UNDER Section 45, Te Ture Whenua Maori Act Lot 1 Deposited Plan 8212 formerly pati of Potikirua Incorporation

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1 2013 Chief Judge's MB 82 IN THE MAORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A CJ 2011/44 UNDER Section 45, Te Ture Whenua Maori Act 1993 IN THE MATTER OF BETWEEN AND Lot 1 Deposited Plan 8212 formerly pati of Potikirua Incorporation The Proprietors of Potikirua Block Incorporation Applicant Parekura Te Kani (now deceased) Respondent Hearing: 16 December 2011,45 Waiariki MB March 2012,2012 Chief Judge's MB July 2012,23 Tairawhiti MB (Heard at Gisborne) Appearances: J Koning, counsel for the applicant R Barber, counsel for the respondent Judgment: 30 January 2013 DECISION OF DEPUTY CHIEF JUDGE C L FOX Solicitors: Koning Webster Lawyers, PO Box 13309, Tauranga 3141 Attention: John Koning john@kwlaw.co.nz Wilson Barber & Co Lawyers, PO Box 109, Gisbome 4040 Attention: Ron Barber wilsonbarber@xtra.co.nz

2 2013 Chief Judge's MS 83 Introduction [1] On 2 December 2011, an application under s 45 ofte Ture Whenua Maori Act 1993 (the Act) was filed by Koning Webster Lawyers on behalf of the Proprietors of Potikirua Block Incorporation. The application seeks to cancel a memorandum of transfer endorsed by an Deputy Registrar of the Waiariki district on 3 February 1993 on the grounds that the endorsement on the memorandum of transfer by the Deputy Registrar was erroneous in law or in fact because of a mistake or omission on the part of the Registrar or in the presentation of the facts of the case to the Registrar. [2] An application for an injunction, under s 19 of the Act was also filed, to prevent the current proprietor dealing with the land until the s 45 application was determined. An interim injunction was granted on 16 December [3] The matter was set down to be heard in April 2012, however on 14 February 2012 submissions from counsel for the respondent, Mr Barber, were received with respect to jurisdictional concerns. Mr Barber was concerned that the Courts jurisdiction per s 45 of the Act did not extend to the cancellation of an endorsement by a Deputy Registrar as sought by the applicants. [4] A teleconference was held on 9 March 2012 to discuss this issue. Directions were made vacating the April hearing to allow Counsel for the applicant to respond to the jurisdictional issues raised by Mr Barber. 2 [5] The matter then came before the COUli in Gisborne on 10 July At that hearing the issue of jurisdiction was the sole issue discussed. Legal submissions were received from counsel for both parties. 45 Waiariki MB (45 WAR 42-48) Chief Judge's MB 87 (2012 CJ 87). 23 Tairawhiti MB (23 TRW ).

3 2013 Chief Judge's MS 84 Registrar's Reports [6] Under r 8.3 of the Milori Land Court Rules 2011, the Registrar must prepare a preliminary report on the application. Under r 8.4 a preliminary report must contain the following: (a) a concise history of the order or certificate sought to be con-ected: (b) details of the mistake or omission alleged by the applicant: (c) details of any evidence or findings by the Court in which the mistake or en-or is alleged to have occun-ed: (d) details of any other evidence or findings by the Court that might be material to the application: (e) details of subsequent orders of the Court affecting land to which the application relates: (f) details of any payments made as a result of the order or certificate sought to be corrected, whether by the Maori Trustee or by any other person: (g) particulars of any moneys currently held in trust that might be affected by an order made as a result of the application: (h) consideration as to whether the matter should go to a full hearing or whether the mistake or omission alleged is clearly apparent from the Court's own record: (i) a recommendation as to the course of action to be taken, including whether an injunction should be issued to protect moneys currently held in trust. [7] The preliminary report for this application produced by Ms Rowe, for the Registrar, provides the essential background to this application and is detailed in full below. Introduction I. This application ("subject application") filed by John Koning of Koning Webster Lawyers on behalf of The Proprietors of Potikirua Block Incorporation ("the Applicant"), pursuant to section 45 of Te Ture Whenua Maori Act 1993 ("the Act"), seeks to cancel a memorandum of transfer endorsed by a Deputy Registrar of the Waiariki district on 3 February The land concerned is the former Maori freehold land known as Wharekahika A 15 which was amalgamated in 1967 with other lands under the style of "Potikirua" and which is now general land known as Lot 1 Deposited Plan 8212 comprising hectares more or less and described in the certificate of title as GS5CI1337 ("the block"). 3. The Applicant believes that the endorsement on the memorandum of transfer by the Deputy Registrar was en-oneous in law or in fact because of a mistake or omission on the part of the Registrar or in the presentation of the facts of the case to the Registrar because: The Deputy Registrar omitted to ensure the following before endorsing the memorandum of transfer pursuant to s 233 of the Maori Affairs Act 1953: (i) (ii) The terms of the oral agreement; Whether the consideration of $26,000 had been paid to the Applicant;

