IN THE MĀORI LAND COURT OF NEW ZEALAND TAIRAWHITI DISTRICT A Section 330 of Te Ture Whenua Māori Act FIONA MARIE PHILLIPS Applicant

Transcription

1 31 Tairawhiti MB 175 IN THE MĀORI LAND COURT OF NEW ZEALAND TAIRAWHITI DISTRICT A UNDER Section 330 of Te Ture Whenua Māori Act 1993 IN THE MATTER OF An application to transfer an occupation order currently held by Ani Tarewa Stainton to the Ani Tarewa Whānau Trust in relation to the Maori freehold land known as Wharekāhika D15 BETWEEN FIONA MARIE PHILLIPS Applicant AND THE TRUSTEES OF TE RINA WHĀNAU TRUST Respondents Hearing: 26 Tairāwhiti MB dated 4 October 2012 Appearances: Fiona Phillips in person Kararaina Pirini in person Judgment: 17 July 2013 RESERVED JUDGMENT OF JUDGE L R HARVEY Introduction [1] Fiona Marie Phillips seeks an order of the Court transferring the occupation order currently held by Ani Tarewa Stainton into the Ani Tarewa Whānau Trust. Ms Phillips is a trustee of the whānau trust. [2] The application is opposed by several beneficial owners of Wharekāhika D15 namely Te Rina Whānau Trust represented by one of the trustees, Kararaina Pirini. The trustees of Te Rina Whānau Trust consider that the area awarded to Ani Stainton being 1 acre is too large and leaves no remaining land suitable for occupation by other owners and their whānau. They ask the Court to grant an adjournment of the application to enable them to undertake proceeding per s45 of Te Ture Whenua Māori Act 1993.

2 31 Tairawhiti MB 176 [3] The applicant opposes any adjournment and says the respondents have had adequate opportunity to file a s45 application but have not done so. Accordingly she argues that the transfer application should be granted. [4] Unfortunately the Deputy Registrar informs me today that Ani Stainton has since passed away several months ago. [5] The issues for determination are: (a) Should the adjournment be granted? (b) Should the application for transfer of the occupation order to the whānau trust be granted? [6] The relevance of a s45 application to the Chief Judge is also considered. Background [7] Wharekāhika D15 is Māori freehold land and is (ha) in size created by consolidation order on 22 March There are 5 owners of the land, two of which are whānau trusts. [8] On 26 November 1999 Ani Stainton was granted an occupation order comprising 1 acre of Wharekāhika D15. At the time of that application she was a beneficiary of Te Rina Whānau Trust. Her shares were subsequently revested in her name solely by order dated 15 February The Ani Tarewa Stainton Whānau Trust was created on 6 September [9] In 2004 the Court made an order determining ownership of a house situated on Wharekāhika D15 in favour of Ani Stainton. 4 There had been some issues surrounding the placement of the house however these issues were resolved by the completion of a survey Waiapu MB 183 (126 WP 183) 58 Ruatoria MB 251 (58 Rua 251) 58 Ruatoria MB 251 (58 Rua 251) 68 Ruatoria MB 6 (68 Rua 6) Ref to application A Tairāwhiti MB 143 (13 TRW 143)

