IN THE MAoRI LAND COURT OF NEW ZEALAND TAIRAWHITI DISTRICT

Place: Wellington

Present: WW Isaac, Deputy Chief Judge Mereana White, Clerk of the Court

Date: 23 December 2004

Application No: A20020005413

Minute Book: 178 NA 191

Subject: Kararaina Akuhata Wall Whanau Trust

Section: 239/93; 241/93;

Applicants: Nopera Wall; Neri Teohaki Wall

RESERVED DECISION

The Applications

1. The Court has before it the following applications:

(i) An application by Nopera Wall pursuant to section 239/93 for the appointment of an additional trustee to the Kararaina Akuhata Wall Whanau Trust.

(ii) An application by Neri Teohaki Wall pursuant to section 241/93 for termination of the Kararaina Akuhata Wall Whanau Trust.

(iii) An application by Neri Teohaki Wall to have a kaitiaki trustee appointed to the Maori land interests of Kararaina Akuhata Wall.

Background to the Applications

2. The Kararaina Akuhata Wall Whanau Trust was constituted on 8 May 1998 51 Ruatoria MB 129-130. Michael Ryan Wall, Raewyn Lesley Ataera and Lillian June Karaka (now deceased) were appointed trustees pursuant to section 222/93. On 21 July 2000 at 91 SI MB 5 Neri Teohaki Wall was appointed as an additional trustee.

3. The Whanau Trust applies to the interests of Kararaina Wall in Akuaku A4F, Akuaku A3, Tawhiti 1 F1 and others, Waipiro A3A2 and Waipiro 2F. There are 22 beneficiaries in the Trust.

4. Kararaina Wall is a resident of the Albert Park Resthome in Gisborne. Michael Ryan Wall and Raewyn Ataera hold power of attorney over all her interests, with the exception of those interests in the Whanau Trust.

Minute Book: 178 NA 192

5. The applications have been before the Maori Land Court on 3 December 2002 at 169 NA 183, 28 February 2003 at 170 NA 127, 2 May 2003 at 155 GIS 29, 4 July 2003 at 172 NA 139, 2 June 2004 at 67 RUA 218,4 June 2004 at 176 NA 154, and 11 June 2004 at 107 SI 139. The background and substance of the applications is set out in the minutes of 4 June 2004 and 11 June 2004.

Application for termination of the Whanau Trust

(a) Submissions in support of the termination application

6. Counsel for Neri Wall and Nopera Wall filed submissions dated 23 November 2003 in support of the termination application. Those submissions are summarised as follows:

(i) The Whanau Trust was formed without the consent of all the whanau ;

(ii) The trustees will not report to the beneficiaries;

(iii) The trustees have not provided written financial reports;

(iv) The original owner of the land Kararaina Akuhata Wall may have been under a disability at the time the trust was formed;

(v) All the beneficiaries have been consulted and the majority want the trust terminated; and

(vi) The Court sought direction from the whanau on what to do with the trust.

7. The applicants and other beneficiaries of the Trust also outlined their concerns in evidence during the proceedings and in letters to the Court.

8. Neri Wall gave evidence at 107 SI 139 that he is concerned that his mother was confused as to the purpose of the Trust. He confirmed his belief that if the Trust was terminated then the family could get on together again.

9. Toni Lee Palasio, a daughter of Neri Wall, wrote to the Court on 10 June 2004 stating her belief that Kararaina Wall did not fully understand what Ryan had done with the shares and that she still believed her Will to be in existence.

10. Raewyn Ataera in a letter dated 31 May 2004 advised that "I want to withdraw as a trustee and leave the business of the trust whether it is dissolved or not, as is the wish of the majority of the family, to my uncles. I do not believe as a grandchild it is my place any longer to be a part of this trust." She also states that Kararaina Wall did not believe that the Trust had anything to do with her Will and that her Will would still be enforced on her death.

11. Tyron Wall, Neri Wall, Keri Wall , Yvonne Kennedy, Gary Kennedy, Toni Palasio, Edward Wall, Nopera Wall, Conrad Blythe, Wiki Blythe, Mairehau Kennedy, Philip Pawson, Steven Pawson, Bobby Kennedy and Rimini Wall have all signed consent forms stating that they do not wish the Kararaina Akuhata Wall Whanau Trust to continue and wish to have it terminated with all the land vested back into the owners.

(b) Submissions in opposition to the termination application

12. Michael Ryan Wall is the only beneficiary to have filed a consent form with the Court stating that he does wish the Trust to continue. In a letter to the Court

Minu!e Book: 178 NA 193

dated 31 May 2004, he voiced his opposition to the termination application. The following is a passage from that letter:

"The Trust was then formed by my mother and I with my eldest sisters blessing, making her and Raewyn and myself as Trustees.

