IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A IN THE MATTER OF Lot 2, DP 29547

Transcription

1 145 Taitokerau MB 4 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A UNDER Section 19, Te Ture Whenua Māori Act 1993 IN THE MATTER OF Lot 2, DP BETWEEN DIANNE DONEY, TUARI HETARAKA AND THE NGĀTI TAIMANAWAITA MĀORI INCORPORATION Applicants Date: 10 February 2017 REASONS FOR JUDGMENT OF JUDGE M P ARMSTRONG

2 145 Taitokerau MB 5 Introduction [1] Dianne Doney and Tuari Hetaraka (on behalf of the Ngāti Taimanawaiti Māori Incorporation) sought an urgent interim injunction concerning Lot 2 Deposited Plan ( Lot 2 ). [2] By minute dated 9 February 2017, I dismissed the application with reasons to follow. 1 I set out below the reasons for this decision. Background [3] Lot 2 is a parcel of land 878m² in size located in the Auckland area. Lot 2 was previously owned by Ms Doney and Rafael Mrowinsky as tenants in common. A mortgage was registered against the title in favour of Brian Spooner, Mark White and David White, who I understand are trustees of the Riley White Trust. [4] On 20 December 2016, Lot 2 was transferred to Craig Lewis, Theresa Robinson, and Far North Trustee Services 2006 Limited, by way of mortgagee sale. Despite that, Ms Doney remained in occupation of the property. [5] The new proprietors filed proceedings before the Tenancy Tribunal to remove Ms Doney from Lot 2. That application was heard by the Tenancy Tribunal on 9 February 2017 at 3:20pm. [6] Due to the pending hearing before the Tenancy Tribunal, per r 9.6(3) of the Māori Land Court Rules 2011, I considered this application on the papers without notice in the Pānui, without requiring notice to any party, and without any appearance by the applicant. [7] On 9 February 2017 at 2:00pm, I issued a minute dismissing the application. 2 The history of the proceeding [8] This is the most recent in a number of applications which have been filed by these applicants concerning Lot Taitokerau MB (144 TTK ). Ibid.

3 145 Taitokerau MB 6 [9] On 18 October 2016, I heard an application by these applicants, seeking an interim injunction to prevent the mortgagee from dealing with or doing any injury to Lot 2, pending the determination of a claim before the Waitangi Tribunal ( the first injunction application). 3 I issued an oral decision determining that s 19(1)(b) of Te Ture Whenua Māori Act 1993 ( the Act ) only allows the Court to grant an interim injunction pending proceedings before the Court, or the Chief Judge, not the Waitangi Tribunal. As such, the first injunction application was dismissed. 4 [10] The following day, on 19 October 2016, the applicants filed an application per s 18(1)(h) of the Act, seeking a determination that a large area of land, including Lot 2, is Māori customary land ( the customary land application). 5 The applicants also filed an application seeking a rehearing of the first injunction application ( the rehearing application ). 6 [11] The rehearing application was heard on 1 February The applicants argued that as the customary land application had been filed, there was now a substantive proceeding before the Court addressing the deficiency in the first injunction application. I dismissed this application on the basis that an applicant cannot seek a rehearing to repair omissions or deficiencies in the earlier case. [12] Later that same day, the applicants filed the current application, once again seeking an interim injunction, pending the determination of the customary land application ( the second injunction application ). [13] The second injunction application did not identify the person or persons against whom an injunction was sought, or the alleged action or dealings that the applicants were seeking to restrain by way of an injunction. As such, on 2 February 2017, I directed the applicants to file further particulars addressing these omissions A Taitokerau MB (142 TTK 68-88). A A

4 145 Taitokerau MB 7 [14] On 8 February 2017, at 11:07pm, Ms Doney sent an to the Registrar advising that the applicants are seeking an injunction against the Riley White Trust and the bank on the basis that: The Riley White Trust has no adhoc authority in relation to the common law of England, therefore the mortgage by virtue of the land transfer Act continues to assume the radical title legal president, however is in direct conflict with the common law of England and overstepping Her Majesty Queen Elisabeth and her heirs and successors according to the Imperial laws application Act 1988 section 5. [sic] [15] The applicants also filed a notice showing that the hearing before the Tenancy Tribunal was to be held on 9 February 2017 at 3:20pm. [16] Upon reviewing this material, on 9 February 2017 at 9:00am, I issued the following further direction: As there is a tenancy tribunal hearing concerning this matter at 3:20pm today there is insufficient time to convene a hearing concerning the application seeking an interim injunction. The applicants are to file any submissions in support of their application by 12pm today and I will consider the application ex-parte and will deliver a decision on the papers. [17] Ms Doney filed further submissions in support of the application. Craig Lewis, one of the current registered proprietors for Lot 2, filed a submission and supporting material opposing the application. As noted, I issued a minute dismissing the application with reasons to follow. The Law [18] The Court has jurisdiction to grant both permanent and interim injunctions per s 19 of the Act. The principles concerning the grant of an interim injunction are settled. The applicant must establish that: 7 (a) There is a serious question to be tried; (b) The balance of convenience is in favour of the applicants; and 7 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129; Lomax v Apatu Awarua o Hinemanu Trust (2013) 22 Takitimu MB 282 (22 TKT 282).

