IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE	
CIV-2018-416-3
[2019] NZHC 1122	

IN THE MATTER OF	An application granting leave for arrest order to issue	
BETWEEN	MAORI TRUSTEE
Entitled party	
AND	BRUCE SMITH, RUBY SMITH,
COLE SMITH, JARNA SMITH AND KRESLEA SMITH
Liable parties	

Hearing:	15 May 2019	
Appearances:	G Shaw for Maori Trustee
J Smith and K Smith in person for liable parties	
Judgment:	15 May 2019	

ORAL JUDGMENT OF GRICE J
(Application for stay of issue of arrest orders)

[1]	This is an application for a stay of enforcement.1 It relates to the granting of leave to issue arrest orders made on 16 April 2019 against the liable parties (excluding Cole Smith).2 The judgment  of  16 April  2019  followed  an  earlier  judgment  of 14 February 2019.3 Before that I had refused to deal with the application for issue of arrest orders then filed on a without notice basis.4 I directed that the liable parties be served with the application before I would deal with it.

1	This judgment was given orally due to time constraints. The written judgment has been edited for grammar and flow.
2	Māori Trustee v Smith [2019] NZHC 1022.
3	Māori Trustee v Smith [2019] NZHC 322.
4	Māori Trustee v Smith [2018] NZHC 2898.

MAORI TRUSTEE v SMITH [2019] NZHC 1122 [15 May 2019]

[2]	Two of the liable parties, Kreslea and Jarna Smith appeared today by teleconference. They represent the liable parties, the Smith whanau, and made submissions in support of the stay application.

[3]	One of the liable parties, Ruby Smith, who is Jarna and Kreslea’s mother, had earlier briefed counsel, Mr Tūpara, to appear at the hearing on 14 February 2019. However, he has not been involved since then. I am advised by Kreslea Smith that the Smith whānau have had a number of lawyers involved in these matters but have not been satisfied by their performance. Therefore, they wish to represent themselves; hence Kreslea and Jarna Smith are dealing with the matter today.

[4]	The liable parties had filed a number of documents in the High Court. These documents were called “memoranda” but purported to seek various relief from the Court including a permanent injunction. The documents did not comply with the High Court Rules 2016. However, as I noted in my minute of 10 May 2019,5 after considering the documents I proposed to treat the matter as if the liable parties were making an application for stay of enforcement of the issue of the arrest orders. I therefore set it down for hearing today and deferred the issue of the orders from      14 May 2019 to 16 May 2019. Subsequently, the liable parties filed a document entitled “memorandum for filing an application for stay of enforcement for various orders” on 14 May 2019. I deal with the contents of that document that later in my decision.

[5]	The leave granted to issue the arrest orders on 16 April 2019 was in the following terms:6

[50]	Counsel have proposed by way of a draft the form of the arrest orders. I adopt those proposals and make the following arrest orders:

(a)	The arrest orders may not be issued before 14 May 2019 on which date or following each of the liable parties (excluding Cole Smith) may be arrested and kept in safe custody for the purposes of bringing them before the High Court at Gisborne. This appearance may be undertaken by way of AVL link to a Judge in a remote court. That appearance must be one working day following execution of the arrest warrant. Such warrant cannot be executed on a day before a holiday (including a weekend).

5	Māori Trustee v Smith HC Gisborne CIV-2018-416-003, 10 May 2019 (Minute).
6	Māori Trustee v Smith, above n 2.

(b)	The police executing the warrant on behalf of the sheriff are entitled to exercise the following powers:

(i)	to arrest all or anyone of the  liable  persons  (excluding  Cole Smith);

(ii)	to enter the property at Waipaoa 5A2 Block, Wairoa to give effect the arrest orders of the court;

(iii)	if necessary to use force to enter the property or any part of it whether by breaking open doors, windows or otherwise; and

(iv)	to carry out these orders with the use of such force as may be reasonably necessary to use in the circumstances.

(c)	To keep the arrested persons in safe custody until such time as they are brought before the court.

(d)	To bring the liable parties before the High Court at Gisborne in the manner and within the time indicated above.7

[6]	I first deal with the background to this matter, then the law relating to applications for stay and the issues raised by Kreslea and Jarna Smith in their submissions as well as in the documents filed.

