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Tikanga considered in application for leave to issue enforcement proceedings

20 Apr 2023

| Author: Heidi Bendikson

Doney v Adlam [2023] NZHC 363

High Court Rules –  application for substitution of judgment creditor and leave to issue enforcement proceedings against Adlam – applicable principles – whether estoppel established –  whether miscarriage of justice to enforce application after delay – whether tikanga Māori relevant to application  –  whether sale would sever Adlam’s mana whenua or tūrangawaewae –

In 2014 the Māori Land Court ordered Rae Beverley Adlam’s removal as trustee of the Savage Papakāinga Land Trust and for her to pay various amounts totalling $15 million to the trust.

The judgment arose from the establishment of geothermal power stations on trust land and adjacent land from which Adlam personally profited.

Adlam had conceded there was a breach of trust but disputed quantum, arguing she should retain a developer’s fee for advancing the development and that profits should be apportioned in relation to the adjacent (non-trust) land.

The matter eventually went to the Court of Appeal, which reinstated the Māori Land Court decision.

Adlam was refused leave to appeal to the Supreme Court in 2017.

The trust had received $4.7m from Adlam to date and now seeks to enforce the Māori Land Court judgment through the sale of two properties in the Bay of Plenty owned by Adlam.

Following resignations and retirements of other trustees over time, the Māori Land Court had issued orders vesting trust land in replacement trustees, bringing about the need to apply for a substitution of judgment creditor. Adlam submitted she would abide the court’s decision on substitution.

Adlam opposed ongoing enforcement, saying the trust were estopped from doing so based on previous representations made by trustees, and it would not be in the interests of justice, given the delay.

Adlam further submitted the orders would be inconsistent with tikanga and would sever her and her descendants from her mana whenua and tūrangawaewae.
The trust submitted that the trustees, even under tikanga, have an obligation to protect their assets and the concepts of hara, muru and utu have not yet been addressed satisfactorily in order to achieve a state of ea (balance) between the parties.

Applicable principles – High Court noted matter of substitution of trustees purely administrative – whether miscarriage of justice – High Court found delays not unreasonable, much of it caused by Adlam, trust’s position for recovery consistently expressed in solicitors’ correspondence – whether estoppel established through clear representation or promise creating a belief or expectation – High Court found there was no formal authorisation by majority of trustees promising not to enforce judgment – one trustee’s personal opinion that he would not want to see Adlam homeless not sufficient to make out estoppel – whether tikanga Māori relevant to application – consideration of whakapapa and whanaungatanga, tūrangawaewae, and tino rangatiratanga – discussion of precedent on application of tikanga – adopted comments in Wairarapa Moana Ki Pouakani Incorporation v Mercury New Zealand Limited [2022] NZSC 142, tikanga and its application depends on specific facts – High Court found tikanga relevant in respect of ownership and whakapapa, the management of the whenua, and dispute resolution – whakapapa and whanaungatanga relevant to reputations of both parties – High Court found principles of tikanga reinforce Adlam’s responsibility to repay outstanding judgment debt  – whether sale would sever Adlam’s mana whenua or turangawaewae – High Court found no evidence Adlam connected to iwi associated with location of either home – even if she were a member of those tribes, in a tikanga context that alone could not shield her from trust’s unresolved claims.

Held: Application for substitution of judgment creditor is granted. Application for leave to issue enforcement proceedings, including a sale order, against Adlam is granted.

Doney v Adlam trusts case

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