55 Tākitimu MB 142
IN THE MĀORI LAND COURT OF NEW ZEALAND
TᾹKITIMU DISTRICT
A20160005642
UNDER
Sections 37, 67, 236, 237, 239 and 240 Te Ture
Whenua Māori Act 1993
IN THE MATTER OF
Ngatarawa and Ohiti Waitio Land Trusts
BETWEEN
BOY KEMP, KATHLEEN KIREKA, OLIVIA
THOMPSON, TIMOTI GEMMELL
Applicants
AND
SANDRA MATENGA
Respondent
Hearing:
7 December 2016
Appearances:
C Bennett for the Trustees
S Matenga (no appearance)
Judgment:
7 December 2016
INTERIM ORAL JUDGMENT OF JUDGE L R HARVEY
Introduction
[1]
The trustees of Ngatarawa and Ohiti Waitio Trusts seek directions of the Court
regarding, it is said, “overpayments” of trust funds for education grant and scholarship
purposes. The trustees say that on at least one occasion a payment was “inadvertently” made
to one recipient twice while another intended recipient did not receive a grant at all.
[2]
More importantly, the trustees also allege that two applicants for grants and
scholarships, connected to one of the trustees, wilfully or negligently, made false
applications when they knew or ought to have known that they were not entitled to do so. In
addition, I infer, there appears to be a suggestion that one of the trustees, Sandra Matenga,
may have facilitated this set of outcomes knowing that the applicants did not qualify.
[3]
During the hearing held earlier today, Ms Matenga’s resignation was dealt with per s
239 of Te Ture Whenua Māori Act 1993.
55 Tākitimu MB 143
Applicant’s submissions
[4]
At paragraph 11 of counsel’s memorandum dated 30 September 2016, Ms Bennett
identifies five individuals who were to receive a grant of $833.33. Counsel goes on to
record that, as foreshadowed, one of the recipients, Rana McClutchie, due to error,
inadvertent or otherwise, received two payments while another intended recipient did not
receive anything.
[5]
What then followed was a request by the intended recipient for a review which
uncovered, according to counsel, the double payment.
The trust then contacted Rana
McClutchie requesting a refund but was advised that the money had been paid to the
applicant’s tertiary provider. Subsequently, the trust secretary contacted the Kohanga reo
listed on the trust’s application form and at that point was advised that the grant had nothing
to do with the Kohanga reo. Rana McClutchie it is said is a daughter of Sandra Matenga.
The short point is that, following an exchange of emails, it emerged that Rana McClutchie
was not in fact enrolled as a student and consequently it was argued that the application was
improperly made.
[6]
More importantly, at a trust meeting held on 27 May 2016, it was contended for the
trust that Sandra Matenga represented to the trustees that the Rana McClutchie was enrolled
in her third year of tertiary study. Counsel confirms that the trustees, on the basis of this
assurance from Ms Matenga, agreed to then issue the grant.
[7]
Ms Bennett then confirmed that, in light of these events, they undertook a further
review of grant applications. It then emerged that a Melanie Matenga had made application
for a grant and submitted an application with supporting documents that included a
certificate of enrolment from a supposed tertiary provider. According to counsel, the person
who purportedly signed the certificate was a Sally Houliston from the Hawkes Bay District
Health Board.
[8]
Counsel submitted that a preliminary response from Ms Houliston confirmed that
the signature on the document was not hers and in any event the office designation shown
for her was incorrect. Ms Houliston advised counsel that she would refer the matter to
senior management at the HBDHB.
On 26 August 2016 David Warrington from the
HBDHB confirmed that Melanie Matenga was not enrolled in a tertiary course as claimed on
the application form.
55 Tākitimu MB 144
[9]
Counsel further confirmed that the trustees had considered taking the matter to the
Police or invoking other civil remedies.
Even so, the trustees were advised to seek
directions from this Court as to pathways forward to bring a resolution to this current
situation. Ms Bennett confirmed from the bar that the amount of money involved was
several thousand dollars.
Respondent’s submissions
[10]
On 1 September 2016 the trustees received an email from Sandra Matenga tendering
her resignation effective immediately from the Ngatarawa and Ohiti Waitio Trusts. In her
email Sandra Matenga also claims that the trustees themselves have failed in their duty to
properly scrutinise requests for grants and criticised the trust’s accountant for failing to
properly review the applications. Sandra Matenga also alleged that at least three other
recipients were not eligible but still received grants. She claims that the error in paying
Rana McClutchie twice was the fault of the trust’s accountant for which she said she would
not be held accountable.
