This series exposing corruption in the local King Country leadership has shown the way that various vested interests work to misrepresent reality. In this post I show how deception has gotten a whole bunch of otherwise ‘good’ people into serious hot water. I explain how I use lawyers, detail the pros & cons of a case we’ve commenced against the Taumarunui Museum Trust, and give commentary on how deception from leaders eventually comes back to bite them when somebody stands up for the underdog and the truth outs.
My book OFF THE RAILS shares the details leading up to local King Country historian, Ron Cooke’s eviction from The Memory Bank. Essentially after more than three decades of infighting and what, in the book, I called “a cesspit of perpetual dysfunction and self-interest” the trustees sold-up, quit the building, the historian and his collections booted out and then they tried to shuffle the proceeds out to the trustee’s pet projects . . . TRACs, the Repertory Society, the local council . . . anything but do the honourable thing, actually!
It’s a long messy and personal story with huge ramifications now, because of my involvement, for last week I gave instructions to our lawyers to proceed with litigation under s68 of the Trusts Act, which will see TMT, Ruapehu District Council and each of the TMT trustees in the Hamilton High Court trying to defend themselves against all hope and reason in a case I believe will bring great shame to the corrupt leaders of the King Country.
Before I get into the nitty gritty of this case, and discussing the issues to be tried, I wish to share my opinions of lawyers, how to use them and how I handle these challenges. Don’t laugh or prejudge me please, for some of the funniest times I have in my role as PI/Blogger has been with and around lawyers! I just love the way they think and act. For a straight-shooting guy they’re just hilarious, and yes I know they think the same about me! You can hear them starting to lighten up and laugh even as they say, “Hello!” to you on the phone sometimes. And I just know full well that they roll their eyes around, smile and shake their heads the moment they’re off the phone!
“Who’s he taking on now?” they all think whenever they get the nod that I’m hassling them again! “The Queen this time?”
Someone once talked with me about an honest lawyer and I prompted them to make up their mind. Another quip is that the phrase “crooked lawyer” has been called tautology. “Like politicians, they are just professional liars . . . ” You get the idea.
I put it like this . . . you gotta love lawyers, (I mean how often can you get a bill before they even start work, let alone deliver something?) but the trouble with [most] lawyers is that they think like lawyers. Their unique training and the world that they work in causes them to be able to stand up with a straight face and do what they do; say what they say and they actually mean it, and in some cases believe it, or think that what they are saying (or usually just ‘they’) is important!
So this is what I do . . . I do all the donkey work myself. I interview the client, write it all up – yes even the court documents – and then take them all to a junior lawyer who will help me suss things out where I’ve missed a few things or got something wrong. Then I’ll take it to another (usually big-shot) lawyer with the appropriate skills for a final check and get their final advice. Then after that (and sometimes a circuit back and forth if it is a longer running case), I will make my own decision. And this last thing is the key.
You can never relinquish responsibility for your own life and decisions to a third party at the end of the day. Professionals will not be beside you in jail. They do not live with the consequences of their advice – you do. Only you know what is right for you and your situation (and in a Christian faith context what the Lord requires of you). St. Pete is a lawyer but he’s more interested in THAT law. This is the thing about lawyers then – they work for you, not the other way round. They call it “taking instructions” from you in the industry. Most don’t understand this properly and wrongly put these goons who charge a million times more than us plebs onto a pedestal.
Then we also have to be cognisant of the skills of our legal representation. Lawyers all specialise to some degree – litigation, commercial contract law, criminal, corporate, conveyancing, trust law – they’re all different areas of specialisation. You have to know what you or your client needs then work with the type of lawyer you need. Most people only have one lawyer and this can be a big mistake if that lawyer doesn’t have the smarts to put you in another better direction.
I know that the TMT has sought legal advice – h*ll’s teeth I TOLD them to get it, but their lawyer is not a litigation lawyer. I know him. He’s a great guy but this was a huge mistake on their part – on top of that they only told him their half of the story – even bigger mistake!
I had a civil commercial case once where the Legal Aid appointed lawyer was a criminal specialist. He was used to getting drink driving cases thrown out of court and dealing with matrimonial ‘stuff’ – unfaithful spouses and fights with businessmen hiding assets from jilted wives sort of thing. Not really my scene, but he was the best bulldog I’d ever seen in court and ripped into the poor witnesses to pieces at a rate of knots. It was hilarious to watch these liars get caught out as he nailed their BS in the courtroom. “I’ll get those pr*cks!” he would say to me as he came out the courtroom for a break. “I know they’re all lying. I’ll get them!”
