IN THE MĀORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A A

Transcription

1 105 Waiariki MB 183 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A A UNDER IN THE MATTER OF Sections 289 and 18(1)(a), Te Ture Whenua Maori Act Te Kaha No. 2C Block KATHLEEN MAY MORRISON Applicant Hearing: Appearances: 24 January 2012, 48 Waiāriki MB (Te Kaha Site visit) 7 March 2012, 51 Waiāriki MB May 2012, 54 Waiāriki MB June 2012, 57 Waiāriki MB September 2012, 62 Waiāriki MB 41 7 November 2012, 66 Waiāriki MB January 2012, 91 Waiāriki MB April 2014, 94 Waiāriki MB June 2014, 99 Waiāriki MB (Heard at Te Kaha) J Kahukiwa, counsel for the applicant D Takitimu, counsel for the Teddy whanau Judgment: 09 October 2014 RESERVED JUDGMENT OF DEPUTY CHIEF JUDGE C L FOX Solicitors: Corban Revell Lawyers, DX DP92558, Auckland Attention: John Kahukiwa & Dayle Takitimu Jkahukiwa@corbanrevell.co.nz Dtakitimu@corbanrevell.co.nz

2 105 Waiariki MB 184 Introduction [1] Te Kaha No. 2C (also known as Te Kinakina) is a block of Māori freehold land situated on Copenhagen Road near the township of Te Kaha on the Eastern Bay of Plenty. The land was once managed by Tane Tukaki and Mihiwai from whom all the current owners associate with either as their grand-parents or great grand-parents. The land is generally flat to undulating with some steeper gullies area and steep sidling not developed. The block is comprised of hectares and there are 14 owners. Those owners holding a total of 65 shares are: Brian Morrison Dardanelle Morehu Tukaki 0.4 Ereti Patuwai Evelyn O Brien Herbert Leslie Teddy (Life interest) 10 remainder interests 0.4 Kathleen Morrison Leslie Teddy 0.4 Ngā uri o Hiroki McRoberts Whānau Trust Parekitauranga Morehu Tukaki 0.4 Peter Denis Morrison Robert William Morrison Sora Tukaki Tehurihanga Morehu Heihei 0.4 Toihau Ivan McRoberts [2] The block was leased by Te Puni Kōkiri under Part II of the Māori Affairs Restructuring Act 1989 to Kathleen Morrison (the applicant before this Court) for a term of 3 years from 1 July 2009 to 30 June The rent was initially set at $5,000 per annum but was later reduced to take into account the Morrison whānau shareholding. The lease has been renewed effective from 1 July 2012 through to 30 June Application for Partition [3] On 13 October 2011, the Court received an application for partition of this block from Kathleen Morrison. She filed the application on behalf of herself and her siblings who hold a combined total of 61 shares. The area sought is hectares, with the balance of 1.62 hectares to be allocated to the balance owners. 1 TN 12233, NZG 120/2664. Te Puni Kōkiri were prepared to release the land from their administration once the owners requested it.

3 105 Waiariki MB 185 [4] The application was filed following a meeting of owners that had been advertised on 4 different occasions in April 2011, twice in the Opotiki News and twice in the Whakatane Beacon. All those present were only those of the applicant s immediate family. The Teddy and Roberts Whānau members were not present at the meeting of owners, however, they or their proxy Mr Craig Teddy, did appear at the Court site visit and hearings to object to the application. 2 [5] A valuation was filed with the partition and that indicates that the old homestead on the property was built in the 1930s and has been recently subjected to some renovations. There is also an implement shed, a cow shed, and a piggery, all in fair/poor condition. The split for the valuation may be summarised as follows: a) 1.62 hectares 4 shares out of 65. It represents 9.8% of the total value and 6.67% of the total area. Improvements: $ 1,000 Land Value: $77,000 CAPITAL VALUE $78,000 b) The remainder would have a value of: Improvements: $ Land Value: $655,000 CAPITAL VALUE: $715,000 [6] Attached to her application and confirmed by correspondence dated 17 February 2012, the applicant claims that the partition is necessary because: 1. (a) A Hapu Partition will allow the Morrison/Tukaki Whānau who collectively own 61 shares out of a total shareholding in the block of 65 shares to develop their partitioned area and facilitate the effective operation and utilization of the land to the best advantage AND (b) Several of the balance Owners of the partition have consistently obstructed, interfered, argued and used aggressive tactics towards the Morrison/Tukaki Whānau Owners wishing to develop their land to be utilized to best advantage for themselves AND (c) The Morrison/Tukaki Whānau wish to partition their collective shareholding to utilize and develop their land collectively with Whānau Investment funding into a Whānau development venture AND 2 48 Waiariki MB 78 (48 WAR 78).

