If there was any justice in New Zealand, Chris Wingate says he would be the owner of Matakana Island today.
The former Tauranga businessman first tried to buy the island in the early 1990s, sparking a court battle that exposes what he says are serious deficiencies in New Zealand’s legal and political system.
Chris Wingate has a past of troubled legal dealings for the ownership of Matakana Island.
The lengthy legal struggle over the ownership of Matakana Island is about to re-emerge into public awareness with the island again coming onto the market and Chris is seeking government intervention to stop the sale and overturn a Privy Council decision that saw it going to overseas owners in the first place.
New Zealand judges have questioned the validity of the Privy Council decision, says Chris. The Privy Council gave precedence to the Maori claim and overlooked an earlier breach of trust that remained unaddressed.
“I was so horrified at the negligence and ineptitude of both the government and judiciary, that I have been involved in getting a documentary filmed for the purpose of exposing the dangers of final decisions that come out of government,” says Chris.
The former Tauranga businessman is now based in Western Australia, but has recently returned to Tauranga.
He’s been visiting iwi representatives, and Wellington.
With Matakana Island again on the market, Chris is approaching Attorney General Chris Finlayson with the suggestion the government fix things by securing the land for the Matakana Island Maori.
They lost possession in the first place because of political leanings on the court decisions, says Chris.
Chris first attempted to buy the Matakana Island forestry in the early 1990s, but the bank he approached for bridging finance stole his idea and bought the island.
He won the court case, but lost on an appeal judgement that saw the forestry estate handed over to a third party – Te Kotukutuku Corporation Ltd – a corporation whose directors included local iwi leaders.
More court cases followed with Maori interests retaining control in judgements that are now acknowledged by New Zealand courts as being unsafe, says Chris.
“The mistake they made in the 1994 decision was that they handed ownership of Matakana Island to a privately owned commercial vehicle Te Kotukutuku, which oddly enough its shareholders were the leaders of the local iwi who have made substantial personal profits.
“The courts contracted a judgement which was false and factually inaccurate, but they did that in order to ensure the bank which robbed me won, because if the bank lost the Maori would have lost ownership of the land.”
Chris’s company, Arklow Investments, first approached Wellington merchant bank FAR Financial for assistance in buying the Matakana Island forestry in 1992.
The bank took the idea and bought the island itself, leading Chris to take the bank to the Auckland High Court in 1993.
Te Kotukutuku Corporation (TKC), with local iwi leaders as shareholders, joined the action claiming Matakana belonged to local iwi as it was sacred, and subject to a Treaty of Waitangi claim.
In addition, there was a blockade on the island, someone set fire to the forest, and FAR’s buyers ITT Rayonier and Earnslaw One were threatened.
FAR Financial avoided further legal issue by selling the Matakana land to Te Kotukutuku.
In March 1994, FAR Financial and TKC applied to the Wellington High Court to lift Arklow’s caveats to make way for new Maori owners.
Chris says the application was supported by false affidavits produced by Maori shareholders of TKC – affidavits that also failed to disclose their shareholdings in TKC.
The judge rejected Chris’s claims and accepted the defendants’ evidence, also mentioning the support by the then Minister of Lands and the Minister of Finance and going on to say the transaction went some distance to resolving the islanders’ Waitangi claims.
At the Court of Appeal, appellants argued that Matakana Island was sacred and now in the hands of iwi, a situation that would be endangered if FAR lost the appeal and Chris won.
The Court of Appeal acted on that advice, making a judgement Chris says ignores and changes key findings of fact.
“In addition they changed the nature of the relationship Arklow had with FAR and quoted law that did not belong to this type of case.”
The Privy Council faced the same submissions concerning the sacred land, and Chris says the Privy Council ignored the more important fiduciary argument.
In December 1999 the Privy Council confirmed the judgement of the New Zealand Court of Appeal and rejected the Arklow case.
Within a few years TKC announced a major canal style real estate development on the ‘sacred’ land.
It fell through and Te Kotukutuku sold the entire parcel to American and New Zealand property developers, with the money allegedly going to TKC directors and not to iwi.
Chris says his experience highlights a lack of accountability in the judiciary and politicians in New Zealand as their mistakes are not corrected.
Directors of the Wellington merchant bank that used his original idea, FAR Financial, then went on to form the Lombard Group, says Chris.
The Lombard Group collapsed in 2008, losing the savings of more than 4000 New Zealand investors.
“Recently the Prime Minster has said that New Zealanders need to save money,” says Chris.
“What he forgets is that they did save – $8.5 billion and then lost that money as a result of a lack of regulatory control.
“I was so horrified at the negligence and ineptitude of both the government and the judiciary that I have been involved in making a documentary for the purposes of exposing the dangers of fiduciary decisions that come out of government.”
Our judges and politicians make decisions with impunity. Although there has been a growing movement to control the quality of the executive decision making, to date nothing has been put in place to guarantee a correction when they are wrong.
“Senior members employed to manage our country are our most important fiduciaries, yet they are the only fiduciaries immune from prosecution.”
A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.
A fiduciary duty is the highest standard of care at either equity or law. A fiduciary is expected to be extremely loyal to the person to whom he owes the duty; he must not put his personal interests before the duty, and must not profit from his position as a fiduciary, unless the principal consents.
A fiduciary duty requires a stricter standard of behaviour than the comparable duty of care at common law. The fiduciary has a duty not to be in a situation where personal interests and fiduciary duty conflict, a duty not to be in a situation where his fiduciary duty conflicts with another fiduciary duty, and a duty not to profit from his fiduciary position without express knowledge and consent. A fiduciary cannot have a conflict of interest.
“If I have learned anything out of Matakana Island it is that the most important people to hold accountable are the ones who make the final decision,” says Chris.
“Judges and politicians must be able to be held accountable for their actions.
“The lack of judicial and government accountability has led to New Zealand’s steady decay over the last 25 years during which the country has slipped steadily down the OECD rankings and is now borrowing $300-400 million every week to pay the bills.
“It is behind the fact that 232,000 New Zealanders lost $8500 million caused by a systemic failure of fiduciaries in the collapse of investment banks and building societies in 2008.”