[11]
Then earlier today an email was sent by Sandra Matenga to the Registry.
In
summary she says she could not attend Court due to work commitments and that in any
event she had tendered her resignation four months ago and had not been to any meetings
since or involved in any of the administrative responsibilities of the trust due to her
resignation.
[12]
Sandra Matenga reiterated that she has no faith in the other four trustees to attend to
their duties. This was exacerbated she contended by the fact that the trust employs an
accountant at significant cost who participates in decisions even though he is not a trustee.
[13]
In addition, she argued that the grants for 2016 were the sole responsibility of the
accountant who changed the application forms outside of a trust meeting and dispersed the
forms to the applicants and received them at his home. Because she thought the accountant
was unwell she took the applications with her to review them. Sandra Matenga claims that
she then discovered:
(a)
an applicant, Alex Starnes, the grandson of a trustee, Kathleen Kireka, omitted to
complete large sections of his application including a provider;
55 Tākitimu MB 145
(b)
Zealander Keil, another applicant, connected to a trustee, Olivia Thompson, did not
meet the criteria;
(c)
the trustees were made aware of this and as a result she received abusive phone calls
in response, following which she returned the applications for the trustees to deal
with;
(d)
contrary to Ms Bennett’s assertions, Sandra Matenga agreed to pay $15 per week
regarding Rana McClutchie’s grant as a measure of goodwill;
[14]
She also confirmed that a further trustee meeting did not resolve the issue of missing
documentation from applications. In any case Sandra Matenga asserts that the grants were
paid out by the accountant and Kathy Kireka who loaded the wrong bank account details for
Alex Starnes and Rana McClutchie.
[15]
Further, Sandra Matenga stated that she has not benefited from the trust but has
evidence of mismanagement especially regarding the grant which is why she resigned.
[16]
Sandra Matenga argued that the trusts also run at significant losses because of
administrative costs. She then made several other claims against her former colleagues
regarding business plans, unpaid dividends and related complaints about the administrative
capacity or otherwise of the trust.
Discussion
[17]
These allegations are serious. If they are correct they are very concerning. They
may lead to serious consequences for the individuals directly concerned.
Those
consequences may involve the enforcement authorities should the circumstances warrant
that outcome. The trust’s own processes may also come under scrutiny. It will therefore be
necessary to review the policies and processes, given the counter allegations levelled at the
trustees by Sandra Matenga.
[18]
Even so, before any conclusive determinations can be made it will be essential for
the necessary evidence to support the allegations to be made available and tested. Equally
importantly, the affected parties, including Sandra Matenga, must be given the opportunity
to refute these claims and provide their own submissions and evidence.
55 Tākitimu MB 146
[19]
Accordingly, Sandra Matenga should be provided with a copy of the following:
(a)
the application;
(b)
counsel’s memorandum of 30 September 2016;
(c)
the transcript of the hearing held earlier today; and
(d)
this interim oral judgment.
[20]
To avoid doubt, these documents should be formally served on Sandra Matenga.
Copies should also be served on Rana McClutchie and Melanie Matenga.
[21]
I strongly recommend that those affected by the proceedings take legal advice. It
should also be noted that the decisions of the Court, like any other Court, are published on
the relevant Ministry of Justice website and will therefore be in the public domain. If Sandra
Matenga and those affected by the application and the claims of overpayment and improper
applications for grants and scholarships wish to make submissions in reply then they should
be given every opportunity to do so either in writing, or preferably, in open Court.
Decision
[22]
The trustees are directed to file:
(a)
details of the trust policies on education grants including copies of current and
previous application forms.
(b)
excerpts from relevant trust minutes including trustee resolutions where education
grants and scholarships have been dealt with over the last 12 months and earlier if
this is available.
[23]
The Registrar will arrange for service of those documents on Sandra Matenga, Rana
McClutchie and Melanie Matenga.
[24]
The Registrar will also arrange for service of the following documents on Sandra
Matenga, Rana McClutchie and Melanie Matenga:
(a)
the application;
(b)
counsel’s memorandum of 30 September 2016;
(c)
the transcript of the hearing held earlier today; and
55 Tākitimu MB 147
(d)
this interim oral judgment.
[25]
The application is adjourned to the February 2017 sitting of the Court at Hastings for
further proceedings as a special fixture on either 7 or 9 February next.
[26]
Leave is reserved for any party to apply for further directions at any time.
[27]
Costs are reserved.
Pronounced at 4.45pm in Hastings on Wednesday the 7th of December 2016
L R Harvey
JUDGE