4 105 Waiariki MB 186 (d) The partition is necessary to enable the best use of the land without the obstruction and interference of the balance Owners who may wish to utilise and develop their land in other ways AND (e) The balance are being located where a member of their Whānau has an Occupation Order and has built and lives upon the land AND (f) The application is based on equitable valuation of respective areas and by the granting of a Hapu Partition as sought will ultimately mean that the partitioned area can be developed and progressed without interference towards the Morrison/Tukaki Whānau. 2. The owners have had adequate opportunity to consider the proposed partition. 3. The owners of the land have discussed and considered the proposed partition and there is an overwhelming majority of shareholding of support among them. [7] Generally, the applicant expressed concern for security issues to be taken seriously by the Court. She also stressed the economic benefits that could accrue if there was certainty for a joint investor in the business plans that her and her siblings were contemplating. Court Hearings [8] The first hearing for this case was held on 24 January 2012 when it was adjourned to a site visit. 3 Mr Craig Teddy attended on site and he announced the Teddy and McRoberts Whānau opposition to the application. He did so on the basis that the land was their tipuna land and that they were all charged with its care. In addition there were wāhi tapu on the larger area proposed for partition. He also expressed their continued attachment to the old family homestead. [9] On 7 March 2012, during the next Court hearing, Mr Teddy asked for an adjournment in order to take legal advice. 4 Although that request was agreed to by the applicant s representative, she expressed her frustration at the continuous attempts by certain members of the extended family to thwart the plans for the block. In addition, her brothers and her nephew from Australia gave evidence in support of the application for partition regarding their development plans for the block Waiariki MB 78 (48 WAR 78) Waiariki MB 102 (51 WAR 102).

5 105 Waiariki MB 187 [10] Mr Ratau Pou also gave evidence concerning security issues, then Mr Matetu Herewini spoke regarding the history of the block and essentially supported the evidence regarding security issues. Peter Morrison, Brian Morrison and Peter s son Danny were all questioned by Mr Teddy regarding their knowledge of the area. The point being to demonstrate they had not been raised on the land. [11] Following this hearing, the applicant instructed counsel and her entire case was represented by the filing of an affidavit and submissions of counsel. In her affidavit dated 5 November 2012, the applicant explained that the land had been neglected and she explained how she went about the job of restoring aspects to its former glory. She began this task in 2010 including excavation work, clearing rubbish, maintenance of roadways and drains. In terms of the old homestead she commenced renovations including painting, plastering, plumbing, and electrical installation and insulation work. [12] A telephone conference and two callover hearings held in May, June, and September followed and the application was not heard again until November During those months the parties entered into negotiations. At the hearing both counsel were present and Ms Takitimu advised that the Teddy Whānau were satisfied that their concerns had been addressed to their satisfaction. 6 Thus the Teddy Whānau, the Court was told, no longer opposed the partition and that they welcomed and supported it. 7 [13] The parties were in the process of concluding this agreement with the signing of a memorandum of understanding ( MOU ). That memorandum was to record issues such as respecting wāhi tapu, that the land would be inalienable, that the Teddy and McRoberts Whānau association with the homestead would be acknowledged and that access to customary resources for them would be permitted. [14] There was no cross-examination of the applicant based on her affidavit dated 5 November 2012, but Mr Kahukiwa made submissions and reiterated relevant points therein noting inter-alia that: 1. There is common descent and kinship between all the owners and this would be a hapū partition; 5 54 Waiariki MB 284 (54 WAR 284); 57 Waiariki MB 121 (57 WAR 121); 62 Waiariki MB 41 (62 WAR 41) Waiariki MB 160 (66 WAR 160) Waiariki MB 160 (66 WAR 160).

