Sections 117,214,328,330 and 330A, Te Ture Whenua Maori Act An occupation order held by Estate ofnikora Bidois over patt Te Puna 154D 3B2 block

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1 305 Rotorua MB 234 IN THE MAORI LAND COURT OF NEW ZEALAND W AIARIKI DISTRICT A A UNDER IN THE MATTER OF Sections 117,214,328,330 and 330A, Te Ture Whenua Maori Act 1993 An occupation order held by Estate ofnikora Bidois over patt Te Puna 154D 3B2 block NEW ZEALAND GUARDIAN TRUST COMP ANY LIMITED Applicant AROHA ANDREA BIDOIS, PUHI IHAKA T ARAU & T APURAKA PETER BIDOIS Respondents Hearing: 1 November 2006,304 Rotorua MB (Heard at Rotoma) Appearances: Mrs Fleur Tamati, for New Zealand Guardian Tmst Company Limited Mr U Dennett, for the Pedro 13idois whanau Judgment: 31 January 2007 RESERVED JUDGMENT OF JUDGE G D CARTER The Applicatlons [1] New Zealand Guardian Trust Company Limited as executor of the estate ofnikora Bidois (Nikora) applied for an order of succession in the terms of his will dated 30 July [2] Nikora Bidois died on 18 April [3] The application was heard on 8 June 2006 and was opposed by his brothers and sisters represented by Mr Dennett.

2 305 Rotorua MB 235 [4] The opposition was, not to succession to the deceased's Maori land interests, but to succession to an occupation order over patt Te Puna 154D3B2. The deceased's 2 brothers and sister claimed the right to that order. [5] The COlllt on 8 June 2006 at 300 Rotoma MB made orders of succession in respect of the.iand interests held by the deceased in favour of Steve Wharengaio Tutengaehe or Bidois (Steve) and Nikora Hayden Junior Bidois (Nikora junior), the persons entitled thereto under the will. [6] The occupation order was made on 5 September The legislation giving the COUlt jurisdiction to make an order of succession in respect of occupation orders came into force on I July Mr Detmett disputed the right of the COlllt to make orders of succession in respect of orders, which were made before the legislation came into force. [7] On 18 August 2006 at 30 I Rotorua MB , in a reset-ved decision, I made a preliminary determination finding that the COUlt had jurisdiction to make a succession., order affecting the deceased's occupation order. I directed that the application in respect of the occupation order be set down for fmther hearing. [8] Mr Dennett then filed an application on behalf of the sister and brothers ofnikora, namely, Aroha Andrea Bidois (Aroha), Puhi Ihaka Bidois (Puhi) and Tapuraka Peter Bidois (Tapuraka) to constitute a whanau bust for the descendants of their father, Pedro Bidois. The application fiuther sought, under sections 328, 330 and 330A of Te Ture Whenua Maori Act 1993 (the Act), an occupation order in favour of the Pedro Bidois Whanau Trust over the same area of land as Nikora's occupation order. Issues [9] The COUlt is required to determine who is entitled to the benefit of Nikora's occupation order - the sons of the deceased under the terms of the will or the deceased's brothers and sister under their cross claim. The cross claim relies upon a purpotted oral agreement between Nikora and his siblings.

3 305 Rotorua MB 236 The Will [10] Two provisions ofthe will are relevant. Clause 6 provides: 1 GIVE all my furniture, household goods and other personal chattels as defined in section 2 of the Administration Act 1969 to my sister Arollfl Andrea Bidois with the wish that she divide them Iii accordance with any wishes 1 have made known. [11] Clause 7 provides for the rest of the estate after payment of all debts to go: in equal shares to those of my children Stan Wharengaio Bidois and Nikora Junior Bidois who survive me and respectively reach 01' have reached the age of20 years. [12] Stan has reached the age of20 years; Nikora will be 20 on 31 August The Law [13] I set out those provisions of the Act which would appear to apply directly to the applications: 108 (2A) A person in whom an occupation order has been vested may.lea.ve the occupation order by will to any 101' more persons who come with iii subsection (2). (2B) A person is entitled to succeed to an occupation order by wiu- (a) if the person owns a beneficial interest in the land to which the occupation order applies; and (b) if the Court is satisfied, in the circumstances, that the extent of the person's beneficial interest in the land justifies that person succeeding to the occupation order. (2C) An occupation order that passes by will is cancelled automatically on the date of expiry or determination of the occupation order. 109A(I) Subject to subsection (2), section 109 applies, with all necessql)' modifications, to an occupation order as if it were a beneficial lilterest in Maori freehold land 119A Sections 117 to 119 apply, with all necessql)' modifications, to an occupation order as if it were a beneficial interest in Maorifi'eehold land The Maori Land Court may at any time, on the application of any person or on its own motion, make an order amending or cancelling any occupation order 330A Review of occupation orders (1) The Maori Land Court may review an occupation order made before this section comes into force, on application by an owner of a beneficial interest iii the

