IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU …...administration of the land by the whānau, and in particular the new forms of trust promoted by the Bill. His investigations

61 Taitokerau MB 247

IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT

A20100012115 UNDER

Section 231, Te Ture Whenua Māori Act 1993

IN THE MATTER OF

Eru Moka and Te Owai Pou Whānau Trust

BETWEEN

TE RAUTAU POU Applicant

A20120007638

UNDER

Sections 113 and 117, Te Ture Whenua Māori Act 1993

IN THE MATTER OF

Horo Himi Te Waihika Pou or Jim Pou

BETWEEN

IWINGARO SYLVIA COURTNEY RIRIPETI MIRA NORRIS Applicants

Hearing:

15 June 2011 7 October 2011 22 February 2012 23 May 2012 24 April 2013 (Heard at Kaikohe)

Judgment:

2 July 2013

RESERVED JUDGMENT OF JUDGE D J AMBLER


TABLE OF CONTENTS

Introduction ............................................................................................................ 249

Overview .................................................................................................................. 249

Background ............................................................................................................. 250

The 1989 application to establish the trust 250

The meeting of 27 February 1988 253

The 2009 application to replace trustees 254

The 2010 application for review of trust 254

The 2012 application to succeed to Jim Pou 262

The law .................................................................................................................... 264

The Court’s jurisdiction 264

Trusts 267

Te Rautau Pou’s complaints .................................................................................. 269

The house site for Te Rautau Pou 269

The house site for Wiremu Pou’s family 269

The 2008 AGMs 269

The $20,000 loan to Mira Norris 270

The nature of the trust ........................................................................................... 270

Jim Pou’s intentions 270

The terms of trust 272

Succession to Jim Pou’s estate ............................................................................... 273

Outcome ................................................................................................................... 274

Orders ...................................................................................................................... 275

Conclusion ............................................................................................................... 277


Introduction

[1] This decision concerns two applications that relate to the Eru Moka and Te Owai

Pou Whānau Trust (“the trust”).

[2] In the first application, Te Rautau Pou applies for a review of the trust. His initial

complaint was that the trustees had not allocated to him a house site that he says he was

previously promised. His complaint has broadened somewhat and the application now

raises more fundamental issues to do with the nature of the trust and who are its

beneficiaries.

[3] Despite its name, the trust is not a whānau trust but an ahu whenua trust, having

been established under s 438 of the Māori Affairs Act 1953 (“the 1953 Act”).1

[4] The second application is to succeed to the land interests of the late Horo Himi Te

Waihika Pou (more commonly known as Jim Pou). Jim Pou established the trust and

remains the sole “beneficial owner” of the trust’s lands (as well as holding interests in

other Māori land). He died in 1990. The review application and the succession application

are closely related and it is appropriate to deal with them in the one decision.

In the

course of this review I must decide whether it is appropriate to reconstitute the trust as a

whānau trust under Te Ture Whenua Māori Act 1993 (“the 1993 Act”).

Overview

[5] At the time the trust was constituted in 1989, Jim Pou was the sole owner of

Tuhuna 47 and Taraire 1B3C (“the land”), which he had received from his father, Eru Pou.

Jim Pou was the second eldest child of the late Eru and Te Owai Pou. They had 10

children: seven sons and three daughters. Only four sons (Alfred, Arama, Archie and Te

Rautau (the applicant)) and a daughter (Hinewaka) are still alive. They are all now aged in

their 80s or thereabouts. I refer throughout this judgment to the descendants of Eru and Te

Owai Pou as “the whānau”.

1 See the discussion in Ruapuha and Uekaha Hapu Trust v Norman Tane – Hauturu East 8 Block (2010) 2010 Maori

Appellate Court MB 512 (2010 APPEAL 512) at [86]-[96] where the Court addressed the application of s 354 of the 1993 Act to s 438 of the 1953 Act, whereby trusts constituted under s 438 are ahu whenua trusts for the purpose of the 1993 Act.


[6] In 1989 Jim Pou applied to the Court to establish a trust over the land. He intended

the trust to benefit all of his parents’ descendants, as per the whānau trust regime proposed

in the then Māori Affairs Bill (“the Bill”) that would eventually become the 1993 Act.

However, at the time the Bill was making slow progress through Parliament and the trust

therefore had to be established under s 438 of the 1953 Act.

[7] Jim Pou remains the sole beneficial owner of the land even though he died 23 years

ago. There is now considerable tension within the whānau over the functioning of the trust

and who are its beneficiaries.

[8] On the one hand, it is clear that Jim Pou intended the trust to benefit all of his

parents’ descendants. Furthermore, that intention accords with the views of those members

of the whānau who attended the four hearings before me. Seemingly consistent with that

view, Jim Pou’s five daughters had not applied to succeed to his land interests since his

death in 1990 – that is, not until after the final hearing of the review application in 2012.

[9] On the other hand, some of Jim Pou’s daughters claim a special status in relation to

the trust by reason of being his daughters and, so I was lead to believe, the rightful

successors to his land interests under his will. Two of his daughters, Iwingaro Courtney

and Mira Norris, played a central role in the review application and subsequently filed the

succession application. The terms of Jim Pou’s will have a bearing on the outcome of the

review application.

[10] Because of the nature and history of the issues raised by the applications I set out

the background in some detail. I next address the law and then turn to the issues under the

following headings:

• Te Rautau Pou’s complaints; • The nature of the trust; • Succession to Jim Pou’s estate.

Background

The 1989 application to establish the trust

[11] Eru Pou died in 1974. Under his will he left all of his land interests to Jim Pou.

Those interests included interests in various blocks of Māori freehold land including


Tuhuna 47. There was also Taraire 1B3C, which was General land at the time but was

subsequently changed to Māori freehold land. Eru Pou was the sole owner of these two

blocks of land. In 1976 the Māori Trustee acting as administrator of Eru Pou’s estate

transferred the various interests to Jim Pou.

[12] Jim Pou spent a considerable amount of time and effort administering the lands

between 1976 and 1989. During this time various members of the whānau contributed

money to a whānau fund, some received loans from that fund and some used the land. It

remained of central importance to the whānau as a whole. Clearly Jim Pou did not see

himself as having exclusive ownership of the land but rather as custodian on behalf of the

whānau – an unsurprisingly Māori perspective.

[13] From the mid to late 1980s Jim Pou investigated options for ownership and

administration of the land by the whānau, and in particular the new forms of trust promoted

by the Bill. His investigations culminated in 1989 with his application under s 438 of the

1953 Act to establish the trust in respect of Tuhuna 47 and Taraire 1B3C, being the land in

his sole ownership. A s 438 trust could not be constituted in relation to part interests in

land, which seems to explain why the other interests were not to be included in the trust.

[14] The application form dated 1 February 1989 and signed by Jim Pou sought to have

the lands vested in a trust to be known as “Te Owai and Eru Pou Family Trust”. The

grounds for the application were expressed as follows:

(a) I am the sole owner of both blocks of land and it is my wish that they be administered for the benefit of the descendants of Te Owai and Eru Pou.