As I understand the process and procedure for farming (sic) a Trust does not require the sanction of the whanau. It was what our mother wanted after much discussion with people she felt at ease with ...

I can not see any reason for Ned and Noble to dismantle the Trust as the Trust is what our mother wanted. If they were not included in the formation of the Trust along with the rest of the family then that is unfortunate for them. Mum was happy to involve Lillian, Raewyn and myself along with Bob and Barney.

Inspite of Ned and Nopera not being included at the beginning, it is my view that they should still respect our mothers wishes regardless. "

(c) The Trust Order

13. The application for termination must be considered in light of the purpose and objects for which the Trust was set up.

14. The Kararaina Akuhata Wall Whanau Trust was constituted on 8 May 1998 51 Ruatoria MB 129-130. In general, the object of the trust is to provide for the management of the Trust property to the best advantage of the beneficiaries of the Trust. In particular, the trustees are to use the income derived from the Trust for promoting the health, social, cultural and economic welfare, education and vocational training and general advancement in life for the descendants of Kararaina Wall.

(d) The law

15. The ability of the Maori Land Court to terminate a trust is set out in section 241/93:

241. Termination of Trust - (1) The Court may at any time, in respect of any trust to which this section applies, terminate the trust in respect of -

(a) The whole or any part of the land; or

(b) The whole or any part of any interest in land subject to the trust, -

By making an order vesting that land or that part of that interest in land in the persons entitled to it in their respective shares, whether at law or in equity, or in such other persons as the beneficial owners may direct.

(2) Where a trust terminated under SUbsection (1) of this section is a whanau trust, the Court shall, notwithstanding anything in subsection (1) of this section, make an order vesting the land or the part of the land or the interest in the land in the persons entitled to it in their respective shares, whether at law or in equity, which persons are -

(a) The persons who were, at the creation of the trust and are at the date of the order, the beneficial owners of the land or the part of the land or the interest in the land; and

Minute Bool<: 178 NA 194

(b) Any persons who, at the date of the order, are successors of any of the persons who were, at the creation of the trust, the beneficial owners of the land or the part of the land or the interest in the land.

16. It is also relevant to consider section 214/93, which gives the Court the power to constitute a Whanau Trust:

214. Whanau trusts - (1) The Court may, in accordance with this section, constitute a whanau trust in respect of any beneficial interests in Maori land or General land owned by Maori or, subject to any minimum share unit fixed by its constitution, any shares in a Maori incorporation.

(2) An application for the constitution of a whanau trust under this section -

(a) Shall be made-

(i) By or with the consent of the owner or all of the owners of the interests of shares to which the application relates; or

(ii) By the administrator of an estate to give effect to a testamentary disposition purporting to constitute a whanau trust; or

(iii) By the administrator of an estate acting by and with the consent of the persons entitled to succeed to the interests or shares to which the application relates; and

(b) May be made in respect of any interests in 1 block of land, or in any 2 or more blocks of land, or in respect of any shares in 1 incorporation or in 2 or more incorporations, or in respect of any such interests and any such shares; and

(c) May be made notwithstanding that the land or any part of it or the shares or any of them is or are already held for the purposes of any other kind of trust constituted under this Part of this Act.

(3) The land, money, and other assets of a whanau trust shall be held, and the income derived from those assets shall be applied, for the purposes of promoting the health, social, cultural and economic welfare, educational and vocational training, and general advancement in life of the descendants of any tipuna (whether living or dead) named in the order.

(4) Notwithstanding anything in subsection (3) of this section, the Court may, either on the constitution of a whanau trust or on application at any time thereafter, empower the trustees to apply any part of the trust income that is not required for the purposes of the trust (as described in that subsection), for Maori community purposes generally or for such Maori community purposes as the Court may specify; and, in such a case, the trustees may apply any such part of the trust income in accordance with section 218 of this Act.

(5) In any case to which subsection (4) of this section applies, the beneficiaries shall be, -

(a) Where the trust is constituted in respect of any interests in any block or blocks of land, the persons beneficially entitled to those interests at the time the trust is constituted, and their descendants; or

(b) Where the trust is constituted in respect of any shares in a Maori incorporation, the persons who are for the time being the beneficial owners of those shares, and their descendants.

Minute Book: 178 NA 195

(6) While a whanau trust constituted under this section remains in existence, no person shall be entitled to succeed to any interests or shares vested in the trustees for the purposes of the trust.

(d) Discussion

17. There is surprisingly little case law of either the Maori Land Court or the Maori Appellate Court on the power to terminate trusts over Maori freehold land. Section 237/93, however, gives the Court all the powers and authorities of the High Court in respect to trusts over Maori land or General land owned by Maori.

