IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO DISTRICT A Applicant. CHRISTINE BOON Respondent

Transcription

1 160 Waikato Maniapoto MB 113 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO DISTRICT A UNDER Section 18(1)(a), Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN AND Kawhia U 2B Block NIKI TUWHANGAI Applicant CHRISTINE BOON Respondent Hearing: 157 Waikato Maniapoto MB dated 2 February 2018 (Heard at Te Kuiti) Appearances: D Forgeson for the Applicant Judgment: 17 April 2018 RESERVED JUDGMENT OF JUDGE S R CLARK Copies to: D Forgeson and K Forgeson, Forgeson Law, DX GA30003 Te Kuiti 3941 kevin@forgesons.co.nz dianne@forgesons.co.nz

2 160 Waikato Maniapoto MB 114 Introduction [1] Kawhia U 2B Block is hectares of Māori freehold land situated at Kawhia. There are currently 10 owners in the block holding a total of shares. Of those shares, Niki Tuwhangai and June Maanga Ormsby hold shares as joint tenants. Mr Tuwhangai and Mrs Ormsby acquired those shares from Moekau Moke in 1992 pursuant to a resolution to sell passed at a meeting of assembled owners. An order was made by the Court on 23 March 1992 confirming the resolution. 1 [2] June Ormsby passed away on 21 November 2016 and an application for transmission by way of survivorship was filed by Niki Tuwhangai on 21 August An initial objection, 2 followed by a notice of intention to appear together with a supporting affidavit, 3 was filed by Christine Boon, the daughter of June Ormsby and administrator of her estate. Ms Boon opposes the application and claims that she and her siblings are entitled to their mother s share in Kawhia U 2B. Ms Boon s claim essentially amounts to an argument that the legal interest Niki Tuwhangai holds is subject to a trust in favour of June Ormsby s successors. Procedural history [3] The application was initially heard at a judicial conference on 22 November At the conclusion of that conference, I adjourned the application to enable mediation to be conducted between the applicant and the children or those entitled to succeed to the estate of June Ormsby. I issued directions that barrister Alex Hope be engaged as mediator and for the mediation to be held by 31 January The application was set down for further hearing in February 2018, to either formalise any agreement reached or for timetabling to a substantive hearing. [4] The mediation was held over two days on 24 January 2018 and 30 January Mr Hope advised the Court that the parties did not reach agreement at the mediation. The application subsequently returned to the Court for hearing on 2 February Otorohanga MB 84 (106 OT 84). See also 106 Otorohanga MB 62 (106 OT 62). 2 objection and supporting material filed 4 September Notice of intention to appear and affidavit filed 31 October Waikato Maniapoto MB (150 WMN ) Waikato Maniapoto MB (157 WMN ).

3 160 Waikato Maniapoto MB 115 [5] At that hearing, Mrs Forgeson, counsel for the applicant, referred to s 77 of Te Ture Whenua Māori Act 1993 regarding the finality of orders more than 10 years old. She raised a preliminary issue as to the jurisdiction of the Court to hear the claim of Ms Boon, given the order of joint tenancy made by the Court in 1992 is more than 10 years old. Mrs Forgeson sought a decision on the issue of jurisdiction prior to any timetabling of the substantive hearing. Accordingly, I reserved my decision and indicated that a written decision would issue in due course. Applicant s submissions [6] Mrs Forgeson made brief submissions at the hearing on behalf of the applicant. Her submissions can be summarised as follows: (a) Pursuant to s 77 of the Act, an order which was made more than 10 years ago cannot be annulled, discharged or quashed by the Court. A further process would need to be undertaken per s 44 of the Act by application to the Chief Judge. (b) The original order of the Court vesting interests in Kawhia U 2B block in Niki Tuwhangai and June Ormsby as joint tenants was made in 1992 and therefore falls within s 77 of the Act. (c) The challenge by Ms Boon cannot be dealt with unless the original order is overturned, annulled or changed in some way. Accordingly, Ms Boon should make the appropriate application under the correct jurisdiction. (d) By operation of the law, the applicant is entitled to seek that the interests in Kawhia U 2B be transferred to him as survivor. The Court should therefore grant the transmission. [7] As Ms Boon was not legally represented, no legal submissions were made on behalf of the respondent in relation to the jurisdiction of the Court to hear her claim.