(b) Eventually I wish to have the properties form the basis of a whānau trust as some (sic) is defined in the current Māori Affairs Bill. (emphasis added)

[15] The hearing took place on 12 April 1989. I set out the minute in full:

Extract from Minute Book: 68 WH 29-30 & 31 Appln No/s: 195 Date: Wednesday 12 April 1989 Place: Whangarei Present: A D Spencer, Judge M Wiki, Clerk


195 S.438/53 TUHUNA 47 & TARAIRE 1B3C

HORO HIMI TE WAIHIKA POU o/o

Also Present: Archie Frederick Pou, Ivan Wiremu Pou, Riripeti Mira Pou (Norris)

folio 30 HORO HIMI POU

I produce to the Court a copy of the minutes of a meeting held on 27th February 1988. The resolution to form a trust was not actioned as we were awaiting the new legislation to enable us to establish a whānau trust for our lands.

Taraire 1B3C is presently General Land – I ask that it be changed to Māori Freehold land as we wish to combine it in with Tuhuna 47 for the purposes of our S.438/53 Trust.

COURT Pursuant to S.27(2)/53, the application is amended to include all application to cancel the General Land Status of the land pursuant to S.68/74.

MR POU

The proposed trustees are:-

Alfred Pou Ivan Pou – present

Cilla Robust Mira Norris – present

Archie Pou – present

We wish the name of the Trust to be the Eru Moka & Te Owai Pou Whānau Trust. All the trustees have consented to appointment and attended the meeting. We discussed a draft trust order.

COURT A copy is not on file – the application is adjourned to enable this to be confirmed.

folio 31 195 resumes

COURT The Deputy Registrar has attended a meeting of the family and has discussed the draft trust order – Mr Wilson please refer that draft to the file.

I am satisfied as to all matters and make the following orders:

That Taraire 1B3C, being all the land in C.T. 19D/279, is now to be Māori Freehold Land. The General Land Title is hereby cancelled. This order is to release immediately pursuant to S.34(10)/53.

The Tuhuna 47 and Taraire 1B3C blocks hereby vest in the abovenamed persons as Trustees upon the Trusts in the draft trust order approved by the family.

Orders accordingly. Copy to applicant.

[16] The five trustees appointed were Alfred Pou (Jim’s brother), Ivan Pou (Jim’s

nephew), Cilla Robust (Jim’s niece), Mira Norris (Jim’s daughter) and Archie Pou (Jim’s


brother). Trusteeship has not changed since 1989 and nor have the trustees ever sought a

review of the trust (in breach of s 351 of the 1993 Act).

[17] The trust order has also not been varied since 1989. It is based on the standard s

438 trust order adopted in the Taitokerau district at the time. It appears that it was not

modified to address the specific circumstances of the trust. For example, it refers to the

existence of advisory trustees even though they were never appointed. More significantly,

the objects of the trust are to administer the land for the “beneficial owners”, and to retain

the land for the beneficial owners and their successors, as per the standard trust order. But,

as noted, Jim Pou was the sole beneficial owner. Thus, the trust order does not expressly

provide for the descendants of Eru and Te Owai Pou to be the beneficiaries of the trust

even though they are accepted by all to be the intended beneficiaries.

The meeting of 27 February 1988

[18] At the hearing on 12 April 1989 there was reference to the minutes of a whānau

meeting on 27 February 1988. A copy of those minutes is contained in the Court’s 1989

application file. They are headed up “Family Meeting” and relate to a meeting where 27 of

the whānau were in attendance. They are relatively formal minutes – recording discussions

of previous minutes and financial statements – and show that the whānau had been

working collectively in relation to the land and finances for some time. There were funds

of over $20,000.00. The minutes note that the investment of the funds was to be left for

the “whānau trustees” to discuss. The meeting discussed the appointment of trustees.

Three separate motions were put in relation to the number of trustees and where they had

to reside. The meeting narrowly resolved for there to be five trustees, all of whom must

live from Whangārei north.

[19] The meeting went on to discuss the proposed house sites on Tuhuna 47. This is

relevant to Te Rautau Pou’s initial complaint. Jim Pou proposed three sites for his brothers

Te Rautau, Percy Senior and the late Wiremu Pou’s family. He proposed that he have the

old home. Three of the brothers, Alfred, Joe and Arama Pou, had already been given

sections. An issue arose as to sections to be allocated to the three sisters and their families

so that all 10 children would have sections – it is not entirely clear how that was resolved.

In any event, a motion was passed confirming the house sites as per a sketch plan. The site


indentified in the sketch plan for Te Rautau Pou is the same site the trustees have

consistently offered to him ever since (as shown as site “G” in their scheme plan of

September 2008).

The 2009 application to replace trustees

[20] In 2009 Alfred Pou, a trustee, and Te Aroha Reihana-Ruka, his niece and the

daughter of the late Wiremu Pou, applied to the Court under s 239 to replace all the

trustees. They relied on an AGM held on 20 September 2008. An AGM was also held on

15 November 2008. The minutes of the latter AGM record a discussion of the earlier

AGM and concerns about notice of that meeting and, therefore, its validity.

[21] The s 239 application came before Judge Spencer on 19 May 2009.2

The 2010 application for review of trust

There was a

clear division in the whānau. The validity of the two meetings was discussed. Judge

Spencer also discussed Jim Pou’s original intention to establish a whānau trust and

suggested that the current trust should now be brought in line with the whānau trust

provisions of the 1993 Act. Ultimately, Judge Spencer was not prepared to appoint trustees

based on the 20 September 2008 AGM. He dismissed the application with leave to bring a

fresh application within six months. No such application was filed.

[22] Te Rautau Pou’s review application first came before Judge Spencer on 15 June

2011.3

[23] The application came before me for the first time on 7 October 2011.

Judge Spencer once again discussed with the parties Jim Pou’s original intention to

establish a whānau trust to benefit all of the whānau. I note that Judge Spencer assumed

that any succession to Jim Pou would be in favour of his daughters and would therefore

defeat the trust, and no one corrected that assumption. He considered that the trust should

now be reconstituted as a whānau trust and adjourned the application for the whānau to

meet with the Court staff to discuss the terms of a whānau trust order.

4

2 47 Kaikohe MB 96 (47 KH 96).

The trustees

in attendance explained that they had met with the Court staff but did not wish to change to

a whānau trust. Nevertheless, the trustees readily acknowledged that the trust’s

3 25 Taitokerau MB 125 (25 TTK 125). 4 31 Taitokerau MB 5 (31 TTK 5).


beneficiaries were the descendants of Eru and Te Owai Pou and considered the trust to be

somewhere between an ahu whenua trust and a whānau trust.5

[24] A third hearing took place on 22 February 2012.

I commented that unless

Jim Pou’s daughters first succeeded to their father’s interests and agreed to re-establish the

trust as a whānau trust, the Court could not force them to do so. But I made that comment

in ignorance of the background to the formation of the trust as outlined above – at the time

I had not seen the 1989 application file. I had also not seen a copy of Jim Pou’s will. As

Te Rautau Pou did not attend the hearing I adjourned the application to give him an

opportunity to address his complaint.

6

[25] As the trustees had not received a copy of Te Rautau Pou’s further complaints I

gave them an opportunity to review the documentation with the option to adjourn the

hearing before responding. The trustees were happy for the hearing to proceed. I

explained that I did not need to hear from them in relation to the 2008 AGMs and the 2009

application as there had been no appeal against Judge Spencer’s dismissal of the

application.