6 105 Waiariki MB The applicant and her siblings hold 94% of the shares in the block; 3. The nature of the law, including the Preamble, ss 2 and 17; 4. Notice to and support from owners was in favour of the partition; 5. The partition was more than desirable. Rather it was necessary as the applicant and her siblings had a development plan that requires efficiency and expediency in decision making; 6. The partition was necessary due to the novelty and scale of developments being proposed and the need to include third party lenders; 7. The partition will help define rights and enables the applicant and her siblings to do their own thing; 8. The homestead, as a fixture, would not be an issue post the partition; 9. The applicant holds a lease over the land but there are issues as it prevents her from altering the land; 10. The partition was fair and practical, as it was done in accordance with shareholding and the value of the shares in the partitioned areas provided a more lucrative arrangement for the minor owners; 11. There is no credible alternative and no competing development plan; and 12. The issues concerning acrimony and security between the parties will be mitigated. [15] In reply, Ms Takitimu supported and adopted in large measure his submissions noting that the hope was to rebuild the relationships between the parties and that all development should be subject to respect for wāhi tapu. Furthermore, the support of the Teddy and the McRoberts Whānau for the petition was dependent on their association with the old whānau homestead continuing to be acknowledged. I note that Mr Craig Teddy had signed it, but he attempted to withdraw his consent and the consent of all his siblings. 8 [16] I indicated that I would await a signed version of the MOU before a judgment would issue. Mr Kahukiwa filed the MOU on 27 November That MOU was signed by various owners, but unfortunately not all the owners. The matter was set down for Court in January At that hearing this application was adjourned to Chambers so that a full list of signatories to the MOU could be obtained. I indicated once the consents were filed, I 8 94 Waiariki MB 259 (94 WAR 259) Waiariki MB 70 (91 WAR 70).

7 105 Waiariki MB 189 would make an order for partition, having been satisfied of all matters under s 288. It would be a hapū partition subject to s 304 of Te Ture Whenua Māori Act 1993 and subject to survey. I went on to note that if the consents were not filed within 3 months, the matter was to be set down again for hearing. 10 In January and March 2014 attempts were made by the case managers to find out from counsel whether any further signatures had been added to the MOU as not all owners had signed. In March 2014 a memorandum of counsel was filed indicating that further signatures would be filed in April A final memorandum was filed in May [17] At the next hearing in June 2014, the following people had still not signed and Mr Craig Teddy claimed they did not agree to the partition. Dardanelle Morehu Tukaki 0.4 shares Ereti Patuwai shares Remainder: 6 unsigned but 4 signed 0.4 Te Hurihanga Morehu Heihei 0.4 Hiroki Casino McRoberts for the Ngā uri o Hiroki McRoberts Whānau Trust Parekitauranga Tukaki 0.4 Toihau Ivan McRoberts shares [18] In addition Mr Teddy and his siblings who had signed the MOU wanted to withdraw their consent. I have previously found in January 2014 that all matters under s 288 that were required to be addressed had been addressed. I made a conditional order accordingly. I am functus officio in all respects other than in terms of the issue of signatures not received. [19] I consider that despite those who have not signed, and despite Mr Craig Teddy s claim that they do not agree to the partition, that is contrary to the position they adopted in November 2012 when the draft MOU was agreed to. That was also the position when I made the conditional order in January I note those in opposition represent a small minority of owners in terms of share value. They do, represent a more significant number in terms of numbers of owners. I take both these matters into account and consider that the circumstances warrant finding in favour of upholding the partition for the reasons given by Mr Kahukiwa and outlined from his submissions in November Waiariki MB 77 (91 WAR 77).

