Karaka v Ngai Tai Ki Tamaki Tribal Trust Incorporated [2012] NZHC 1966 (7 August 2012)

Last Updated: 30 August 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-7664 [2012] NZHC 1966

BETWEEN EMILY ANNE KARAKA First Plaintiff

AND PETER GEORGE HENRY KARAKA Second Plaintiff (Discontinued)

AND DEBORAH PACE Third Plaintiff

AND NGAI TAI KI TAMAKI TRIBAL TRUST INCORPORATED

Defendant

Hearing: 2 August 2012

Counsel: S W M Piggin for Plaintiffs

K R M Littlejohn for Defendants

Judgment: 7 August 2012

_{JUDGMENT OF KEANE J}

This judgment was delivered by on 7 August 2012 at 3pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Robb & Brown, Auckland for Plaintiffs

J K Garnett, Greenlane, Auckland for Defendants

EMILY ANNE KARAKA & ANOR v PACE & ANOR HC AK CIV 2011-404-7664 [7 August 2012]

[1] Emily Karaka, and her daughter Deborah Pace, are trustees of Ngai Tai Ki Tamaki Tribal Trust, as was her brother, Peter Karaka, who has resigned his trusteeship and has discontinued his part in this case.

[2] On 10 March 2010, at a special meeting of the trustees called urgently, a day before the usual meeting, which Mrs Karaka and her brother and daughter chose deliberately not to attend, the seven trustees present resolved to remove Mrs Karaka as a trustee and a nominated treaty claim negotiator. At the general meeting on 17

October 2010 the trust's draft financial statements declared that Mr Karaka and Ms

Pace had been removed from office on 6 May 2010.

[3] On 29 November 2011, Mrs Karaka and her brother and her daughter brought this case seeking three declarations: (i) that any exercise of trust powers by the trustees after 10 March 2010 was invalid and of no effect; (ii) that they themselves continued to be trustees; and (iii) that Mrs Karaka continued to be one of the trust's nominated treaty claim negotiators.

[4] They sought an injunction prohibiting the remaining trustees transacting business, or exercising any trustee power, unless they were given notice of any duly convened meeting of trustees, and the remaining trustees complied in every other respect with the terms of the trust. They sought an interim injunction to that effect that went further. They wanted the then treaty claim negotiators not to act further unless Mrs Karaka was also able to participate. They wanted disclosure of trust records from 10 March 2010 onwards.

[5] On 21 December 2011 orders were made by consent confirming that Mrs Karaka and Ms Pace continued to be trustees; the implicit basis for which was that their removal had been invalid. Mrs Karaka and Ms Pace were to have notice of meetings of trustees, duly convened under the trust deed; such a meeting was to occur on or before 31 January 2012 and, not less than a week beforehand, they were to be briefed on the treaty claim negotiation.

[6] On 19 March 2012, despite the fact of the consent orders, Mrs Karaka and

Ms Pace applied for an interim injunction in essentially the same terms as before and

an order appointing the Sheriff of this Court sequestrator of the trust. Those are the applications that I am to resolve.

Context

[7] On 31 January 2012, consistent with the consent orders, there was a meeting of trustees which Mrs Karaka and Ms Pace attended. They asked, before the meeting, for a complete usual agenda. They anticipated that the minutes of the last meeting, and any financial or RMA reports since then, would be discussed. They wanted Mrs Karaka's role as a treaty claim negotiator confirmed. There were, however, only two items on the agenda, an update on the treaty negotiation and this case.

[8] The next meeting was to be on 23 February 2012, in the afternoon, but when Mrs Karaka and Ms Pace attended they were told it had been cancelled. They never found out why. They gathered that there had been a meeting that morning; a fact that they cannot now confirm and that the remaining trustees deny.

[9] Mrs Karaka and Ms Pace did not receive, as they had asked, the minutes of all meetings since March 2010 and any reports tabled. They did not receive the briefing they wanted as to the trust's affairs or the treaty claim. In January 2012 their solicitor was told by counsel for the remaining trustees, Mr Littlejohn, that they were

'presently suspended'.

[10] As a result Mrs Karaka and Ms Pace made the two applications with which I am concerned and on 28 June 2012 Dobson J set them down for hearing and directed the trust to discover beforehand to Mrs Karaka and Ms Pace the documents they had asked for.