Background

[7]	On 17 November 2017 the Māori Land Court made several orders including an injunction against the liable parties prohibiting them from entering or occupying any part of Waipaoa 5A2 land including the homestead and other buildings on that land. The terms of the order of the Māori Land Court were set out in its reasons judgment in the following terms:8
[84]	…

5.	Pursuant to s 19 of the Tu Ture Whenua Māori Act 1993 and until further order of the Court, there is an order granting a permanent injunction requiring Bruce Smith, his wife Ruby Smith and their children Cole Smith, Jarna Smith and Kreslea Smith, and any of their agents, contractors or invitees to, within 7 days from the date of service of this order, remove themselves and their possessions, chattels and materials from or under the Waipaoa 5A2 block and including any livestock and prohibiting Bruce Smith, his wife Ruby

7	Within one working day of being arrested. If there is no High Court sitting in the Gisborne Registry, then the appearance may be by AVL with the High Court at Wellington or such other place as is available.
8	Māori Trustee v Smith, above n 3; Te Ture Whenua Māori Act 1993, s 19(1)(a); Māori Trustee v Smith – Waipoa 5A2 (2017) 72 Tairawhiti MB 57 (72 TRW 57).

Smith and their children, Cole Smith, Jarna Smith and Kreslea Smith and any of their agents, contractors or invitees from:

a)	Entering or occupying any part of Waipaoa 5A2, including the homestead and other buildings on Waipaoa 5A2;

b)	Preventing, obstructing, impeding or otherwise hindering the Māori Trustee, his employees, agents, contractors, lessees and invitees from entering on, occupying or leaving Waipaoa 5A2 including passage over the Ngapakira bridge.

6.	These orders are to take effect on and from seven days of the date of service of these orders on any of the following, Bruce Smith, his wife Ruby Smith and their children Cole Smith, Jarna Smith and Kreslea Smith. Such service will be effected by way of email to the email addresses recorded in the application, with respect to the effected [sic] parties, with a further copy to be sent to the physical address of the persons affected …

[8]	My judgment of 14 February 2019 dealt with a number of matters which were raised by Mr Tūpara for Ruby Smith and which are set out in that judgment as follows:9
[25]  Mr Tūpara also indicated that there were a number of substantive  issues that he wished the Court to be aware of and set those out in his submissions. I now deal with those:

(a)	The Smiths claim ownership of the homestead on the Waipaoa 5A2 land by way of an equitable interest. Mr Tūpara pointed out that the Smith whanāu had invested in the land, worked on the land and lived on the land. They had claims to mana whenua in relation to the homestead.

(b)	Wai 1577 is a kaupapa claim inquiry dealing with housing issues. While this is not underway yet, it may well address issues such as are apparent in a case such as this where the Māori Trustee is argued to be depriving the Smiths of a home.

(c)	He noted the inappropriate use of the police and force in removing the Smiths from their home.

(d)	He noted that there had been impact on the Smith’s employment, their benefits and the fact that the community was aware of the issues. This was putting pressure on the Smith whanāu.

(e)	He submitted that the Māori Trustee had been heavy handed in this matter when it was the Māori Trustee’s role to assist Māori to manage and look after their land.

9	Māori Trustee v Smith, above n 3.

[9]	Following the judgment on 14 February 2019, but before the date for the issue of the arrest orders had arrived of 25 March 2019, I received an application that the arrest orders not be issued on that date and for further terms to be incorporated in the orders. The New Zealand Police also sought leave to be heard on various aspects of the enforcement of arrest orders, they having been appointed by the Sheriff to execute the orders.

[10]	Notice of the hearing of those matters was set for 16 April 2019 and the Smith whānau was advised the hearing date, notice having been sent to the liable parties. I deferred the issue of the orders and varied the arrest orders as set out above.10

Factual background

[11]	I set out the factual background in my judgment of 16 April 2019 as follows:11

Background

[5]	The claim at issue in the Māori Land Court was an application to occupy made by Mr Bruce Smith in relation to land known as the Waipaoa 5A2 block. The land is in front of a block of general land owned by the estate of Francis Guthrie Smith which is also a major shareholder in the Waipaoa 5A2 block. The access to the Guthrie land is through the Waipaoa 5A2 block. Rautawhiri Station is the name given to two pieces of land which were farmed together. The road access to the station was over the Ngapakira Bridge, this is a public bridge but is presently controlled by Mr Bruce Smith.

[6]	Waipaoa 5A2 is administered by the Māori Trustee on behalf of over 500 beneficial owners. Bruce Smith has a small shareholding in the trust in his own name. He is also a beneficiary in the estate of Francis Guthrie Smith, which as I have noted is a major shareholder in Waipaoa 5A2.

