THE PROPRIETORS OF OTAKANINI TOPU BLOCK V URUAMO AND ORS HC AK CIV 2007-404-460

THE PROPRIETORS OF OTAKANINI TOPU BLOCK V URUAMO AND ORS HC AK CIV 2007-404-460 30 April 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-460BETWEEN THE PROPRIETORS OF OTAKANINI TOPU BLOCK Plaintiff AND ERIAPA URUAMO GEOFFREY HOHEPA NORMAN HOHEPA AND CHRIS PASSELL Defendants Hearing: 30 April 2007 Counsel: GH Brant and PJ Morris for Plaintiffs BJ Hart and AJ Trenwith for Defendant Eriapa Uruamo D Hapeta for remaining three named Defendants Judgment: 30 April 2007ORAL JUDGMENT OF RODNEY HANSEN JSolicitors: Stace Hammond, P O Box 19-101, Hamilton for Plaintiff Barry J Hart, P O Box 47-016, Ponsonby for Defendant Eriapa Uruamo Denise Hapeta, 50 State Highway 30, RD4, Rotorua for remaining DefendantsIntroduction[1] The plaintiff is a Maori incorporation incorporated under the Te Ture Whenua Maori Act 1993. It owns and manages three blocks of land totalling some 7,000 acres on the South Head of the Kaipara Harbour. Earlier this year the plaintiff complained that the land had been unlawfully occupied by the defendants and others. Proceedings were issued and an interim injunction sought and granted requiring those occupying the land to quit the property and restraining them from reoccupation. [2] That injunction having been ignored, the plaintiff has applied for a writ of arrest. I have that application before me today together with an application on behalf of the defendants to rescind the interim injunction.Further background[3] The plaintiff was incorporated in 1959 under the predecessor to the Te Ture Whenua Maori Act 1993, the Maori Affairs Act 1953. It is the proprietor of three blocks of land, one of which (the Otakanini G2 Block, known as the G2 Block) is at the centre of this controversy. The land is managed by a committee of seven, the current members of which were elected at the last Annual General Meeting of the plaintiff held in December 2006. [4] The plaintiff engages in dry stock farming and forestry and has leased part of the land to the Mighty River Power Company for the purpose of carrying out experimental operations as a possible forerunner to the land being leased as a wind farm. The defendants and others who occupied the land at the beginning of the year object to the way in which the land is being used and managed. They believe that part of the land comprising the G2 Block should be used for other purposes, including residential use, for a marae and possibly, as I understand it, a hospital. Since occupying the land they have erected temporary buildings, tents and a toiletfacility and, according to the plaintiff's evidence, have undertaken preparatory work for laying foundations for a building. [5] The plaintiff complains that the occupiers have interfered with their farming operations. The Chairman of the Management Committee, who has sworn affidavits in support of the application for an interim injunction, deposes that the water supply to the farm's reservoir that feeds the troughs for cattle has been cut. A farm adviser employed by the plaintiff has been impeded in the discharge of his duties. As well the plaintiff holds the occupiers responsible for damage done to two wind testing towers that have been erected by Might River Power. They are being used to establish whether there is sufficient wind to warrant the establishment of a wind farm. The damage to those towers has coincided with the occupation of the land by the defendants. [6] With one exception, that of Mr Uruamo, the defendants have accepted that they are in occupation of the land and intend to remain by, among other things, planting a garden for winter food. In various ways, which I will outline in more detail later in this judgment, the defendants complain of mismanagement and unlawful and irregular acts by the Management Committee. They say they have been forced to extreme measures because their complaints have been ignored. [7] Initial attempts to negotiate a settlement between the Management Committee and the occupiers was unsuccessful and this proceeding was commenced. An application was made ex parte for an interim injunction and was granted by Harrison J on 2 February 2007. Following difficulties in effecting service, the application was reconsidered by Venning J and a further grant of an interim injunction associated with orders for substituted service was made on 20 February. [8] That injunction has been ignored. The defendants and others associated with them have not vacated the land. The plaintiffs say they have been impeded in their ability to carry out their farming and forestry operations at a financial cost to it and, ultimately, to its shareholders, and its business relationship with Mighty River Power is being jeopardised.