[11] Discovery was duly given and in July 2012 three meetings of trustees were arranged to discuss issues critical to the treaty claim, which was reaching a critical point. Two occurred and the third proved not to be needed. Mrs Karaka and Ms Pace joined with the majority of trustees in ratifying a draft collective agreement with the Crown to precede the individual iwi agreement, and the post settlement governance

entity to receive any Crown settlement. Against that more promising background, the interim issues that I was required to resolve narrowed considerably.

Issues

[12] At the hearing before me Mrs Karaka and Ms Pace did not pursue sequestration. Nor did they identify as an issue justifying the grant of interim injunctive relief the invalidity of decisions taken by the remaining trustees after they themselves were removed as trustees. The fact that in July 2012 they had ratified in concept or draft two of the documents central to the negotiation must also stand against any such retrospective challenge.

[13] Conversely, the remaining trustees accepted that, consistent with the December 2012 consent orders, Mrs Karaka and Ms Pace have always been trustees in good standing; and that there was never any power to suspend them either. The questions I had then to resolve reduced to two only.

[14] One was whether the remaining trustees had since the consent orders in December 2011 been conducting the trust's business informally, outside duly convened meetings; and in that and other ways had been in breach of the trust deed and the deed of mandate governing the treaty claim negotiation. The other was whether Mrs Karaka had ever been validly removed as a nominated treaty claim negotiator.

[15] At the end of the hearing, after taking instructions, counsel for the remaining trustees, Mr Littlejohn, gave me their undertaking that they will now comply strictly with the two deeds. Also that, if I found that Mrs Karaka had never validly been removed as a treaty claim negotiator, they will only revisit that issue in strict accord with the deed of mandate. Their undertaking, I understood him to say, obviated any need for an interim injunction.

[16] Counsel for Mrs Karaka and Ms Pace, Mr Piggin, accepted that they are not entitled to any interim order binding the remaining trustees, and the trust, that exceeds in effect the duties that are imposed by the two deeds. He accepted that, had

those deeds been adhered to, Mrs Karaka and Ms Pace might never have had to bring this case. He nevertheless asked for an interim order. Issues between Mrs Karaka, especially, and the other trustees have a lengthy history.1

Principles of relief

[17] To succeed in this application for interim relief Mrs Karaka and Ms Pace must establish that they have some serious question to be tried, and that the balance of convenience lies in favour of granting them relief. Ultimately, the overall justice of the case must be considered.2

[18] As to whether there is a serious question to be tried, the issue is whether there is ‘a tenable combination of resolutions of the issues of law and fact on which the plaintiffs could succeed’.3 Assuming a serious question to be tried, the issue then becomes where the balance of convenience lies and that involves identifying what has been described as the ‘balance of the risk of doing an injustice’.4

[19] The final and decisive consideration, the overall justice of the case, a notion coextensive with the balance of convenience, calls for a 'global consideration of where the interests of justice lie in the light of any irreparable harm likely to be suffered by the parties in the interim'.5

[20] Mrs Karaka and Ms Pace seek, in truth, a mandatory injunction. They want the trustees prohibited from acting, unless they comply with the two deeds. More simply, they seek an order that the trustees comply with the two deeds. And, where mandatory relief is claimed, the Court will normally require a high degree of assurance that the claimant will succeed in the end and that the respondent will suffer

_{no injustice.}6

1 Karaka v Ngai Tai Ki Tamaki Tribal Trust (No 8) HC Auckland CIV 2003-404-6164, 15 March

_2011.

2 _{Klissers Farmhouse Bakeries Limited v Harvest Bakeries Limited [1985] 2 NZLR 140 (CA) 142.}

3 _{Henry Roach (Petroleum) Pty Ltd v Credit House (Vic) Pty Ltd [1976] VicRp 26; [1976] VR 309, 311.}

4 _{Cayne v Global Resources plc [1984] 1 All ER 225 (CA), 237.}

5 _{The Property People Ltd v Housing New Zealand Ltd CA260/99, 16 November 1999 at [21].}

6. Films Rover International Ltd & Ors v Cannon Film Sales Ltd [1986] 3 All ER 772 at 781, Hoffman J.

[21] That issue does not begin to arise in this case. The converse is the case. The remaining trustees, and the trust itself, and indeed Mrs Karaka and Ms Pace, are already bound by the two deeds. The issue is rather what more a mandatory interim injunction would accomplish.