3 31 Tairawhiti MB 177 Procedural history [10] This application was heard on 4 October Ms Pirini appeared and spoke of past events relating to the survey and placement of the house. A request for an adjournment was submitted by Matekino Tumai on behalf of the Te Rina Whānau Trust on the basis that they intended to file an application to the Chief Judge per s45 of the Act in relation to the occupation order. The applicant opposed the adjournment. I reserved both applications to chambers for a written decision. I regret the delay that has occurred before issuing this judgment. Submissions for the applicant [11] The applicant submits that all the options for resolution suggested by the Court have been attempted but without success. In addition, it was said that the whänau have waited for the s45 application to be filed and heard but there does not seem to have been any further progress with that proceeding. Therefore the applicant says that the occupation order should now be vested in the whānau trust. [12] Consent to vesting the occupation order in the whänau trust has been obtained from the trustees of the Ani Stainton Whānau Trust (187.5 shares). The applicant also stated that Rongo Jensen who holds shares in the block verbally consented to the variation. No consents have been obtained from Whaene Jensen (14.425), William Jensen (14.425) and Te Rina Whānau Trust ( ). Submissions in opposition [13] Matekino Tumai, on behalf of the Te Rina Whānau Trust, had also sought an adjournment of the application on the basis that an application per s45 to the Chief Judge of the Court concerning the legitimacy of the area of the occupation order as contemplated by the owners of Wharekāhika D15. [14] It was suggested that the area eventually granted was far in excess of what owners had understood at the time noting the plan filed with the application refers to 1,000 m2 and not the 4,000m2 that was granted. As a result of this potential error the area now granted completely restricts the ability of other owners to use the balance of the land effectively given its swampy terrain and the shape of the block.

4 31 Tairawhiti MB 178 [15] According to Ms Tumai the initial s45 application was sent back to the applicant for re submission as it did not specifically address how the applicant was adversely affected by the occupation order. No time limit was given for this and so the possibility remains that a s45 application can be filed and accepted by the Court for hearing. So according to the respondents transfer of the occupation order is opposed until the s45 application has been determined. [16] Ms Tumai went on to say that the trust and wider whānau have been unable to meet to progress the s45 application and they have encountered other difficulties in the attempts to have the application filed. Given that consent of the applicant to the adjournment is unlikely per rule 6.9 of the Māori Land Court Rules 2011, the Court should therefore exercise its discretion to grant the adjournment. The Law [17] Rule 6.9 of the Māori Land Court Rules 2011 provides: Court may adjourn hearing (1) The Court may, on the application of a party or on its own initiative, either before or during a hearing, adjourn an application (a) to another ordinary sitting of the Court; or (b) to a special sitting; or (c) if the circumstances require, to a date and place to be fixed. (2) A party seeking an adjournment must, if possible, notify the other parties of the intention to seek an adjournment and must attempt to obtain the consent of the other parties to the adjournment. (3) An application that has been adjourned to a date and place to be fixed may be brought on for hearing on the application of any party or on the direction of the Court, and may be heard at the time and place and on the notice that the Court may direct. [18] Section 330 of Te Ture Whenua Māori Act 1993 provides that: 330 Power to amend or cancel occupation order The Māori Land Court may at any time, on the application of any person or of its own motion, make an order amending or cancelling any occupation order.

5 31 Tairawhiti MB 179 Discussion Should the adjournment be granted? [19] It would appear that those opposed to the application and who seek an adjournment have had ample opportunity to progress the s45 proceedings or to seek legal advice or direction from the Court per s67 of the Act. If the order granting the transfer of the occupation order is made then that too can be the subject of a s45 application, a rehearing or an appeal. So the remedies available to the respondents remain intact. There will be no prejudice if the transfer application is granted that cannot subsequently be the subject of further orders in the respondents favour. The real issue is whether or not the application for a transfer should be granted. Should the application for transfer of the occupation order to the whänau trust be granted? [20] A review of the relevant Court files discloses that when Mrs Stainton originally applied for an occupation order, a rectangle was drawn on the title plan for Wharekāhika D15 confirming that the area sought was 1,000m2, or approximately a quarter acre. The application was heard by Judge Savage and the minute records the award of an area of an acre. The Deputy Registrar of the Court familiar with the file Mr Bacon suggests that through an error in the transcription an area of one acre rather than a quarter acre was recorded in the minutes. In any event an acre or 4,046m2 went on the order, although the same diagram was used that is the rectangle in the corner of the "flat portion" of the block, certainly the diagram indicates that there was no intention to use the whole of the flat. This is covered in the report completed by a surveyed that shows that Ani Stainton is occupying 4,069 square metres. [21] The available evidence would suggest that the effect of the occupation order is that it restricts the other owners from effectively using any part of the rest of the block. This is because the balance of the land is made up of a bank down to a flat area that is regularly flooded due to its proximity to a stream. The photos presented in the surveyors report on file shows driftwood deposited on the land as a result of the flooding. It is understandable then that the owners would seek to review the earlier decision. As foreshadowed one remedy is an application to the Chief Judge per s45 of the Act.