4 2013 Chief Judge's MS 85 (iii) (iv) That the memorandum had been executed in accordance with s 42 of the Maori Affairs Amendment Act 1967; and A resolution at a general meeting of the shareholders of the Applicant had been passed pursuant to s 48 of the Maori Affairs Amendment Act The Deputy Registrar erred in law by endorsing the memorandum which allowed the block to be partitioned from the Potikima Block and transferred from the Applicant to Wamoana Te Kani contrary to Pmt 16 of the Maori Affairs Amendment Act 1967 [sic]. 4. The Applicant further submits that there was an error in fact because: (bb) (cc) Wamoana Te Kani, or her agent, wrongly presented the facts to the Registrar by filing the memorandum for an endorsement which had not been authorised pursuant to s 48 of the Maori Affairs Amendment Act Acting on the false presentation of fact, the Deputy Registrar endorsed the memorandum pursuant to s 233 of the Maori Affairs Act 1953 which allowed the block to be partitioned from the Potikima Block and transferred from the applicant to Wamoana Te Kani contrary to Part 16 of the Maori Affairs Amendment Act The applicant has been adversely affected by the endorsement because: (a) (b) (c) (d) (e) (t) The block was partitioned and transferred without the consent of the Applicant or its shareholders. The Applicant is no longer the registered proprietor of the block. The shareholders of the Applicant have had their relationship with the block severed. The transfer of the block from the Applicant to Wamoana Te Kani was not for value. The transfer of the block from the Applicant to Wamoana Te Kani was not in good faith. The block is now general land and is not subject to the restrictions on the alienation of the Maori freehold land within Te Ture Whenua Maori Act The Applicant seeks "to have the endorsement cancelled and further seeks an amendment to the register of the title to the block pursuant to section 47(4) of the Act cancelling: (a) (b) The transmission of the block from Wamoana Te Kani to Parekura Te Kani; and The transfer of the block from the incorporation to Wamoana Te Kani.

5 2013 Chief Judge's MS An injunction application pursuant to section 19 of the Act was also filed with this application and was granted on 16 December 2011 at 45 Waiariki MB The terms of the Injunction Order prohibit the registered proprietor (Parekura Te Kani as executor), from dealing with the land. The Injunction is to remain extant before the Maori Land Court until the subject application has been determined. 8. The subject application stems from a previous application filed by Waiter Rika on 1 November 2010 consisting of the same subject matter and claim, but which sought a Judicial Conference pursuant to section 67 of the Act (A ). 9. On 24 January 2011, Deputy Chief Judge Fox directed, in relation to the section 67 application, the following: Do not set down for hearing at Opotiki/Te Kaka Court; and As this is General land, it would be preferable for Mr Rika to obtain legal advice and to proceed on that basis rather than to request a conference. I note that there is no evidence that 10% of the shareholding SUppOlt an investigation by the Maori Land COUlt, so even that threshold is not met. May also be an s 45/ It is likely that Mr Rika's application is to be adjoumed until the subject application has been determined. Concise history of the land at issue and the instrument sought to be cancelled 11. On 20 December 1967 at 43 Opotiki MB the Maori freehold land known as Whangaparaoa No 2D, 2E and 2Bl, Wharekahika A3, A6 and A15 blocks were amalgamated pursuant to section 435 of the Maori Affairs Act 1953 by Order of the Court and described under the style of "Potikirua" or the "Potikirua Block". The block was then vested in the Proprietors of the Potikirua Incorporation. 12. The COUlt records show that a Memorandum of Transfer was made on the Gisbome Land Registry Office form between the Proprietors of Potikirua Block Incorporated ("the Transferor"), and Wamoana Te Kani of Gisbome ("the Transferee"). 13. The land concerned is described as being a block in fee simple of hectares and described as Lot 1 on Deposited Plan The terms of the transfer were pursuant to an oral agreement and in consideration of the sum of$26,000 paid to the Transferor by the Transferee. The memorandum was dated 19 May 1992 but crossed out and redated 6 July 1992 and signed by Edward Matchitt (Chairman of the Proprietors of Potikirua Block Incorporated), and H Satchell (Secretary of the Proprietors of Potikirua Block Incorporated). The words "The common seal of the Proprietors of Potikirua Block Incorporated was hereto affixed in the presence of the majority of members of the Committee of Management", are found on the document, along with the Proprietors ofpotikirua Block Incorporated stamp. 14. The signature of the solicitor for the Transferee is on the document verifying the transfer to be correct for the purposes of the Land Transfer Act. 15. The transfer document also bears a stamp verifying that the particulars of the transfer were entered in the register at the Gisborne Land Registry Office on 17 August 1992 (reference: 5CIl337). 16. On 3 February 1993 the transfer was then endorsed by a Deputy Registrar of the Maori Land Court, Waiariki District, pursuant to section 233 of the Maori Affairs Act 1953.