[22] In the event of a breach of trust this Court has a range of remedies and the only advantage a mandatory interim injunction might offer is that any trustee who acted in breach could be answerable in contempt.7 But, in this instance, the remaining trustees, and the trust, have given their undertaking to the Court that they will comply with the two deeds and that undertaking is equivalent in effect to a Court order. A breach of such an undertaking is equally answerable in contempt.8

[23] That said, Mrs Karaka and Ms Pace have clearly had cause to bring this present application and I now need to say why.

Trust purpose

[24] The purpose for which the trust was created in 1992 was clearly enough, in the first instance certainly, to pursue a treaty claim for the lasting benefit of all the people of Ngai Tai Ki Tamaki. The trust, as now constituted, is declared to be a charitable trust,9 and its specific objects are these:

(i) Dealing directly with the Office of Treaty Settlements, the Waitangi Tribunal, Councils and any other body or entity regarding negotiation for the settlement of all historical claims of the Beneficiaries.

(ii) Appointing negotiators, legal and financial advisers and any other experts to assist with settlement negotiations and associated activities.

(iii) Applying for, receiving, managing and using funding from various entities, including but not limited to, the Crown and the Crown Forestry Rental Trust, to assist the Trust with settlement negotiations and associated activities.

7 _{Judicature Act 1908, s 56C(i)(c).}

8 Malavez v Knox [1977] 1 NZLR 463 (HC); see also Plateau Farms Ltd (in rec & liq) v Lambert

_{[2012] NZHC 1063; Laws of New Zealand Civil Contempt (online ed) at [75].}

9 Deed, cl 5.1.

(iv) Developing a specific role of beneficiaries to ensure all entitled beneficiaries are identified and benefit from any settlement or group redress package the Trust is able to negotiate.

(v) Entering into a deed of settlement with the Crown in respect of all historical claims of the beneficiaries.

[25] The deed of mandate prepared by the trust for the purpose of the treaty claim, dated December 2009, and signed on behalf of all trustees by the Chair, begins furthermore by stating that the deed itself:10

formally demonstrates that the elected trustees of the Ngai Tai Ki Tamaki Tribal Trust have obtained a durable mandate to represent the people of Ngai Tai Ki Tamaki in negotiations with the Crown for a comprehensive and final settlement of all historical Treaty of Waitangi claims.

It goes on to say that the trust 'submits this deed of mandate to be recognised by the

Crown in order for negotiations to formally commence'.

[26] A little later, the mandate says, 'the Mandated Body for the purposes of the negotiations is the Trust'.11 And that 'the Trust has secured a mandate from the people of Ngai Tai Ki Tamaki to negotiate a draft deed of settlement that will be signed off by the people of Ngai Tai Ki Tamaki through a robust ratification process'. The trustees had accepted, the mandate confirms, that there would have to be a new entity to receive any settlement asset, post settlement governance entity, but also said, 'the Trust is the only legal entity established that solely promotes, protects and advances the interests of the people of Ngai Tai Ki Tamaki'.12

[27] At that date, the mandate said, an amended trust deed was being prepared, which would be supplied to the Crown. (The present deed is dated 9 February

2010.)13 It said also that the trust was still then under the supervision of this Court

but had, by direction, held an annual general meeting in March 2009 at which 10 trustees had been appointed; and those appointed included Mr Karaka and Ms

10 _{Clause 1.1.}

11 _{Clause 4.1.}

12 _{Clause 4.4.}

13 Clauses 4.7, 4.8.

Pace.14 The trustees had then, it said, appointed three more trustees, one of whom was Mrs Karaka.15

[28] The mandate set out the responsibilities of the trustees and of the nominated treaty claim negotiators. The trustees, it said, were 'ultimately responsible and accountable to the people of Ngai Tai Ki Tamaki', and 'the negotiators appointed by the trust will be accountable to the Trust'.16

First question: compliance with duties

[29] The first question that Ms Karaka and Ms Pace contend is seriously arguable and warrants a grant in their favour of interim injunctive relief, is whether since March 2010 the trustees have complied with their duties under the two deeds, and that must first be set against the deeds themselves.

Trust deed

[30] In one sense, the trust deed is abstract in what it requires of trustees. It is, if anything, permissive. Trustees are given, for instance, discretion as to when and where to meet. Clause 9.6 says this:

The trustees may ... meet at such times and places and on such dates as they think fit, provided they must meet at least four times per financial year. The secretary must give the trustees at least 10 days notice of the time, date and place of such meetings. The notice need not be in writing and the time may be shortened by the unanimous agreement of all trustees. Meetings of the trustees may be held by way of teleconferencing.