4 160 Waikato Maniapoto MB 116 Does the Court have jurisdiction to hear Ms Boon s claim? [8] The application in the present case is for transmission of the interest of Ms Ormsby as a joint tenant to Mr Tuwhangai by way of survivorship. One of the essential elements of a joint tenancy is the right of survivorship. As the learned authors of Principles of Real Property note: 6 The right of survivorship is the most important feature of a joint tenancy. On the death of one joint tenant his or her interest is extinguished and accrues to the surviving joint tenants by virtue of the right of survivorship. This process goes on until there is only one survivor who then holds the land as sole owner. [9] While the right of survivorship means that the interest of the deceased joint tenant accrues to the surviving joint tenant by operation of the law, a further step is still required to transfer the legal title. In the Torrens system, this is effected by an application for transmission and registration of a transmission instrument with Land Information New Zealand. 7 In the Māori Land Court, an order per s 18(1)(a) of the Act is required. Legal principles [10] Section 18(1)(a) of the Te Ture Whenua Māori Act 1993 provides: 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 Maori 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: [11] It is settled law that the Court s jurisdiction under s 18(1)(a) is declaratory in nature. The Court cannot create, transfer or vest new rights; rather the Court determines what the existing rights are, at law or in equity, in respect of any interest in Māori freehold land. 8 6 G W Hinde, D W McMorland, N R Campbell, P Twist, J Foster, T Gibbons and S Scott Principles of Real Property Law (2nd ed, LexisNexis Wellington, 2004) at [12.004] [12.005]. 7 Land Transfer Act 2017, s 87. See also Land Transfer Act 2017, ss 5, Williams v Williams Matauri 2F2B (1991) 3 Taitokerau Appellate MB 20 (3 APWH 20), McCann Waipuka 3B1B1 and 3B1B2B1C2A (1993) 11 Takitimu Appellate MB 2 (11 ACTK 2) and Paki Matauri X Inc (1996) 5 Taitokerau Appellate MB 16 (5 APWH 16).

5 160 Waikato Maniapoto MB 117 [12] The Court s equitable jurisdiction under s 18(1)(a) brings with it the full range of equitable principles and includes the ability to recognise equitable trusts, such as constructive trusts. 9 As the Court noted in Nga Uri a Maata Ngapo Charitable Trust v McLeod Harataunga West 2B2A1: 10 [55] The Court is also able to recognise and give effect to equitable principles in relation to property, by use of the constructive trust doctrine or principles relating to unjust enrichment in order to do justice between the parties. [13] In addition to its jurisdiction under s 18(1)(a), the Court can also determine whether any specified land is held by a person in a fiduciary capacity under s 18(1)(i). 11 In some cases, ss 18(1)(a) and 18(1)(i) are used in conjunction. 12 Discussion [14] Importantly, s 18(1)(a) makes it clear that the Court has jurisdiction to hear and determine any claim, whether at law or in equity, to the ownership of any interest in Māori freehold land. In the present case, Mr Tuwhangai is making a claim for legal ownership of the jointly held interests in Kawhia U2B, on the basis of survivorship. Ms Boon is making a claim to ownership of an interest, on the basis of a right derived from her mother June Ormsby, which I have treated as one arising in equity. [15] On the face of it, the Court clearly has jurisdiction pursuant to s 18(1)(a) to hear and determine both types of claims. Effectively the Court would be declaring the existing rights in relation to the relevant interests in Kawhia U2B, both legal and equitable. It is appropriate that any such claims are heard together. 9 Stock v Morris Wainui 2D2B (2012) 41 Taitokerau MB 121 (41 TTK 121). See also Matenga v Bryan Parish of Tahawai Lot 18C-F and 18I (2003) 73 Tauranga MB 150 (73 T 150); Brokenshaw Te Kaha B6X2 (2003) 81 Ōpōtiki MB 18 (81 OPO 18); Rautangata v Rautangata Opuatia No 6D No 2D Block (2013) 63 Waikato Maniapoto MB 132 (63 WMN 132); and Tipene v Tipene Motatau 2 Section 49A4F (2014) 85 Taitokerau MB 2 (85 TTK 2). 10 Nga Uri a Maata Ngapo Charitable Trust v McLeod Harataunga West 2B2A1 (2012) 49 Waikato Maniapoto MB 223 (49 WMN 223) at [55]. 11 See Reweti Lot 1 Deposited Plan and Lot 2 Deposited Plan (2015) 96 Taitokerau MB 231 (96 TTK 231); and Wellington v MacDonald Te Maika B4 Residue (2008) 129 Whangarei MB 258 (129 WH 258). 12 See Broad v Samson Otarihau 2B1C (2018) 169 Taitokerau MB 138 (168 TTK 138); and Mane Waihou A8C1B1 (2018) 169 Taitokerau MB 108 (169 TTK 108).