5 145 Taitokerau MB 8 (c) The overall justice of the case supports the grant of an injunction. Is there a serious question to be tried? [19] In determining whether there is a serious question to be tried it is necessary to consider the allegations before the Court, the applicable law and whether there is a tenable combination of resolution of the issues of law and fact on which the applicant could succeed. 8 [20] The applicants sought an interim injunction pending the determination of the customary land application. The original customary land application sought a determination that the larger Auckland area is Māori customary land on the grounds that: all land remains Māori customary land until lawfully extinguished native title to these properties has not been lawfully extinguished and so the land remains Māori customary land rights to these properties by reason of whakapapa and ahi kaa and that in accordance with tikanga their rights equate to ownership te tiriti o waitangi 1840 the full exclusive undisturbed possession of their land he wakaputanga ote rangatiratanga o niu tirani 1835 we do not permit any other legislative authority [sic] [21] Mr Hetaraka filed statements of claim concerning the customary land application on 18 December 2016, and then on 16 January Mr Hetaraka prepared and filed these statements of claim himself without the benefit of legal advice or representation. These pleadings are confusing and do not set out a clear basis for the application. [22] The most recent statement of claim pleads that Customary Native Title must be duly extinguished by law. However, other than asserting this legal principle, the pleadings do not clearly identify the basis on which the applicants claim that the subject lands have remained Māori customary land. [23] The relief sought in this statement of claim includes (inter alia) that the Tribunal grant an urgent hearing and seeks recommendations that The Crown has acted contrary to the principles of the Treaty of Waitangi. 8 Sutton v The House of Running Ltd [1979] 2 NZLR 750 at 753.

6 145 Taitokerau MB 9 [24] Surprisingly, the relief in this statement of claim does not seek a determination that the subject lands are Māori customary land. [25] In Ngāti Apa v Attorney-General, 9 the Court of Appeal found that all land remains Māori customary land until the native title is lawfully extinguished. There is no question that the decision in Ngāti Apa is good law. The principle that customary title remains until lawfully extinguished was confirmed by Elias CJ in the Supreme Court decision of Paki v Attorney-General. 10 The question before me is whether there is a tenable resolution of that law with the facts in this case. [26] The area of land which is the subject of the customary land application is not properly defined other than by a map which identifies the larger Auckland area. There is no actual evidence before me which supports the assertion that this land has remained Māori customary land. The applicants have filed a number of supporting documents including: correspondence concerning proceedings before the Waitangi Tribunal; newspaper articles; various Court decisions; statutes; and other documents, which do not establish that the subject land has remained Māori customary land. [27] Certificate of title NA815/273 has issued with respect to Lot 2. A historic search on the title shows that a number of transactions, including various transfers and mortgages, were registered against the title dating back to On 30 May 1997, the title was transferred to Ms Doney, Mr Mrowinsky and Howard Egarr as tenants in common in equal shares. They mortgaged the property to ANZ. Mr Egarr s share was subsequently transferred to Ms Doney and Mr Mrowinsky by transmission. The mortgage in favour of Brian Spooner, Mark White and David White was registered on 7 July [28] Section 145 of the Act states: 145 Māori customary land inalienable No person has the capacity to alienate any interest in Māori customary land or to dispose by will of any such interest. [29] The various transactions registered against the title to Lot 2 are inconsistent with this fundamental principle that Māori customary land is inalienable. Although the 9 10 Ngāti Apa v Attorney-General [2003] 3 NZLR 643. Paki v Attorney-General [2015] 1 NZLR 67.

