Tito v Tito

[2011] NZCA 539

IN THE COURT OF APPEAL OF NEW ZEALAND

CA225/2011
[2011] NZCA 539

BETWEEN  KEVIN TITO
Applicant

AND  AROHA TITO
First Respondent

AND  JOHN ANDREWS
Second Respondent

Hearing:         20 October 2011

Court:             Glazebrook, Arnold and Ellen France JJ

Counsel:         Appellant in person
No appearance for First and Second Respondents

Judgment:      28 October 2011 at 10.00 am

JUDGMENT OF THE COURT

The application for an extension of time is granted.

REASONS OF THE COURT

(Given by Glazebrook J)

Background

1. Mr Tito applies for an extension of time to appeal against a judgment of the Māori Appellate Court delivered on 23 February 2011[1] which appointed on an interim basis himself and the two respondents, Aroha Tito (his niece) and John Andrews, as responsible trustees of the Mangakahia 2B2 No 2A1A Ahu Whenua Trust.  That judgment quashed orders of the Māori Land Court installing the Māori Trustee as sole responsible trustee.[2]

   [1]      Tito – Mangakahia 2B2-No 2A1A (2011) Māori Appellate Court MB 86.

   [2]      Tito – Mangakahia 2B2-No 2A1A (2009) 143 Whangarei MB 271 (143 WH 271).

2. The Māori Appellate Court also directed the trustees to call a general meeting of owners within 12 months to consider the future administration of the trust and the appointment of permanent trustees.

3. The appeal was due to be filed by 23 March 2011.  Mr Tito tried to file the appeal on 24 March 2011.  He claims to have been advised by the Registry that he had until 25 March to file his appeal.  Mr Tito argues that the application should be granted so that uncertainty around the trust’s financial management can be resolved as soon as possible.

4. The respondents abide the decision of the Court on the extension of time.

The proposed appeal

1. Mr Tito alleges that the Māori Appellate Court erred in appointing Ms Tito and Mr Andrews as interim trustees.  Part of the Court’s reasoning was that owners representing 95 per cent of the shares were at the 12 November 2009 trust AGM.  The meeting voted unanimously against the Māori Trustee being appointed and instead nominated Mr Tito and the respondents and two others to be responsible trustees.  Mr Tito submits that that vote was tainted for a number of reasons.

2. Mr Tito also submits that the trust should be terminated and various orders made with regard to the trust’s financial position.  As we explained at the hearing, however, these matters were not dealt with by the Māori Appellate Court and would not be dealt with at the appeal.

Result

1. Given that the filing of the appeal was late by one day only, that the respondents do not object and that an adequate explanation for the delay has been given, the application for an extension of time to appeal is granted.

2. There is no costs order.

Stay

1. Mr Tito indicated at the hearing that he wished to file an application for stay with regard to the Māori Appellate Court decision.  The Māori Appellate Court has refused a stay application.[3]  Mr Tito made some submissions orally on the need for a stay and any stay application will be dealt with on the papers when it is filed.

   [3]      Tito v Tito – Mangakahia 2B2-No 2A1A (2011) Māori Appellate Court MB 527.