IN THE MAORI LAND COURT OF NEW ZEALAND W AIARIKI DISTRICT. Date: 1 September Section: 19, Te Ture Whenua Maori Act 1993 RESERVED DECISION

Transcription

1 Minute Book 283 ROT 75 IN THE MAORI LAND COURT OF NEW ZEALAND W AIARIKI DISTRICT Place: Present: Rotorua L R Harvey, Judge Date: 1 September 2004 Application No: A Subject: Te Puke 1 A5B2B2 Section: 19, Te Ture Whenua Maori Act 1993 RESERVED DECISION Intl'Oduction On 2 August 2004 Ruiha Whare on behalf of herself and Andrew Whare ("the Applicants") filed an application for injunction pursuant to section 19 of Te Ture Whenua Maori Act 1993 ("the Act"). The application seeks to restrain "any person" in respect of any actual or threatened trespass or other injuly to Maori freehold land namely Te Puke 1 A5B2B2 ("the Land"). The grounds pleaded are that "the tmstees and beneficial owners have not met in order to seek a remedy" and because "the sole provider Andrew Whare was imprisoned at Waikeria resulting in default on mortgage payments". Finally, the Applicant seeks that the "mailer be heard and determined under customwy lore". Then on 3 August 2004 I issued a direction setting the application down for hearing on notice, 282 Rotol"ua MB 179. The matter was heard before me at Rotorua on 5 August 2004, 282 Rotorua MB The Applicants appeared in person assisted by Mr Wharehuia Rota. Mr S T Webster appeared for the Home Mortgage Company Limited ("the Respondent"). BacI<groUJul Te Puke la5b2b2 comprises some hectares in area. As at 2 August 2004 there were twenty beneficial owners of the L1nd holding shares. The COUlt'S records disclose that the Land is administered by an aim whenua trust and that the ClllTent responsible trustees are Huaki Whare, Mackie Watson and Owen Rayner ("the Trustees"). The affidavit of Linda Watkins, a manager of the Respondent, states that on 21 December 1990 the Applicants entered into a deed ("the Deed") to obtain a mortgage from the then Housing Corporation of New Zealand ("HCNZ"). By that document security was provided to HCNZ over the dwelling situated at 265 Manoeka Road, Te Puke. Following that on 20 November 2000 HCNZ assigned its rights and interests under the mottgage to the Respondent. Then on 29 April 2002 the Applicants

2 Minute Book: 283 ROT 76 de 1ulted on the moltgage. A notice was issued on 11 June 2002 requiring payment of an'ears by 10 August The an'ears were not paid and consequently on 29 April 2003 the Respondent issued a notice to the Trustees of its intention to remove the house, such remedy being provided for in the Deed. According to the Respondent's evidence the original loan was for $64, with the cunent balance outstanding being $58, Unpaid an'ears as at the date of hearing amount to $22, The Respondent then commenced summary judgment proceedings in the District Court at Tauranga on 24 February The proceedings were served on the Applicants and no steps were taken to defend the claim. On 5 May 2004 those proceedings were called but the Applicants did not appear and the COlllt granted an order to the Respondent for vacant possession. A copy of the sealed order was then served on the Applicants on I June The Respondent fiuther states that during the period of default discussions have been held with the Applicants to remedy the molt gage default. The Applicants did not challenge the accuracy of this evidence. Submissions fol' the Applicant Mr Rota spoke for the Applicants. In Sh0l1, he implored the COUtt to grant a tlu'ee week adjoulllment for the purpose of calling the extended whanau of the Applicants together, along with the trustees to the Land, to explore the possibility of a remedy. Like the Applicant, Mr Rota did not appear to dispute the essence of the evidence nor the submissions made by counsel. Mr Rota also underscored that in any event, should an adjounullent be granted, there was no guarantee that a solution would be found. The request that the application be determined according to "customary law" was not seriously pursued at the hearing. Submissions for the Respondent In sumlllmy, Mr Webster submitted: (a) (b) (c) (d) there is a real issue of jurisdiction and whether or not the Court could in fact entertain an application for injunction in the present circumstances; the Respondent had acted within its legal rights. The granting of an injunction would amount to an unjustifiable interference with the Respondent's rights freely entered into between the pat1ies; the application was misconceived in that there was no actual or threatened trespass by the Respondent affecting the Land. The proposed removal of the house was lawfitl and a proper exercise ofthe Respondent's rights; the Respondent had also shown considerable leeway in entettaining repayment discussions with the Applicants on several occasions but which had borne little result; and