Te Rautau Pou, who lives in

Wellington, was still unable to attend. Instead, he sent a 12 page letter dated 3 February

2012 setting out various concerns with the trust. His original complaint had broadened and

he now raised issues in relation to the 2008 AGMs, Judge Spencer’s dismissal of the 2009

application and the trust’s $20,000.00 loan to a “family member”. He intended that his

brothers, Arama and Alfred Pou, as well as his niece, Te Aroha Reihana-Ruka, speak on his

behalf at the hearing. However, of those three only Alfred Pou attended the hearing and he

did not address the letter.

[26] We discussed the $20,000.00 loan. It transpired that the trustees had leant this

money to a company owned by one of the trustees, Mira Norris, and her husband. Mira

Norris said that the money was “secured” against a $4,000,000 property, though she did

not produce any documentation to support that statement. She said she could quickly

repay the money if required.

5 31 Taitokerau MB 8 (31 TTK 8). 6 37 Taitokerau MB 76 (37 TTK 76).


[27] We also discussed the extent to which the trustees had been holding general

meetings. I pointed out that the trust order required the trustees to have an AGM every

year. That had not been occurring. The trustees could not tell me what AGMs had been

held since 2008. It also transpired that Ivan Pou had resigned some years ago and that

Alfred Pou also wished to resign. I indicated that the trustees would need to convene an

AGM.

[28] The trustees present then posed the question which is now fundamental to the

present application: who are the beneficiaries of the trust? Are the beneficiaries Jim Pou

and his successors as “beneficial owners” or are they the descendants of Eru and Te Owai

Pou?

[29] Finally, Iwingaro Courtney and Mira Norris indicated that they would now apply to

succeed to their father’s land interests. Throughout the hearings they gave the impression

that they and their sisters were entitled to succeed under the will. I believe Judge Spencer

also gained that impression. But as I will shortly explain, that is not so.

[30] I concluded the hearing on the basis that I would deliver a reserved judgment which

addressed Te Rautau Pou’s complaints and the question of who are the beneficiaries of the

trust. However, upon my return to Chambers and my review of the Court’s trust file and

the 1989 application file, I realised that a further hearing was required. This is explained in

my minute of 24 February 2012 which I set out in full:7

This application came before me on 22 February 2012 at Kaikohe. The applicant, Te Rautau Pou, was not present but had filed with the Court a 12 page letter together with some supporting documentation setting out new allegations against the trustees. I gave the trustees an opportunity to review this material and offered them the option to further adjourn the application. They decided to proceed with the hearing and address the allegations.

During the course of the hearing it was disclosed that $20,000.00 had been lent by the trustees to a company associated with one of the trustees, Mira Norris. It was suggested that the loan was secured and that, in any event, it would be repaid. I now require to see any documentation relating to that loan and issue a direction below in regard to that. Furthermore, I note that there is clear caselaw that a trustee who is also a debtor of the trust is in an untenable position: see Marino-Repongaere 4G (Part)(2004) 34 APGS 98. In light of that decision, I put Mira Norris on notice that the Court may invoke its jurisdiction to remove her as trustee.

7 36 Taitokerau MB 168 (36 TTK 168).


Earlier today I reviewed the Court’s trust file together with the Court’s application file that relates to the late Jim Pou’s application to establish the trust in 1989. As the parties will appreciate, one of the issues raised in this review is whether the trust is for the benefit of the descendants of Eru and Te Owai Pou, as per a whānau trust, or whether the trust is for the benefit of the beneficial owner only, which at the moment is the late Jim Pou.

The application file contains four items of evidence that are directly relevant to the issues before me. First, the application form signed by Jim Pou. Second, the Deputy Registrar’s file note of 11 April 1989. Third, the minutes of the family meeting held on 27 February 1988 including the sketch plan of house sites. Fourth, the minutes of the Court sitting of 12 April 1989 when the trust was established.

I consider that all parties need to have an opportunity to review these documents and to attend a further hearing where they can address them. The documents are on their face consistent with the beneficiaries of the trust being the descendants of Eru and Te Owai Pou. The documents also indicate that the late Jim Pou intended the trust to eventually become a whānau trust under Te Ture Whenua Māori Act 1993. Therefore, the Court may consider using its various powers to clarify that aspect of the trust, whether by determination or orders. Furthermore, the 1988 sketch plan appears to allocate Te Rautau Pou a house site consistent with the trustees’ 2008 sketch plan.

A further hearing is therefore required.

Accordingly, I direct as follows:

(i) The application is set down for a further hearing at Kaikohe in May 2012 (2 hours).

(ii) I direct the trustees of the trust to file with the Court by 30 April 2012 any documentation relating to the loan of $20,000.00 to the company associated with Mira Norris, that is, any trustee minutes, loan documentation or other security documentation.

(iii) I direct the Case Manager to send to each of the parties copies of the four documents in the 1989 application file referred to above by 30 March 2012.

I give notice that the Court may rely on s 37(3) and invoke its other powers under the Act, including ss 18, 214, 219, 238, 239, 240, 241 and 244 to remove Mira Norris and/or determine the nature of the trust. This may include orders re-constituting the trust as a whānau trust.

The application is now adjourned to the further hearing in Kaikohe in May 2012.

[31] The final review hearing took place on 23 May 2012.8

8 54 Taitokerau MB 248 (54 TTK 248).

This was by far the best

attended hearing of the three review hearings I conducted. Te Rautau Pou was finally in

attendance.


[32] We began by addressing the house site for Te Rautau Pou. He explained that he

considered that the site the trustees were offering him was not the same site his brother Jim

had offered him. He said the site should be further to the north of the totara tree (I have

marked the area he identified with an “x” on exhibit “A” produced on 7 October 2011).

However, the trustees maintained that the area they had offered him accorded with the

1988 sketch plan and that it made sense for his site to be on the southern boundary.

[33] We then discussed the $20,000.00 loan. Mira Norris produced correspondence and

minutes from late 2007 which related to the loan. Cilla Robust also produced some

records. The material shows that at a “meeting” of the trust on 25 November 2007 Mira

Norris signalled her wish to borrow funds at 10% interest. But Mira Norris and Cilla

Robust were the only trustees present, which was not a quorum. In any event, they did not

make a decision. Mira Norris then formalised her request in a letter of 5 December 2007 to

the trustees. The trustees did not meet to discuss the request but Cilla Robust telephoned

Alfred and Archie Pou regarding the loan. According to Cilla Robust, they both agreed.

The decision to grant the loan was never documented.

[34] On 20 December 2007 the trust paid an amount of $20,000.00 to Mira Norris (or

most likely to her and her husband’s company, Rewa Rewi Ltd). On 16 May 2008 Mira

Norris and her husband signed a document headed up “personal guarantee” (which does

not appear to have been drafted by a lawyer) in respect of the loan. As at the date of the

hearing on 23 May 2012, Mira Norris had paid only one amount of interest of $2,000.00

and no principal. She confirmed that interest was compounding and estimated that she

owed approximately $30,000.00 in total.

