HUATA v MANGAROA 26N2 TRUST [2023] NZCA 338

HUATA v MANGAROA 26N2 TRUST [2023] NZCA 338 [31 July 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA106/2022[2023] NZCA 338BETWEEN WI HUATA AND DONNA HUATAAppellantsAND MANGAROA 26N2 TRUSTRespondentHearing: 28 July 2023 (via teleconference)Counsel: C F J Reid for AppellantsL A Foley for RespondentJudgment: 31 July 2023 at 4 pmJUDGMENT OF FRENCH J[Re: application for stay]A The appellants' application for a stay is declined.B Costs on the application are reserved for consideration at the substantivehearing on 10 August 2023.____________________________________________________________________REASONSIntroduction[1] At the conclusion of an oral hearing held by way of a telephone conference callon 28 July 2023, I advised counsel that I had decided the appellants' application for astay should be declined with costs reserved for consideration at the substantive hearingof the appeal. I also advised that I would provide reasons for my decision in writing.Those reasons now follow.Background[2] The substantive appeal in this case was filed on 8 March 2022. It is an appealagainst a High Court decision regarding general land leased by the appellants from therespondent an Ahu Whenua Trust constituted under the Māori Affairs Act 1953.1 Theland had been purchased by a Mrs Te Whare in 1909 and in 1974 the respondent wasestablished to administer the land on behalf of her descendants.[3] In the decision under appeal, the High Court granted the respondent adeclaration that the appellants' lease had expired in September 2019 and also grantedthe respondent an order for possession of the land.2 In making those orders the Judgerejected the appellants' defence that they had an enforceable option to purchase theland under an agreement to lease executed in 1999.3[4] A case on appeal was duly filed in this Court and on 10 August 2022 a fixturedate of 5 July 2023 was allocated. The appellants' submissions were required to befiled by 30 May 2023.[5] On 5 May 2023, the then counsel for the appellants, Ms Monteiro, sought leaveto withdraw as counsel due to non-payment of fees. Leave was granted. Subsequently,in emails dated 17 and 18 May 2023, Mr Huata requested an adjournment of thehearing until September 2023.[6] In a direction dated 22 May 2023, Goddard J adjourned the hearing to 10August 2023. His direction went on to say:It would be contrary to the interests of justice for there to be any further delaysin resolving this appeal. There will be no further adjournments, orextension[s] of time for filing documents, in the absence of truly exceptionalcircumstances wholly outside the control of the party seeking an adjournmentor extension of time.[7] The appellants were required to file submissions on or before 13 July 2023.1 Mangaroa 26N2 Trust v Wi Huata [2021] NZHC 113.2 At [192].3 At [174] and [191].[8] The submissions were not filed by that date. Instead, the appellants' newcounsel Mr Reid filed an application for a stay of proceedings, together with asupporting affidavit from Mr Huata providing an outline of the tikanga claim he wantsthe High Court to determine.[9] The application, which was brought under pt 2A and r 48(2) and (4) of theCourt of Appeal (Civil) Rules 2005, sought orders:(a) staying this proceeding pending the High Court's determination of theappellants' claim under tikanga;(b) remitting the tikanga claim to the High Court for determination; and(c) costs in the event the respondent opposed the orders sought.[10] It is common ground that a tikanga claim was never pleaded by the appellantsin the High Court.[11] Tikanga was mentioned in the High Court decision in reference to an assertionthat had been made by Mr Huata in cross-examination.4 It was made duringquestioning about a building consent application form which showed him as the ownerof the land and which he said had been completed by his brother. An agreed statementof facts included the statement that the land was general land, not Māori land. Whenit was put to him that his brother would have known he was not the owner, Mr Huatareplied by asserting that when talking about ownership of the land "we are talking interms of us, this being a whenua Māori title".[12] Mr Huata went on to claim whakapapa to the whenua pre-dating Mrs Te Whare.He acknowledged that he had never made this assertion before in any discussions withthe respondent, nor in the Māori Land Court in proceedings between the parties in2014 and in 2019.4 At [186]–[189].[13] In the High Court judgment under appeal, Grice J referred to this assertion ofmana whenua.5 She noted the passion Mr Huata expressed for his relationship withthe land but held that such a claim based on tikanga Māori would need to be properlymade and argued.6 It had not been and therefore it was not able to be considered inthese proceedings.7[14] When the appeal against the High Court decision was filed in this Court inMarch 2022, the grounds of appeal did not include any reference to tikanga. They hadbeen filed by Mr O'Connor who had acted for the appellants in the High Court. Theappellants had previously been represented by Mr La Hatte.