[9] The application for a writ of arrest followed and was initially considered by Frater J on 21 March. She made timetabling orders, including directions that any notice of opposition to the application for leave to issue the write of arrest should be filed by 28 March. She also urged the parties to meet directly in an effort to reach an agreement. She noted that this would require a degree of understanding and forbearance and a positive sense of cooperation between the parties. To date, regrettably, her hopes have not been realised. [10] The documents initially filed on behalf of the defendants and, as I understand it, rejected by the Registrar, comprised a document described as statement of claim and application to set aside interim injunction and another called a rebuttal by way of an application to stay or dismiss writ of arrest. They were filed by Ms Hapeta on behalf of the defendants. At a late stage, on 27 April, a memorandum was filed by Ms Hapeta and, this morning, an application to discharge the interim injunction and dismiss the writ of arrest supported by an affidavit from Mr Norman Hohepa. Mr Uruamo also filed an affidavit this morning and has been represented at the hearing by Mr Hart and Mr Trenwith. [11] Although there are major irregularities in the documents filed and there has not been compliance with timetable orders made by Frater J, Mr Brant raises no objection to the application to set aside the interim injunction and the opposition to his application for leave to issue a writ of arrest being dealt with on the merits. Nor does he raise any objection to Ms Hapeta representing all defendants other than Mr Uruamo, although she is not a barrister and solicitor of this Court and otherwise has no right to appear. He has preferred not to take technical points but to endeavour to get to the heart of the differences that divide the parties and their supporters.Application to rescind interim injunction[12] It is logical to deal first with the application to rescind the interim injunction. In support of the application, Ms Hapeta has canvassed a wide range of grievances. Among them are claims that the Management Committee was not validly elected; that it is not acting in accordance with its constitutional responsibilities; it is administering the incorporation without regard to the interests and the wishes ofshareholders; and it is making poor business decisions such as a decision to lease a large portion of the land to the Crown at a peppercorn rental. She also complains of irregularities in the Committee's conduct of the affairs of the incorporation including failing to file documents with the Maori Land Court, failing to make documents available to shareholders, the loss of the minutes of the 2006 Annual General Meeting and recording the registered office of the incorporation at a non-existent address. Ms Hapeta also claimed that there are irregularities in the share register. [13] For his part, Mr Brant submitted that the plaintiff had established that there is a serious question to be tried and that the balance of convenience favours the grant and the maintenance of the interim injunction. [14] The interim injunction may be rescinded if the defendants can show that there is not a serious question to be tried and/or that the balance of convenience does not favour the grant of an injunction. I have heard nothing to indicate that there is not a serious question to be tried. The plaintiff is the registered proprietor of the land. It has the statutory right and obligation to use, manage and administer the land and the absolute right to occupation and possession – see the judgment of Harrison J inProprietors of Parininihi Ki Waitotara Block v Manuirirangi HC NWP CP 18/99 31 October 2003 at [18] – [21]. Shares in the plaintiff constitute undivided interests in the land of an equitable nature. They do not create rights of ownership or possession of a particular piece of land. [15] The Management Committee is entrusted with the responsibility to administer and to manage the lands owned by the incorporation. I have heard nothing to show that members were not validly elected. The other matters which Ms Hapeta has referred may well be legitimate sources of grievance as to the way in which the Committee has conducted the business of the incorporation but they do not in any way detract from its legal right to exercise all of the powers associated with ownership of the land. That, relevantly, includes the right to determine who can and who cannot enter onto and remain on the land. The plaintiff has the unassailable right to bring this proceeding to assert its rights of ownership including its right to exclusive occupation.[16] I am also satisfied that the balance of convenience favours the continuation of the interim injunction. There is nothing to contradict the plaintiff's claim that its farming operations have been disrupted by the occupation. The damage to the wind testing devices shortly after the occupation may be a matter of coincidence but it occurred while the defendants were present on the land. Their continuing occupation will inevitably prejudice the plaintiff's relationship with Mighty River Power. [17] I have listened carefully to what Ms Hapeta has said. She has persuasively and, at times, passionately sought to show that that those whom she represents have a deep and abiding sense of grievance as to the way the Management Committee is carrying out its role. But a sense of grievance does not entitle the defendants to override the plaintiff's rights as owner. They are entitled to maintain the interim injunction pending the hearing of the substantive issues.Writ of arrest[18] I turn now to consider whether or not I should grant leave for a writ of arrest in the event that breaches of the interim injunction continue. [19] An applicant for a writ of arrest must establish three things. First, that the terms of the Court order that has been breached are clear and unambiguous. Second, that the defendant has had proper notice of the terms of the order. And, third, that the terms of the order have been broken by the defaulting party – Burslem Holdings Limited v GB & JM Bockett Limited (1999) 4 PRNZ 616, 619. [20] There can be no suggestion