[31] At such meetings trustees are entitled to conduct business as long as there is a quorum, comprising a majority of the then trustees.17 (The trust is to have a maximum of 14 trustees and a minimum of five.18) Five trustees constitute a

_{minimum quorum.}19 _{Trustees may 'exercise their powers and discretions by a}

14 _{Clause 4.10.}

15 _{Clause 4.11.}

16 Clause 5.1.

majority vote of the trustees present'.20 They may do so, despite the fact that they are not a full complement of trustees. No decision of theirs can be called into question for that reason only.21

[32] The deed is also specific as to one other material matter. The trust's financial year is to end on 31 March each year or on any date that the trustees resolve,22 and trustees are obliged to have prepared before each annual general meeting an annual report and audited accounts.23 The deed is most concrete, by contrast, in the powers it confers on trustees and on the general responsibility it obliges them to assume.

[33] The trustees have 'all the powers of a natural person acting as beneficial owner of the property from time to time comprising the trust fund',24 and a wide range of specific powers,25 two of which are immediately material. One is the power to 'delegate any of the powers and duties to any committee or committees consisting of such of the trustees (or such other persons) as they may appoint for such

_purpose'.26 _{The other is to conduct the treaty claim negotiation to the point of}

settlement and to deal with the assets obtained:

(i) to negotiate and settle all historical Treaty of Waitangi Claims of the

Beneficiaries.

(ii) to manage any assets derived from any settlement, including, but not limited to, the assessment of such assets' current commercial potential and future opportunities involving sale or lease of such assets to a third party.

(iii) to acquire through the Treaty settlement process any Crown owned assets offered as part of any settlement and hold such assets on trust for the Beneficiaries, including any assets acquired by way of an on account settlement.

[34] In the exercise of these powers, the trust deed states, and this is highly significant, the trustees come under an attendant duty to exercise 'at all times ... the

_{care, diligence and skill that a prudent person in business would exercise in}

20 _{Clause 10.1.}

21 _{Clause 10.6.}

22 _{Clause 16.1.}

23 _{Clause 17.1.}

24 _{Clause 7.1.}

25 _{Schedule 1.}

26 Schedule 1, para (r).

managing the affairs of others'.27 The trustees must not do anything or allow anything to be done that could cause the trust to cease to be charitable.28

[35] These powers and duties are conferred on all trustees equally and without distinction. Each trustee is entitled, therefore, indeed obliged, to play an equal part in the administration of the trust. Each trustee is obliged, therefore, to cooperate with every other trustee in the discharge of their shared responsibilities.

Deed of mandate

[36] The mandate is even more specific as to the powers and duties of trustees in the treaty claim negotiation; and it lists, quite generally, what those duties and powers are:

(a) Regular reporting to Ngai Tai Ki Tamaki people about the negotiation process;

(b) The production of regular financial accounts;

(c) The power to appoint negotiators, or appoint themselves as negotiators;

(d) Constant review of the negotiators and other advisers;

(e) The ability to engage and remove experts contracted for the purposes of negotiation;

(f) Approve and sign off on key negotiation milestones, including but not limited to: Terms of Negotiation, the Mandate Strategy, Deed of Mandate, The Agreement in Principle and the Deed of Settlement.

(g) The authority to present to the people of Ngai Tai Ki Tamaki, for ratification, the draft deed of settlement.

[37] Under the mandate the trustees are obliged to 'meet regularly on a fortnightly basis' and they have the ability to call special general meetings.29 They are obliged to report to the people of Ngai Tai Ki Tamaki in a number of ways, which include annual general meetings and monthly hui-a-iwi.

[38] The trustees are obliged to agree by consensus, or if not by majority resolution:30

The Trust will make decisions by consensus. In addition, the people of Ngai Tai Ki Tamaki can participate in the decision making process by attending and voting on resolutions put at the monthly hui-a-iwi held by the Trust. All decisions made by the trustees in relation to settlement negotiations will be made in accordance with the provisions of the Trust Deed. If a consensus is not reached by the trustees on issues relating to the negotiations, the trustees will vote on the resolution sought and the decision will be by majority vote.