6 160 Waikato Maniapoto MB 118 [16] The complicating factor in the present situation is the right of survivorship, by which the joint interest accrues to the surviving joint tenant by operation of law, and whether equity can intervene in this situation. [17] I note that there are very few instances where the operation of the right of survivorship has been considered by the Court when the existence of an equitable right is argued, and none which appear directly on point. In Re Pechar (deceased); Re Gribic (deceased), the Supreme Court considered the right of survivorship in circumstances where one joint tenant was responsible for the death of the other joint tenant. 13 While there was no doubt that public policy prevented the joint tenant who caused the death from profiting from their actions, the question was the impact which the public policy had on the operation of the law. After considering the ways in which earlier authorities had dealt with the matter, Hardie Boys J found that the legal title did pass by survivorship, however the survivor was to hold one half of the property as a constructive trustee for the estate of the deceased joint tenant. 14 [18] The principles in Re Pechar were adopted by the Māori Appellate Court in Tawhai Estate of Lou Tawhai Rakautatahi B2. 15 In that case the Māori Appellate Court found that the survivorship interest of a wife convicted of the manslaughter of her husband passed to her as a surviving joint tenant but was then held by her on a constructive trust for the estate of her husband. [19] While these decisions do not suggest that equity can intervene to prevent the operation of law in those circumstances, nonetheless in each case the Court considered the equitable claim simultaneously with the survivorship claim and ultimately imposed the equitable remedy of constructive trust. This aligns with the generally understood tenant of equity set out by the Court of Appeal in Fortex Group Ltd (in receivership and liquidation) v MacIntosh: 16 How then is it said that the plaintiffs by means of equitable remedy of constructive trust can prevail, pro tanto, over the legal rights of the secured creditors? Equity intervenes to prevent those with rights at law from enforcing those rights when in the eyes of equity it would be unconscionable for them to do so. Equity acts 13 Re Pechar (deceased): Re Gribic (deceased) [1969] NZLR 574 (SC). See also 14 See also Re K [1986] Fam Tawhai Estate of Lou Tawhai Rakautatahi B2 (2000) 12 Tākitimu Appellate MB 154 (12 ACTK 154). 16 Fortex Group Ltd (In receivership and liquidation) v MacIntosh [1998] 3 NZLR 171 (CA) at 175.