Eventually the truth did out and the bad boys settled, but this was a bit of ‘life’ in what is usually a pretty bland commercial law setting. This mismatch though will be evident with the subject of this post as I continue.
Taumarunui Museum Trust Issues
The law relating to trusts gives wide power to trustees of any trust to exercise their right to make decisions. While in the last decade or two the New Zealand legislators have tightened up the rules (in particular surrounding Charitable Trusts) courts are very conservative in their approach to interfering in the affairs of trusts and this also applies to the conduct of trusts. Their historical approach is that trustees are entrusted to make decisions on behalf of the beneficiaries and if you have a beef with what they are doing or might do, it’s best to take it up with them – not the courts.
There is though provision in the law for intervention in cases where a breach of trust has occurred (or is expected to occur). This is Section 68 of the act which says:
68 Applications to Court to review acts and decisions of trustee
Any person who is beneficially interested in any trust property, and who is aggrieved by any act or omission or decision of a trustee in the exercise of any power conferred by this Act, or who has reasonable grounds to anticipate any such act or omission or decision of a trustee by which he will be aggrieved, may apply to the Court to review the act or omission or decision or to give directions in respect of the anticipated act or omission or decision; and the Court may require the trustee to appear before it, and to substantiate and uphold the grounds of the act or omission or decision that is being reviewed, and may make such order in the premises as the circumstances of the case may require:
Provided that no such order shall—
(a) Disturb any distribution of the trust property made without breach of trust before the trustee became aware of the making of the application to the Court:
(b) Affect any right acquired by any person in good faith and for valuable consideration.
(2) Where any such application is made, the Court may,—
(a) If any question of fact is involved, direct how the question shall be determined:
(b) If the Court is being asked to make an order that may prejudicially affect the rights of any person who is not a party to the proceedings, direct that any such person shall be made a party to the proceedings.
s68. Trustees Act 1956 [Bolding mine]
This means that should any person (that is you or me) who has legal standing (a phrase that allows you to take court action, in this case s68 spells it out clearly – “who is beneficially . . . etc”) can sue (technically “make an Application to the court”).
When we sue, we have to present our case, we explain who we are, why we have legal standing and ask the court to order [whatever]. The people we sue (in this case the TMT, their trustees personally and the Ruapehu District Council) have their opportunity to present their case and the judge decides. If people are pragmatic and goodwill exists then it won’t need to go all the way – it can be settled either out of court or in court and common sense will prevail. Of course when egos and money are involved most people dig in and take the risk that they will “win in court” hoping that the judge will see it their way, and blindly trusting that their lawyer is better than the other lawyer.
In a nutshell, the Charitable Trust that is suing TMT (KCET) claims that the funds derived from the sale of The Memory Bank building which we contest, were donated by the people of the King Country for the housing of a substantial collection of photographic archives variously taken, collected, maintained and entrusted to local historian Ron Cooke. We will be claiming in court (indeed showing in court) that there is no doubt about this, therefore any other purpose or use assigned to these funds is a fundamental breach of trust. Putting this simply, if you give money to the school for a swimming pool and the school uses it for a gymnasium then you’re ‘out of order’. The school can do what it likes with its own money, but it can only use money given for a specific purpose FOR THAT PURPOSE.
So there is only one issue that is at stake here for consideration at trial – the purpose for which The Memory Bank was funded. Personalities, documents, agendas, worthiness of any particular cause or project, authority of the trustees mean nothing when we’re only talking about the intended purpose. Our claim is simple. It is a simple issue of breach of trust. Let the
fun litigation begin.
The Legal Process
We could have charged off to court in a hurry and bulldoze the whole thing through and I’m sure there would be a whole bunch of people a bit poorer and with eggs on their face. Indeed we could have done this back in February except for three things – i) my business partner, ii) my desires and iii) business smarts
i) Ron Cooke is a nice guy. He is knocking 80 and has an incredible reputation around town. He isn’t the most street-smart of individuals and his style has wound a few people up over the years but all acknowledge that he should be looked after and especially his collections. Ron hates conflict with a passion but over the years this has made him a doormat for others. He has not wanted to rush off to court and so we have both worked extensively to avoid litigation. We have been slow to draw and restrained from pulling the trigger until the last possible moment. Unfortunately for the bad guys, KCET’s creation secured the primary assets (their original intent was to get their hands on them – either to wait until the old man died or to trick him into letting them go) but they ended up with a strong adversary in me and KCET’s claim really put the cat among the pigeons.