[15] In May 2022, the appellants changed lawyers again. In June 2022, their thencounsel, Ms Monteiro, sought a fixture and in a memorandum identifying the issues,she included an issue as to whether the Judge was wrong to hold that a claim based ontikanga could not be considered and to determine the case without hearing fullargument on that claim. The respondent objected to the inclusion of that issue,contending that it was not part of the appeal.[16] On 29 June 2022, Ms Monteiro filed amended grounds of appeal. These didnot include any reference to the Judge's treatment of Mr Huata's assertion of manawhenua.[17] As already mentioned in August 2022, a fixture of 5 July 2023 was allocated.And then in May 2023, at the request of the appellants, the hearing was adjourned until10 August 2023 with submissions due on 13 July. This Court gave a strongly wordeddirection that there were to be no further delays.[18] After being served with the application for a stay, the respondent filed amemorandum opposing it. In the memorandum, counsel, Ms Foley, pointed out thatthe tikanga claim outlined by Mr Huata in his affidavit appeared to have a differentfocus to the assertion he made at trial. The claim in the affidavit appeared to be aclaim that there was an agreement, which although held to be unenforceable at general5 At [186].6 At [187]–[188].7 At [187].law in the High Court, would be enforceable under tikanga principles. That was notthe claim that Grice J is criticised for failing to investigate. Further, the claim raisedin the affidavit was, in Ms Foley's submission, not only new but also untenable havingregard to the provisions of the respondent's trust deed.[19] On 25 July 2023, I convened a conference call for the purpose of givingMr Reid an opportunity to respond to the matters raised in the respondent'smemorandum. Contrary to a suggestion made by Ms Foley, I considered that giventhe nature of the application it needed to be determined before the fixture date ratherthan at the August hearing itself. A further conference call was then convened for28 July 2023 for oral argument. Timetabling directions regarding filing ofsubmissions pertaining to the substantive appeal, in the event the application did notsucceed, were also made.[20] Immediately prior to the conference call on 28 July 2023 both counsel filedfurther submissions regarding the stay application.Analysis[21] In support of the application, Mr Reid said the starting point was that thesewere Māori parties in dispute. He relied on the Supreme Court decision in Ellis8 andmade the following principal submissions:(a) until the High Court has determined the tikanga claim it is prematurefor the appeal to be heard;(b) the failure of the appellants to raise the tikanga claim earlier was due toerrors on the part of their previous lawyers;(c) those errors were then compounded by the High Court Judge who(without the benefit of the Ellis decision) failed to adjourn the hearingand call for further evidence;8 Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239.(d) although initially rejecting the suggestion that the tikanga claim nowbeing advanced was different to the assertion of mana whenua made inthe High Court, Mr Reid acknowledged the claim currently lackedspecificity and needed to be properly pleaded and articulated. That washowever something that required specialist assistance which he was notable to provide;(e) the purpose of the stay application was to give the appellants anopportunity to correct what had gone wrong and so avoid a miscarriageof justice; and(f) the respondent would not be prejudiced by a stay because the appellantsare now up to date with rent payments and all rental payments duringthe continuation of the stay would be paid in advance. In the event thetikanga claim was successful it would constitute an alternative basis fordetermining the respondent's applications and it is anticipated theappeal would then be withdrawn.[22] I did not accept these submissions. In my view, it would be unjust for there tobe any further delay in the prosecution of this appeal. For the appellants to attempt tostay their own appeal at the eleventh hour by invoking a new and vague claim that wasnever before the High Court is unacceptable. If, as seems surprising, there were errorsmade by no fewer than three sets of lawyers, that is a matter between the appellantsand those lawyers. It is, in my view, untenable to suggest that the respondent wouldnot be significantly prejudiced by what would be a very significant delay. All of thiscomes against a history of delays occasioned by the appellants, including an attemptin the High Court to stay that proceeding over a year after the respondent had filed itsoriginating application for possession of the land.[23] I therefore declined the application for a stay. As regards costs, given thatcounsel had not addressed these, I decided the fairest course of action was to reservethese for consideration at the substantive hearing.Outcome[24] The appellants' application for a stay is declined.[25] Costs on the application are reserved for consideration at the substantivehearing on 10 August 2023.Solicitors:Langley Twigg, Napier for AppellantsLe Pine & Co, Taupō for Respondent