[35] We then discussed Te Rautau Pou’s concern that the family of the late Wiremu Pou

had not been allocated a house site. Wiremu Pou’s daughter, Te Aroha Reihana-Ruka,

confirmed that although at one stage a house site had been sought, the family were now

happy with a site for a garden and piggery only. This is what her mother, Irihapeti Pou,

had told me at the previous hearing.

[36] Finally, we discussed the central issue of the nature of the trust and who are its

beneficiaries. I explained that the documents on the Court record demonstrated that the


beneficiaries of the trust were intended to be Eru and Te Owai Pou’s descendants, and that

Jim Pou intended that the trust eventually become a whānau trust.

[37] Te Aroha Reihana-Ruka agreed with what the Court record showed. She also

produced correspondence which supported this view from Mr Coutts of the Office of the

Māori Trustee in the lead up to the 1989 application. These comprised, in summary:

• A letter dated 29 October 1984 from Mr Coutts on behalf of Jim Pou to Cilla

Robust. This was a standard letter sent to all of the whānau outlining Jim

Pou’s proposal for the land. In summary, he wished to involve all of the

whānau in the ownership and administration of the land by transferring an

equal share to his nine siblings, by forming a s 438 trust “(or some other

form of suitable trust such as one of those contemplated in the new Māori

Affairs Bill)” and by each family group contributing $2,000.00 to meet the

initial costs of administration;

• A letter dated 20 October 1986 from Mr Coutts to Irihapeti Pou where he

advised:

I have had further discussions with Mr Jim Pou and it is now quite apparent that it will be a little while yet before the new Māori Affairs Bill becomes official legislation. This could be two years away, and in the meantime, Mr Pou has decided that he would like to proceed with the formation of a trust under the existing legislation with a view to altering the format of the trust once the new legislation becomes effective.

I should note the point here that the proposed new Māori Affairs Act contains provision for the formation of a variety of trusts which are more closely linked to the proposals that Mr Pou has in mind. However, an an (sic) interim provision would be possible to form a trust pursuant to section 438 of the Māori Affairs Act 1953, and after discussing this with Mr Pou he wishes to proceed accordingly.

Mr Pou has asked me to write again to all members of the family and advise them of the interim proposals. He will retain ownership of the block meantime but will transfer ownership when the new legislation becomes operative. (emphasis added);

• A letter dated 22 October 1987 from Mr Coutts to Irihapeti Pou concerning

a further proposed whānau meeting scheduled for 21 November 1987.


Attached to the letter was an agenda for that meeting which included

reference to a meeting that had been held on 4 July 1987:

At the meeting held on 4 July 1987 the various types of trusts provided for in the new Māori Affairs Bill were discussed. It was generally agreed by those present that a whānau trust would be more appropriate in the first instance although this could be extended to a whānau tōpu trust (sic) at some stage in the future. (emphasis added);

• A letter dated 24 November 1987 from Mr Coutts to Irihapeti Pou following

the meeting on 21 November 1987. It comments at the outset:

I refer to the discussion that we had at the family meeting held at 21 November 1987 concerning the proposal to eventually establish a whānau trust in respect of Tuhuna 47. (emphasis added)

[38] Mere Pou, a daughter of the late Percy Pou Senior, produced a report she had

prepared for the whānau in 2009. She also understood that her Uncle Jim intended

establishing a whānau trust when the legislation allowed for it.

[39] Iwingaro Courtney spoke of her father’s intentions in creating the trust. She

submitted a chronological outline of events from 1956 to 2009. Unfortunately, the outline

is a summary only and she produced only three selected documents from the various

minutes and correspondence referred to. Not all have a bearing on the issues before me:

• First, the minutes of a meeting of Jim Pou’s immediate family dated 23

April 1988 which discuss various matters to do with the family’s affairs

including some form of trust. Iwingaro Courtney did not explain how this

relates to the trust that Jim Pou eventually established for the whānau;

• Second, the second page of an unsigned document in Jim Pou’s name

prepared in 1989 that has a handwritten section. The handwritten section,

addressed to Deputy Registrar Rex Wilson of the Māori Land Court at

Whangarei, reads as follows:

Dear Rex.

The Māori Land Court will confirm Trustees for the family trust in April this year. Please urge Joe and Rama to pay up their contribution – otherwise they will miss out.


Regards

Jim

[40] It is unfortunate that Iwingaro Courtney did not produce the whole of this document

to put the handwritten comment in context. Nevertheless, the typewritten part of the

document at the top of the page is instructive and reads as follows:

I would also like to record that the trustees under the interim section 438/MA1953 Trust and under the whānau trust should be empowered to grant housing sites on Tuhuna 47 to my brothers Rau and Percy and to my own family as well as to the family of my late brother Wiremu. The intention here is that one house site be granted or set aside for each family. (emphasis added);

• Third, a letter dated 27 February 1989 from Deputy Registrar Rex Wilson to

Jim Pou which sets out the options to enable three family members to be

able to build on the land. These options were for him to transfer shares

under s 213 of the 1953 Act or to establish a trust under s 438 of the 1953

Act and then grant licences to occupy.

[41] Iwingaro Courtney claimed that although at the hearing on 12 April 1989 her father

said he wanted to form a whānau trust, he was not really aufait with what that entailed.

She said that in late 1988 he had suffered the tragic loss of one of his daughters and in

1989 his health had been poor. She said that her father had doubts about the whānau trust

option though she agreed that he wanted the trust to benefit his parents’ descendants. She

also said that one of her father’s main concerns was the effect of handing out individual

shares.

[42] When I pressed Iwingaro Courtney and Mira Norris on what particular aspects of

the whānau trust regime did not fit with their father’s plans, they could not point to any

single matter apart from the lack of functioning of the trust. But as the situation of the

current ahu whenua trust demonstrates, any dysfunction is to do with personalities and not

any inherent defect in the whānau trust concept. Iwingaro Courtney acknowledged that her

real concern was that she and her sisters would no longer be able to retrieve the land if a

whānau trust was formed – once again, a comment that assumed that Jim Pou left the land

to his daughters. Mira Norris added that her father was adamant that at least one of the

trustees should be one of his daughters.


[43] Finally, at the conclusion of the hearing Arama Pou asked the Court to remove the

current trustees and appoint himself and his brothers, Alfred and Te Rautau, and his sister,

Hinewaka, as replacement trustees.

The 2012 application to succeed to Jim Pou

[44] On 8 June 2012 Iwingaro Courtney and Mira Norris filed the succession

application. The application sought orders in favour of four of Jim Pou’s five surviving

daughters. Filed in support of the application was the High Court’s 1990 grant of letters of

administration with will annexed in favour of Mira Norris and two of her sisters, Ruka

Latimer and Atareta Horn, the Māori Trustee having renounced probate of the will.

[45] The will is dated 15 May 1989 – that is, a month after the hearing that established

the trust – and was prepared by the district solicitor of the Office of the Māori Trustee in

Whangarei. Clauses 5(2) and (3) of the will are relevant:

(2) I GIVE devise and bequeath all my right title share or interest in Māori freehold land blocks namely:

Tuhuna 1A Tuhuna 12B Tuhuna 21 Rangihamama K3D3B Tuhuna 47 Maungapohatu North Okuratope 2 Taraire 1B3C

to the ERU MOKA AND TEOWAI POU FAMILY TRUST and I EXPRESS THE INTENTION that none of the lands are to be sold.

