IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A FAY PATENE Applicants. TE RANGIRUNGA WI PATENE Respondent

Transcription

1 349 Aotea MB 51 IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A UNDER Section 18(1)(a) of Te Ture Whenua Māori Act 1993 IN THE MATTER OF Te Rangirunga Wi Patene Determination of a life interest BETWEEN AND SHARRON CASSIDY FAY PATENE Applicants TE RANGIRUNGA WI PATENE Respondent Hearings: 346 Aotea MB dated 16 December 2015 Appearances: Sharron Cassidy and Fay Patene in person Te Rangirunga Wi Patene in person Judgment: 9 March 2016 RESERVED JUDGMENT OF JUDGE L R HARVEY Introduction [1] In 1999 Te Rangirunga Wi Patene was granted a life interest in the estate of his wife Shirley Patene with their children receiving the remainder. 1 He then remarried in 2004, yet continued to receive income via the life interest. In August 2015 I issued orders determining the life interest and vesting them in the children. 2 [2] Sharron Cassidy and Fay Patene, two of the deceased s children, now seek an order determining that the funds received by Mr Patene between 2004 to the present, belong to them and their siblings Aotea MB 108 (90 AOT 108) 340 AOT 271 (340 AOT 271)

2 349 Aotea MB 52 [3] Mr Patene believes that these proceedings were filed due to underlying tensions caused by his remarriage and he asks the Court to have regard to how he has helped his children, financially and otherwise, over the years. [4] According to correspondence on the file Mr Patene has received approximately $5,500 from the Māori Trustee and $10, from Parinīnihi ki Waitōtara Incorporation. [5] A hearing was held on 16 December Issues were raised concerning the ownership and occupation of a dwelling located at Parihaka and the potential sale of that property to someone outside of the whānau. At the conclusion of the hearing I adjourned the proceedings. [6] Further correspondence was then received from Sharron Cassidy and Tanisha Harris on 3 February Ms Cassidy confirmed that Mr Patene issued a trespass notice against her on 24 December 2015 preventing Ms Cassidy from going on to the property at Parihaka. Ms Cassidy asks the Court to remove the trespass order. Issues [7] The issue for determination is whether Mr Patene should be required to repay the monies received by him between 2004 and the present. In determining this issue it is necessary to consider: (a) Is the application against Mr Patene statute barred? (b) Have the applicants delayed in bringing the application to such an extent that it would be inequitable for the Court to now make the orders sought? Applicants submissions [8] The applicants submit that given Mr Patene s life interest was only to endure until remarriage the funds received after he remarried belong to them. They say that despite being aware of their father s remarriage in 2004 they did not seek recourse to the Court as they wished to resolve the matter out of Court Aotea MB 224 (346 AOT 224)

3 349 Aotea MB 53 [9] Ms Cassidy submits that their father has been resistant to talking about the issue and says that the reason the issue came to Court now was because the grandchildren want the dispute resolved. [10] Regarding the trespass, Ms Cassidy submits that on 24 December 2015 her father issued a notice against her preventing her from going onto the Parihaka property. Ms Cassidy says that Mr Patene unnecessarily involved his wife s whānau by getting her granddaughter, a police officer, to sign the notice. Ms Cassidy believes the trespass notice was issued because of the Court proceedings. [11] Ms Cassidy submits that the original agreement was that Mr Patene would put up a shed for his children and mokopuna however this changed after he remarried and access was restricted. She claims that the children would like to be compensated by the return of the shed with no further debt owing from him to use and if the shed is not returned then compensation should be paid and the dwelling removed. Ms Cassidy further says that given her father s poor health he no longer visits the Parihaka property and her brothers are maintaining it instead. [12] Tanisha Harris also filed a letter in support. She asks that the trespass notice be overturned and that the property returned to the whānau as full payment for the debt. Respondent s submissions [13] Mr Patene says that the application has come about because of a falling out with his children over his remarriage. He explained that he has a unit at Parihaka and when his health deteriorated he asked his children to help him with the maintenance of the property but did not get any response from them. [14] In addition, Mr Patene says he offered to sell the unit to one of the kaumatua involved in Parihaka as he is no longer able to maintain it and that he had informed his children of this proposal. According to Mr Patene his children have told him he cannot sell the property and must give it to his grandchildren. Mr Patene submits that he has let his whānau stay at the unit in the past but denies saying he would give it to anyone. He further says his children thought they were entitled to the property and interfered with the sale to the kaumatua. The sale monies were going to be used to help get his home into a condition appropriate for his needs.