[7]	Until about 2014, Bruce Smith leased Waipaoa 5A2 through a [Francis] Guthrie [Smith] estate owned company, Digga-Bygum Limited, of which he was a director. He is no longer a director.

[8]	On 18 October 2016 the Māori Land Court determined that the lease of Waipaoa 5A2 had come to an end and the Māori Trustee was entitled to vacant possession of the land.12 The court granted the Māori Trustee an order for recovery of the land.

[9]	That ultimately led to an injunction issued by the Māori Land Court on 16 November 2017 [which is the judgment I referred to earlier wrongly, it’s 2016, it is 17 November 2017] prohibiting Bruce Smith and his whanāu

10	Above at [5].
11	Māori Trustee v Smith, above n 2.
12	Māori Trustee v Smith – Waipoa 5A2 (2016) 62 Tairawhiti MB 122 (62 TRW 122).

from entering or occupying any part of Waipaoa 5A2.13 The injunction orders were served as directed, by email on the Smith whanāu on 27 November 2017.

[10]	The steps taken by the Māori Trustee since that time to regain possession are set out in my judgment of 14 February 2019.14

[11]	After the injunction was served, Bruce Smith and his family issued trespass notices on the Māori Trustee purporting to trespass the Māori Trustee from the land under the Trespass Act 1980. The notices warn the Māori Trustee and its staff to stay off the relevant property.

[12]	It was in that context that the Māori Trustee initially applied to the court for leave to issue the arrest orders to enforce the injunction on a without notice basis. However, I directed the matter should proceed on notice and the parties were all served.

Stay of enforcement

[12]	A stay of enforcement is available under r 17.29 of the High Court Rules 2016 which provides:

17.29 Stay of enforcement

A liable party may apply to the court for a stay of enforcement or other relief against the judgment upon the ground that a substantial miscarriage of justice would be likely to result if the judgment were enforced, and the court may give relief on just terms.

[13]	There is also an inherent jurisdiction the High Court retains which would fill any lacunae left in relation to issues where there might be a substantial miscarriage of justice in enforcing orders such as in the present case. The relevant principles for a stay are summarised in McGechan on Procedure:15
(1)	Onus

The onus is on an applicant for a stay of enforcement to persuade the Court to exercise its discretion.

(2)	“Substantial miscarriage of justice”

A “substantial miscarriage of justice” must be involved. This means “something more than minor or insubstantial”.

13 Te Ture Whenua Māori Act 1993, s 19(1)(a); Māori Trustee v Smith – Waipoa 5A2, above n 8.
14 Māori Trustee v Smith, above n 3.
15 McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR17.29.02] citing  Bay  Cities Real Estate Ltd v Re/Max New Zealand Ltd HC Napier CIV-2010-441-134, 8 June 2011 at [12].

(3)	“Likely to result”

A substantial miscarriage of justice must be “likely to result” if the judgment were enforced. This means that such a miscarriage is probable rather than possible: Crawford v Odin Enterprises Pty Ltd [2009] NZCA 199 at [29]. The test may be expressed as “a real and substantial risk”: Bay Cities Real Estate at [28].

(4)	Balancing exercise

A balancing exercise is involved. The Court must seek to recognise and reconcile the conflicting interests of both parties in such manner as will best serve the overall interests of justice: Enright v Gold Metal Experts Ltd (1989) 3 PRNZ 243 at 245-246.

[14]	The Court also has an inherent jurisdiction to order a stay of enforcement on appropriate terms where justice demands it if r 17.29 does not apply.16

Grounds in this case

[15]	In this case the matters put forward in support of the application for stay are wide ranging. Particularly the matters raised in the memoranda for stay.

[16]	However, they stem from the Smith whānau’s dissatisfaction with various decisions by the Māori Land Court and actions by the Māori Trustee. Kreslea and Jarna Smith in their oral submissions focussed on those issues. They also raised a number of matters which are unrelated to the present application concerning their dealings with the police and their employers for which there are other avenues available to pursue remedies. They are not before me today. I therefore put those matters to one side.

[17]	Kreslea and Jarna Smith raised three main issues. The first relates to various conflicts of interest, the second to equitable interests or claims by the Smith whānau in Waipaoa 5A2 due to their interest in the land derived through Frances Guthrie Smith and the third to an equitable claim to the homestead based on the work and money invested by Bruce Smith over the years he occupied the land. I will deal with these in turn.