(3) I GIVE the residue of my estate (after payment by my trustee out of my estate of any debts including funeral and testamentary expenses and any other death duty) to such of my children IWINGARO SYLVIA COURTNEY, ATARETA MARGARET HORN, MIRA RIRIPETI NORRIS, ROKA RAEWYN LATIMER and NGAHUIA ASHLEIGH POU as are living at my death and if more than one in equal shares.

[46] As noted, the succession application was not filed until the review application

hearings had concluded though the possibility was signalled during the hearings. Of

particular note, at no time during the earlier hearings had Iwingaro Courtney or Mira

Norris disclosed that the will in fact provided for the land interests to go to the trust. They


had given the impression that they and their sisters would succeed to the land. I

understand that since 1990 they had given the same impression to the rest of the whānau.

[47] The succession application came before me on 24 April 2013. I asked Iwingaro

Courtney and Mira Norris why they had lead me to believe that they and their sisters were

entitled to the land interests when they knew that under the will the interests were to go to

the trust. They had no plausible explanation. Mira Norris accepted that her father intended

the interests to go to the trust. On the other hand, Iwingaro Courtney maintained that her

father was confused and was still coping with the recent death of his daughter, and she did

not feel the will reflected his intentions. Nevertheless, in the more than two decades since

administration of the estate was granted no one has sought to challenge the will.

[48] I also asked Iwingaro Courtney and Mira Norris why they had delayed 22 years in

applying to vest the lands in the trust. Again, they had no plausible explanation.

[49] The other members of the whānau present confirmed that the will reflected their

understanding that Jim Pou wanted the land to vest in the trust. We discussed two ancillary

matters.

[50] First, clause 5(2) of the will does not mention the Rawhiti 6 block, the only other

block of Māori freehold land in which Jim Pou holds interests. Iwingaro Courtney

explained that she understood that this was because her father intended those interests to go

to his daughters. However, Te Rautau Pou disputed this and said that his father had

received these interests from Hone Waipuna by way of gift and that he had always intended

returning those interests to Hone Waipuna’s whānau. That never happened and the

interests were subsequently inherited by Jim Pou.

[51] Second, the application proposed that four of Jim Pou’s daughters receive the land

interests. There was no mention of the fifth daughter, Ngahuia Ashley Pou. Iwingaro

Courtney explained that her sister Ngahuia suffers a disability and that a kaitiaki trust

would be required to administer any interests she receives.


The law

The Court’s jurisdiction

[52] Te Rautau Pou’s application began as an application under s 231 of the 1993 Act

but because of the underlying issues I expanded it to include the Court’s wider jurisdiction

under ss 18, 214, 219, 238, 239, 240, 241 and 244 to remove Mira Norris and/or determine

the nature of the trust, including reconstituting the trust as a whānau trust.

[53] The Court’s ability to invoke its other powers under the 1993 Act is expressly

provided in s 37(3):

(3) In the course of the proceedings on any application, the Court may, subject to the rules of Court, without further application, and upon such terms as to notice to parties and otherwise as the Court thinks fit, proceed to exercise any other part of its jurisdiction the exercise of which in those proceedings the Court considers necessary or desirable.

[54] Given the broad nature of a review, it is unsurprising that the Court may be required

to invoke its other powers. Section 231 provides:

231 Review of trusts

(1) The trustees or a beneficiary of a trust (other than a kai tiaki trust) constituted under this Part may apply to the Court to review the terms, operation, or other aspect of the trust.

(2) There can be no more than 1 review of a trust within a period of 24 consecutive months.

(3) The Court may, on any review,—

(a) confirm the trust order for the trust without variation; or

(b) exercise its powers under section 244; or

(c) terminate the trust if the Court is satisfied that there is a sufficient degree of support for termination among the beneficiaries.

[55] In the Proprietors of Mangakino Township v The Māori Land Court9

[19] We entirely agree with McGechan J that a review of the trust cannot sensibly be conducted unless the Court pays some regard to its performance — how

the Court of

Appeal discussed in some detail the Court’s extensive powers on a review of a trust:

9 Proprietors of Mangakino Township v The Māori Land Court CA65/99, 16 June 1999.


well or how badly have its affairs been running? That necessarily requires the Court to look at the competence of the trustee(s). What Parliament has called for in ss 231 and 351 is a general review of the trust's governance and management of its assets on behalf of the beneficial owners. Are those assets being administered in the best interests of the beneficiaries? Is the trust fulfilling its purpose as an ahu whenua (care of the land) trust, as that purpose appears from the statute (s 215, read in the light of the preamble to the Act and s 2) and from the objects stated in the trust order? ...

[21] In carrying out a general review of this kind the Court ought to concentrate on the broader picture and not become drawn into matters of detail, but it is in our view impossible to see any bright line between matters of governance and policy, on the one hand, and questions of operational management, on the other. As McGechan J appreciated and as is reflected as well in comments of Judge Savage during one of the hearings, it comes down to a question of common-sense how far into the affairs of a trust the Maori Land Court should burrow. Certainly its primary focus ought to be on the policies that the trust is pursuing and on how in a general way those policies are being implemented, but in order to see whether a policy is working at ground level in the best interest of the beneficiaries the Court can hardly avoid some consideration of particular operational matters.

[22] There is indeed a danger that by concentrating too much on detail the Court could distract itself from the real issues facing a trust, which may require its direction, but we see no way in which the extent of the Court's investigations can be prescribed and limited as a matter of law. Even if any such prescription could be found, it would be of no continuing relevance as soon as the Court invoked its powers under s 238:

“238. Enforcement of Obligations of Trust-

(1) The Court may at any time require any trustee of a trust to file in the Court a written report, and to appear before the Court for questioning on the report, or on any matter relating to the administration of the trust or the performance of his or her duties as a trustee.

(2) The Court may at any time, in respect of any trustee of a trust to which this section applies, enforce the obligations of his or her trust (whether by way of injunction or otherwise). ”

[23] There is no reason why the Court could not proceed under this section or use other powers available to it under the Act at the same time as it was proceeding with a review. Section 37(3) provides:

“(3) In the course of the proceedings on any application, the Court may, subject to the rules of Court, without further application, and upon such terms as to notice to parties and otherwise as the Court thinks fit, proceed to exercise any other part of its jurisdiction the exercise of which in those proceedings the Court considers necessary or desirable. ”

[24] There is an armoury of powers given to the Court in relation to trusts under Part XII so that it can carry out its guardianship role and there is good reason to read ss 231 and 351, which apply to the particular situation of a general review, in a manner consistent with those powers.


