given at paragraph [76] ofthe 4th ASOC. Similar relief to the second cause of action is sought.[75] Again, like the second cause of action, the pleading fails to refer to predecessortrustees and to link the alleged related party transactions on which the allegations ofbreach of fiduciary duty are based with the then trustee of the Tikitere Trust, at therelevant time. Again that exercise needs to be carried out as well as identifying howany chose of action, which may have arisen, has then been transferred to the presenttrustees/plaintiffs. The problems here are the same as with the second cause of action.[76] The fourth cause of action is a claim that Ms Hughes, Tātou and TikitereHoldings provided dishonest assistance to Mr Hughes. This alleges that Ms Hughes,Tātou and Tikitere Holdings provided dishonest assistance to the second defendant.This cause of action is much the same as the second cause of action, except here thedishonest assistance is rendered to Mr Hughes, whereas with the second cause ofaction, the dishonest assistance is rendered to Tātou. Otherwise the same allegationsare made and the same concerns that are identified relevant to the second cause ofaction apply here as well.[77] The fifth cause of action is a claim against Ms Hughes and Tātou for knowingreceipt from Mr Hughes and Tikitere Holdings. This cause of action is the same asthe third cause of action, except the knowing recipients are different and they arealleged to have received the amounts of money to be determined at trial fromMr Hughes and Tikitere Holdings.[78] It is interesting that Tikitere Holdings is added as an additional knowingreceiver in the fifth cause of action but is not referred to in the fourth cause of actionwhich is much the same as the fifth, except it is based on dishonest assistance ratherthan knowing receipt. As matters stand, the fourth cause of action does not allege thatTikitere Holdings (as fifth defendant) also benefited from the dishonest assistance thatwas provided to Mr Hughes.[79] The sixth cause of action is a claim that Mr Hughes, Tātou and TikitereHoldings provided dishonest assistance to Mr Hughes. Other than the alteration in theorder of who provided dishonest assistance and who benefited from the dishonestassistance, the allegations are the same as with the second cause of action and thereforecarry the same problems as the second cause of action.[80] The seventh cause of action is against Mr Hughes and Tātou and alleges thatthey were knowing recipients from the unlawful and inequitable conduct of MsHughes and Tikitere Holdings.[81] The eighth cause of action is brought against Tātou International and claims itis a knowing recipient from the unlawful and inequitable conduct of Ms Hughes, MrHughes, Tātou and Tikitere Holdings.[82] The ninth cause of action is a claim that Ms Hughes, Mr Hughes, Tātou andTātou International provided dishonest assistance to Tikitere Holdings.[83] The tenth cause of action is a claim against Tātou International based onconstructive trust which repeats the allegations in paragraphs [1] to [76] of the 4thASOC and then alleges that funds in breach of fiduciary duty were used in buying,building, developing and/or maintaining the Wai Ora Lakeside Spa property. This issaid to give rise to an institutional constructive trust with Tātou International holdingthe Wai Ora Lakeside property as constructive trustee for the plaintiffs. It is alsoalleged the obtaining of funds in breach of fiduciary duty was used to make mortgagepayments over the Wai Ora Lakeside Spa property which, in turn, gives rise to anequitable charge over that property in favour of the plaintiffs as a result of subrogation.[84] The relief for this cause of action is as follows: a declaration that TātouInternational holds the Wai Ora Lakeside Spa property on an institutional constructivetrust for the plaintiffs; an inquiry into the money received in breach of fiduciary dutyand used for the purposes of buying, building, developing and/or maintaining the WaiOra Lakeside property; an inquiry into all money received in breach of fiduciary dutyto make mortgage payments over that property, and; a declaration of an equitablecharge over the property in favour of the plaintiffs.[85] The eleventh cause of action is a contract claim against Tātou for breach of ajoint venture contract. This repeats paragraphs [1] to [73] and then alleges a jointventure agreement which included obligations as follows: to conduct the joint venturein the best interests of the parties on sound commercial principles to maximise theopportunities available in their commercial return; for the parties to be just and faithfulto each other and not do anything which competes with the joint venture or wherebytheir interests in the joint venture may be prejudiced; payment of pre-agreedproportion of annual profits to be distributed to the parties within a certain timeframe,and; no loans to be made to any director of any other person without the prior approvalof all the directors of Tikitere Holdings. It is alleged that Tātou assumed responsibilityfor the management of Tikitere Holdings at all material times and that Tātou failed tooperate Tikitere Holdings in accordance with the requirements of the joint venture andthereby breached the joint venture. Particulars are then given of the breaches of thejoint venture. This cause of action does not identify the joint venture contract that hasallegedly been breached. It is not clear if it is the 1996 JV as varied or the alternateJV arrangement or some other joint venture altogether. This needs to be tidied up.