ii) I too have done what I can to exercise patience in quite trying conditions. Unfortunately my pedantic insistence in dealing with truth and standing for justice means that I’ve p*ssed off a million people and litigation is inevitable. The people who want to spirit the money away from the ‘old man’ really have yet to learn what they are up against. They currently poersonalise things doing what they can to hurt me personally but that’s all water off a ducks back for a seasoned professional shit-stirrer like me. It’s taken six months of holding off but their ignoring of the Formal Warning we gave TMT on 14 January 2019 (p189 of my book) is now reaping their just reward. The smart ones have kept their heads down and mouths shut!
iii) Business smarts. If there’s one thing I’ve learned in my game is that you always tie the big man’s shoelaces before you tickle him. Another way of putting this concept is that the longer the rope the bigger the fall. When you feed out, feed out, feed out and then the adversary falls – his neck snaps harder. The longer you wait, the more evidence you have – first when liars talk you get more proof of lies but also when you speak the truth and do the honourable thing time after time you have more evidence of your character and nature. In the TMT situation by waiting as we did, we now have more evidence of bad faith – more lies – more cover-ups and more people involved in the conspiracy to defraud. If we had sued at the outset we would have only sued one entity and it may have been a struggle to prove certain things. Now, it’s a slam dunk and with the council getting sucked into the vortex of this corruption, indeed right in the centre of it but flushed out now, we’ve all got good times ahead [hopefully].
The process that KCET has agreed with our lawyers is that I will serve notice on each of the parties involved, giving them time to reflect, seek legal opinion from a professional who has litigation skills and experience. From there our lawyers will contact each party if they haven’t responded and then they will start the court actions. I like this because it allows for those who have been misled to get the facts before the showdown, rather than in the middle of a legal fight, and it shows the court clearly that this was a deliberate calculated long-term intent, and not simply a mistake on their (the bad guys’) part.
Our legal process will involve two applications to the court – the first will be an Application for an Interim Injunction that prevents TMT from distributing the contested funds, or if they have already done that to be able to claw it back. A public notice to that effect is all that is needed for a judge to make the order retrospective. A freeze order is a very serious situation for TMT but it is of their own making. It is clear that our putting the TMT trustees on notice that these funds are contested back in January 2019 and our explaining the basis for our claims simply hasn’t got through to the decision-makers at TMT, for they gave or pledged the bulk of the contested funds to another project, incredibly after receiving that warning!
The second phase of this litigation is the hearing proper, which could be anything up to a year or more away. This is where we will be stating our case, the other guys will have their opportunity to state their case, and if there isn’t settlement, the judge will rule.
If there is a settlement then that would end the matter once and for all. If there is a judgment though, Appeals (from either party) can continue as long as the parties want. Some complex cases can go through Appeals to the Supreme and take years to resolve. In my experience you have to have big budgets, big egos, big issues and lots of legal experience and funds to take it past the High Court. Our case KCET v TMT isn’t really that complex. I think that once the facts get out there and the lawyers start talking it’ll be pretty obvious to all what the real score is. I suspect that TMT will have to back out and probably cough up and wind up. Whatever . . . others will make those decisions.
One of the dangers of taking litigation is that (personalising it for a minute) the other guy has a better lawyer, a stronger case put before the judge, or that you are wrong and he is right. This requires you to think through the other guy’s options, strengths and possible claims – understand at this stage that it is not truth or facts that matter, for people lie every day and especially in court with their hand on the bible. Yes, it’s true!
Without going into a truckload of details, in order to succeed TMT will need to prove that our claim has no legs. They can do this by claiming that we have no legal standing to bring a case; that we have misrepresented something or that the law gives them rights to do what they did without reference to the basis of our claim. They strike out on all of these by my reckoning but let’s look at how they could defend . . .
- KCET wasn’t around when the people supported TMT into getting The Memory Bank building – true. But the intended purpose (housing of Ron Cooke & his collections) still exists;
- The intended purpose was not for Cookie’s ‘stuff’ – this is a factual issue and has to be proven in court. What was the intended purpose? If KCET can show this to the court – TMT will have to cough up. The above document shows just one piece of history out of many more;
- Well Cookie or KCET may have needs but so too does TMT which align with the original purpose. Maybe so but Cookie still has needs. If TMT has something that has needs then this may indeed be a valid claim, except that they only determined what those needs would/could be after KCET established and laid claim. Oh and the “significant collections” are in KCET’s legal ownership. TMT has no photos. KCET has 250,000! Umm.