[56] As noted, this Court’s “armoury of powers” includes s 238. In Paki v Māori Land

Court10

[69] I agree with Mr Carter that to some extent there is an inevitable tension in the statute between the protective function of the Court on one hand, and the need on the other hand to respect Maori self management. For instance, section 351 of the Act is a review provision. And, section 238 in my view puts the Court in the position where it has a statutory duty to look to the enforcement of the obligations of a trust, even absent an application by any other person, where circumstances come to the knowledge of the Court which require it to act on its own motion. The very existence of that power, however, creates distinct procedural difficulties. It is to that aspect of the case which I will shortly turn.

the High Court discussed the scope of s 238 and confirmed that the Court has the

duty to look to the enforcement of the obligations of the trust even in the absence of an

application:

[57] In Clarke v Karaitiana11

[36] In the light of this statutory background, there is no doubt that, in relation to his decisions of 29 June 2007 and 30 July 2008, Judge Harvey was exercising the jurisdiction available to him under ss 237 and 238 of the Act. Indeed, the formal decisions issued by the Court cite those provisions in the intituling. Apart from the inherent jurisdiction enjoyed by the High Court and conferred on the Maori Land Court by s 237, the Maori Land Court has wide supervisory and enforcement powers under s 238. These include the power to require any trustee to provide a written report to the Court and to appear before the Court in any matter relating to the administration of the trust or the performance of his or her duties as a trustee. In addition, the Court may, at any time, in respect of any trustee, enforce the obligations of the trust whether by injunction or otherwise. As well, the Court has the power, at any time, to add, reduce, replace or remove trustees under ss 239 and 240.

the Court of Appeal reiterated that this Court has wide

supervisory powers, particularly under s 238:

[58] As for the other powers I invoked on 24 February 2012, they may be briefly

summarised. Under s 18 the Court has the power to determine issues to do with land and

interests in land, including under s 18(1)(a) in relation to any interests in equity. The

determination of the nature of the trust falls under s 18(1)(a). Under ss 214 and 219 the

Court can constitute a whānau trust. Sections 239 and 240 relate to the removal of trustees.

Section 241 contains the power to terminate a trust and s 244 contains the power to vary a

trust.

10 Paki v Māori Land Court [1999] 3 NZLR 700. 11 Clarke v Karaitiana [2011] NZAR 370.


[59] Accordingly, the Court has the broadest possible powers to address the underlying

issues that are affecting the trust. That goes as far as reconstituting the trust as a whānau

trust if that is what is needed to enforce the actual trust in place.

Trusts

[60] A trust is said to be, at its essence, an equitable obligation under which a trustee

having control of property is bound to deal with property either for the benefit of defined

beneficiaries or for some object or purpose permitted by law.12

[61] Importantly, a trust may be express or implied, and so also may be its terms. An

express trust will ordinarily be formed by express written words, though it may also be

inferred from the words or actions of the settlor. Implied trusts comprise resulting trusts

and constructive trusts. A resulting trust is said to arise because it is presumed that a trust

is what the settlor would have wanted. Constructive trusts arise by operation of law.

13

[62] An ahu whenua trust is an express trust. Ordinarily the terms of an ahu whenua

trust will be found in the express terms of the trust order. However, the terms of trust – or,

perhaps more correctly in the present circumstances, the duties of the trustees – may also

be found outside of the trust order. They may, for example, arise by operation of law or

because of the particular circumstances.

[63] Two cases illustrate that the terms of trust may exist outside of the Court’s orders.

Both concern vesting orders but I believe the principle also applies to trust orders. In

Peihopa v Peihopa14 the High Court held that a vesting order whereby parents vested land

in their son gave rise to a trust even though there was no reference to a trust in the Court’s

order. Similarly, in the Māori Appellate Court’s decision in Tau v Ngā Whānau o Morven

& Glenavy – Waihou 903 Section IX Block,15

12 For the extended definition see Garrow and Kelly, Law of Trusts and Trustees (6th ed, Lexis Nexis,

Wellington,2005) para 1.1.1.

the Court upheld the decision of the Chief

Judge that an 1887 vesting order gave rise to a trust even though the order was silent as to

the existence of a trust.

13 Butler, Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) para 3.2.6. 14 Peihopa v Peihopa HC Whangarei A37/82, 19 June 1984. 15 Tau v Ngā Whānau o Morven & Glenavy – Waihou 903 Section IX Block (2010) Māori Appellate Court

MB 167 (2010 APPEAL 167).


[64] Regardless of the different methods by which a trust may be formed, a trust will

only exist if it satisfies the three certainties. First, certainty of intention. That is, the trust’s

creator must have intended to establish a trust. No particular form of words are required.

Second, certainty of subject-matter. That is, certainty as to what the property is and the

extent of the beneficial interest of each beneficiary. Third, certainty of objects. In other

words, certainty as to the beneficiaries of the trust.16

[65] A number of principles apply to the interpretation of documents constituting trusts.

First, they are to be construed in accordance with the plain, ordinary meaning of the words

used. Secondly, where there is ambiguity or uncertainty, resort may be had to the factual

matrix surrounding the documents. Thirdly, the interpretation of a trust deed will be

affected by the context and purpose of the particular trust. Fourthly, where terms of art are

used in a trust deed that has been drafted by a lawyer, the Court will be inclined to interpret

the term accordingly. Fifthly, the document will be interpreted as a whole rather than using

one clause to undermine another. Sixthly, the interpretation can be affected by whether the

trust is executory or executed. Finally, the interpretation of individual clauses can be

affected by the nature or subject-matter of that clause.

17

[66] Finally, the courts of equity have the power of rectification of documents. This

ordinarily applies to contracts but can also apply to trust deeds.

18 As the authors of Equity

and Trusts in New Zealand put it: 19

The object of a claim for rectification is to bring a document, which was intended to record or give effect to a prior agreement, into harmony with that prior agreement. It is not the agreement that is rectified but the incorrect manner in which the common intention of the parties has been expressed in the document sought to be rectified.

[67] It is not clear whether the general equitable remedy of rectification could be

invoked to “correct” a trust order of this Court. But there is of course this Court’s power

under s 86 of the 1993 Act to correct errors and the Chief Judge’s jurisdiction under s 45 of

the 1993 Act. More relevantly, I see no reason in principle why this Court could not

16 Butler, Equity and Trust in New Zealand at para 4.2. 17 Ibid para 3.3. 18 Re Stokes Family No 2 Trust HC Hamilton M288/94, 30 September 1994. 19 Butler, Equity and Trusts in New Zealand at para 29.1.1.


effectively “rectify” a trust order that contains a clear error in the course of a trust review

under s 231 of the 1993 Act.

Te Rautau Pou’s complaints

The house site for Te Rautau Pou

[68] Te Rautau Pou’s original complaint was over the allocation of his house site on

Tuhuna 47. The trustees say that the site accords with Jim Pou’s original directions and

that Te Rautau Pou now simply wants a different site, which they do not agree with.

[69] I have had the benefit of reviewing the minutes of the whānau meeting of 27

February 1988 and the sketch plan of house sites. When the 1988 sketch plan is compared

to the trustees’ September 2008 scheme plan (prepared by a surveyor), it is clear that the

site promised to Te Rautau Pou in 1988 is the same as site “G” which the trustees continue

to make available to him.

[70] As I observed at the hearing on 7 October 2011, the trustees have the responsibility

for deciding how the land should be occupied. They have allocated a site that accords with

what was proposed in 1988. In my view, Te Rautau Pou has no cause for complaint. He

may not like the site but that does not justify the Court’s intervention. I dismiss that aspect

of the application.