[39] The trustees have the ability to delegate the negotiation task, but remain ultimately responsible:31

The trustees have the mandate and authority to manage all aspects of settlement negotiations with the Crown up to presenting the Deed of Settlement to the claimant community for ratification. Whilst the Trust is the mandated body, for timeliness and to optimise efficiency, the task of carrying out the negotiations will be delegated to the negotiating team. The negotiators' task is to negotiate a Deed of Settlement.

[40] Conversely, the negotiators are fully accountable to the trustees, who are obliged to monitor their progress at fortnightly meetings.32

The negotiators are accountable to the Trust and will be required to report at fortnightly meetings of the Trust. The Trust will provide directions and advice to the negotiators and the trustees will report to the people of Ngai Tai Ki Tamaki on process as set out above. For the avoidance of doubt, the negotiators are fully accountable to the Trust. The Trust will provide direction, advice in terms of reference for the negotiators.

[41] That ultimate responsibility is apparent also from the remaining related term:33

Negotiators will make all decisions by consensus. The Trust will, prior to implementation, be required to ratify, modify or reject any or all of the decisions made by the negotiators.

Conclusions

[42] The trustees may, since March 2010, have advanced their negotiation with the Crown to a point where the crucial draft documents have been ratified, in

30 Clause 5.5.

principle, by a majority of trustees including Mrs Karaka and Ms Pace. But on the face of the papers I have seen, they have not, certainly since the consent orders were made in December 2011, complied with the deed of mandate. They have operated in a much more devolved way.

[43] Counsel for the remaining trustees, Mr Littlejohn, as I understood him, said that the negotiators have functioned largely autonomously, but under the eye of an executive committee of the trustees (and that the trust's financial controller and kaitiaki have also acted relatively autonomously).

[44] What is also clear from documents disclosed recently to Mrs Karaka and Ms Pace is, as Mr Piggin submitted, that the negotiating team and the executive committee have made significant decisions this year that have never gone to a duly convened meeting of all trustees, let alone any fortnightly meeting. There have only been three duly convened meetings this year.

[45] The result, on the face of it, is that the trustees as a whole have not shared as fully in the responsibility for the conduct of the claim negotiation as the deed of mandate requires. Nor have the negotiators been as fully accountable as they need to be to the trustees as a whole. Nor, despite the December 2012 consent orders, have Mrs Karaka and Ms Pace, until recently, been allowed to share in the responsibilities that all trustees are entitled, indeed obliged, to share.

Second question: removal of treaty negotiator

[46] The second issue that Mrs Karaka and Ms Pace raise as seriously arguable, and justifying interim relief, is whether Mrs Karaka was validly removed as a nominated treaty claim negotiator. That too must be assessed against the deed of mandate.34

Mandate

[47] The mandate has three terms in point, the first of which sets the standard that

the treaty claim negotiators must satisfy in order to be nominated; a standard which

Mrs Karaka presumably did satisfy when she was appointed:

Negotiators will be appointed by the Trust taking into account the following factors: (a) their affiliations to Ngai Tai Ki Tamaki;

(b) their understanding of the historical Treaty of Waitangi claims of

Ngai Tai Ki Tamaki;

(c) their understanding of Ngai Tai Ki Tamaki ti kanga and the ability to converse in te reo;

(d) their age, experience and ability in dealing with Crown officials and other iwi groups.

[48] The second term confers on trustees the ability, by resolution, to replace or remove negotiators, as well as to appoint them:35

Negotiators will be replaced, removed or appointed by resolution of the Trust. The trustees who are also negotiators will not participate in decisions relating to their removal, replacement or appointment as a negotiator.

[49] It is the third term, however, that is presently decisive. It governs the process to be followed when a treaty negotiator is removed and that is disputed:36

The Trust has developed a dispute resolution process if a dispute should arise in relation to the replacement, removal or appointment of negotiator(s). The process will be followed by the trustees:

(a) the trustees shall firstly attempt to resolve the matter 'kanohi ki te kanohi' and in accordance with the ti kanga of NTKT;

(b) if the approach in (a) above does not resolve the dispute the trustees shall suggest the appointment of a mediator to try and resolve the dispute;

(c) if the approach in (b) is not successful, the trustees shall refer the matter to the NTKT monthly hui-a-iwi which will determine the dispute. The ruling, by resolution at the NTKT hui-a-iwi will be final and binding on the trustees.

[50] Whether Mrs Karaka was validly removed as a nominated treaty claim negotiator turns on whether this prescribed dispute process was adhered to.