- TMT trustees have a right to exercise their discretion over the allocation of funds available. Of course but they a) never offered Cookie an option to buy the building before they sold it, let alone even informed him first! b) Refused point blank to help him, not even with a dollar! c) When confronted promptly gave it to the RDC who used his needs and this pledge as grounds for a dodgy application to Lotto!
You get the picture . . . it’s a very tall order for TMT, especially when a judge isn’t going to muck around with half-truths and political BS talk. “Show me the facts! Show me the evidence!” Done.
The time thing has to be taken into consideration from the outset – the time-frames of legal conflict are ALWAYS longer than most estimate. Every legal case takes a life of its own. This is a gamble in some ways for a huge delay can cost, but there is another side – if your claim is for damages (this is where one party is saying that they have incurred costs as a result of the other’s actions [or inactions]) then it can be in your interests TO have delays. If KCET includes a claim for damages and can cover its needs in the interim for example, (both of which is the case) then in the long-term it doesn’t matter when the hearing begins – this year; next year; matters not, for assuming it wins then it will receive compensation from the losing party.
Suing the trustees personally is quite an aggressive move and the court will need to believe that each and every person who made decisions endorsing the trust’s shonky decisions knew about and chose to deny Cookie what was rightfully his. This may sound like mission-impossible but the court is going to make its decision on the “balance of probabilities” which is like a hanging scale – which way does the matter lean – not on the basis of “beyond reasonable doubt” which is the criminal standard of proof.
KCET made our case clear in writing to Weston Kirton as Chairman and Raewyn West as Secretary so those two people knew for sure of our claims before TMT voted to ignore our warning and shuffle the funds to RDC. Peter Till knew in detail because he gave a taped recorded confirmation of this (the transcript is in my book OFF THE RAILS, p194). The five other trustees will be given the real opportunity to retract any support before they are sued, so even if they didn’t “get the goss” from their leaders, they will.
I’ve shared already in this series how RDC (as intended recipient of the contested funds) is in the poo as a result of CEO, Clive Manley’s refusal to acknowledge that the funds are/were contested in his dodgy Application to Lotto. If RDC still refuses to pass up on their intention to receive that pledged $50k unless it is settled between KCET and TMT through the court or directly, then their inclusion as Defendants is perfectly reasonable. They want the money. KCET wants the money. Hi Ho, Hi Ho, so it’s off to court we go!
Lastly I wish to share the strategic importance of dealing with your lawyer in a wise manner. Lawyers can only give you advice. They can’t mind read, so if you go to them and say, for example “I’m being sued. How can I defend myself?” any lawyer will tell you how to defend. He will take your money for that advice and that’s all well and good, but if you have done something wrong and you do not share this with your lawyer (even if it seems like nothing wrong TO YOU) then he cannot read your mind and help you meaningfully.
This is indeed the situation that KCET faces with TMT and the RDC. I know (because Clive Manley has told me personally) that RDC has sought legal advice and gotten it along the lines that, “TMT has the right to pledge or give that contested $50k to RDC AS LONG AS THEIR TRUST DEED PERMITS IT”. I’ve got the same story from other TMT insiders as well.
The point that these fools don’t understand and have not put to their lawyers is that KCET has not undertaken litigation yet; that the basis for this litigation is NOT that the project they wish to support is unworthy, or outside of their charter, but that it is NOT WHAT IT WAS DONATED FOR. When their legal advice knows and understands the OTHER side, which they will get from KCET’s lawyer if they don’t want to talk to me, then there will likely be some nappies needing to be changed, some red faces and some reconciliation may then be possible.
Garbage in – garbage out. Basic computer rules lesson 101. If you don’t present the full story to a lawyer that has the requisite skills, then don’t expect to charge on into court and come away with a smile.
Lastly, I started litigation against fools, crooks crims and crazies when in was 17. A 120 year old dentist gave me three fillings and two of them fell out within a couple of days. The judge called me “Mr Smith” which was kinda cool at that age, and continued, “I’m going to award you your claim BECAUSE YOU HAVE THE EVIDENCE”. I never forgot that lesson.
Oh you can fight crooks crims & crazies as much as you want in public, behind closed boardrooms or whereever but if you want to win against them in court you need to have the evidence. Ron Cooke is a historian who is a hoarder. He has documents, photographs, newspaper stories, contacts and can find the pea under the Prices’ bed in the photograph that Hans Christian Anderson used as the basis for his story (if it existed). I’ve never lost a court case in 43 years of fighting. Do you think that KCET has the evidence to support our claim?