16	Pinson v Pinson (1991) 5 PRNZ 177 (HC).

Conflict of interest by the Chief Māori Land Court Judge

[18]	The complaint is that the Chief Māori Land Court Judge when he was in legal practice acted for Bruce Smith’s father (Francis Guthrie Smith). Francis Guthrie Smith was a major shareholder in the Waipaoa 5A2 block. He also owned the Ngapakira block, which is general land accessed through the Waipaoa 5A2 block. The two pieces of land are farmed together and known as Rautawhiri Station, as I have said. The estate of Frances Guthrie Smith now owns those interests.

[19]	Kreslea Smith submitted that the Māori Land Court Judges therefore had a conflict of interest.

[20]	They allege this is because the Chief Judge acted for Francis Guthrie Smith which made the Judge aware of the strategy and plans that Francis Guthrie Smith and the family had for the land.

[21]	A second issue of alleged conflict pointed out by Ms Smith related to a more recent event. When the lease by Digga-Bygum Limited (in which Mr Smith was a director) came to an end in 2014 the land was then leased to another entity. The tender process and the lease involved an entity in which the Chief Judge’s son was involved.

[22]	In addition, Kreslea Smith submitted that Mr Bruce Smith’s directorship and involvement with Digga-Bygum Limited had been illegally transferred without his consent, by the lawyer acting for Bruce Smith’s brother, Kevin Smith.

Equitable claim based on interests through Frances Guthrie Smith

[23]	Kreslea Smith submitted that the second head upon which the liable parties relied was that they had equitable interest in the land brought about by the whānau interest, through Bruce Smith and his interest in Francis Guthrie Smith’s estate who is Bruce’s father. The estate owns 100 per cent of the general land known as Ngapakira block. The estate has a 60 per cent interest in Waipaoa 5A2 block by virtue of its interest in the Ahu Whenua Trust.

Equitable interests claimed to homestead due to work and money invested in it by Bruce Smith

[24]	Ms Smith submitted that her father, Bruce Smith, had worked hard on the Waipaoa 5A2 block to farm it, clear it and maintain it. He had paid out of his own pocket for expenses including the rebuilding of the homestead when it was burnt down. At that stage he and his mother undertook reconstruction of the homestead. Despite requests to the Māori Trustee Ms Smith said Mr Bruce Smith was not reimbursed for the costs nor paid for his work. Ms Smith says Bruce Smith had invested a lot of time, money and sweat equity, in the homestead in particular, so he should be entitled to retain it.

[25]	Ms Smith also noted that her father had received no dividends from the Māori Trustee’s administration of the land. She said the liable parties had tried to get rid of the Māori Trustee as administrator. Kreslea Smith said to that end the Māori Land Court (Judge Harvey) had appointed Mr Hemana as a trustee in the estate of Francis Guthrie Smith to assist with the removal of the Māori Trustee as administrator. However, that appointment did not go well from the Smith whānau’s point of view. Conflict developed between Mr Hemana who sided with Bruce Smith’s brothers, Kevin and Francis Jnr against Bruce Smith. Quickly the liable parties concluded that Mr Hemana offered them no assistance. So, the Māori Trustee was not removed.

[26]	However, Kreslea Smith says the Smith whānau had set up another corporation to take over the administration of the land in the place of the Māori Trustee, given that the relationship between the Smith whānau and the Māori Trustee was not working. Ms Smith said they had the support of the majority of owners of Waipaoa 5A2 block to replace the Māori Trustee.

[27]	In response to those submissions, Mr Shaw for the Māori Trustee dealt with each of the issues raised by the Smiths. He opposed any further delay in the issue of the arrest orders. I now turn to deal with the issues and the merits.

Conflict of interest by the Chief Judge

[28]	Mr Shaw for the Māori Trustee said that Chief Judge Isaac had been involved in the application to establish the Ahu Whenua Trust in 1993, and there had been no proceedings to set that aside in the 20 years since that decision. He said that no party including Bruce Smith had taken any such steps or made any allegations that the trust had been illegally established due to a conflict that the Judge had. The Māori Trustee also noted that Bruce Smith had farmed the land and acted in reliance on the lawfulness of the Trust as did his father, Francis Guthrie Smith. The Trust had leased the land with the Māori Trustee administering it.

[29]	Until 2014 the land was essentially farmed by Bruce Smith through Digga- Bygum Limited. The beneficiaries of the estate of Francis Guthrie Smith include Bruce Smith’s brothers. Disputes about the estate have arisen between Bruce Smith and his brothers.