6 31 Tairawhiti MB 180 [22] Another possible remedy is for the respondents to apply for a review of the occupation order per s330a of the Act which states: 330A Review of occupation orders (1) The Māori Land Court may review an occupation order made before this section comes into force, on application by an owner of a beneficial interest in the land over which the occupation order has been made, or by the person in whom the occupation order is vested. (2) The Māori Land Court may conduct a review under subsection (1) as if it were exercising its jurisdiction to make the initial occupation order, and must have particular regard to the fact that, after it was made, the occupation order could pass by succession. [23] This provision enables an owner of land to make application for a review as well as the original applicant. So the respondents could themselves apply for a review regardless of whether or not the current holder of the occupation order agreed. It may be that a review is the more suitable remedy in the circumstances and an application filed in terms of this provision may then obviate the need for an application to the Chief Judge. The respondents may wish to consider this possibility. In my observation any review process should include a meeting of owners to ascertain their views. [24] Turning then to the transfer application s330 of the Act provides the Court with jurisdiction to amend or cancel the occupation order. What is sought now is effectively an amendment to the original order by transferring the named holder of the right from Ms Stainton to her whānau trust. As she is now deceased and the legislation provides for succession to occupation orders it is appropriate that the current order should now be considered in light of the evidence before the Court. [25] The Māori Appellate Court in its decision of Bidois Te Puna 154D3B2B 6 agreed with this Court that:... the 2002 amendment of the Act allowing for succession to occupation orders applies to all orders, whether granted before the amendment came into force on 1 July 2002 or after... Sections 108(2A) to 2(C), 109A and 119A make no distinction between occupation orders in terms of when they were made. More significantly, section 330A was specifically enacted to allow the Court to review occupation orders made prior to 1 July 2002 and expressly directs the Court in section 330A(2) to have particular regard to the fact that, after it was made, the occupation order court pass by succession. It could not be plainer. 6 (2008) 12 Waiariki Appellate Court MB 1 (12 AP 1)

7 31 Tairawhiti MB 181 [26] Even so, it is evident that there is at least an arguable case that an inadvertent error was made when the original order was finalised. This is because the area of land that was originally sought when the application was filed does not accord with the area now subject to the occupation order made in favour of Mrs Stainton. Until that matter is resolved then it may be premature to consider a change by way of suggested transfer without further argument. In the circumstances I consider it necessary to adjourn the proceedings to enable a meeting of owners to be held to consider the present application and the possible filing of an application for review by the respondents. Accordingly, I direct the Registrar to convene a meeting of owners within 2 months for these purposes. Section 45 application [27] I understand that the respondents have been making attempts to file an application to the Chief Judge but apparently for some reason the Special Applications registry of the Court in Wellington have rejected the application and have sought more information. The respondents may need to seek further assistance from Court staff or obtain legal advice. Decision [28] The application to transfer the occupation order from Ani Stainton to Ani Stainton Tarewa Whānau Trust is adjourned for 2 months and the Registrar is directed to convene a meeting of owners to discuss the application for transfer and the possibility of filing an application for review. [29] The proceedings are adjourned to 5 September 2013 in Gisborne to provide opportunity for the parties to report on progress with the meeting of owners if that has taken place before the proposed fixture. If the meeting has concluded by that date then the application can be set down for further hearing on 5 September [30] Leave is reserved for any party to apply for further directions at any time. Pronounced at am/pm in on this day of 2013 L R Harvey JUDGE