That’s a rhetorical question, BTW. I just can’t wait – not for me but because Cookie deserves it!
Please note, these are only predictions, not wishes.
- Human nature being what it is, I don’t think this corruption will end up well for the King Country. I will try to change that, and indeed I am funding the KCET operations personally in the interim but you can’t ruffle so many feathers in a town like Taumarunui like I have without serious trauma resulting. I don’t take fools messing with me kindly, especially when I’m on a case like I am with Cookie. If I can find the Prime Minister of Samoa’s floosie and name her in public when not even half of Samoa knew about it, a minor matter of petty King Country Corruption will all get out in public one way or t’other.
- The ‘bad guys’ will personalise these matters badly. It’s all they can do for the issues are clear-cut. The things that have already happened around town show me without any doubt that I personally will get labelled, blamed and attacked. Shooting the messenger is the way it is often referred to. Good guys will encourage me and thank me, once they are over the shock but don’t expect crooks to lie down and take it or change their ways. Forget the facts. Play the player and not the ball will rule.
- There will be consequences to KCET and our commercial operation Abundant Past. The RDC will cease all commercial contracts, probably using some dopey pretense so that any income that came off the collections or council supported activities will cease. You cannot take on powerful people without consequences.
- TMT will self-destruct. Weston Kirton has already sneaked Ron’s collections out from TMT’s care while Raewyn West was away. He told me in December that he wanted Audrey Walker to take over the TMT Secretary role. That scrap will result in trouble if what I am told about Raewyn has any credibility. Unity? Nope! I don’t believe that Weston shared the Whitepaper that I gave him in December 2018 relating to “Transition Issues” to his other trustees in a timely manner (if at all). That’s a big “ouch to the others when that matter comes out. I do not believe that their communication has been orderly nor based on fact. Why would seven smart business leaders in the community march on like Lemmings to the slaughter at the High Court unless they have been hookwinked? Are seven people all united against Cookie so viciously just because a blogger helped him out of a pickle? Nah! You can’t have this level of dysfunction and shameless politicking when you “go to war” with an experienced fearless adversary without serious corruption and deception getting in there somewhere.
- The Lotto funding will not eventuate, now nor ever. You cannot attempt to deceive a major New Zealand funding agency like RDC has attempted to do and expect them to just casually slip a million bucks their way, now or probably ever. Just a note here to any who think ill of a blogger who has probably prevented a successful grant from happening – we would have been worse off if RDC had been given the money and had to refund it or face court action when the lies were eventually exposed. Again, it doesn’t have to be Lotto that sues RDC to get back their ill-gotten games. Any King Country resident who knows of that RDC corruption can sue RDC to return those funds and even Lotto too if they tried to coverup for any grant given without due diligence! It’s not going to happen people.
- I cannot predict what will happen (nor when it will happen) by way of common sense intervening in regards to the litigation between TMT, their trustees and the RDC. If the two lawyers talk, common sense should prevail. If it doesn’t and the court thing happens, I think the Injunction will most likely be granted but I am certain that KCET will not lose it’s case based on misappropriation of funds bequeathed to TMT for the housing of Ron’s Collections. It’s so simple. So clear. So provable.
- KCET will continue to do the needful and honourable thing, what Ron and I believe is “best for The Collections”, which ultimately means what is best for the “town”.
- Some people will have egg on their faces. The smart ones will protect themselves and get out of the kitchen. The ones with no shame, or who have psychological issues that prevent them from grasping reality will likely box on with half truths and remain at a distance from yours truly.
How’s that for a decent wrap up of a contentious issue?
I’ll update this post when things develop, as they always do, and as always, thanks so much for swinging by again today. As I keep on showing, corruption is the norm in society. That though doesn’t mean that there isn’t a sun shining and some people who care about others and do the honourable thing!
Make sure you’re in the latter class.
In my next post in this series I show how the media and the local political leaders conspire to feed the public BS and protect their sorry little butts. It’s a sad story but has to be told.
King Country Corruption Series
- King Country Corruption 1. TMT Scandal Deepens
- King Country Corruption 2. A Flawed Lotto Application
- King Country Corruption 3. Report on Flawed RDC Lotto Application
- King Country Corruption 4. Behind The Scenes
- King Country Corruption 5. The Solution
- King Country Corruption 6. The Consequences
- King Country Corruption 7. Suing Taumarunui Museum Trust