4 349 Aotea MB 54 [15] The respondent submits that the money received from the life interest has been spent entirely on himself to pay for his personal needs including glasses, teeth and other medical expenses. He says that due to his health he is not able to carry out simple tasks unaided. Mr Patene also points out that over the years he has assisted his children financially with various matters and has been content to do so out of love and affection for them. The Law [16] The application was filed under s 18(1)(a) of the Act: 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: [17] It is well settled that s18(1)(a) merely enables the Court to declare existing rights of ownership. It cannot be used to create, transfer or vest rights. 4 Discussion Is the application against Mr Patene statute barred? [18] Despite the introduction of the Limitation Act 2010, it is the Limitation Act 1950 which applies to these proceedings given that the cause of action occurred prior to 1 January That Act prescribes a 6 year limitation from the date on which the right of action accrued for bringing proceedings to recover trust property Limitation of actions in respect of trust property Section 21 provides: (1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action (a) (b) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use 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) Limitation Act 1950, s 2A Limitation Act 1950 s 4, 21

5 349 Aotea MB 55 (2) Subject as aforesaid, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of 6 years from the date on which the right of action accrued: Provided that the right of action shall not be deemed to have accrued to any beneficiary entitled to a future interest in the trust property until the interest fell into possession. (3) No beneficiary as against whom there would be a good defence under this Act shall derive any greater or other benefit from a judgment or order obtained by any other beneficiary than he could have obtained if he had brought the action and this Act had been pleaded in defence [19] In determining whether limitation applies, the issue of whether Mr Patene, upon his remarriage, held the income on trust for his children is a key consideration. Constructive trust principles [20] It is uncontroversial that whenever a person holds property that, in equity and good conscience requires such assets should be held hold for another, a constructive trust will be imposed to compel that outcome. 7 MacIntosh it was held that: 8 In Fortex Group Ltd (In Receivership and Liquidation) v Equity acted as a Court of conscience to intervene to prevent those with rights at law from enforcing those rights when in the eyes of equity it was unconscionable to do so. [21] Then in Official Asignee v Santuary Propvest Ltd Asher J stated that: 9 A constructive trust arises therefore by operation of law in circumstances where it would be unconscionable for the holder of property to assert a beneficial interest in that property because the holder s conscience required the recognition of the beneficial claim of another. [22] At the hearing I asked Mr Patene whether he was aware that the life interest was only to remain in place until remarriage. Mr Patene acknowledged a vague awareness of this but claimed that he could not clearly recall it being talked about at the time of the succession. The minutes of the hearing record that Mr Patene was the applicant for the succession and that Judge Marumaru noted that per s 108(4) of the Act a surviving spouse is only entitled to a life estate in the Māori land interests. Mr Patene stated: N Richardson, Nevill s Law of Trusts, Wills and Administration (10th ed, LexisNexis, Wellington, 2010) at p 75. [1998] 3 NZLR 171 HC Auckland CIV , 11 June 2009 see also Nevill s Law of Trusts, Wills and Administration at p Aotea MB 108 (90 AOT 108)

6 349 Aotea MB 56 I will accept a life interest, the Māori land to go to all the children including Taneisha. [23] I consider that Mr Patene has been aware that the interests are to go to his children in the event that he remarried. I further consider that it would be unconscionable for Mr Patene to have continued to receive the funds following his remarriage, given his state of knowledge. My conclusion is that, consequently, Mr Patene held the income on trust for the children. [24] As foreshadowed, per s 21 there is usually a 6 year limitation on beneficiaries seeking recourse from a trustee. The cause of action arose on 31 January 2004, when Mr Patene remarried. From then time began to run and expired on or around 31 January Have the applicants delayed in bringing the application to such an extent that it would be inequitable for the Court to now make the orders sought? [25] As I raised at the hearing it is possible that equitable relief may be available to the applicants. At the hearing I queried whether the trustees had sat on their hands in terms of any right to now seek to recover the monies paid to Mr Patene. The applicants acknowledge they were aware that their right to the income was triggered on the date of remarriage but wished to settle the issue out of Court. [26] Under s 31 of the Limitation Act 1950 the equitable jurisdiction to refuse relief on the ground of acquiescence is expressly preserved. In Eastern Services Ltd v No 68 Ltd the Supreme Court stated: 11 [34] The classic exposition of the doctrine by Lord Selborne LC bears repetition. The part most often cited is in these terms: Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or whereby his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy. 11 [2006] NZSC 42, [2006] 3 NZLR 355