7 145 Taitokerau MB 10 customary land application is yet to be determined, on the face of it, Lot 2 appears to be General land. [30] For these reasons, the applicants have not established that there is a serious question to be tried in this case. Where does the balance of convenience lie? [31] The balance of convenience requires balancing the injustice that will be caused to the applicants, if an interim injunction is refused, and the applicants case ultimately succeeds, against the injustice to the respondent that will result if the injunction is granted, but then discharged in the substantive judgment. 11 [32] Ms Doney is currently residing in Lot 2. If an interim injunction is not granted, there is a risk that the Tenancy Tribunal will order her to vacate the property. Ms Doney considers that Lot 2 is her home. At the hearing of the first injunction application, and at the rehearing application, Ms Doney advised that her son is buried on the property. 12 I accept that if she is required to vacate the property, this will cause her distress and possible hardship. [33] The applicants are seeking an injunction against the Riley White Trust and the bank. It is not clear who the applicants are referring to as the bank. The Riley White Trust was the former mortgagee who sold the property by mortgagee sale on 20 December The grant of an injunction will not affect their rights as mortgagee as they have already exercised their power of mortgagee sale. While it could be said that this demonstrates that the balance of convenience is in favour of the applicants, in reality, and as noted below, this simply renders futile any proposed injunction against the former mortgagee. Does the overall justice of the case support the grant of an injunction? [34] Having considered these matters, I must stand back and determine where the overall justice lies in this case Wellington International Airport Ltd v Air New Zealand Ltd HC Wellington CIV , 30 July It is not clear whether Ms Doney was referring to her son s body or his ashes.

8 145 Taitokerau MB 11 [35] The jurisdiction to grant an interim injunction is governed by equitable principles. Accordingly, the prior conduct and dealings of the parties may be relevant to the exercise of the Court s discretion. An applicant should come to Court with clean hands and delay, acquiescence or other inequitable conduct may go against the grant of an injunction. 13 [36] The evidence before me 14 demonstrates that Ms Doney and Mr Mrowinsky took out a loan, and secured that loan by way of a mortgage against the title to Lot 2. Ms Doney and Mr Mrowinsky defaulted on the loan and, as such, the mortgagee exercised its power of mortgagee sale. [37] Ms Doney is now asserting that this land is Māori customary land and that an injunction should be granted preventing the mortgagee from exercising its powers pending the determination of the customary land application. Ironically, if Lot 2 was Māori customary land, Ms Doney would not have been entitled to obtain title to the land by transfer, or to register a mortgage against the land. [38] I note that Ms Doney has attempted to argue that the loan and mortgage were obtained unlawfully. There are no proceedings before me seeking a determination on these issues, and even if there were, there are serious questions as to whether I have the jurisdiction to determine such matters. Even if such hurdles could be overcome, there is no objective evidence before me which supports these allegations. [39] It is hard to escape the conclusion that this is a contrived effort by Ms Doney to try and thwart the exercise of the mortgagee s powers under the mortgage. Ms Doney was content to rely on the ability to alienate the land when she acquired the title to it, and when the mortgage was registered, but she now asserts that the land is inalienable when the mortgagee is seeking to exercise its rights due to Ms Doney defaulting on the loan. Clearly Ms Doney has not come to the Court with clean hands and her conduct disentitles her to equitable relief. [40] I also note that this is now the third attempt by the applicants to obtain an interim injunction concerning Lot 2. On 18 October 2016, I dismissed the first injunction New Zealand Fire Service Commission v Mitchell CA36/99, 12 October 1999, Unilever Plc & Unilever NZ Ltd v Cussons (NZ) Pty Ltd [1997] 1 NZLR 433 (CA). Including the evidence presented in the first injunction application and the rehearing application.

9 145 Taitokerau MB 12 application on the basis that I could not grant an interim injunction pending the determination of proceedings before the Waitangi Tribunal, and that there was no substantive proceeding before the Court. The very next day, the applicants filed the customary land application, and the rehearing application. The applicants argued that a rehearing should be granted on the grounds that the deficiencies in the first injunction application had been addressed, as there was now a substantive proceeding before the Court. On 1 February 2017, I dismissed the rehearing application on the basis that an applicant is not entitled to a rehearing to repair omissions or deficiencies in the earlier case. Later that same day, the applicants filed the current application, once again, seeking an interim injunction concerning Lot 2. [41] All three applications filed by the applicants have lacked merit. I consider that the repeated filing of frivolous applications in this case is tantamount to an abuse of process. Once again, such conduct goes against the grant of equitable relief. [42] Finally, as noted, the applicants are seeking an interim injunction against the former mortgagee. Lot 2 has already been sold by mortgagee sale and any injunction against the former mortgagee would be futile. Decision [43] On 9 th February 2017, application A , seeking an interim injunction pending the determination of the customary land application, was dismissed. Dated Friday this 10 th day of February 2017 in Whangarei. M P Armstrong JUDGE