7 160 Waikato Maniapoto MB 119 in this respect as a Court of conscience. In order to defeat, pro tanto, the secured creditors rights at law under their security by the imposition of a remedial constructive trust, the plaintiffs must be able to point to something which can be said to make it unconscionable contrary to good conscience for the secured creditors to rely on their rights at law. If such can be shown, equity may restrain the exercise of those rights to the extent necessary to afford the plaintiffs appropriate relief. (Emphasis added) [20] I therefore consider that there is nothing in s 18(1)(a) or the authorities referred to which prevents the Court from hearing and determining a claim for an equitable remedy in conjunction with any transmission of the joint tenancy by survivorship. [21] I now consider whether s 77 of the Act operates to preclude the Court exercising this jurisdiction. Does s 77 of the Act apply to preclude the Court s jurisdiction? [22] Mrs Forgeson submitted that in order for the Court to entertain Ms Boon s claim, the original order made in 1992 would need to be annulled, quashed or overturned in some way, which would offend the provisions of s 77. Legal principles [23] Section 77 of Te Ture Whenua Māori Act 1993 provides: 77 Orders affecting Maori land conclusive after 10 years (1) No order made by the court with respect to Maori land shall, whether on the ground of want of jurisdiction or on any other ground whatever, be annulled or quashed, or declared or held to be invalid, by any court in any proceedings instituted more than 10 years after the date of the order. (2) Where there is any repugnancy between 2 orders each of which would otherwise, by reason of the lapse of time, be within the protection of this section, then, to the extent of any such repugnancy, the order that bears the earlier date shall prevail, whether those orders were made by the same or different courts. (3) Nothing in this section shall limit or affect the authority of the Chief Judge to cancel or amend any order under section 44. [24] This provision precludes challenges to orders of the Court if brought more than 10 years after the date of the order. That prohibition is expressed in broad terms whether on the ground of want of jurisdiction or on any other ground whatever, which discloses a clear

8 160 Waikato Maniapoto MB 120 legislative policy of finality of decisions. 17 The only way in which an order more than 10 years old can be challenged is under the special powers conferred on the Chief Judge pursuant to s 44 of the Act, which are preserved by s 77(3). [25] In Trustees of the Tauwhao Te Ngare Trust v Shaw the Court of Appeal dealt with an appeal from a decision of the Māori Appellate Court which considered the cancellation of a roadway order made in The Court of Appeal made the following comments with regard to s 77 of the Act: [19] Both the 1993 and 1953 Acts preclude challenges to orders made by the Court after a period of`10 years from the date of the order. Section 77 of the 1993 Act provides: [20] Two points may be made. First, the prohibition against challenges to the validity of an order after the expiry of the 10-year period is expressed in broad terms: whether the challenge is made for want of jurisdiction or on any other ground whatever. Second, the prohibition against challenges to orders of the Court after the 10-year period does not limit the Chief Judge s special powers to cancel or amend the order under s 44 of the 1993 Act. Under the 1953 Act, a prohibition identical to s 77 of the 1993 Act was provided by s 68. This similarly preserved the special powers of the Chief Judge under s 452 of the 1953 Act. [21] It follows that, but for the special powers of the Chief Judge under s 44, the 1976 roadway order could not be challenged. [26] In Rogers v Hauraki Te Aute A1B, Judge Ambler considered the grant of an injunction and the cancellation of a roadway order made in The applicant claimed, inter alia, there were issues with the circumstances in which the roadway order was granted, such as lack of notice and lack of compliance with Court requirements. Judge Ambler however noted: [17] Te Kotuhi may have genuine concerns about these historical matters. However, it is not my function as part of this application to revisit the Court s decision to make the 1988 roadway order. Section 76 of Te Ture Whenua Maori Act 1993 ( the Act ) provides that every order of the Court affecting title to Māori land binds all persons with an interest in the land. Further, s 77 of the Act is to the effect that an order affecting Māori land is conclusive after 10 years. There has not been any appeal or other challenge to the roadway order since it 17 Maikuku v Precious Taharoa A7H2B3 Roadway (1999) 19 Waikato Maniapoto Appellate MB 209 (19 APWM 209) at 217; Bennett v Māori Land Court HC Whangarei CP5/99, 11 August 2000; and Coles v Miller CA25/01, 8 November See also Grant v Raroa Ngamoe A1B1B (1993) 33 Tairawhiti Appeal MB 35 (33 APGS 35) at Trustees of the Tauwhao Te Ngare Trust v Shaw [2016] NZCA Rogers v Hauraki Te Aute A1B (2015) 117 Taitokerau MB 87 (117 TTK 87). See also Gilbert Family Trust Marokopa 3 Block (2015) 97 Waikato Maniapoto MB 68 (97 WMN 68).