8 105 Waiariki MB 190 New Application [20] The Court has before it an application made under s 18(1)(a) for the determination of ownership of a dwelling filed by Kathleen Morrison. It seeks the full and exclusive ownership of existing buildings (including the old family homestead, utility shed and milking shed) and a proposed building to be erected on Te Kaha No. 2C upon the grounds that the applicant wishes to insure the buildings as her insurance company is not willing to provide insurance cover for buildings held by tenants in common or held in multiple ownership status. She was also concerned about trees falling onto the house. [21] The application was filed with consents from her siblings, Sora Cowles, Evelyn O Brien, Robert Morrison, Peter Morrison and Brian Morrison. She produced evidence that she has spent approximately $114,000 on renovating the old homestead, which prior to 2007 had fallen into a dilapidated state. As noted above, she undertook a major renovation programme. [22] The application came before the Court for the first time on 29 January On that date an objection was received from Craig Teddy. He wanted the homestead to remain for the benefit of the entire Tukaki family. He also queried why the applicant has spent money on the buildings, when none of the extended whānau had asked her to do so. [23] The last time this case was before the Court was on April Mr Teddy advised that the Teddy Whānau no longer supported the application for partition. They also continued to oppose this application as they wanted the homestead for the entire whānau. In advance of that hearing, Mr Kahukiwa sent in a memorandum for the applicant arguing that the evidence warranted finding in his client s favour. He argued that given the greater contribution of his client to restoring the homestead, that she should be recognised as the owner. The Teddy Whānau should also be estopped from defeating her claim, given they did nothing to stop her fixing the house Waiariki MB 70 (91 WAR 70) Waiariki MB 259 (94 WAR 259).

9 105 Waiariki MB 191 [24] He also referred to the pressure from the insurance company to have only one person on the title before they were prepared to provide cover. I note this could be achieved by either this application or by the grant of the partition order. Relevant Law [25] Under section 18(1)(a) of the Act the Court s jurisdiction to make an order is found in s 18 of Te Ture Whenua Māori Act 1993: 18 General jurisdiction of Court (1) In addition to any jurisdiction specifically conferred on the Court otherwise than by this section, the Court shall have the following jurisdiction: (a) To hear and determine any claim, whether at law or in equity, to the ownership or possession of Māori freehold land, or to any right, title, estate, or interest in any such land or in the proceeds of the alienation of any such right, title, estate, or interest: [26] In Tohu Te Horo 2B2B2B (2007) the Māori Appellate Court considered that this provision should be applied as follows: Where an owner of multiply owned land, as is Te Horo 2B2B2B, builds a house on the land, the house if affixed to the land, forms part of the title to the land and belongs to all the owners of the land according to their respective shares. That is the legal position. However the Court has, in many such cases, using equitable jurisdiction under the above provision or similar preceding legislation, awarded the property in the house in an owner who has erected the building, thus giving him or her rights to the house. 13 [27] I further note that in such circumstances, the Māori Appellate Court considered an order under section 18(1)(a) appears to separate the house from the title to land and treat it as a chattel. That Court opined that there is no ability to succeed to any such order, it not being an interest in land and the order is treated as being personal to the holder and lapsing on death. Importantly that Court stated that anyone who wishes to sustain a further claim for the house needs to apply for another order. I consider that this will ensure that the Teddy whanau and the McRoberts whanau will be able to express their interest in the homestead again at that point. Discussion [28] In this case there is a clear desire of all parties to restore the whānau homestead. Equally, all parties have acknowledged the interest that the entire whānau has in it. 13 (2007) 7 Whangārei Appeal MB 19 (7 APWH 19).

10 105 Waiariki MB 192 However, there is no competing claim to ownership and it is unlikely that the minority owners are in a position to restore it. The applicant has commenced that process. [29] She has contributed more than her fair share to its restoration, the other buildings on this parcel of land and the roading network. It would not be just in such circumstances to allow other members of the extended whānau to be unjustly enriched by benefiting from her efforts. [30] I agree with Mr Kahukiwa that the law and the facts warrant finding in the applicant s favour and thereby, grant her title to the homestead. She has saved that homestead from certain dilapidation. The evidence of the state of the homestead has not been denied, although Mr Teddy did say that an attempt in 1996 to restore the homestead faulted and that then the applicant was not active in assisting. However, since 2010, the applicant has been the sole contributor to the restoration of the homestead. Her siblings have acknowledged that in supporting her application and other members of the extended whānau have not attempted to renovate the homestead and the out-buildings since she took over the lease. In terms of the Preamble, s 2 and s 17, it would only be fair and practical to grant her an order. Orders There is a final order for partition in accordance with the application and sketch plan, but subject to s 304 and subject to survey. There is an order under s 18(1)(a) granting to the applicant ownership of the old homestead and the existing buildings. That part of the application dealing with the a building that has not been erected is dismissed as there is no property that can be subject to an order. Pronounced in Open Court in Gisborne at 12:00pm on the 9 th day of October C L Fox DEPUTY CHIEF JUDGE