CLARKE V KARAITIANA COA CA256/2010
The Court declared the 11 November 2010 trustee appointments invalid, and exercising its power under s 58A of the Te Ture Whenua Māori Act 1993 appointed the existing trustees as interim trustees because they had been in office and replacing them would cause unnecessary disruption; the respondent was ordered to pay...
Source-derived case information.
- Citation
- COA CA256/2010
- Parties
- Appellant: Peter Tukiterangi Clarke; Respondent: Harvey Karaitiana
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 17 June 2011
- Procedural Posture
- Appeal / Supplementary Judgment on Relief and Costs Following Substantive Judgment
- Outcome
- Court declared the trustee appointments of 11 November 2010 invalid; appointed those trustees as interim trustees pending fresh appointments under s 58A; ordered respondent to pay costs to appellant on a standard appeal band A basis with usual disbursements and certified for two counsel.
- Legal Topics
- Trust Appointments, Interim Trusteeship, Judicial Relief, Costs Order, Te Ture Whenua Māori Act 1993 S 58 a
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Tukiterangi Clarke
Appellant
Harvey Karaitiana
Respondent
Procedural Posture
Appeal / Supplementary Judgment on Relief and Costs Following Substantive Judgment
Legal Issues
- 1 Validity of trustee appointments made by the Māori Land Court on 11 November 2010
- 2 Whether existing trustees should be appointed or replaced by an independent interim trustee pending fresh appointments
- 3 Whether respondent should be ordered to pay costs to the successful appellant
Ratio Decidendi
The Court declared the 11 November 2010 trustee appointments invalid, and exercising its power under s 58A of the Te Ture Whenua Māori Act 1993 appointed the existing trustees as interim trustees because they had been in office and replacing them would cause unnecessary disruption; the respondent was ordered to pay costs to the successful appellant on a standard appeal band A basis with usual disbursements and certification for two counsel.
Court Disposition
Court declared the trustee appointments of 11 November 2010 invalid; appointed those trustees as interim trustees pending fresh appointments under s 58A; ordered respondent to pay costs to appellant on a standard appeal band A basis with usual disbursements and certified for two counsel.
Orders
- The appointments of the trustees made by the Māori Land Court on 11 November 2010 are declared to be invalid.
- Pending fresh appointments, the trustees appointed on 11 November 2010 are appointed as interim trustees.
Full Case Text
Judgment text and source record
1 paragraphs
CLARKE V KARAITIANA COA CA256/2010 17 June 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA256/2010[2011] NZCA 281BETWEEN PETER TUKITERANGI CLARKEAppellantAND HARVEY KARAITIANARespondentCourt: Ellen France, Randerson and Harrison JJCounsel: H M Aikman QC and M A Taylor for AppellantM S McKechnie for RespondentJudgment: 17 June 2011 at 4:00 PMSUPPLEMENTARY JUDGMENT OF THE COURTA The appointments of the trustees made by the Mäori Land Court on 11 November 2010 are declared to be invalid.B Pending fresh appointments, the trustees appointed on 11 November 2010 are appointed as interim trustees.C The respondent must pay costs to the appellant as for a standard appeal on a band A basis together with usual disbursements. We certify for two counsel.___________________________________________________________________REASONS OF THE COURT(Given by Randerson J)[1] In our substantive judgment issued on 14 April 2011 we reserved the issues of the relief to be granted and costs. Memoranda from counsel on these topics havenow been received. We regret that these memoranda were not drawn to our attention until this week.[2] The appellant seeks the appointment of the Mäori Trustee or an independent lawyer as an interim trustee pending fresh appointments as trustees as contemplated by our judgment. The respondent submits that the present trustees should continue in office as interim trustees until fresh appointments are made.[3] We have decided that the better course is for the existing trustees to continue as interim trustees bearing in mind that they have now been in office for some time and the disruption which would inevitably be caused by the appointment of an independent trustee. We had envisaged directing the Mäori Land Court to appoint interim trustees but in view of the delay we will do so ourselves under s 58A of the Te Ture Whenua Mäori Act 1993. We order accordingly.[4] In relation to costs, the appellant is legally aided but the respondent is not. The respondent opposes a costs order but we see no reason not to make the usual order in favour of the appellant as the successful party. The respondent may seek contribution or indemnity from others as he sees fit. The appellant has raised issues about the legal aid funding as between solicitors and counsel but we do not see that as an issue for us. It is a matter between solicitors, counsel and the Legal Services Agency. Any costs recovered from the respondent will presumably be paid to the Legal Services Agency by way of reimbursement.[5] Accordingly, we order that the respondent must pay costs to the appellant as for a standard appeal on a band A basis together with usual disbursements. We certify for two counsel.Solicitors:Woodward Law Office, Lower Hutt for Appellant