4 305 Rotorua MB 237 land over which the occupation order has been made, 01' by the person in whom the occupation order is vested. (2) The Maori Land Court may conduct a review under subsection (1) as if it were exercising its jurisdiction to make the initial occupation ordel; and must have particular regard to the fact that, after it was made, the occupation order collld pass by succession. The Case for the Pedro Bidois Whanau Trust [14] The grounds set out in the application are: i. the owners as a whole support the application having had sufficient notice of the application and sufficient opportunity to discuss and consider it; and ii. iii. iv. it is in the interests of the owners of the landfor the house and curtilege to be so occupied and such occupation will not derogate from the best overall use and development of the land; and shares held by the applicants were included with the shares of the Nikora Charles Bidois deceased to equate to 987m2 on the agreement between the Applicants and the Deceased that the house and land subject of the Occupation Order 1V0uid be held for occupation within the Bidois Whanau as decidedfrom time to time by, now, the applicants as survivors; and the applicants are meeting the rates and insurance premiums and other outgoings on the land and house and maintaining the house and the land. [15] Aroha Andrea Bidois gave evidence in supp0!1 of the application. Her evidence was confirmed by her brother Tapuraka Bidois. [16] The evidence included: 1. She and her 3 brothers ijlc!uding the deceased, Nikora, received betweell them shares ill Te PUlla 154D3B2 itom their late father Pedro Bidois. 11. Nikora became a tetraplegic as a result of a car accident OIl 18 August He maltied his paraler IiI Taurallga Hospital OIl 20 September He moved illto the Ace Merivale home ill Greerton Iii Mkora~ wiic lived Iii the Men vale home with him but left ill 1995 tajailg the 2 childrell, Stall alld Nikora jullior with her. 11< Tapuraka alld his 2 childrell moved Iii with Mkora shortlx before lus H'lfe left. Tapuraka provided full caregivlilg durillg the periods IIOt covered bx ACC caregifers. v. Mkora alld Tapuraka agreed to use l"ikora~ compellsatioll itom ACC to b/lljd a house all Te PUlla 154D3B2 block. VI. Aroha alld her brothers agreed that ajj the shares held bx them itojjl their!ather

5 305 Rotorua MB 238 would be used to justify all area of 987m2 and to obtain an occupation order for the house site. V". This altangementwas based OIl the "greement between tilem tilat tile house would be available for occupation by tile Bidois whanau as decided by her brotijers and ller Nikora and J',1puraka moved into tile house in 200 J and Tapuraka acted as companion and caregiver outside tile times a caregiver was supplied by ACC. He also maliltained tile house and grounds. Nikora could Jlot have lived in tile house witilout Tapu1<1ka's caregiving. IX. Nikora died in a ro,1d accident all J 8 Apri x. Aroha had consulted witil tilose O1mers she could conk1ct as to tileir attitude towards tile IIdlallau taking over the occupation order and had received support. A IJlJJJJber of OWllen were overseas. The 4 sljjliiving t.mstees of tile block also supported tile application. [17] Michael Bidois, a trustee in the block gave evidence as to consent of the trustees. He indicated that his preference was for the house to go to Aroha and her 2 brothers. He was a brother to Nikora's father Pedro. Nikora had built the house on his father, Pedro's land, and the house should go back to Pedro's family. Submissions by Mrs Tamald [18] Mrs Tamati's submissions were brief and to the point. She pointed out that the Nikora had built the house with his filllds. Apart fi'om leaving his personal chattels to Aroha, Nikora had, under his will, left his estate to his 2 sons. She submitted that under section 119A section 117 applies to an occupation order as if it were a beneficial interest in Maori land, that Stan and Nikora junior are the persons beneficially entitled under the will '. and that an order of succession should be made in their favour. Entitlement under the will [19] Mr Dennett contests Mrs Tamati's claim that the 2 sons were entitled under the will and submits that the occupation order passed to Aroha, she being entitled to all the chattels in the estate. [20] He refell'ed to section 109A which provided that an occupation order was to be treated as an interest in Maori freehold land for the purpose of section 109 which established rights to succession on intestacy. He contrasted this with section 108 which, while it provided that the holder of an occupation order might leave it by will, contained no