6 2013 Chief Judge's MS There is also a Statutory Declaration form for the transfer included in the records, made by Wamoana Te Kani, declared at Gisborne, dated 13 July 1992 and signed by Ms Te Kani and her solicitor. 18. The Memorial Schedule for the Potikirua Block (CT 4C/224) lists the following details: Nature of Order or Date Checked Reference Instrument Memorandum of Lot 1 DPS (signature) TN 1994 Transfer between: Props of Potikirua ( ha) Block 2. Wamoana Te Kani In consideration of $26,000 dated Endorsed 233/53 Identification of evidence that may be of assistance in remedying the mistal{e or omission 19. The Applicant has provided the following documents III support of the subject application: (a) Submissions in support of the application, dated 30 November 2011; (b) An application for Interim Injunction dated 30 November 2011; (c) An Affidavit of Edward Matchitt sworn 30 November 2011, in SUppOlt of the Injunction Application; (d) A Memorandum of Counsel dated 30 November Unlike most section 45 applications to the Chief Judge which involve an Order of the Court, which is complained of, this application does not and is rather an endorsement for a memorandum of transfer approved by a Deputy Registrar pursuant to section 233 Maori Affairs Act 1953, which is noted on the records of the Comt. It therefore lacks the documentation and records which a general section 45 application has and which will generally shed light on how the transaction proceeded at the time. 21. The lower Court records of the transfer therefore only contain the following documents: (a) (b) (c) A copy of the Memorial Schedule where the transaction is noted; A copy of the Memorandum of Transfer, signed by both Transferor, Transferee and solicitor for the Transferee; and A copy of the Statutory Declaration form signed by the Transferee and solicitor for the Transferee. 22. The lower Court application filed by Mr Rika (A ), has provided some further evidence in support of the subject application: (a) Submissions by Mr Rika dated 1 November 2010, state that: 1. The basis of this application stems from Committee of Management of the Potikirua Inc only recently finding out that the... land has been transferred... ;

7 2013 Chief Judge's MS 88 ii. The Management Committee members whose signatures appear upon the Transfer documentation are still current Committee members of the Incorporation and they believe and contend that they have never been a party to the transaction as there has never been any authority by an AGM resolution to approve such transfer; iii. There has never been any payment received by the Incorporation; iv. None of the Committee had any idea that the land had been transferred as the documentation shows until the matter was brought to their notice and attention by Parekura Te Kani the current registered owner in the said title at the beginning of this year [2010] - some 18 years after the transfer had been done; (b) The Potikirua Incorporation Annual General Meeting , an extract of which is reproduced: Resolution F or partition of Wharekahika A 15 Potikirua to Wamoana Te Kani, from state highway 35 Potaka to Oweka river approx area of 70 acres. Chairman As this matter has been with the Incorporation since The resolution was moved at our last committee meeting that Wamoana partition be moved at the A G M for the shareholders to decide, which does not include the house and an area of land around the house and acces [sic] way from the main high way as that area and house already belongs to Wamoanaa and her family. Discussion on the Resolution Would other shareholders want to partition. The Resolution was defeated by 19 votes against resolution 10 votes for the resolution Chairman closed the meeting before ballot was declared. (c) An dated 16 August 2010 from Waiter Rika to Tuihana Pook which states Mr Rika had:... asked Harry on Friday last to check his inc minute book for the 1991 AGM minutes and also to double check the accounts for the 1991 and 1992 Inc accounts to see whether or not the $26K as stated in the Transfer document as the consideration for the purchase of the land, was rec'd by the Inc. From all the information given the whole transaction has never been approved by a Shareholders meeting.

8 2013 Chief Judge's MB 89 Details of su bseq uent Orders affecting lands to which application relates 23. As the land is now General Land, there are no subsequent Orders affecting the lands in which the application relates. Reference to areas of difficulty 24. Because of the nature of the document in question, it being a memorandum of transfer and not an Order of the Court, there is limited information or documentation of the actual transaction and details of the transfer in the Court record. 25. The minutes of the Potikirua Incorporation Annual General Meeting on 29 December 1990 are unclear as to whether a resolution was passed or not. The minutes state the Chairman closed the meeting before the ballot was declared. 26. The time period in between the transaction at issue and legal action taking place is peculiar in that the transaction was noted on the Court records in 1993 but has only surfaced as a cause for concern in 2010, some 17 years later. 27. The Affidavit of Edward Matchitt in support of the Injunction states that Mr Matchitt has no recollection, and the Incorporation has no record, of the transaction and its terms. Mr Matchitt also submits that he has no recollection of signing the memorandum of transfer. This poses a problem of burden of proof, especially where the endorsement was made in the presence of a solicitor and Deputy Registrar. 28. Where the Applicant alleges a mistake or omission in the Court record, the burden of proof is on the Applicant to establish the existence of this alleged mistake or omission and the Chief Judge, or the Deputy Chief Judge acting on delegation, will apply the civil standard of proof on the balance of probabilities when exercising jurisdiction. In Ashwell- Rawinia or Lavina Ashwell (nee Russell) [2009] Chief Judge's MB (2009 CJ 209), it was stated that firstly the Chief Judge must be satisfied that an error has been made reviewing the evidence given at the original hearing and then weighing it against the evidence provided by the Applicant and any evidence in opposition. Jurisdiction 29. There may be questions as to whether the Chief Judge (or the Deputy Chief Judge acting on delegation), has the jurisdiction to consider this application under section 45 of the Act because of the type of instrument at issue (a memorandum versus an Order). This has also been raised by the Respondent's Counsel in submissions filed with the Court on l3 February The Respondent relies on case law and submits that the Chief Judge does not have jurisdiction to proceed on the present application because pursuant to section 44(1) of the Act, the jurisdiction is limited to: (a) (b) An Order made by the Court An Order made by the Registrar (c) A Certificate of Confirmation issued by a Registrar under section 160/ The Respondent further submits that: The endorsement made pursuant to s 233/53 is a memorial only. It dealt with alienations which did not require to be confirmed by the Court. Such an instrument had to be produced to the Registrar for the Registrar to endorse a