35 Clause 5.9.

Sequence of events

[51] On Monday 8 March 2010, as I have recounted, an urgent Board meeting was called for the ensuing Wednesday, 10 March. On 10 March, in the morning, and before the meeting, Mr Karaka objected to the want of three clear days' notice and of any stated reason for the meeting. The trustees were already to meet, as he said, the day following.

[52] As a result Mrs Karaka and her brother and daughter elected not to attend the emergency meeting and at the meeting, and in their absence, the seven trustees present, one by telephone, resolved that they had a quorum enabling them to consider the matter of special business for which the meeting was called, 'the action of a fellow trustee that challenged the majority'. That trustee was Mrs Karaka.

[53] The minutes state that on 7 March 2010 Mrs Karaka had tabled at a hui-a-iwi a request for a judicial conference before Heath J in the then subsisting case, which had been running since 2004, to challenge the chairman of the trust and the interim manager. The chairman, the minutes said, no longer had confidence in Mrs Karaka's ability to work within the terms of the trust or according to the policies of trustees.

[54] On a motion expressing no confidence in Mrs Karaka, the majority passed a resolution resolving to remove her as a trustee and then to seek legal advice as to the effect of having done so. They resolved also that there should be a new negotiating team. They named four persons. The effect was to exclude Mrs Karaka, whose named was not to be found amongst the four.

[55] On 11 March 2010 the Chairman and the co-secretary of the trust wrote to Mrs Karaka, telling her that she had been removed as a trustee and as a nominated treaty claim negotiator.

[56] On 2 May 2010, at the hui-a-iwi at which three of the four negotiators named in the 10 March 2010 resolution introduced themselves, Mrs Karaka rose to say that she still regarded herself as a validly appointed trustee and nominated treaty claim

negotiator. There was then a wide ranging discussion about that issue and others touching the negotiation.

[57] One person present said that she had not been aware that Mrs Karaka had been removed as a trustee and negotiator and that this should have happened at a hui- a-iwi. A trustee responded that Mrs Karaka had not been appointed at a hui-a-iwi, but by the trustees. The exchange continued with acrimony and without result. No resolution was passed.

Conclusion

[58] Here too there has to be a serious question to be tried whether Mrs Karaka was ever validly removed as a nominated treaty claim negotiator. The trustees' resolution was only the start of the removal process. The ultimate decision lay with the hui-a-iwi and, on the face of the record I have seen, it has never ratified the trustees' resolution.

Conclusion

[59] I am satisfied that there are not merely two serious questions to be tried, but that the balance of convenience and the overall justice of the case does favour the grant to Mrs Karaka and Ms Pace of interim injunctive relief that is mandatory in character.

[60] The principal purpose of the trust, certainly presently, is to negotiate the treaty claim to a conclusion. It is only in that way that the trust will ever have any assets to administer for the benefit of the iwi. That is the principal purpose presently for which trustees are appointed. That is why they are clothed with the powers of a trustee and the attendant responsibility. The intent of the trust deed is that they should all assume both equally.

[61] The treaty negotiation is, as the July meetings demonstrate, now at a critical point and it is imperative that all trustees play their full natural part as the deed of mandate envisages and, such has been the history of this trust, that but for the

remaining trustees' undertaking, Mrs Karaka and Ms Pace would be entitled, I

consider, to the security of an interim mandatory order.

[62] The undertaking the trustees have given to comply strictly with the terms of the two deeds, however, not merely confirms that the overall justice of the case does warrant the making of an interim order. The undertaking also removes the necessity for such an order because it has the same effect. Any significant breach of the undertaking, like any significant breach of an interim order, can be answerable in contempt.

[63] Hopefully also, the undertaking is to be understood more positively as a sign that the remaining trustees are now prepared to work cooperatively with Ms Karaka and Ms Pace. Hopefully also Ms Karaka and Ms Pace understand that; and that they too must play their own positive part if the decisions now to be taken, that are so critical to the people of Ngai Tai Ki Tamaki, are taken as they need to be.

[64] In the result, relying on the remaining trustees' undertaking, I decline Mrs Karaka's and Ms Pace's application for interim injunction relief. They may now, furthermore, not need to press their application for final relief. But it must still now be managed as if it were to proceed and is to be set down in an Associate Judge's List for a case conference. As to this present application, given the outcome, there will be

_{no order for costs.}

P.J. Keane J