7 349 Aotea MB 57 [35] An authority often cited in the same breath as Lindsay Petroleum is Erlanger v New Sombrero Phosphate Company. We particularly refer to the speech of Lord Blackburn. After referring to Lord Selborne LC's exposition Lord Blackburn said: I have looked in vain for any authority which gives a more distinct and definite rule than this; and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting a remedy or withholding it. The determination of such a question must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry. [37] the doctrine of laches requires a balancing of equities in relation to the broad span of human conduct. In the abstract, facts and the weight to be given to them are infinitely variable. But in a particular case they have to be identified and weighed for what they are, as a singular exercise. [27] From what I can gather these proceedings were prompted by the issues surrounding the Parihaka property. The applicants say Mr Patene agreed that one of his grandchildren could have the house situated on the property. On the contrary Mr Patene denies that he said any such thing. Given the fact that none of his children would assist him with maintaining the property he considered that selling the house to a kaumatua at Parihaka would be better. [28] While Mr Patene has delayed seeking a determination of the life interest following his remarriage there is also a crucial omission on the part of the applicants in delaying bringing an action to the Court to have it determined. They have been somewhat accepting of the fact that Mr Patene has continued to receive income given that they had knowledge of this and yet took no steps to even seek directions. While their reasons for doing so may be laudable - and the Court always encourages where possible resolution by the affected parties without recourse to litigation it does appear that on the face of the available evidence that the applicants made the decision not to do so within a reasonable period of time. In other words, they had ample time to seek advice and to file an application for recovery of the funds paid incorrectly to their father. In the circumstances I consider that it would be inequitable for an award to be made against Mr Patene. [29] It might also be inferred by way of observation and I can raise the point no higher than that given the background to these proceedings, that a cynical eye might suggest that the case could have been motivated by a failure to achieve a resolution favourable to the applicants over the Parihaka property. That said, having heard from the parties, I acknowledge that the application has been pursued honestly.

8 349 Aotea MB 58 [30] By way of further observation I also note that Mr Patene, at the time of succession, knew full well that the income was his to retain only until such time as he remarried or entered into a defacto relationship. If the application had have been pursed with due diligence within a reasonable period of time soon after Mr Patene s remarriage then the outcome might have been quite different. Moreover, as to the future, this is a series of unfortunate disputes between a father and his children. It should be resolved by them if possible, not the Court. Trespass and related matters [31] As foreshadowed, the applicant has raised additional matters concerning the Parihaka property. I note that no formal application has been made concerning its ownership or otherwise. Regarding the trespass notice, it was not issued by this Court and accordingly I consider that there is no jurisdiction. That is matter for the parties to resolve. [32] I also note the correspondence from Parihaka Papakāinga Trust where that trust accepts that the dwelling is owned by Mr Patene. As Mr Patene owns the house he is able to sell it to whomever he wishes. The occupation area however is a different matter. It is clear that the Trust has confirmed to the applicants that the area be set aside for the Patene whānau and that if Mr Patene sells his dwelling it must then be removed from the site. That is not uncontroversial. I take the correspondence received to mean that if the dwelling is given to the whānau no further proceedings will take place in terms of the income. Decision [33] The claim for relief against Te Rangirunga Wi Patene for receipt of income from the life interest he held in the estate of Shirley Patene is barred by the Limitation Act In addition I find that in these circumstances it would be inequitable to grant such relief. [34] The application is dismissed. Pronounced at am in Palmerston North on Wednesday this 9 th day of March 2016 L R Harvey JUDGE