3 Minute Book: 283 ROT 77 (e) the decision of this COUlt in re: Waimanone IB3B2A (1996) 19 Kaitaia MB 227 (19 KT 227) should be followed in the instant case. The facts were analogous if not almost identical. For these reasons, counsel emphasised that the application for i'1junction was without merit and accordingly, he sought its dismissal. At the conclusion of the hearing counsel was to seek instructions fi om the Respondent as to whether or not it would consent to a fillther adjoul1l1uent of three weeks. He subsequently confirmed that the Respondent considered any fillther delay unacceptable. The Law Section 19 of the Act provides: (1) The Court, on application made by any person interested or by the Registrar of the Court, or of its own motion, may at any time issue an order by way of injunction- (a) Against any person in respect of any actual or threatened trespass or other injllly to any Maorifi"eehold land, Maori reselwltion, or waahi tapu; or (b) Prohibiting any person, where proceedings are pending before the Court or the Chief Judge,fi"om dealing with or doing any injury to any property that is the subject-matter of the proceedings or that may be affected by any order that may be made in the proceedings; or (c) Prohibiting any owner or any other person or persons without lawfid authority fi"om cutting or removing, or authorising the cuttlilg or removal, or othenvise making any disposition, of any timber trees, timber or other wood or any flax, tree ferns, sand, topsoil, metal, minerals or other substances whether usually quarried or mined or not, on or fiom any Maori fi"eehold (ei) land; or Prohibiting the distribution, by any tl1lstee or agent, or rent, purchase money, royalties, or other proceeds of the alienation of land, or of any compensation payable in respect of other revenue derived fi"om the land, affected by any order to which an application under section 45 of this Act or an appeal under Part 2 of this Act relates. (2) NotWithstanding anything in the Crown Proceedings Act 1950, any injunction made by the Court 'mder this section may be expressed to be binding on the Maori Tn/stee. (3) Any injunction made by the Court under this section may be e.'pressed to be of interim effect only. (4) EvelY illj!mction made by the Court under this section that is not expressed to be of interim effect only shall be offinal effect. The COUlt also has a broad jurisdiction in respect of Maori land generally as well as all the powers and authorities of the High COUlt regarding trusts over Maori land, per sections 18, 37 and 237 of the Act. In the seminal judgment The Proprietors of Mangakino Township v The Maori Land Court and Anor (CA 65/99, 16 June 1999, WellingtolY the Court of Appeal stressed the broad powers of this COUlt in respect of trusts. Blanchard J, in delivering the judgment of that COUlt at pp9-10 stated that the Maori Land Court". is to have the most extensive supervisoly powers. "

4 Minute Book 283 ROT 78 Discussion The decision in re: Waimanone 1 B3B2A - A warau refelted to by counsel is relevant. A critical passage from the decision can be found at page 235 where His Honour Deputy Chief Judge N F Smith stated: "Having heard argument fi'om both counsel this Court comes to the inescapable conclusion that the tripartite agreement entered into by the tl1lstees, the borrower and the lender constitutes a regulatoly agreement establislllng for all pwposes of the agreement, but limited only to matters arising amongst the parties to the tripartite agreement, the dwelling house is a chattel. It follows therefore that all powers and obligations contained in the tripartite deed are enforceable amongst the parties, and that Housing Corporation New Zealand, subject to compliance with those provisions set out in clause 22 of the deed, is entitled to exercise its rights to come on to the property for the pwpose of severing the dwelling and disposing of it". Sections 19(1 )(b )-( d) ofthe Act are iltelevant to the present facts. That leaves section 19 (1) (a). Having carefblly considered the matter, I accept counsel's submission that what the Respondent proposes to do - remove the house fi'om the Land - is not a ''trespass'' or other "injury" within the plain and ordinary meaning of those words. Both have connotations of impropriety which are inapplicable in this case. A lawful exercise of one's rights in accordance with a prior agreement can hardly be described as improper. Even the obiter statements of the Privy Council in McGuire v Hastings District Council [2002] 2 NZLR 577 on the definition of trespass and other injury over Maori freehold land cannot assist the Applicants. The plain fact is that the Applicants gave HCNZ and its successor, the Respondent, the right to do exactly what it now intends - the realisation of its security for the m01igage, which appears to be iltedeemably in default, by severing for disposal the house from the Land. There can be no doubt that the Applicants' position is precarious, even disastrous. However, the COllli's powers are limited. They cannot e).iend to interfering with the legal rights of the Respondent in the present circumstances. In any case, coincidentally, tlu'ee weeks has now elapsed since the time of the hearing on 5 August The COllli has not received any advice fi'om Mr Rota or the Applicants that the proposed hui has in fact been held and a solution found. In conclusion, there is nothing before the COlllt at present that persuades me to grant the application. For the reasons stated it must inevitably fail. Decision Pursuant to section 37 of the Act the application for injunction is dismissed. In the circumstances an order for costs may be inappropriate - Horitalllakiterangi Manuirirangi (2002) 15 Whanganui Appellate COlllt MB 64 (15 WGAP 64). However counsel may submit a memorandum for the COlllt's consideration. Dated at tltis day of 2004 LRHarvey JUDGE

5 Minute Baal<: 283 ROT 79