6 305 Rotorua MB 239 similar provision to section 109A fixing the entitlement to the order as if it were an interest in Maori land. At 304 Rotorua MB 66 he concludes his submission thus;... and what 1 am saying is that the occupation order is not an interest in Maori freehold land because on intestacy it was considered neccessary to make the occupation order as though it was an interest in Maori freehold land. So if it's 1I0t an interest in Maori freehold land then it's a chattel. Chattels go to Aroha. [21] Section 109 of the Act sets out the entitlement to succeed to interests 111 Maori fi'eehold land on an intestacy. Te Ture Whenua Maori Amendment Act 2002 introduced provisions for succession to occupation orders and found it appropriate to likewise set out the entitlement to succeed to those orders in the case of intestacy. Section 109A adopts the same formula for determining entitlement as applies to interests in Maori fi'eehold land. [22] In the case of a will, while section 108 places restrictions on those who may take under a will, the right to succeed to interests in Maori freehold land is detemlined by reference to the provisions of the will. The same position applies in the case of occupation orders. Right of succession is determined by the terms of the will. There is no need for a provision similar to section 109A. [23] Clause 6 of the will of Nikora Bidois provides that all his furniture, household goods and other personal chattels as defined in section 2 of the Administration Act are to pass to his sister Andrea CAroha). Mr Dennett submits that the occupation order is a chattel and passes to Aroha under this clause. As outlined above, Mrs Tamati disputes this and claims that the occupation order falls into residue and that Nikora's sons, Stan and Nikorajunior are therefore entitled. [24] An occupation order is not fumiture or household goods. The definition of personal chattels in section 2(1) of the Administration Act 1969 sets out a comprehensive list of chattels as follows: "Personal chattels", in relation to any person who has died, means all vehicles, boats, and aircraft and their accessories, garden effects, horses, stable ji,rniture and effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, furniture, jewelle1y, articles of household or personal use or ornament, musical and scientific instruments and apparatus, wines, liquors and consumable stores, which immediately before his death were owned by him or in which immediately before his death he had an interest as debtor under a security interest as defined in the Personal Property Securities Act 1999, or as a purchaser under a hire purchase agreement; but does not include any chattels used

7 305 Rotorua MB 240 exclusively 01' principally at the death of the deceased for business pulposes or money or securities for money: [25] Even under the broadest of interpretations none of the above chattels could be said to include an occupation order. The occupation order is not a chattel in the terms of clause 6 of the will. [26] While it is not material in this decision, for the sake of completeness I note the definition of real estate in the same section ofthe Administration Act "Real estate" means lands, tenements, and hereditaments, corporeal or incolporeal, and whether in possession, reversion, remainder or expectancy; and any estate or interest in them or any of them, whether freehold or chattel interests; and any possibility, right, or title of entry or action in or concerning them or any of them: [27] This definition appears as a contrast to the definition of personal chattels. The nature of an ocupation order in confelting right of exclusive occupation of land would appear to fall within this definition. [28] I find that the occupation order falls within the residue clause in the will and that the deceased's 2 sons Stan and Nikorajunior are entitled to succeed thereto. Is there an agreement [29] Te Ture Whenua Maori Amendment Act 2002 introduced succession to occupation orders. Prior to this an occupation order was regarded as personal to the holder and, unless there was some other provision for termination, lapsed on the death of the holder. No doubt the legislature considered that provision for succession would assist the continued use occupation and maintenance of houses erected by holders of occupation orders. [30] The legislation provides for succession to orders which, when made, were only contemplated as having a limited duration. It is apparent that section 330A (set out in para 12) allowing for review of occupation orders made before the coming into force of the legislation is aimed at addressing any anomalies which may arise tlu ough the retrospective effect of that legislation.