The house site for Wiremu Pou’s family

[71] As I have already explained, Wiremu Pou’s widow and daughter confirmed that

they do not seek a house site and are happy with an area for gardens and a piggery, which

they have had for some years. I therefore dismiss that aspect of the application.

The 2008 AGMs

[72] Te Rautau Pou continues to complain about the 2008 AGMs and the hearing before

Judge Spencer in May 2009. It would be entirely inappropriate for me to enquire into

these complaints which amount to a challenge to Judge Spencer’s dismissal of the 2009

application. Nevertheless, I will return to the question of updating trusteeship and the need

for an AGM as part of the trust review.


The $20,000 loan to Mira Norris

[73] In 2007 the trust leant $20,000.00 to Mira Norris, a trustee, and her husband. Mira

Norris justified the loan on the basis that the trust was receiving 10 per cent interest which

was much better than what the banks could offer and that the loan was “secured”.

[74] There are three problems with the loan. First, it is prima facie in breach of trust as

Mira Norris is a trustee and, therefore, now a debtor of the trust.20

[75] The trust may in theory be receiving a higher interest rate than is possible from a

bank but that was also the experience of the many individuals who invested in finance

companies that collapsed in the last five years. The short point is that trustees must take a

prudent and necessarily conservative approach to investing. An unsecured loan to a trustee

does not meet the test of prudence. Furthermore, and of more fundamental concern, the

loan was granted in breach of the fundamental fiduciary duty that a trustee must not benefit

from trust property. And, given that annual interest has only been paid once since 2007,

the loan is in substantial default and the trustees have done nothing about that default.

Second, the loan was

not discussed at a trustees’ meeting where a quorum was present, and nor was it

documented. Third, the loan is not “secured” against a property as was suggested by Mira

Norris but is supported by personal guarantees only.

[76] I conclude that the loan is in breach of trust and that Mira Norris’ position as trustee

is untenable while the debt is owed.

The nature of the trust

[77] I address the nature of the trust by addressing Jim Pou’s intentions and then

considering the terms of trust.

Jim Pou’s intentions

[78] I find the evidence of Jim Pou’s intentions for the land and the trust to be clear and

uncontradicted. I conclude that he saw himself as holding the land interests on behalf of

the whānau; that he wanted to vest the lands in a whānau trust as per the Bill; that he

20 See the discussion in Marinov Horsfall – Repongaere 4G (Part) (2004) 34 Gisborne Appellate Court MB 98 (34

APGS 98).


vested the lands in the trust under s 438 of the 1953 Act in 1989 as an interim trust because

the Bill was not likely to be passed into law for some time; and that he intended the lands

to be reconstituted under a whānau trust when the Bill was eventually passed into law.

[79] My impression is that Jim Pou was a careful and meticulous man, who thought long

and hard about how he should deal with the lands left to him by his father. I sense that he

was even burdened by that responsibility. I have no doubt that he had residual concerns

about the ability of some of his whānau to act as trustees and that he wanted them to

contribute to the land. Notwithstanding those concerns, what remains clear is that he saw a

whānau trust as the best model for holding these lands for future generations. He was

clearly anxious that it was taking so long for the Bill to be passed into law and therefore

had no option but to place the lands under a s 438 trust. But in doing so he intended that to

be an interim step to the constitution of a whānau trust.

[80] Jim Pou sought considerable advice from Mr Coutts of the Office of the Māori

Trustee and staff of the Māori Land Court. He was clearly aufait with the whānau trust

concept. It is particularly significant that the Office of the Māori Trustee prepared his last

will as that refers to the trust established the month earlier. He was very careful to ensure

that the Māori land interests were dealt with separately in that will. As I go on to comment

when dealing with the succession application, clause 5(b) of the will only makes sense if

the trust was to be reconstituted as a whānau trust.

[81] In reaching these conclusions I rely in particular on the evidence of whānau

members of their understanding of Jim Pou’s intentions and their actions since; the

correspondence and documents from the late 1980s where Jim Pou investigated options for

the land; the Court record of the 1989 application where Jim Pou is explicit about his

intentions; and Jim Pou’s will.

[82] I expressly reject Iwingaro Courtney and Mira Norris’ contentions that at the

critical dates (being the hearing on 12 April 1989 and the signing of the will on 15 May

1989) their father had doubts about a whānau trust or that he was not aufait with that

concept or that he rejected it. Their oral evidence was not credible or convincing. It was

contradicted by their own acknowledgments that their father saw the trust as being for the

whānau, the contemporary correspondence and records, the Court record and the will.


[83] Clearly, there has been underlying uncertainty over the nature of the trust because it

was established under s 438 and because Jim Pou has remained the “beneficial owner”.

Nevertheless, every member of the whānau I heard from accepted that the trust was for the

benefit of all of the whānau. And they were prepared to abide by that kaupapa until the

review application brought the whānau’s tensions to the surface. Only then did Iwingaro

Courtney and Mira Norris play what they assumed to be the “trump card” they had been

keeping close to their chests for 22 years – the succession application. But rather than

being a trump card the will in fact contradicts their position.

The terms of trust

[84] Ordinarily, the terms of trust would be found in the trust order of 12 April 1989.

However, there is a contradiction in that document. Whereas Jim Pou intended the trust to

be for the benefit of his parents’ descendants, the order itself only ever identifies the

“beneficial owners” as the beneficiaries. Strictly speaking, Jim Pou was therefore the only

beneficiary of the trust. But that is obviously completely contrary to what he was

attempting to achieve.

[85] How then should the Court treat these circumstances where Jim Pou’s intentions

conflict with the trust order?

[86] In the first place, it is clear to me that the circumstances in which the trust was

created gave rise to a duty on the trustees to re-constitute it as a whānau trust once the Bill

passed into law. That is, Jim Pou clearly stated that the s 438 trust was an interim step to

establishment of a whānau trust and the trustees knew that. The trustees were therefore

obliged to take the next step when the 1993 Act was enacted. Whether this duty is seen as

an additional term of the trust or a separate trustee obligation matters not. The three

certainties are present. I will make an order confirming this trustee duty under s 18(1)(a).

[87] It would also be open to me to take two alternative approaches that would result in

the same outcome. It would be a reasonable interpretation in the circumstances that the

term “beneficial owner” in the trust order can only mean the descendants of Eru and Te

Owai Pou. As noted earlier, Jim Pou’s will left these land interests to the trust and this

only makes sense if the trust is construed to be for the benefit of Eru and Te Owai Pou’s

descendants. An alternative approach is to conclude that the trust order was in error from


the outset in not defining Eru and Te Owai Pou’s descendants to be the beneficiaries of the

trust.

[88] But I need not resort to either of these alternatives as I believe the conclusion that

the trustees had a duty to reconstitute the trust as a whānau trust is sufficient.

Succession to Jim Pou’s estate

[89] The 23 year delay by Mira Norris and her co-administrators in concluding their

father’s estate has contributed to the uncertainty and tensions within the trust and the

whānau. There is no excuse for that delay or for the manner in which the Court was

initially misled about who was entitled to the land interests. Happily, the estate can now be

concluded.

