Rotorua pair latest attempt to avoid paying debt fails at High Court. Photo / Michael Cunningham
Rotorua pair latest attempt to avoid paying debt fails at High Court. Photo / Michael Cunningham
A Rotorua couple has amassed an almost $332,745 debt and face losing their home after they sub-leased a portion of Māori land and failed to let the other shareholders in on the profits.
Kathleen Mata Bamber and Bruce Anderson’s dispute with the Tahorakuri Trust over the money owed has been in front of multiple courts during the past decade with the Bambers losing consistently.
But Kathleen Bamber told NZME there had been a “miscarriage of justice”.
The latest case in the legal battle was heard in the High Court at Rotorua where the couple argued against an order to take their home, claiming tikanga Māori was not upheld at a previous hearing.
The recently released decision sets out the background to the dispute, which centres on a 38-hectare block of land between Reporoa and Taupō named Tahorakuri A1 Section 33.
While the area is managed by the trust, there are 16 owners and 100 registered shareholders.
The Bambers first entered into a lease on a partition within the block in 1983 where they lived for 10 years before leaving the settlement in 2003 and buying a property in Rotorua.
In 2008, when the trust discovered the rental profit the Bambers made, it took the couple to the Māori Land Court where they were ordered to pay $175,851.
However, the pair appealed to the Māori Appellate Court where they said the money they earned was used to improve the whenua and therefore should offset the debt.
These claims were dismissed and after a string of litigation proceedings, they were eventually ordered to pay the trust the debt.
In June 2016 the Bambers successfully applied to place their private Rotorua residence into a whānau trust known as the Bamber Whānau Trust essentially safeguarding it against any debt collection.
By July 2017 the debt had ballooned to $322,745 after the Bambers were ordered to pay legal fees and costs for the ongoing litigation.
The couple made no effort to pay the money even after enforcement action was taken by the trust, and they were eventually declared bankrupt in 2019.
Following an application to the Māori Land Court in 2020, the court annulled the previous order transferring the Rotorua house held in the Bamber Whānau Trust and guaranteed the property to the collectors for the Tahorakuri Trust.
After multiple unsuccessful attempts to vacate the Bambers from the Rotorua property, the collectors applied to the court for a possession order which was granted by Judge Robert Spear.
The couple exhausted every legal means possible to avoid payment of debt. Photo / Andrew Warner
In their latest appeal, the Bambers claim that at that hearing, the judge failed to permit witnesses to speak to their evidence which the couple believe demonstrated disrespect and non-recognition of Tikanga Māori.
Their lawyer Charl Hirschfeld said: “The principles of tikanga included the right to be heard”.
Tikanga Māori or the customary rules that govern Māori life was recently recognised in the Supreme Court decision of the late Peter Ellis, the Christchurch creche worker whose convictions for child sexual abuse were quashed, restoring his mana.
A fundamental part of tikanga is ensuring balance and making matters correct so as not to pass further problems to the next generation.
At the 2020 hearing, Judge Spears said: “It has been difficult to identify exactly what would be contrary to Tikanga Māori if the court was to make an order for possession...
“Unfortunately, it has been abundantly clear there have been ample opportunities for Mr and Mrs Bamber to sit down with their whānau and discuss this debt.”
Lawyer for the trust, Rueben Hindriksen, said: “The Bambers had their day in court, more than once, and it is now time to draw those proceedings to a close”.
Hindriksen said the Bambers had dragged proceedings out with the case being before the Māori Land Court for eight years and it was now more than three years since they were declared bankrupt.
The couple had produced no evidence on any steps taken post-bankruptcy and every proceeding they had attempted to bring before the courts had failed, he said.
In a High Court judgment released this week, Justice Layne Harvey said if the Bambers had sought a negotiation well before the bankruptcy was concluded, they may have found themselves in a less precarious position.
He was not persuaded that any additional evidence on the tīkanga process would have made a difference to the outcome.
“Tikanga was especially relevant when the Bambers had the chance to discuss their situation with Tahorakuri Trust both during and after the Maori Land Court proceedings,” Justice Harvey said.
“For their reasons, they decided instead to continue with litigation. That was unsuccessful and the consequences they now face as a result of that failure are dire.
“Presumably with the consent of the collectors, the trust still can reach a settlement with the Bambers via the debt collectors.
“They remain, after all, whanaunga of the rest of the owners, and their uri will also retain rights to the whenua into the future,” Justice Harvey said.
The appeal against the District Court’s decision to possess the Bambers house based on tīkanga was dismissed.
Kathleen Bamber told NZME there had been a miscarriage of justice and referred further questions to her lawyer who did not respond. A lawyer for the trust also did not respond.