8 305 Rotorua MB 241 [31] The Act establishes a primary right to succeed to an occupation order in favour of a person beneficially entitled thereto under a will or intestacy. The provisions of sections 330 and 330A do not in themselves provide grounds to challenge that right. There needs to be good reason for any such challenge. [32] The Bidois whanau rely on all agreement. The grounds put forward by Mr Dennett may be summarised briefly as follows" 1. tile occupatiojj order obfljjijed by NIkora Bidois was based OIJ agreemejjt WI'tJJ ilis brotilers ajjd sister. 11. tiley allowed their silares to be used to justi!} the area of occljpatiojj hj retum NIkora agreed that tilebidois 13mily (ijjcludiijg Nikora) would ijave COJJtrol ofn1jo occupied the house. Iv' Tapuraka 1V0uld live WI'tJJ Nikora to provide 24 ljour caregivijjg, thus makiijg it possible for Nikora to li11(j there. v, Nikora ~ other brother ajjd sister were able to provide fijrther caregiviijg ajjd support 1'1. Tapuraka maijjtjjijjed the ljouse ajjd groujjds. V11. At the bijje the occupatiojj order was made JJeither the trustees lior tile n1iajjau were ajvare tilat the order would subsequejjtly be able to pass by successiojj. V111. The occupatioij order was ljot for NIkora alojje but for the Bidois n1jajjau. IX The 4 surviviljg bustees for Te pulja 154D3B2 SUppOlt tbe applicatiolj by the Bidois W}WlJ8U. [33] Aroha Andrea Bidois in her evidence at 304 ROT 5'1 sets out the basis for agreement: III 2000 Nikora and Tapu arranged to use the cash compensation from ACC to build a home for them on Te Puna 154D3B2B. My brothers and I agreed that all the shares held by us from ow' father would be used to justify an area of987 square metres and to obtain an occupation order for the house site. The arrangement was based on agreement between us that the house would be for the occupation of our Bidois whanau as decided by my brothers and I. [34] The claim is suppolied by celiain facts" the altangement to build a house, the obtaining of an occupation order and the assistance provided by Tapuraka, pmiicularly in

9 305 Rotorua MB 242 providing care for Nikora. could have been reached without any such agreement. However, conversely, it could be said that each of these steps [35] I have searched the Comt record for fill1her evidence of any an angement. There were in fact 2 applications for an occupation order. The first was made by Nikora on 26 August The application shows the occupiers of the proposed dwelling to be "myself and my children Wharengaio, N ikora and Michael. The area of the site according to the accompanying plan was 552 square metres, which equated with Nikora's shareholding of shares. The application was granted October 1999 at 63 Tauranga MB 117. [36] The application was presented by Judith Bidois, an aunt of Nikora. She stated: J am a sister of Nikora's father who is deceased. My sister and brothers are all owners in the block and consent to Nikora going home to build. J support the application. My older brothel' resides on the block and he is helping Nikora with the site plan. Consents from the tmstees have been submitted. [37] The file contained no consents fi'om Aroha or her brothers and no reference to them. It is apparent that in making the order the Court relied on the consent and approval of Judith and her brothers and sisters. [38] On 12 June 2002 Mr Beilby as counsel for Nikora filed an application seeking a fillther occupation order for a different site on the grounds that the original site was not that chosen by Nikora. The application stipulated an area of 987 square metres. Judith Bidois again appeared in SUppOlt and the order was granted on 5 September 2000 at 65 Tauranga MB 74, the 1999 order beillg cancelled. [39] Once again there is no reference to Aroha or her brothers and no consents from them were filed. The Comt appeared to rely on the evidence and supp0l1 fi'om the previous application. Under the law as it then stood the need to own sufficient shares to justify the area awarded was not a requirement of the Act, this provision being included in the 2002 Amendment Act. While the COlllt generally took shareholding into account in considering an application it also took note offamily SUppOlt and shareholding and consent of owners.