[86] The twelfth cause of action is a claim against Tikitere Holdings for breach ofthe joint venture contract. The pleading refers to a joint venture agreement. Again, itis not clear whether it refers to the 1996 JV as varied by subsequent conduct, or theJV arrangement. It is alleged Tikitere Holdings failed to operate the joint venturebusiness in accordance with requirements of the joint venture agreement and therebybreached it. Various particulars of those breaches are provided. This needs to be tidiedup.[87] The thirteenth cause of action is a claim against Tātou and Tikitere Holdingsbased on equitable estoppel by convention. Various earlier allegations in the 4th ASOCare pleaded, with further allegations then pleaded. These being that trustee successorsof Mr Gray and Mr Tait are not, or were not, parties to the joint venture agreement.Consequently, the plaintiffs, in their capacity as the current trustees of the TikitereTrust, are not entitled to sue Tātou or Tikitere Holdings for breach of contract of thejoint venture agreement. Further, the entitlement of the plaintiffs, in their capacity asthe current trustees of the Tikitere Trust, to bring claims in equity pleaded in the firstto tenth causes of action is dependent on the current trustees of the Tikitere Trust beinga party to the joint venture agreement.[88] It is alleged the effect of the conduct of Tātou and Tikitere Holdings towardssuccessor trustees to Mr Gray and Mr Tait created a belief and/or expectation on thepart of the successor trustees that during the period of the joint venture agreement theywere parties to it and, as a consequence, while successor trustees remain trustees, theywere entitled to claim relief against Tātou for any breach of contractual obligationowed by Tātou and Tikitere Holdings under the joint venture agreement. Particularsof the conduct of Tātou and Tikitere Holdings towards the successor trustees are thenprovided.[89] Annexed to the statement of claim is a schedule which refers to the variousvesting orders made by the Māori Land Court, which vested the subject land in trusteespursuant to the relevant legislation. These orders are pleaded because the plaintiffsrely on the orders in part to establish their ability to be able to sue on choses of actionthat occurred during the time of predecessor trustees. Similarly, orders ofappointment, removal and death of trustees of the Tikitere Trust are pleaded in orderto provide a chronology of who held office at the relevant timeframe.Discussion[90] The 4th ASOC has the errors I have identified in this judgment. The errors needcorrection. The overall impression of the 4th ASOC is that it is untidy, prolix,unwieldly and therefore oppressive. These are factors that support the proceedingbeing stayed. On the other hand these factors are not enough to cause me to considerthe plaintiffs' claims are not reasonably arguable. If the errors are corrected and thepleading is redone properly the plaintiffs will have reasonably arguable claims againstthe defendants. What is needed is something more than opening the present electronicversion of the claim and inserting new additions on a piecemeal basis, which appearsto have been done with the 4th ASOC. The entire pleading needs to be redone fromthe outset in a way that succinctly captures the legal basis of the claims, and whichconforms to the requirements of the law of pleadings. For this reason I am notprepared to find the proceeding is stayed.17 However, the plaintiffs need to make aconsiderable effort to improve the pleading. Simply altering parts of it, as they havedone with the 4th ASOC, will not be enough. The basis of the claim has to be re-visitedand repleaded in a clear fashion. The essence of the plaintiffs' claims are quite simple.[91] Their claims can be seen to fall into two parts. First, claims in equity based ona joint venture between three parties (trustees of Tikitere Trust, Tātou and TikitereHoldings) that gives rise to each party owing fiduciary duties to the other. The variousallegations the plaintiffs make support the existence of such a joint venture.[92] Second, claims for breach of those fiduciary duties insofar as parties to thejoint venture have acted in a self-dealing way to their personal advantage and at theexpense of the plaintiffs.[93] Third, claims for accessory liability in equity insofar as defendants who are theagents/directors/employees of one or other of the joint venture parties have acted in away that assisted other parties to the joint venture who did owe fiduciary duties to theplaintiffs to breach those duties and profit thereby.[94] Fourth, a claim in constructive trust that relates to property that is legallyowned by Tātou International. The claim for constructive trust is reasonably arguableif Tātou International acquired the property by reason of profit earned by Tātou, withthe help of Mr Hughes and Ms Hughes, as a consequence of breaches of their fiduciaryduties owed under the joint venture, and Tātou International had the requisiteknowledge of those breaches and that the profits were derived from them.[95] Fifth, there is the matter that at present the claims are both past and futurefocussed. However, the pleading makes no attempt to alert persons to that.17 Although the arguments proceeded in the same way as a strike out application, the defendants'case is that the proceeding is stayed by the directions I gave in the judgment I delivered on 10February 2020 because the plaintiffs have not filed a recognisable amended pleading.