9 2013 Chief Judge's MS 90 memorial, noting that the instrument had been produced and noted in the records of the Maori Land Comt. 32. When applying the 1993 Act to this application, the type of instrument at issue is neither an 'Order made by the Comt' nor a 'Certificate of Confirmation issued by a Registrar under section 160 of the Act'. It is a memorandum of transfer which was endorsed by a Deputy Registrar and noted on the Court record. Therefore prima facie section 44 of the Act does not apply to a memorandum of transfer and a noting. 33. The legislation in force at the time of the transaction was the 1953 Maori Affairs Act, with section 452 being the equivalent section to section 44 in the current Act. Section 452 also states that it must be an Order made by the Court: (1) The jurisdiction confened on the Chief Judge by this section shall be exercised only on application in writing made on or on behalf of a person who alleges that he has been adversely affected by an order made by the Court or the Appellate Court. (emphasis added) 34. Even if it is found that the Chief Judge has jurisdiction to hear and or cancel/amend the memorandum of transfer, section 48 of the 1993 Act may have an impact on the outcome of the decision: 48 Matters already finalised or pending (1) No order made by the Chief Judge under section 44, or made by the Appellate Court on appeal from any such order, shall take away or affect any right or interest acquired for value and in good faith under any instrument of alienation registered before the making of any such order. However as the Applicant has alleged that the consideration of $26,000 was not received for the transfer and that there was no knowledge of signing the document, the alienation may not be considered as being made in good faith or for value if evidence is provided to support this proposition. This issue was considered in Reweti [2011] Chief Judge's Minute Book , where it was found that although the Chief Judge had jurisdiction in terms of section 44 of the Act to amend an Order of the Comt, by section 48 of the Act, the Applicant needed to prove that the transaction entered into was not entered in good faith or for consideration. 4 Consideration of whether matter needs to go to full hearing 35. On the face of the transaction in question, it appears the memorandum of transfer was completed correctly. A dispute to this by the Applicant however, then raises issues of validity, legality and possible fraud, but needs further evidence of which the onus is on the Applicant to SUppOlt the burden of proof. 36. The nature of the matter is something that should be considered by the Chief Judge, or Deputy Chief Judge in this case and therefore should be set down for a hearing. Recommendation of course of action to be taken 37. If the Deputy Chief Judge is of a mind to exercise her jurisdiction, then it would be my recommendation that: 4 Kukutai & Tuhoro - Opuatia 4 Lot 28CI Block (2002) Chief Judge's MB 75 (2002 CJ 75) and Green - Estate Amos (2002) Chief Judge's MB 54 (2002 CJ 54).

10 2013 Chief Judge's MS 91 a) The Applicant provide fmiher evidence prior to the hearing, in order to substantiate and provide more weight to any issues of proof; b) A copy of this Report and Recommendation is sent to all affected parties to give them an opportunity to comment or respond, in writing, within 28 days of the date of this report; c) The matter is set down for hearing. Section 40 Report [8] The preliminary report and recommendation was sent to all parties on 7 March Detailed comments were received from the parties. [9] On 4 April 2012, I directed a further report be complied pursuant to s 40 of the Act, in light of the comments received. Requests were made to counsel for the applicant for additional information to help complete the report. That material only became available on 28 June [10] The s 40 report was sent out to parties on 3 July 2012 and the relevant parts of it are reproduced below: COUNSEL FOR THE APPLICANT'S COMMENTS ON THE REPORT AND RECOMMENDATION 6. On 2 April 2012 the Court received a letter from Counsel for the Applicant, dated 29 March 2012, with comments on the Report and Recommendation. A copy of the Applicant's letter is reproduced in full below: CJ 2011/44 - LOT 1 DP PROPRIETORS OF POTIKIRUA INCORPORATION I refer to your letter dated 7 March I comment on the Report and Recommendation ("the report") as follows 1. The report does not consider the effect of ss 42 and 48 of the Maori Affairs Amendment Act 1967; 2. The report does not inquire into the subdivision of Lot 1 DP 8212 from the Potikirua Block without a partition order from the Maori land Court under s 173 of the Maori Affairs Act 1953; 3. The report at paragraph 21 states that the Maori Land Court only holds copies of the memorial schedule, memorandum of transfer and statutory declaration. This suggests that the Deputy Registrar made no inquiries into the terms of the oral agreement, the payment of the purchase price, the execution of the memorandum of transfer and any resolution to sell passed by the shareholders. This failure on the part of the Deputy

11 2013 Chief Judge's MS 92 Registrar to undertake these inquiries is the basis of the application; 4. The report appears to suggest that the Deputy Registrar simply endorsed the memorandum of transfer without first determining whether it complied with the Maori Affairs Act 1953 and the Maori Affairs Amendment Act This cannot be correct as a matter of law or conveyancing practice; 5. The report at paragraph 25 refers to the AGM minutes dated 29 December These minutes make it clear that the shareholders did not pass a resolution authorising the committee of management to transfer Lot 1 DP8212 to Wamoana Te Kani; 6. In terms of paragraph 26, there is no limitation period under s 45 ofture Whenua Maori Act 1993; 7. In paragraph 27 the report states that "the endorsement was made in the presence of a solicitor and Deputy Registrar". The memorandum of transfer was signed correct by the solicitor for the transferee but he should not have been present when the Deputy Registrar endorsed the instrument; 8. The report covers jurisdiction at paragraph 29 to 34. will not comment on this matter because her Honour has directed that submissions on jurisdiction be filed by the applicant by 1 0 April On 17 April the Case Manager replied to the above letter. A copy of the letter is reproduced below: l. Your first comment states that the RepOlt does not consider the effect of sections 42 and 48 of the Maori Affairs Amendment Act 1967 ("the 1967 Act"). This is correct; the Report does not consider the 1967 Act. The Report does however mention these two sections in paragraph 3 as being part of the error that you have alleged in your Application, but does not consider them. When drafting a Report and Recommendation pursuant to Rules 8.3 and 8.4 of the Maori Land Court Rules 2011, r 8.4 states that the preliminary report must contain the following: (a) (b) (c) (d) a concise history of the order or certificate sought to be corrected: details of the mistake or omission alleged by the applicant: details of any evidence or findings by the Court in which the mistake or error is alleged to have occurred: details of any other evidence or findings by the Court that might be material to the application:

12 2013 Chief Judge's MS 93 (e) (t) (g) (h) (i) details of subsequent orders of the COUlt affecting land to which the application relates: details of any payments made as a result of the order or certificate sought to be corrected, whether by the Maori Trustee or by any other person: particulars of any moneys currently held in trust that might be affected by an order made as a result of the application: consideration as to whether the matter should go to a full hearing or whether the mistake or omission alleged is clearly apparent from the Court's own record: a recommendation as to the course of action to be taken, including whether an injunction should be issued to protect moneys currently held in trust. I omitted to include a consideration of the sections 42 and 48 of the 1967 Act because the scope of the RepOlt did not allow this type of discussion. 2. Your second comment states that the RepOlt does not inquire into the subdivision of Lot 1 DP 8212 from the Potikirua Block without a partition order from the Maori Land Court under section 173 of the Maori Affairs Act Again, this is correct, the RepOlt does not inquire into this matter. The block was not pattitioned it was transferred, therefore inquiries into a partition or subdivision for this matter would have been unnecessary. These are separate types of transactions. Where the 'partition' may have been defeated by resolution at the AGM, a memorandum of transfer for the fee simple of the block still took place for value. There is nothing on the Court record which shows a subdivision or partition of the block. 3. Your third comment states that paragraph 21 of the Report suggests that the Deputy Registrar made no inquiries into the terms of the oral agreement, the payment of the purchase price, the execution of the memorandum of transfer and any resolution to sell passed by the shareholders and that this failure on the patt of the Deputy Registrar to undeltake these inquiries is the basis of the application. It is agreed that there may have been a possible failure on the part of the Deputy Registrar to make these inquiries but more evidence would be needed to substantiate this. As set out in paragraph 24 of the Report: "Because of the nature of the document in question, it being a memorandum of transfer and not an Order of the Court, there is limited information or documentation of the actual transaction and details of the transfer in the Court record." The Report did not intend to suggest that the Deputy Registrar made no inquiries about the validity of

13 2013 Chief Judge's MS 94 the transaction, it merely outlines that there was very little information available on the Court record. The request was sent to the records preservation officer in Waiariki who searched the Court records and sent through the relevant documents. Unfortunately this is all we have to go on and it is an area of difficulty as outlined in the Report. 4. Your fourth comment states that the Report appears to suggest that the Deputy Registrar simply endorsed the memorandum of transfer without first determining whether it complied with the Maori Affairs Act 1953 and the Maori Affairs Amendment Act 1967 and that this cannot be correct as a matter of law or conveyancing practice. As stated above, because there is a lack of documentation to substantiate what went on at the time the Deputy Registrar made the endorsement, this does not mean the memorandum of transfer was endorsed without first determining whether it complied with the relevant legislation. The Report does not suggest the Deputy Registrar did not act without due diligence, but attempts to illustrate that the nature of the transaction means that there is not a lot of information on the records available. The RepOlt is not suggesting the endorsement was just 'rubber stamped' as Maori Land Court processes would ensure that the correct procedure was followed. 5. Your fifth comment states that the AGM minutes dated 29 December 1990 and referred to at paragraph 25 of the Report make it clear that the shareholders did not pass a resolution authorising the committee of management to transfer Lot 1 DP8212 to Wamoana Te Kani. This is correct, the Committee of Management did not authorise a transfer at this AGM, as they only discussed a partition. What took place at the AGM is considered an area of difficulty. The AGM clearly considers the issue of 'partition' but the application clearly hinges on a 'transfer'. Whether the ambiguities or term confusion are substantial here is not for the Report to decided but for the Chief Judge or the Deputy Chief Judge acting on delegation to determine when it goes to hearing. The uncertain wording of the last line - "Chairman closed the meeting before ballot was declared" presents an ambiguity and could even point to the fact that there were more votes for or against the resolution that were never included in the count. 6. Your sixth comment is correct. There is no limitation period under section 45 of the Act which and I am aware of this, nor does the doctrine of laches apply. Paragraph 26 was included in the Report under 'areas of difficulty' to underscore that the time period is peculiar. The time it has taken the Applicant's to bring the validity of the transaction to the Court's attention is quite lengthy in the 17 years between the signing of the instrument in 1992 and to when the first application regarding this subject was lodged in 2008, it went unnoticed that the block no longer belonged to the Incorporation or that the transfer had even occurred. This was not to suggest that it was subject to any legal limitation under the Act.

