TITO v TITO [2021] NZCA 164

TITO v TITO [2021] NZCA 164 [5 May 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA678/2020[2021] NZCA 164BETWEEN KEVIN JOHN TITOAppellantAND AROHA AWHINA TITORespondentCourt: Brown and Goddard JJCounsel: Appellant in personRespondent in personJudgment:(On the papers)5 May 2021 at 11.00 amJUDGMENT OF THE COURTA The application for an extension of time is declined.B There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] The applicant, Mr Tito, applies under r 29A of the Court of Appeal (Civil)Rules 2005 for an extension of time to appeal against a judgment of theMāori Appellate Court delivered over ten years ago on 23 February 2011.1The respondent, Ms Tito, opposes the application.1 Tito – Mangakahia 2B2 No 2A1A [2011] Māori Appellate Court MB 86 (2011 APPEAL 86)[Māori Appellate Court decision].Relevant background[2] The Mangakahia 2B2 ahu whenua trust (the Trust) was established on5 February 1998. It administers the Mangakahia 2B2 No 2AIA block which comprises41.1843 hectares. Mr Tito holds a substantial percentage of the shares in the Trust'sland.[3] On 27 November 2009 the Māori Land Court appointed the Māori Trustee asresponsible trustee against the express wishes of the beneficial owners.2 Then on4 February 2010 the Māori Land Court extended the period of the Māori Trustee'strusteeship from two to three years without giving notice to or hearing from Mr Tito.3[4] The Māori Appellate Court allowed Mr Tito's appeal in the decision of23 February 2011, the subject of the current application, in which the orders of27 November 2009 and 4 February 2010 were quashed.4 The Court appointedMr Tito, Ms Tito and John Andrews as responsible trustees on an interim basis untilthe holding of the next general meeting of owners and directed that the trustees wereto call such a meeting within 12 months.[5] Mr Tito appealed to this Court contending that the Māori Appellate Court waswrong to appoint Ms Tito and Mr Andrew as trustees. He also sought an order fordissolution of the Trust and the vesting of the land solely in him. This Court dismissedMr Tito's appeal but extended the time for holding the general meeting by threemonths.5[6] An application for leave to appeal to the Supreme Court was declined.6[7] Some of the history of this matter in the period subsequent to this Court'sprevious judgment is recorded in two judgments included in the materials filed byMs Tito in support of her opposition to the application:2 Tito – Mangakahia 2B2 No 2A1A (2009) 143 Whangarei MB 271 (143 WH 271).3 Tito – Mangakahia 2B2 No 2A1A (2010) 1 Taitokerau MB 8 (1 TTK 8).4 Māori Appellate Court, above n 1, at [61].5 Tito v Tito [2012] NZCA 493.6 Tito v Tito [2013] NZSC 19.(a) the judgment of Judge Doogan in the Māori Land Court dated20 August 2018:7 and(b) the judgment of Brewer J in the High Court dated 21 May 2020.8Discussion[8] In essence the grounds of Mr Tito's proposed appeal concern the eligibility ofMs Tito to be a trustee and criticism of her performance as a trustee.9 Mr Tito seeksan order removing Ms Tito as a trustee. He also appears to seek endorsement of hisintention to terminate the Trust.[9] The notice of appeal makes no reference to the previous judgments of thisCourt or the Supreme Court. Neither does the application for an extension of time toappeal. Indeed Mr Tito's affidavit dated 23 November 2020 in support of hisapplication for leave implies that he has not previously appealed from the MāoriAppellate Court judgment. It states:1. I failed to appeal the Reserved Decision of the Maori Appellate Courtmade on 23 February 2011 within the required 20 working days, andI now make application to appeal that decision based on the followinggrounds:2. Had I known then, what I know now, I would have filed an appeal then.[10] Surprisingly Ms Tito's notice of opposition also makes no reference to theprevious appeal. The application is opposed on the ground that all matters pertainingto the Trust land have been and are being heard in the Taitokerau Māori Land Court.[11] Having exercised his appeal right previously, it is not open to Mr Tito to bringa second appeal. This Court's judgment delivered on 29 October 2012 is final andleave cannot be granted to argue the appeal a second time. If Mr Tito wishes to revisitany of the matters that were, or could have been, raised in the course of his earlier7 Tito v Andrew – Mangakahia 2B2 No 2A1A (2018) 178 Taitokerau MB 193 (178 TTK 193).8 Booth v Tito [2020] NZHC 1071.9 Mr Andrew retired as a trustee on 6 April 2013.appeal to this Court, the appropriate procedure is an application for recall of the earlierjudgment.10[12] Hence, as there can be no second appeal, the application for an extension oftime to do so must necessarily be declined.Result[13] The application for an extension of time to appeal is declined.[14] There is no order for costs.10 See Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [25]; and Uhrle v R [2020] NZSC 62 at[15]–[17].