[96] The failure to register correctly the 50 per cent shareholding intended for thetrustees of the Tikitere Trust has future as well as past consequences. The trusteeshave leased their land to Tikitere Holdings until 2035. Had they realised they held noshares in Tikitere Holdings through the flawed registration of the shares they weresupposed to receive, they may not have leased their land to that company until 2035on the terms which they did. The lease was allegedly entered into with the belief theprofits from the Hell Gate business would be shared 50/50 with the trustees. Had theyknown they could not claim 50 per cent of those profits as earned by Tikitere Holdingsthey may have structured the lease differently or leased the land to a third party. Thebasis on which the Trustees, Tikitere Holdings and Tātou proceed in the future needsto be clarified. The parties have been unable to agree, which leaves them reliant onthe Court. Therefore, the claim needs to proceed partly on a basis that provides forthe future dealings between the parties. Here, declarations are required on theexistence of a joint venture and its terms as well as further orders to ensure the partiesadhere to those terms in the future.[97] In addition to the above, the 4th ASOC makes allegations that reveal pastmisconduct on the part of former trustees of Tikitere Trust, Tikitere Holdings, Tātou,Mr Hughes and Ms Hughes. The alleged breaches of fiduciary duty and accessoryliability in equity are based on this misconduct. These allegations, if successful attrial, will enable the Trustees to recover in equity the profits the defendants haveearned from their unlawful conduct. Here, various forms of equitable relief canprovide a remedy for the past unlawful conduct.[98] The Trustees need to frame their claims in a way that seeks to both rectify theproblem caused by the erroneous registration of their proposed shareholding for thefuture and remedy the harm caused in the past.[99] The plaintiffs have a further opportunity to replead their claims. If the claimsare not properly pleaded it is inevitable that the proceeding will be stayed or the claimsstruck out. As it is, the defendants have been put to unnecessary expense by theplaintiffs' present stance. I accept the 4th ASOC was not in a shape that could haveallowed the proceeding to go to trial. The wasted time and expense this has causedthe defendants will need to be addressed. Were it not for the fact the plaintiffs aretrustees and it is the beneficiaries who will suffer most if the claims are stayed, theindulgence extended to the plaintiffs may not have been made. It follows that anystay of the proceeding is only until the plaintiffs replead their claims. Given thecomplexity of the case I consider they should have until 17 September 2021 to do so.[100] At [27] herein I refer to how the pleaded 1996 JV, as varied, includes a termthat interested entitlements of trustees who were party to that JV were deemed to havebeen transferred to their successors. Such interests and entitlements would include thechoses in action that the plaintiffs sue upon in this proceeding. I refer at [41] hereinto the fact the alternative pleaded JV arrangement makes no such allegation andtherefore is silent on how choses in action are transferred to successor trustees. Thedefendants argue that the plaintiffs have failed to establish how choses in action thathave arisen during the time of certain previous trustees can have passed to theirsuccessor trustees who now seek to sue upon it. The plaintiffs appear to provide forsuch transfer by pleading it was a term of the 1996 JV agreement as varied. Whetherthey can establish that is a question of fact, insofar as they will need to prove thisprovision forms a part of either the 1996 JV agreement as varied or the JVarrangement, if they extend this allegation to include the alternative JV arrangement.For the purpose of the stay argument I consider the approach should be to assume thispleaded factual allegation is capable of proof. The plaintiffs will need to address intheir new pleading whether they plead this mode of transfer to the JV arrangement aswell. It follows that I am satisfied the 4th ASOC goes some way to provide a basis fortransfer of the interest or entitlement in choses in action that arose during the timewhen past trustees were in this role. There may be other legal bases as well availableto the plaintiffs which as allegations of law are not to be pleaded.[101] The view I have reached on the 4th ASOC means it is premature to deal withthe question of joinder now. If the trustees' claims are to proceed in a new statementof claim Tikitere Holdings needs to be joined as a fifth defendant to the proceeding.Whether it is joined as a fifth defendant can wait until the plaintiffs exercise theopportunity I have given them to replead their claims.[102] The Tikitere Trust is an Ahu Whenua Trust under the Te Ture Whenua MaoriAct. One of the purposes of trusts formed under that Act is to facilitate the occupation,development and utilisation of that land for the benefit of its owners, their whanau andhapu. This Trust was intended to enable the trustees and beneficiaries to achieve thosepurposes. The contemplated Hells Gate business venture was part of that purpose.The trustees ability to achieve that purpose has been frustrated almost from the outsetowing to the incorrect share registration and the lengthy period of time when thatseemingly went unnoticed. I consider there is a broader interest than that of the partiesat issue here. The purpose of legislation that is designed to reaffirm the "spirit andexchange of kawanatanga for the protection of rangatiratanga" embodied in the Treatyof Waitangi is not working as well as it should be for this Trust. That is a matter ofgeneral public interest. Accordingly, I consider the Court will be assisted in its role inthis proceeding by the appointment of an amicus curiae. I shall be giving appropriatedirections to the registry for the appointment of counsel to this role.Result[103] The plaintiffs are to replead their claims against the defendants in light of thefindings made herein. They have until 17 September 2021 to do so.[104] The parties have leave to file memoranda as to costs.Duffy J