[90] Clause 5(2) of Jim Pou’s will provides for his Māori land interests (except for those

in Rawhiti 6) to be vested in the trust. If that provision were given effect to without

reconstituting the trust as a whānau trust it would give rise to an unworkable outcome: the

beneficial interests would be vested in the trustees who (under the current trust order) hold

the interests for the “beneficial owners” who (in turn) would be themselves. Thus, the

legal and beneficial interests would merge, and the trust would arguably be at an end.

[91] Clearly, clause 5(2) only makes sense if the trust is reconstituted as a whānau trust.

And I conclude that is what Jim Pou really intended by this clause. Thus, if I reconstitute

the trust as a whānau trust and then vest Jim Pou’s beneficial interests in the trustees, they

will quite properly hold the interests for all of Eru and Te Owai Pou’s descendants – as was

always intended.

[92] As for the Rawhiti 6 interests, they fall into the residue of the estate and are

governed by clause 5(3). Jim Pou’s five surviving daughters are entitled to those interests.

I do not need to resolve Te Rautau Pou’s claim that Eru Pou intended to return the Rawhiti

6 interests to the family of Hone Waipuna. The position at law is that the interests

remained Jim Pou’s at the time of his death and Hone Waipuna’s whānau have not brought

a claim to those interests.


[93] As for the interests that Ngahuia Pou receives, I leave it to her sisters to bring a

separate application for a kaitiaki trust in due course.

Outcome

[94] In terms of s 18(1)(a) of the 1993 Act I determine that the trustees had a duty to

reconstitute the trust as a whānau trust for the benefit of the descendants of Eru and Te

Owai Pou upon the 1993 Act being enacted. Strictly speaking, the trustees have been in

breach of trust since 1993 in not taking that step. But it is understandable that they did not

do so as for two decades there was no real dispute that the trust was for the benefit of the

whānau as a whole.

[95] Whether by reason of ss 231 or 238, it is now appropriate for the Court to act and

bring to a conclusion what Jim Pou first began in the late 1980s and what the trustees

should have already done. That is, to bring the land under a whānau trust. I will therefore

make orders under s 241 terminating the trust and under ss 214 and 219 reconstituting it as

a whānau trust. While the legal effect is that the existing trust comes to an end, in practical

terms it simply continues as a whānau trust and all its assets transfer to the whānau trust.

[96] As far as Jim Pou’s estate is concerned, I will make orders under s 113 determining

that the trustees are entitled to the interests except for those in Rawhiti 6. The Rawhiti 6

interests are to go to Jim Pou’s five daughters.

[97] The above orders address the land interests and the reconstitution of the whānau

trust, but there remain the broader issues concerning the performance of the trustees.

[98] The whānau has for some time been anxious to address trusteeship, as evidenced by

the two AGMs held in 2008. Trusteeship needs to be updated as part of the review. Ivan

Pou resigned in 1997 and Alfred Pou has more recently resigned. Mira Norris is in breach

of trust having received the $20,000.00 loan. With accumulated principal and interest, the

debt stands in excess of $30,000.00. She cannot remain a trustee while the debt is owed

and must be removed. That will leave Archie Pou and Cilla Robust as the remaining

trustees.


[99] The trust is well overdue for an AGM. The two remaining trustees will need to

promptly gather in the whānau trust’s assets, change bank arrangements, require Mira

Norris to repay the loan and report to the AGM on the financial position of the

trust/whānau trust. Otherwise, the major agenda items will be the appointment of

replacement trustees and any other variations to the new trust order.

[100] All trustees have been in breach of trust for not holding AGMs on an annual basis

since 1989, lending money in breach of trust and failing to apply to the Court to

reconstitute the trust as a whānau trust. In my view, the two remaining trustees must stand

down at the AGM but may make themselves available to be reappointed as trustees.

[101] I remain of the view that there should be five trustees only in accordance with the

1988 meeting. I also believe it is sensible for one of Jim Pou’s daughters (or their

descendants) to be one of the five trustees, as Jim Pou intended. Nevertheless, I must

emphasise that the trustees are appointed to represent all the beneficiaries who are all of

the descendants of Eru and Te Owai Pou.

[102] Although I will issue orders with effect from today, the application must be

adjourned to await the outcome of the AGM that I direct.

Orders

[103] I therefore invoke s 37(3) and make orders under the 1993 Act as follows:

(a) Section 18(1)(a) determining that the trustees of the trust owed a

duty to reconstitute the trust as a whānau trust for the benefit of the

descendants of Eru and Te Owai Pou upon the Bill being enacted as

the 1993 Act;

(b) Section 239 reducing the trustees upon the resignations of Alfred Pou

and Ivan Pou;

(c) Section 240 removing Mira Norris as a trustee;


(d) Sections 231, 238 and 241 terminating the trust and revesting the

land interests in Jim Pou;

(e) Sections 214 and 219 constituting the Eru Moka and Te Owai Pou

Whānau Trust in terms of the standard whānau trust order with ahu

whenua trust provisions to reflect the provisions of the current trust

order. The tupuna are Eru Moka and Te Owai Pou;

(f) Section 113 determining that the persons entitled to succeed to Jim

Pou’s Māori land interests are:

i) The trustees of the Eru Moka and Te Owai Pou Whānau Trust

constituted today in respect of the interests in:

Tuhuna 1A Tuhuna 12B Tuhuna 21 Rangihamama K3D3B Tuhuna 47 Maungapohatu North Okuratope 2 Taraire 1B3C

ii) Iwingaro Sylvia Courtney, Atareta Margaret Horn, Riripeti

Mira Norris, Ruka Raewyn Latimer and Ngahuia Ashley Pou

in respect of the interests in Rawhiti 6;

(g) Sections 220 and 222 vesting the interests in (f)(i) above and all

other assets of the trust in Archie Pou and Cilla Robust as trustees of

the Eru Moka and Te Owai Pou Whānau Trust constituted today;

(h) Section 117 vesting the interests in Rawhiti 6 in those entitled as set

out in (f)(ii) above;

(i) Section 238 directing Archie Pou and Cilla Robust to convene an

AGM of the beneficiaries of the Eru Moka and Te Owai Pou Whānau

Trust by 30 November 2013 to present financial statements

(including in relation to the trust now terminated), conduct an


election of trustees, discuss any variations to the trust order and

address other general business.

[104] All orders are to issue immediately.

[105] The application is now adjourned to December 2013 for the Court to address the

outcome of the AGM.

Conclusion

[106] Jim Pou’s partially completed wishes for the land will now be completed. Nothing

will change in substance as the trustees and whānau always understood the trust was for

the benefit of all of the whānau.

[107] I have some confidence that the trust will now be freed from its past tensions and

uncertainty as it will be fully constituted as Jim Pou intended, as the succession to his land

interests will be addressed and as the poor functioning of the trustees can be put behind

everyone.

[108] Jim Pou was obviously a visionary man who saw that the whānau trust regime

ideally suited this whānau land. All parties should be happy that his kaupapa can now bear

fruit.

Pronounced at pm in Whangarei on Tuesday this 2nd day of July 2013.

____________________________ D J Ambler JUDGE

Documents

IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU …...administration of the land by the whānau, and in particular the new forms of trust promoted by the Bill. His investigations