14 2013 Chief Judge's MS Your seventh comment about paragraph 27 is correct. The memorandum of transfer was not signed by the Deputy Registrar in the presence of the solicitor for the transferee. This paragraph was written in error. 8. Lastly in relation to jurisdiction, we have now received your submissions and will be in contact once Deputy Chief Judge Fox has issued directions regarding these. COUNSEL FOR THE RESPONDENT'S SHORT RESPONSE TO THE APPLICANT'S COMMENTS ON THE REPORT AND RECOMMENDATION 9. On 18 April the Court received a letter from Counsel for the Respondent's containing a "short response" to the Applicant's comment. A copy of this is reproduced below: This is a sholt response to the Applicant's comments on the Report and recommendation contained in the latter dated 29 March Re: Section 42 - The Seal, section 48 - Incorporation Powers. These matters are covered by the indoor management provisions contained in section 48(2)/67 and section 52/ Re: No Partition Order under section 173. There was no Partition of the land and the owners. Lot 1 DP 8212 was land in severance (as was Lot 2 which was retained by the Incorporation). A compiled plan issued in the name of the Incorporation and the Incorporation sold Lot 1 on that plan to Wamoana Te Kani. The legal and beneficial interests in the land vested in the Incorporation. The Incorporation had power to sell its land and did not require confirmation by the COUlt. See sections 31 (2) and section 31 (3A) of the Maori Affairs Amendment Act Re: "The Deputy Registrar made no enquiries into the terms etc". This is an interesting proposition. No statutory authority is quoted. There is no such statutory authority. 4. Re: Registrar's endorsement. Again, no authority quoted. There is no statutory requirement that the Registrar do anything more than he is required to under section 233/ Re: The Annual General Meeting minutes of29 December This is evidence that the proposals were put before the Annual General meeting in 1990 and were defeated at that specific meeting. The Committee however later did complete the sale and transfer of Lot 1 DP 8212 as recorded in the papers filed in support of the present Application. 5 Later coltected by Counsel for the Respondent as meaning Section 57(2)/67.

15 2013 Chief Judge's MS Re: "No time limitation on section 45". Section 77 specifically refers to Orders of the Court only. Section 44 extends to Registrar's Orders and Registrar's Certificates of Confirmation (section 60). All these are judicial or quasi judicial matters. The memorial under s 233/53 is an administrative action. COUNSEL FOR THE APPLICANT'S RESPONSE TO THE RESPONDENT'S COMMENTS DATED 12 APRIL 2012 CONCERNING THE REPORT AND RECOMMENDATION 10. On 24 April 2012 further comments were received from Counsel for the Applicant regarding the Respondent's comments dated 12 April A copy of the response is set out below: Response to comments 'Indoor management provisions' 3. These provisions, ss 48(2) and 52 6 of the Maori Affairs Amendment Act 1967 ("the 1967 Act"), are not relevant: Section 48(2) of the 1967 Act concerned the District Land Registrar ("the DLR") and not the Registrar of the Maori Land Court. Partition 3.1 That provision enabled the DLR to rely with confidence on the Registrar's memorial under s 233 ofthe Maori Affairs Act 1953 ("the 1953 Act") that had been compliance with the 1953 Act and the 1967 Act; 3.2 Section 52 of the 1967 Act concerned the appointment of the members of committee of management. We are unable to appreciate how this section is relevant to the present issue. 4. Again, in the absence of any explanation, it is difficult to see what affect ss 31(2) and 31(3A) of the 1967 Act have on this application. Registrar S inquiries 5. The proposition for this is contained within the legislation itself. The incorporation was bound by rules and legislation which the Registrar, in fulfilling their function, should have ensured were complied with prior to endorsing an instrument of alienation. Registrar S endorsement 6. The Registrar had a statutory obligation to ensure the provisions of the relevant legislation had been satisfied prior to endorsing the memorandum of transfer. Without such an obligation, any form or instrument put before the Registrar for endorsement under s 233 of the 1953 Act would have received a memorial. AGM 7. There is no evidence of a resolution of a general meeting of 6 Later corrected by Counsel for the Respondent as meaning Section 57(2)/67.

16 2013 Chief Judge's MS 97 shareholders authorising the applicant to sell the block. There is evidence, however, that the shareholders would not have supported the transfer as they declined to support a resolution for partition. Time limitation 8. It is difficult to determine whether the respondent is saying that there is a limitation on the applicant's claim. If so, this is not accepted. Section 44(3) of Te Ture Whenua Maori Act 1993 ("the Act") expressly excludes the application of s 77 of the Act. An order by a Registrar is amenable to cancellation or amendment under s 44 of the Act. EVIDENCE AND INFORMATION GATHERED 11. When the Court first received the Application, the records for the land amalgamation and when the block was vested in the Incorporation were obtained along with all the information on record for the where the transaction in question took place. UnfOltunately, the online records the Maori Land Court hold for the Potikirua Incorporation are incomplete and not up to date so all the hard copy records the Court holds for the Potikirua Incorporation were requested and sent from the district. It has since been found on analysis of the paper records that they are also incomplete and not up to date (Le. missing AGM minutes, financial statements and share registers). 12. On 2 May 2012 a request was made to the Applicant to provide the following documents for the Potikirua Incorporation: a) AGM Minutes for years 1991 and 1992; b) Share register from 1991 onwards; c) Committee of Management meeting minutes for years (these are not required to be filed with the Court, but could contain relevant important information). 13. On fulther analysis of the records, an additional request for more information was made to the Applicant on 11 May 2012, with a direction from Deputy Chief Judge Fox that Counsel for the Applicant provide both requests of information within 28 days of the second request (due to be filed on 8 June 2012): a) The names of those who were members of the Committee of Management for the Potikirua Incorporation as at 6 July 1992; b) The name of the lease, the lease document, and any patticulars of the lease to which the transfer was subject to in 1992; c) The name and contact details of the current lease of the block; and d) Details of the Compensation Certificate to which the transfer was subject to in July The following documents were received by the Court on 2 July 2012, after prior notification from Counsel for the Applicant that there had been difficulties locating the requested documents: a) Share register dated 11 April 1990;