[30]	On 17 November 2017 the Māori Land Court issued a decision dealing with an application to remove Bruce and Roland Smith as trustees and executors of the estate. It also dealt with an application by the Registrar to transfer shares in the Digga- Bygum Limited to the remaining executors of the estate of Francis Guthrie Smith. Finally, there was also an application by the Māori Trustee for an injunction against the liable parties to prevent them from occupying and controlling access to the major asset of the Francis Guthrie Smith estate, (that is the sheep and cattle farm known as Ruatawhiri Station). This led to orders by the Court:17

(a)	removing Bruce and Roland Smith as trustees in the estate and leaving the remaining trustees and executors together with Clinton Hemana, Francis Smith and Kevin (or Tim) Smith vested with the estate with immediate effect;

(b)	transferring the shares in Digga-Bygum Limited to those trustees and executors;

17	Māori Trustee v Smith – Waipoa 5A2, above n 8.

(c)	directing the transfer of shares in the company to vest in the trustees and executors;

(d)	authorising a solicitor to take steps recognising those changes in the company be effected on the Companies Office registrar.

(e)	a permanent injunction requiring the liable parties to remove themselves from the Waipaoa 5A2 block, in terms that I have outlined above.

[31]	In earlier proceedings Bruce Smith had been represented by, first, Mr Calver and then Mr Bryan Gilling who had been funded by the Court’s special aid fund. However, Dr Gilling sought leave to withdraw at the time of the hearing on the basis he was having difficulty obtaining instructions.18

[32]	Judge Doogan in that decision19 outlined the background to the proceedings and the attempt which had been made to resolve outstanding estate matters between Bruce Smith and his brothers through a mediated or facilitated discussion.20 As a result of that discussion, agreements were reached between those parties and were recorded by the Court. They included that the parties were to explore the possibility of leasing Ngapakira Station and Waipaoa 5A2 to a third party.21 As a result of that agreement Judge Harvey of the Māori Land Court had made various orders to facilitate the tender of the lease. Judge Doogan noted that soon after that agreement, Bruce Smith and his whānau began to resile from the commitments made.22

[33]	In his decision Judge Doogan observed:

[43]	With respect to Bruce Smith, I am satisfied that not only has there been unsatisfactory conduct by reason of the intermingling of personal and trust funds, but the wilful defiance of Court directions to provide access to Ruatawhiri and to co-operate with directions to provide financial and other estate related information also constitutes unsatisfactory conduct.

18	At [4]. Mr Bruce Smith was not represented at the hearing.
19	Māori Trustee v Smith, above n 3; Te Ture Whenua Māori Act 1993, s 19(1)(a); Māori Trustee v Smith – Waipoa 5A2, above n 8.
20	At [12].
21	At [15].
22	At [17].

[44]	… I also agree that additional grounds for removal of both Bruce and Roland Smith arise by reason of their wilful failure to meet with their fellow trustees and attend to the business of the trust.

[45]	Being satisfied that there is unsatisfactory conduct, I must then give consideration to whether I ought to exercise discretion and order removal. In this case I have no doubt that I ought to exercise discretion to remove both Bruce and Roland Smith as trustees. A guiding principle when considering the exercise of discretion is the welfare of the beneficiaries. It is clear to me that it is in the interests of all beneficiaries that they be removed. They have not only failed in their duties as a trustee, they are actively or passively resisting the legal process by which this estate can be properly wound up and distributed in the interests of all beneficiaries.

[34]	The Judge made the orders sought. Judge Doogan concluded that the granting of an injunction for the removal of Bruce Smith and his whānau from the land would not be oppressive. He said:23
[68]	A key consideration is the question of whether the grant of an injunction would be oppressive to Bruce Smith and his whānau. In making that assessment, I remind myself that the test is one of oppression and in making that assessment I ought not to slide into the application of a general balance of convenience test.

[69]	Bruce Smith and his whānau have a strongly held view that they are the rightful custodians of Ruatawhiri Station. I have no doubt that they will regard an injunction requiring them to leave as unjust. But that perspective arises from what appears to be a mistaken assumption that the station and other estate assets are essentially their own personal property to do with as they see fit. As the background to the litigation recorded in this decision shows, notwithstanding clear direction from the Court, Bruce Smith continues to resist any and all attempts to allow others (including fellow trustees and estate beneficiaries) onto the land or to have any involvement in estate administration. This is untenable and cannot continue. I acknowledge that Bruce Smith and his whānau have a strong attachment to the homestead and the land, and that they have applied energy and resources towards maintenance and improvement of the land over a considerable period.