10 305 Rotorua MB 243 [40] The assistance provided by Tapuraka is not necessarily evidence of an agreement. He states that he moved into the ACC house at Merivale in 1995 before Nikora's wife left him. When Nikora moved to the new house at Te Puna Tapuraka moved with him. [41] I do not know the reason that Tapuraka moved into the Merivale house but presume it was to help Nikora. The conse.quence is that when Tapuraka moved into the new house it appears as a continuation ofthen existing family situation rather than evidence of a new 3ITa n gem ent. [42] These comments are not intended to downplay the assistance Tapuraka has given Nikora. There is no doubt as to the role he has played in caring for his brother. However that in itself does not substantiate a claim for the occupation order. [43] There is nothing in the above facts that is inconsistent with the existence of an agreement as claimed. However there is nothing in them to substantiate the fact of an agreement. Additionally there is evidence fi-om the COUlt record that Nikora was able to obtain an occupation order without the tangible assistance of Aroha and her brothers. [44] I have no doubt that Nikora's housing project was discussed not only by,the Pedro Bidois whanau but also by the wider whanau which collectively holds a large shareholding in this land. I also have no doubt that Aroha, Puhi and Tapuraka were prepared to use their shares to assist Nikora obtain an occupation order. An order was obtained in Nikora's name for his and his families benefit and I am not convinced that he was party to an agreement as claimed. I find it hard to believe that having obtained an o'ccupation order (he was in COUlt for both applications) and with his own funds built a house primarily for his own benefit he would give the right to others to say who might live there. [45] At the time the order was made an occupation order lapsed on the death of the holder. I lean to the belief that the Bidois whanau held an expectation, and nothing more, through their shareholding, their connection with the tmstees and their connection with the wider whanau, that they might be able to control the fbture occupation of the house. The 2002 Amendment has changed that by providing for succession to occupation orders. Decision

11 305 Rotorua MB 244 [46] Nikora became a tetraplegic tlu ough accident in His maltiage suffered and he was unable to playa patt in providing for his children. He obtained over $150, in compensation and spent this on his house. The children are next of kin and are entitled under his will. The evidence fi om the Bidois whanau is not sufficient to convince me that I should award the occupation order to them. The applications by the Bidois whanau for the creation of a trust and the award of the occupation order are dismissed. [47] There is an order under section 117 vesting the occupation order in Steve Wharengaio Tutengaehe or Bidois and New Zealand Guardian Trust Company Limited as trustee ofnikora Hayden Junior Bidois equally. [48] The area of the order (987m2) is in excess ofthat equivalent to the shares held. At this stage it would appear that there are other sites available on this land and I see no need to reduce the area. Aroha and her 2 brothers still retain their shares and are able to use them to SUppOlt an application if at any time they seek a house site. At this stage they do not appear to be prejudiced by the area awarded to Nikora. If the area becomes a matter of concem in the fijture section 330A is available for a variation to be sought. [49] There is an application under section 330A and the Comt has the opp0l1unity to review the order. A major factor in the SUppOlt for the order was Nikora's circumstances. This is an area of land on the Tauranga Harbour for which there will be growing demand and the trustees will no doubt in the future be required to review or revise the use of the land so as to provide the maximum benefit to owners. It would be prudent to limit the duration of the order and there is an order under section 330A amending the order by limiting its duration to the life of the survivor of Steve Wharengaio Tutengaehe or Bidois and Nikora Hayden Junior Bidois. Dated at Hamilton this 3 f S' I day of JanualY 2007 ~~ JUDGE

12 305 Rotorua MB 245 Copies 10 : Mrs Fleur Tamali and Mr G Dennett j.