In Arklow vs. MacLean and Others [1999] UKPC 51, the Privy Council London dismissed an appeal from the Court of Appeal of New Zealand which found merchant bank owed no fiduciary duty to Arklow Investments. The Court changed various facts that had been confirmed at the High Court trial.
The Facts
Arklow Investments took business plans to Wellington Merchant bank FAR Financial 15 June 1992 seeking to borrow the $4.25m for Arklow to purchase Matakana Island.
The Arklow business plan was;
Arklow had negotiated for $20m to purchase Matakana Island's 10,000 acres of freehold land, pine forests, sawmill and transport system
Arklow had an agreement with Kanematsu Japan for them to purchase the 17-34 year pine forest cutting rights at a price between $13-15.75m
That Arklow needed around $5m to complete the deal
That the loan would be paid back from the sale of the 1-16 year forest and or other surplus assets
That the security for the loan was the 10,000 acres of land, the 1-16 year forest, the sawmill and the transport system
That Arklow then intended developing the 10,000 acres of land into a minimum of 16,000 houses producing a profit of $3.43b
Instead of offering the loan funds Arklow was seeking, FAR Financial asked Arklow for $5000 to look for the money. Documents showed Far Financial were insolvent and on the point of collapse.
When Arklow declined within 30 days FAR Financial began negotiations to purchase Matakana Island for themselves offering the 17-35 year forest to ITT Rayonier for $15.6m, $150k less than Arklow's deal with Kanematsu.
History of this Litigation
In March 1993 Arklow began litigation against Far Financial.
In April 1994 Far Financial got the Wellington High Court permission to sell the 10,000 acres of land to Te Kotukutuku (TKC). TKC supported by the Ngai Te Rangi executive claimed the land was sacred, must never be developed and must be in the hands of Maori. The affidavits from the various leaders of Matakana Island Trust, Te Kotukutuku, Tauranga Moana Trust Board and Ngai Terangi Iwi or Iwi chartered accountant Graeme Ingham never mentioned in any of their affidavits or pleadings to the court that they were shareholders in Te Kotukutuku. Iwi lawyer David Baragwanath QC knowingly gave the High Court false submissions. (Found in October 94 after discovery of the TKC/ Iwi documents)
June 1994 The Court of Appeal overturned the validation but allowed the parties to keep their monies and asset positions until the case was heard against Far Financial. Arklow now had 17 defendants. FAR, TKC and Ernslaw One as a result of their false submissions to the High Court had now illegally gained cash to spend on fighting Arklow.( FAR $2.7m, TKC $4.4m and Ernslaw One $3.8m )
On 5 May 1997 one month after the 4 week trial Justice Paul Temm found in Arklow's favor in it's claim against FAR Financial.
On 25 May Justice Paul Temm died.
Arklow then faced and won a retrial application before Justice Fisher.
Both decisions were then appealed to the New Zealand Court of Appeal.
Ngai Terangi and TKC intervention on Appeal
In June 1998, 4 of the 5 judges overturned the findings of Justice Temm. In the submissions TKC had asked the Appeal Court to ignore any possible wrongs FAR Financial may have committed because the sacred land was now in the hands of the Maori people of Tauranga. The affidavits from the various leaders of Iwi or the Iwi's chartered accountant Mr Ingham never mentioned in any of their affidavits or pleadings to the court that they were shareholders in Te Kotukutuku.
Now TKC were rich Matakana Island Waitangi claimant, Sonny Tawhiao suspected the tribal leadership were trying to steal the Matakana Island land for themselves. He called Wingate seeking information and was provided with documents that exposed blatant corruption. Mr Tawhiao immediately began to lobby his people. In July 1999 Mr Tawhiao's burnt body was found in the back seat of his car in the Matakana forest. The police report written by a TKC insider suggested his death was suicide. The police report written by Detective Perry (accountant Mr Ingham's son in law), said Sonny Tawhiao drove into the Matakana forest, got into his back seat of his car and set himself on fire with petrol. ( Ingham is one of TKC's largest shareholder at 12.5%) .
October 1999 Arklow appealed the Court of Appeal judgment to the Privy Council.
In December 1999 the Privy Council judgment written by NZ judge Justice John Henry, Arklow lost. In the submissions TKC had asked the Privy Council to ignore any possible wrongs FAR Financial may have committed because the sacred land was now in the hands of the Maori people of Tauranga. The affidavits from the various leaders of Iwi and Iwi chartered accountant Ingham never mentioned in any of their affidavits or pleadings to the court that they were shareholders in Te Kotukutuku.
In 2002 Arklow Investments appeared before the Justice Electoral committee who were considering the Supreme Court Bill and it's intention to remove appeals to the Privy Council. Committee member Russell Fairbrother MP (LLB) offered Arklow a 'Select Inquiry', but only if the terms of reference excluded any allegations of wrong against any judge or lawyer. (Wingate declined even though he had a chance of getting his $5.5m litigation costs back.)
In July 2003 Te Kotukutuku announced a large canal housing development on Matakana Island.
In July 2007 Te Kotukutuku announced it had completed sale of all of the Matakana Land to property developers. (Total price suggested $75m )
Current Status
The Ngai Terangi Iwi promised the High Court and Government it would remove the Waitangi claim if the Court handed them the land. The Court handed them the land yet the Waitangi claims remain in place. The leaders of the Ngai Te Rangi and the Matakana Island Trust have clearly breached their fiduciary duties. They work as leaders of the tribe seeking benefit for the people but what they obtained namely the Matakana land, instead of giving to the tribe they gave it to themselves. The report on the death of Sonny Tawhiao needs to be reopened.
Te Kotukutuku claimed to the court they had a bid to purchase Matakana; funded by Kanematsu. I had told Don Shaw (in a recorded meeting at the Tauranga Economic Development office) I was doing business with Kanematsu who I explained was buying the older timber. Don Shaw was telling local Maori I was the front man for a Japanese company. After that meeting Don Shaw and Iwi accountant Mr Ingham (and forest consultant Paul Robinson) went to Kanematsu (December 7 1992) and said if Kanematsu did the deal with Wingate / Arklow the local Maori would cause trouble. But they said if Kanematsu did a deal with the local Iwi company Te Kotukutuku, there would be no Maori trouble. Kanematsu could clearly see the threat. So they offered them a deal but only if they had consent from Wingate to do a deal with them.(again in 11 March 93 KG to TKC) The information Te Kotukutuku had on forest values were documents they illegally obtained from Craig and Company who obtained them in confidence from Arklow's forest consultant John Cawston. In July 1992 Craig and Company told Arklow it wanted to do a float for the younger forest. That's why they got the values showing the deal Arklow had with Kanematsu. Within 1 month of getting the information Craig and Co (working with forest consultant Paul Robinson) placed their own bid to purchase Matakana. By 11 December 1992 Paul Robinson's documents show he was using the Arklow information.
Go to this link to see the documents relating to Craig and Company - http://matakanaleadership.blogspot.com/