18. The jurisdiction to terminate a trust, either in whole or in part, is discretionary. In Re Rata - Te Rongoroa A7 (1991) 13 Aotea Appellate MB 228, the Maori Appellate Court emphasised that the jurisdiction should be refused where withdrawal would create unreasonable disadvantage to either the interests of the public, the other parties, or of other persons interested in the continuance of the trust.

19. This reasoning was accepted in Re Tautuku Block XIII Section 5 and Section 13 (1998) 83 South Island MB 290, and at page 298 the Maori Land Court stated:

The requirement for the Maori Land Court therefore is to look at the disadvantages and unsuitability of any application to terminate the trust and determine the wisdom and fairness of such a request having regard to the interests of the persons affected.

20. In Ngarara West B3B (2003) 134 AOT 20, the Maori Land Court observed that the power to terminate is discretionary and must be invoked with caution . It further stated that the power should not be exercised where unreasonable disadvantage would be inflicted on those remaining if the trust was terminated .

21. Turning to the facts of the present case, the evidence and the minutes clearly demonstrate that the relationship between the beneficial owners and the trustees has deteriorated.

22. As is set out in paragraph 14 above, the Trust was constituted to provide for the management and the Trust property to the best advantage of the beneficiaries of the Trust. It is apparent to the Court however, that the Trust has not functioned effectively in respect to the interests of the beneficiaries. There have been infrequent meetings of owners, allegations have been made that the trustees have not provided written financial reports when requested, and any communication with the beneficiaries has been limited.

23. While it can be said that the Trust has enabled the retention of Kararaina Wall's Maori land interests within the whanau, it cannot be said that those interests have been developed or utilised to the advantage of the beneficiaries.

24. In exercising its discretion to terminate or vary a trust the Court is obliged to consider the intention of the settlor. The High Court has held that while the Court may approve a scheme that conflicts with the primary or predominant intention of the testator or settlor, it should not lightly authorise arrangements that cut across what a testator or settlor intended to happen. (In Re Greenwood [1988] 1 NZLR 197).

Millute Book 178 NA 196

25. The material on the file shows that Kararaina Wall was advised of the implications of setting up a Whanau Trust and that she was happy for her interests to be vested in the trustees. However, the Court has also heard a lot of evidence from various beneficiaries that Kararaina Wall believed her Will to still be valid, and that it would be enforced upon her death.

26. In this situation I am of the view that to allow the Trust to continue in its present form would disadvantage the interests of the beneficiaries. While it may have been more appropriate to remove all or some of the present trustees and appoint ones that could work in the best interests of the beneficiaries, the applicants and other beneficiaries have been reluctant to pursue this option.

27. Having regard to the above discussion and given that there is almost unanimous support from the beneficiaries to terminate the trust, I am satisfied that no unreasonable disadvantage will result to the beneficiaries of the Trust due to its termination. Any steps the beneficiaries may wish to take to look after the land and to give effect to Kararaina Wall's wishes will be a matter for them when the time comes. The Trust is accordingly terminated pursuant to section 241 /93.

Application for appointment of a kaitiaki trustee

28. The application was filed by Neri Wall upon the grounds that Kararaina Wall is under a mental disability and that the constitution of a trust would best protect and promote the her interests.

29. On 18 February 2004 counsel for Neri Wall and Nopera Wall wrote a letter to the Maori Land Court advising that this application has been withdrawn:

"3. We further advise that we formally withdraw our application to constitute a kaitiaki trust. Enduring power of attorney has already been granted to Michael Ryan Wall and Raewyn Ataera in relation to the 'whole' of the property belonging to Kararaina Turukiao Koha Wall, and remains in force. As such a kaitiaki trust cannot be constituted in this instance."

30. Having regard to this advice the application for appointment of a kaitiaki trustee is formally dismissed.

Application for appointment of an additional trustee

31 . Nopera Wall filed the application on 22 July 2002 seeking appointment as an additional trustee to the Kararaina Akuhata Wall Whanau Trust.

32 . Counsel for Neri Wall and Nopera Wall further advised in the letter of 18 February 2004 that:

"1. We have taken instructions from and act for the responsible trustee Mr Neri Wall ('Neri') and Mr Nopera Wall ('Nopera'). Nopera advises that he no longer wishes to pursue his s239/93 application and agrees to allow the s241193 to supersede the former mentioned applications. Nopera advises that he will not attend court when the matter is heard next."

33. Accordingly, this application is also formally dismissed.

Minute Book: 178 NA 197

Conclusion and Orders

34. For clarity I set out the orders made in this decision as follows:

i. An order pursuant to section 241/93 terminating the Kararaina Akuhata Wall Whanau Trust. The land interests will accordingly revert back to Kararaina Wall;

ii. An order dismissing the application to appoint a Kaitiaki Trustee;

iii . An order dismissing the application to appoint an additional trustee.

35. A copy of this decision is to go to all persons affected.

WWlsaac Deputy Chief Judge