17 2013 Chief Judge's MS 98 b) Memorandum of lease between Potikirua Incorporation and Caxton Paper Mills Limited; c) Memorandum of variation of lease between Potikirua Incorporation and Potikirua Forests Limited; d) Various meeting minutes for the period January 1980 to 12 April 1991; e) A record of the members of the management committee as at 20 March 1993; t) Documents related to Wharekahika A 15 - letter from Potts & Hodgson dated 3 December 1990; letter dated 7 November 1990; minute from meeting on 12 September 1991; and g) Compensation certificate Counsel for the Applicant also indicated that the current lessee is Potikirua Forests (N02) Limited. 16. Additionally for the purpose of this Report, case law has been gathered along with a Henry Colbert's 1983 Registrar's procedure and guideline document for making endorsements pursuant to s 233 of the Maori Affairs Act 1953 ("the 1953 Act"). AREAS OF DIFFICULTY/ISSUES TO NOTE 17. As we noted above, the Court record for the Potikirua Incorporation appears to be incomplete and not up to date. An attempt has been made to gather those documents which are not on the Comt record but which could be of help to this Application. DISCUSSION 18. From the comments and responses from Counsel as set out above and without assessing the question of jurisdiction at this point, it appears there are three main issues which are in need of fmther investigation: Terminology a) Terminology; b) The AGM minutes of December 1990, 1991 and 1991 and information from the Potikirua Incorporation for the surrounding years; and c) Validity ofthe Registrar's endorsement. 19. The terms partition, subdivision, and transfer, have all been referred to throughout the Application and submissions, when the transaction in question is a memorandum of transfer (propelty has been passed fi'om one owner to another, for value). The Applicant states in their Application that: (aa) The Deputy Registrar erred in law by endorsing the memorandum which allowed the block to be partitioned from the Potikirua Block and transferred from the applicant to Wamoana Te Kani... (cc)... the Deputy Registrar endorsed the memorandum pursuant to s 233 of the Maori Affairs Act 1953 which allowed the block to be partitioned from the Potikirua block and transferred from the applicant to Wamoana Te Kani... (emphasis added)

18 2013 Chief Judge's MS No partition ever occurred however, before the transfer took place, the block would have been subdivided by the Incorporation (hence the Deposited Plan ("DP") reference). This was standard practice. 21. The report did not inquire into the subdivision of Lot 1 DP 8212 from the Potikirua Block without a Partition Order from the Maori Land Court as the block was not pmtitioned so there was no purpose to enquire into something that never happened. The AGM minutes of December 1990, 1991 alu/1992 and information fro11/ the Potikirua Incorporation for the surrounding years 22. At the meeting of 29 December 1990 only the idea of partition was discussed. No resolution was passed authorising the Committee of Management to transfer Lot 1 DP8212 to Wamoana Te Kani and it appears, although it is ambiguous because the Chairman closed the meeting before the ballot was declared, that no resolution for pmtition was passed either. 23. By s 48(1) of the 1967 Act a resolution of general meeting of shareholders must take place before the Committee of Management can sell land. 24. By s 42(2) of the 1967 Act, an Incorporation is unable to affix its seal on any instrument without the presence of a majority of the members of the committee of management with all the members of the committee present when the seal is affixed signing the instrument. And pursuant to s 42(3) if a resolution has been passed by the committee of management the seal may be affixed to any instrument in the presence of any two members of the committee. In any such case, the two members of the committee shall sign the instrument and there shall be an endorsement on the instrument stipulating the date and substance of the resolution passed by the committee of management. 25. The Potikirua Incorporation stamp was affixed to the memorandum of transfer with Edward Matchitt (Chairman) and Harry Satchell (Secretary) signing the document. A document provided by Counsel for the Applicant, dated 20 March 1993, indicates the Management Committee Members as being: a) Edward Matchitt; b) Harry Satchell c) Matekino Smith d) Tuihana Pook e) Petera Maangi f) Wairemana Waenga g) Jeffrey Shepherd Given that there are only two signatures on the instrument and a notation stating that "The common seal of the Proprietors of Potikirua Block Incorporated was hereto affixed in the presence of the majority of members of the Committee of Managemenf', (emphasis added) it is difficult to imagine that the legislation was complied with. 26. The two requested missing AGM Minutes for years 1991 and 1992 were not included in the bundle of 'various meeting minutes for the period January 1980 to 12 April 1991' provided by Counsel for the Applicant. What has been found in the additional provided documents however is that the issue of partition by Wamoana and Parekura Te Kani had been with the Potikirua Incorporation since 1981 (and possibly earlier). There is still nothing in the records regarding a transfer, again however, it is conceivable we may not have a complete record.