that the terms of the order are not clear and unambiguous. They clearly state that the defendants must forthwith quit their occupation of the property and that they be restrained from entering onto any part of the plaintiff's land and from interfering directly or indirectly in any way with its business operations. [21] I am also satisfied that the second of the requirements is met. Because of difficulties effecting personal service, Venning J ordered service by affixing the Court order to the gate leading into the property. There has been no suggestion thatthe terms of the injunction have not been brought home to the named defendants and others in occupation. [22] The third requirement is that the terms of the injunction have been broken by the defaulting party. In his affidavit, Mr Uruamo deposes that while he has entered onto the land from time to time, he has done so in his capacity as a member of the Management Committee in an attempt to mediate the dispute. In those circumstances, the plaintiff, properly in my view, does not claim that Mr Uruamo has been in breach of the terms of the injunction and does not seek the issue of a writ of arrest against him. [23] The other named defendants do not deny that they have been in occupation. The plaintiff has satisfied the legal requirements for the issue of a writ of arrest in relation to them. [24] Mr Brant has made it clear that the plaintiff has sought a writ of arrest only with the greatest reluctance and because the police have declined to act to prevent acts of trespass. One reason put forward by the police for their attitude is that they were not prepared to act on an interim order of this Court. An interim order is a Court order nonetheless and warrants the same respect as an order having permanent effect. It represents a declaration of the plaintiff's legal rights which has effect until the Court orders otherwise. Those who seek to usurp it are trespassers and should be treated accordingly. The assistance of the police to uphold those rights may still be required if, as Mr Brant fears, the plaintiff is met with an ongoing refusal on the part of the defendants, including occupiers who have not been identified, to comply with the terms of the injunction. [25] The issue of a writ of arrest to enforce a Court order is a last resort when all else fails. I have decided that my duty requires me to make such an order given the obdurate refusal of the defendants, other than Mr Uruamo, to comply with the Court order. I will, however, grant leave for the issue of the writ of arrest on terms which will give those in occupation of the land the opportunity to withdraw before the writ can be uplifted and executed. I propose making an order that the writ lie in Court for a period of seven days. During that period it cannot be acted on. I anticipate that itwill be uplifted and executed only if, at the expiration of that time, unlawful occupation has continued.Comment[26] The Te Ture Whenua Maori Act 1993 and the constitution which governs the Incorporation provides a mechanism for disaffected shareholders to have their say. The constitution provides, by way of general meeting, a forum in which all shareholders have the right to be heard and to vote as to the direction that the plaintiff should take and the persons to whom it should entrust the conduct of its affairs. That is the forum where differences such as those spoken of today should be debated and resolved. [27] I am told by Mr Brant on behalf of the plaintiff that the Management Committee has resolved that once the unlawful occupation has come to an end, it will take immediate steps to call a special general meeting specifically for the purpose of considering the issues which are currently dividing the shareholders. I urge the parties to avail themselves of this means of addressing their differences. [28] If that fails, the Court can always provide a remedy. This Court can determine who is right and who is wrong and how any wrongs can be righted. It is second best but it is there as a safety net. If the assistance of this Court is sought, all of the matters of which Ms Hapeta has spoken today can appropriately be addressed. My decision does not affect that right. It simply says that until such time as the available mechanisms have failed to achieve a resolution and this Court has ruled on the outstanding issues, those who are occupying the land, contrary to the direction of the duly elected Management Committee, must remain away. That is the purpose and the effect of this decision.Result[29] In the result, the application to rescind the interim injunction is declined. I grant leave to the plaintiff for the issue of a writ of arrest in the form attached to thesubmissions of counsel for the plaintiff authorising the issue of a writ of arrest against Geoffrey Hohepa, Norman Hohepa and Chris Passell and any other person occupying, entering or re-entering the South Head Road property without the authority of the plaintiff expressed through the Chairman of the Management Committee, Hemimatenga Warena Rau or such other person who may hold that office from time to time and to bring them before this Court at a time to be fixed by the Registrar at the time the writ of arrest is uplifted. [30] I reserve the question of costs. [31] Unless otherwise called, this proceeding is adjourned for further mention in the Duty Judge list on 21 May, at which time any necessary further directions for the conduct of the substantive proceeding can be made.