9 160 Waikato Maniapoto MB 121 was made in I must therefore proceed on the basis that the roadway order is valid. Discussion [27] The clear provisions of s 77, together with relevant authorities, confirm that orders affecting Māori land are conclusive after 10 years. Such orders cannot thereafter be annulled, quashed or held to be invalid on any grounds, unless in accordance with the special jurisdiction of the Chief Judge under s 44 of the Act. [28] The order creating the joint tenancy between Mr Tuwhangai and Mrs Ormsby in the present case was made in 1992, approximately 26 years ago. Accordingly, the order falls within the provisions of s 77 and this Court cannot look to overturn it. As Judge Ambler noted in Rogers v Hauraki, in the absence of any appeal or other challenge to the order since it was made, the Court must therefore proceed on the basis that the order is valid. [29] However, I consider that the claim of Ms Boon as currently framed does not seek to overturn the order made in Ms Boon claims an entitlement for the successors of Mrs Ormsby based in equity. At no point so far has Ms Boon claimed that the 1992 order should be amended or quashed. [30] While that remains the case, I do not consider that an order under s 18(1)(a) declaring any equitable interest that the successors of Mrs Ormsby might have in the joint tenancy, would offend the provisions of s 77 of the Act. The Court must of course be careful that any such determination does not seek to annul, quash, declare or hold that the 1992 order is invalid. Decision [31] The Court does have jurisdiction in accordance with s 18(1)(a) to hear and determine the equitable claim made by Ms Boon as part of the present proceedings. As the equitable claim does not seek to overturn the joint tenancy order made in 1992, in those circumstances the Court s jurisdiction under s 18(1)(a) is not precluded by s 77 of the Act. [32] In making my decision in relation to this preliminary point, I express no view on the merits or otherwise of Ms Boon s equitable claim.

10 160 Waikato Maniapoto MB 122 Directions [33] The matter will now proceed to a substantive hearing. Prior to that happening, I make the following directions: (a) A timetabling conference needs to be held. I direct that it be held on 25 May 2018, at the Te Kuiti District Court at 9.45am. The Case Manager is directed to prepare a special fixture notice; (b) Ms Boon should consider engaging legal counsel. Thus far, she has capably raised relevant matters in relation to her objection to the transmission by survivorship sought by Mr Tuwhangai. However, pursuing an argument based on an equitable remedy, for example in the nature of a constructive trust, is complex. To that end the engagement of competent legal counsel would assist greatly in any decision the Court has to make. Depending on Ms Boon s personal circumstances, an application can be made to the Māori Land Court Special Aid Fund pursuant to s 98 for the payment of solicitors costs. Ms Boon must follow that up, if she wishes to pursue it, with the Case Manager. The Case Manager is directed to send a copy of the Special Aid Practice Note to Ms Boon; (c) Mr Tuwhangai has legal counsel. Depending on his personal circumstances, he too may be eligible for the payment of legal costs to be made pursuant to the Māori Land Court Special Aid Fund. Again, I leave that up Mr Tuwhangai and his counsel to pursue with the Case Manager. The Case Manager is directed to send a copy of the Special Aid Practice Note to Forgeson Law. (d) When the matter returns to Court for the timetabling conference, other than the question of representation, I will be specifically wanting to put in place timetable directions relating to the following matters: (i) The formalising of any equitable claim that Ms Boon may have, e.g. by way of a separate application and/or statement of claim;

11 160 Waikato Maniapoto MB 123 (ii) Timetabling for any notice of opposition and/or statement of defence to Ms Boon s equitable claim; (iii) Timetabling for the filing of evidence by all parties; and (iv) Discussion of a possible hearing date. [34] If counsel are instructed to appear at the forthcoming timetabling conference, I grant them leave to do so by telephone conference. They must indicate that to the Case Manager no later than 4.00pm, Friday 11 May Pronounced at 2.30pm in Hamilton on this 17th day of April S R Clark JUDGE