[70]	However, I am satisfied that to grant an injunction would not be oppressive because:

(a)	The homestead on Waipaoa 5A2 is not the primary place of residence of Bruce Smith and his whānau. The land has been farmed under a sublease arrangement since 2004. Following the death of Bruce Smith’s mother, the homestead has been occupied only periodically by members of Bruce Smith and his immediate whānau.

(b)	While there is evidence that Bruce Smith has undertaken work on the station it appears that he and his immediate whānau have received considerable income from the subleasing arrangement

23	At [68]–[71].

and by way of payment for development work (from the sub- lessee).

[71]	In terms of the conduct of the parties and general balance of convenience considerations, I largely accept the submission of Mr Shaw that to the extent a degree of hardship may arise from the granting of the injunction, a good deal of that comes about as a consequence of Bruce Smith’s own actions. Mr Shaw submits:

24.	Bruce Smith and his immediate family have repeatedly defied the Court’s orders and have acted to make it impossible for the Māori Trustee ‘s staff to safely carry out the Court’s directions.

25.	Further trespass notices; installing a new padlocked gate across the Ngapakira bridge after the Wairoa District Council removed the previous gate; making complaints of “breaking and entering” to the Police; advising they have carried out their own process for use of the land and resulting in self-management; bringing stock onto the land; incidents  of  intimidating  and  harassing   behaviour   towards Māori Trustee staff and others etc.

[35]	Mr Shaw submits these were strong factors in favour of the grant of the injunction. I agree.

[36]	Bruce Smith lodged an appeal  against  the  decision  of  Judge  Doogan  of 17 November 2017. It was dismissed by the Māori Appellate Court on 21 February 2018 as Mr Smith had not responded to the directions of the Court nor had he deposited security for costs.24

Conflict based on Chief Judges involvement in lease tendering

[37]	In an earlier decision of 18 October 2016, the Māori Land Court had considered issues relating to the leasing of Waipaoa 5A2.25 In that decision the Judge had directly dealt with a claim that the Chief Judge was conflicted by virtue of his son being initially part of the bid for the lease of the Waipaoa 5A2 block. The Chief Judge had withdrawn from that leasing process to enable  his  son  to  take  over  the  bid.  Judge Doogan said:

[9]	To complicate matters further, the successful bidders are a partnership consisting of George Smith Senior and Junior, and James Isaac. The Chief Judge of this Court (Wilson Isaac) was initially part of this bid but withdrew once litigation commenced. He remains interested as a guarantor of his son James’ obligations under the lease. None of the successful tenderers are

24	Smith v Māori Trustee – Waipoa 5A2 [2018] Māori Appellate Court MB 45 (2018 APPEAL 45).
25	Māori Trustee v Smith – Waipoa 5A2, above n 12.

owners in Waipaoa 5A2, though they are descendants of former owners. The bid was not the highest and allegations of unfair or improper process because of deference or favour on the part of the Māori Trustee to the Chief Judge are among the issues raised on behalf of Bruce Smith and Digga-Bygum Ltd.

[10]	Counsel for the estate and Bruce Smith (Mr Calver) quite properly raised the issue of whether the involvement of the Chief Judge gave rise to a question of bias, or perception of bias on the part of any judge of this Court dealing with the matter. That issue was argued pre-hearing before Judge Savage (by teleconference). Judge Savage did not accept that Wilson Isaac’s participation in the bid in his personal capacity automatically disqualified all judges of this bench. He did however provide counsel with an opportunity to nominate any judge that he would prefer not deal with the matter. That led to the matter being referred to me. This issue has not been taken any further.

[38]	Therefore, the issue of conflict of interest resulting from the lease tender has been dealt with. I note the Chief Judge did not deal with the 2016 proceedings not the 2017 injunction decisions by the Māori Land Court in relation to Waipaoa 5A2 land.

