April 2017 Māori Law Review

Trusts – trustee appointment – debtor to trust ineligible – Severne

Deputy Registrar v Severne - Okahukura 8M2C2C2B

Māori Land Court (2017) 365 Aotea MB 174 (365 AOT 174)

15 February 2017

Application by Mr Howell and Ms Gardiner for appointment as responsible trustees of the Okahukura 8M2C2C2B Trust. Mrs Gardiner appointed, application from Mr Howell dismissed.

Download Deputy Registrar v Severne - Okahukura 8M2C2C2B (193 KB, PDF).

Overview and Result

Trusts - trustee appointment - debtor to trust ineligible
Date 15 February 2017
Case Deputy Registrar v Severne - Okahukura 8M2C2C2B
Citation (2017) 365 Aotea MB 174 (365 AOT 174)
Court Māori Land Court
Judge(s) Judge Harvey
Earlier/later decisions
Legislation cited Te Ture Whenua Māori Act 1993, ss 222, 227A, 239, 244.
Cases cited Clarke v Karaitiana [2011] NZCA 154; Horsfall v Marino – Repongaere 4G (Part) (2004) 34 Gisborne Appellate MB 98 (34 APGS 98).
Overview and result The Court was tasked with determining whether Mr Howell and Ms Gardiner, should be appointed as responsible trustees of the Okahukura 8M2C2C2B Trust.

The respondents expressed doubt over Mr Howell and Ms Gardiner's suitability as trustees after they were elected on 28 January 2017. The respondents argued that as Mr Howell was in debt to the trust and Ms Gardiner was involved in business activities which could cause a potential conflict of interest, neither were suitable to act as trustees. In particular, the respondents noted a Tenancy Tribunal judgment on 20 April 2009, where it was found that Mr Howell owed a significant amount of rent to the Trust, part of which had not been paid.

Held, Ms Gardiner was appointed as a responsible trustee under s 239 of the Te Ture Whenua Māori Act, whilst Mr Howell's application to be a responsible trustee was dismissed.

Ms Gardiner's involvement with cultural and tourism related business activities should not disqualify from being appointed as a responsible trustee under s 222 of the Te Ture Whenua Māori Act. Ms Gardiner's activities do not prevent her from complying with s 222 and any potential conflict of interest can be managed.

The Court noted Horsfall v Marino, where it was held unequivocally that any prospective or actual trustee cannot be indebted to a trust. As Mr Howell's debt was still partially unpaid, he could not be eligible for appointment as a responsible trustee.

avatar

Author: Nopera Dennis-McCarthy