[39]	Judge Doogan in the 2016 decision went through the lease tendering process and noted that on 20 April 2015 Bruce Smith and Digga-Bygum Limited were advised they were unsuccessful and were required to vacate the block by 27 May 2015. However, they did not do so. In that decision the Judge considered whether the Māori Trustee should be removed as responsible trustee due to allegations of failure to perform as trustee satisfactorily. He dismissed the application for removal of the Māori Trustee.26

Position of Māori Trustee

[40]	Mr Shaw for the Māori Trustee submitted that all the issues that Ms Smith raised today had therefore been dealt with in the earlier judgments or by the fluxion of time. The Māori Trustee submits that any challenges of the nature brought up today should have been taken up before Judge Doogan when he dealt with either the applications in 2016 or when he dealt with the application for injunction which was made 12 months later in 2017 while appeals were filed in relation to both of those matters neither of the appeals was prosecuted by Bruce Smith.27

26 At [170]. The Judge refused the Māori Trustee’s application for an injunction to remove the Smith whānau. That was revived by the Māori Trustee and dealt with later in a decision of 17 November 2017 to which I have referred to in detail above.
27 Smith v Māori Trustee – Waipoa 5A2 [2017] Māori Appellate Court MB 143 (2017 APPEAL 143);
Smith v Māori Trustee – Waipoa 5A2, above n 24.

[41]	Mr Shaw further submits that as Mr Tūpara appeared for Ruby Smith at the hearing on 14 February he could have raised these issues. Mr Tūpara did raise a number of issues which I have set out above including the claim in relation to an equitable interest based on the care and attention which the Smiths have put into the land and homestead. In that judgment I also dealt with the legality and set up of the Ahu Whenua Trust. Mr Tūpara did not raise the issues of conflict or whether the Ahu Whenua Trust was accordingly invalidated. I do note however, as Ms Smith emphasised, Mr Tūpara was appearing at short notice and may not have been in a position to pursue the more substantial arguments based on the Ahu Whenua Trust claims.

Analysis

[42]	In summary, therefore, in relation to the conflict issues raised by Kreslea and Jarna Smith:

(a)	Conflict of Chief Judge Isaac

This was dealt with in the Māori Land Court and Judge Doogan’s reserved judgment of 18 October 2017.28 In any event Judge Isaac did not preside over the proceedings concerning the tendering of the lease nor subsequent application for injunction. These were dealt with by Judge Doogan. I do not consider there is any merit in this ground.

(b)	1993 Ahu Whenua Trust

The decision by Judge Isaac in relation to the setting up of that trust is said to have resulted from a conflict because he acted for Francis Guthrie Smith at some stage earlier when the Chief Judge was in practice in Gisborne. This does not appear to have been raised at any stage since that time and in addition the trust has operated with the knowledge and support of Bruce Smith since that time. I do not consider that ground has any merit. If there had been any objection to

28	Māori Trustee v Smith – Waipoa 5A2, above n 12, at [10].

the setting up of the Ahu Whenua Trust it should have been raised some time ago and at least in the proceedings before the Māori Land Court in 2016 and 2017.

(c)	Equitable interests

There are a number of descendants of Francis Guthrie Smith who have beneficial interests in the land and shares held in his estate.

The estate’s interest in Waipaoa 5A2 block is now controlled by an Ahu Whenua Trust. In my judgment of 14 February 2019 I said:29

[29]	I note that an ahu whenua trust has particular rights. The Māori Appellate Court set out the rights of an ahu whenua trust in Eriwata where it found:30

[5]  When trustees are appointed to an Ahu Whenua Trust, they   take legal ownership. The owners in their shares and the schedule of owners, have beneficial or equitable ownership but do not have legal ownership, and do not have the right to manage the land or to occupy the land. Trustees are empowered and indeed required to make decisions in relation to the land and they are often hard decisions. Their power and obligation to manage the land cannot be overridden by any owner or group of owners or even the Māori Land Court, so long as the trustees are acting within their terms of trust and the general law, and it reasonably appears that they are acting for the benefit of the beneficial owners as a whole. A meeting of owners cannot override the trustees. Decisions to be taken for the land are to be the decision of the trustees. They decide who can enter and who can reside here and how the land is managed.

[30]	Given that background, it is not appropriate for an exploration of the issues raised in Mrs Smith’s submissions that there may be an equitable interest in the homestead in this Court. The Māori Land Court has dealt with the matter comprehensively, there was an opportunity for appeal of both the orders and the injunction.

[31]	The suggestion of an equitable interest in the homestead is not a ground for refusing the present application for leave.

[43]	The matter has been dealt with. The claim for an equitable interest based on the work and money put into the land does not support a stay in these proceedings.

29	Māori Trustee v Smith, above n 3, at [29].
30	Eriwata v Trustees of Waitara SD Sections 6 & 91 Land Trust – Waitara SD Sections 6 & 91 Land Trust (2005) 15 Aotea Appellate MB 192 (15 WGAP 192).

[44]	I also note that the Māori Trustee cannot be removed in the manner suggested by Kreslea Smith (that is by majority of owners).31

Other matters raised

[45]	The memorandum filed by the liable parties lists the names of the entitled parties in the intituling. The names include the Smith whānau and various trusts and companies related to the Smith whānau including Digga-Bygum Ltd. In terms of the 2016 decision of the Māori Land Court that company is no longer controlled by Bruce Smith or his whānau.

[46]	I also note the intituling includes a number of liable parties. It lists not only the Māori Trustee but the trustees of the estate of Francis Guthrie Smith, the police and numerous other people including the Court, various business, helicopter operators, Te Puni Kōkiri and newspapers.

[47]	It is not clear as to what claims are made by them or what their role in these proceedings is.

[48]	There were other matters raised in the memorandum including a claimed based on the police seizing Mr Smith’s firearms. This was also raised by Kreslea Smith in her submissions. This is not an issue here. I therefore do not propose dealing with those matters.

Conclusion

[49]	I conclude that there are no grounds made out for a stay of the issue of the arrest orders. In particular, I am satisfied all the relevant matters that have been raised have been well aired before the Māori Land Court. Some were also dealt with in my judgment in February 2019.

[50]	I do not consider that a substantial miscarriage of justice will be likely to result if the arrest warrants are issued.

31 Under the Te Ture Whenua Māori Act 1993 only the Māori Land Court has jurisdiction to remove the Māori Trustee as responsible Trustee and to replace him: Te Ture Whenua Māori Act 1993, ss 222, 239 and 240.

[51]	I have, in this judgment, attempted to recognise and reconcile the conflicting interests of both parties. In particular, the interests of the Smith whānau based their connection to the land and their sense that they should be entitled to continued possession of it. Against that I weighed the position of the Māori Trustee which acts for all the beneficiaries of the land. There is a need for the land to be properly administered and dealt with in the interests of the beneficiaries on behalf of Ahu Whenua Trust. Most matters now raised have been dealt with by the Māori Land Court.

[52]	The Smith whānau have had plenty of notice of the pending issue of the orders for arrest. They have refused to comply with the orders which would enabled the Māori Trustee to take control of the land. I do not consider there are any grounds for a stay of enforcement.

[53]	Having said that, I am aware that from the submissions of Kreslea and Jarna that they are residing in the house property at present. Therefore, I consider that some time should be allowed to the Smith whānau either to resolve matters and reach agreement with the Māori Trustee about leaving the property or make arrangements to move their things from the property.

[54]	The issue of the arrest orders was postponed until tomorrow, 16 May 2019. I propose further staying the issue now until next Monday, 27 May 2019. The orders will then issue in the terms of my previous judgment of 16 April 2019 at [50] with the amendment that the arrest orders may not be issued till Monday, 27 May 2019, as follows:

Orders

(a)	The arrest orders may not be issued before 27 May 2019 on which date or following each of the liable parties (excluding Cole Smith) may be arrested and kept in safe custody for the purposes of bringing them before the High Court at Gisborne. This appearance may be undertaken by way of AVL link to a Judge in a remote court. That appearance must be one working day following execution of the arrest warrant. Such

warrant cannot be executed on a day before a holiday (including a weekend).

(b)	The police executing the warrant on behalf of the sheriff are entitled to exercise the following powers:

(i)	to arrest all or  anyone  of  the  liable  persons  (excluding  Cole Smith);

(ii)	to enter the property at Waipaoa 5A2 Block, Wairoa to give effect the arrest orders of the court;

(iii)	if necessary to use force to enter the property or any part of it whether by breaking open doors, windows or otherwise; and

(iv)	to carry out these orders with the use of such force as may be reasonably necessary to use in the circumstances.

(c)	To keep the arrested persons in safe custody until such time as they are brought before the court.

(d)	To bring the liable parties before the High Court at Gisborne in the manner and within the time indicated above.32

[55]	I reiterate that the powers contained in the arrest orders may only to be used for the purposes of execution of the arrest orders issued in these proceedings.

[56]	The application for stay is dismissed.

Grice J
Solicitors:
General Counsel, Māori Trustee, Wellington

32 Within one working day of being arrested. If there is no High Court sitting in the Gisborne  Registry, then the appearance may be by AVL with the High Court at Wellington or such other place as is available.