19 2013 Chief Judge's MS For the purposes of this Report, and as the correlation of partition and transfer is prominent, the issue of Partition will now be considered. 28. It appears Ms Te Kani (now deceased) was unhappy with the management of the Wharekahika A 15 block (the block name before the amalgamation) and wished to take her sons shares in the block of which she and her family occupied at the time, out of the Incorporation. There was further discussion at the AGM of 8 July 1981 and at a Special Meeting of the Committee of Management on 24 August 1982 it was moved and agreed that that:... the Incorporation do not object to Wamoana lodging an application for partition of her shares in the area previously known as Wharekahika A 15 and the Incorporation will present its record to assist the Court to come to a decision which is fair to both parties. 29. At a meeting on 17 January 1983 the Chairman indicated that he had called the meeting before the annual general meeting to meet with Wamoana and P Te Kani with their solicitor: Wamoana Te Kani stated that she still wished A 15 to be handed back for her son, that she required a yes or no answer. The Chairman explained that the Committee had met to discuss the matter and they could not see how they could agree when Taha Wanoa himself had placed the block in the amalgamation and Incorporation. Hikitia TuKaki and W Maangi stated that for the reasons given by the Chairman and all the plans under way for the Incorporation, because the request was for yes or no then they must say no. They also agreed that it was Wamoana's right to ask and to apply to the Comt for a partition. P Te Kani said they recognised the complexities but they did not want a compromise like the... [document becomes unreadable]. 30. The Pmtition is also mentioned again at the AGM of 24 January 1984, at a subsequent AGM (undated, although confirmed on 21 January 1984). Further at a Committee of Management Meeting on 31 May 1985 and then again in substance at the AGM of 28 December 1987, however unfoltunately, the copy of this minute in poor condition and unable to be read (a further and better copy has been requested but not received as at the date of this Report). The next and final time the partition was discussed is at the AGM of29 December the subject of the enquiry where it is said the resolution was defeated (see paragraph 22 above). 31. Included in the requested documents from Counsel for the Applicant were various documents relating to Wharekahika A A letter from Potts & Hodgson dated 3 December 1990 requesting that 'the Proprietors of Potikirua agree to the request by Wamoana Te Kani to partition the block known as Wharekahika A15' and that 'it is important that the proposal for partition be fully understood by the owners', 33. On 7 November 1990 a letter was sent from the Secretary to the Proprietors of Potikirua Incorporated stating that "At Potikirua Committee Management Meeting a Resolution was passed that Block known as Wharekahika A15 from Main Highway to Oweka River [sic.]". There were three options: i) Pmtition; ii) iii) Failing (i), to lease Wharekahika A 15 to Wamoana Te Kani; Failing (i) and (ii) Wharekahika is to be returned to Potikirua Incorporation for farming, with the house or area of section remaining with Wamoana Te Kani.

20 2013 Chief Judge's MS 101 The letter then went on to state that 'notice of intention to partition must be in writing to Potikirua Incorporation will be advertised in Public notices in local newspaper prior to AGM'[sic.] 34. Lastly, a note from a 'Meeting held with the Committee of Management' on 12 September 1991 states that: After discussion the committee agreed to Wamoana applying for a partition for part of Wharekahika A 15 between State Highway 35 to Oweka River, an area of approximately 25 hectares. This partition to be carried out as soon as possible. Moved by Seconded by Harry Satchell Eddie Matchitt All Committee in favour of the motion 35. This last document indicates quite to the contrary that a resolution was never passed in favour of a partition (this from the AGM of 29 December 1990). We have not been aware of this information up until this point. This document however, is only on behalf of the Committee of Management. We do not have any information on the Court record to see whether this resolution was discussed in any of the Annual General Meetings post 12 September 1991 (even though the request was made to Counsel for the Applicant). 36. The outcome of the discussion as set out above is that there is still issue with the two types of transactions - partition and transfer. Validity of tile Registrar's Endorsement 37. Pursuant to s 233 of the 1953 Actno alienation of Maori fi'eehold land which is not by the Part of this Act required to be confirmed by the COUli shall have any force or effect unless and until the instrument by which the alienation is effected has endorsed thereon a memorial that it has been produced to the Registrar and has been noted in the Records of the Court. 38. There is nothing in this section to indicate how the Registrar should carry out the act of endorsing a memorial and noting it on the Court records. 39. The Report and Recommendation explained that the nature of the transaction meant that there is very little documentation available on the Court record for the transaction. Counsel for the Applicant was of the view that this statement suggested that: and that:.., the Deputy Registrar made no inquiries into the terms of the oral agreement, the payment of the purchase price, the execution of the memorandum of transfer and any resolution to sell passed by the shareholders.... the Deputy Registrar simply endorsed the memorandum of transfer without first determining whether it complied with the Maori Affairs Act 1953 and the Maori Affairs Amendment Act This cannot be correct as a matter of law or conveyancing practice. (see letter dated 29 March 2012) 40. The Case Manager's response to these two statements was that the Report did not

21 2013 Chief Judge's MS 102 intend to suggest that the Deputy Registrar made no inquiries about the validity of the transaction, it merely outlined that there was very little information available on the COUli record. It was also agreed that there may have been a possible failure on the part of the Deputy Registrar to make these inquiries but more evidence would be needed to substantiate this: Because there is a lack of documentation to substantiate what went on at the time the Deputy Registrar made the endorsement, this does not mean the memorandum of transfer was endorsed without first determining whether it complied with the relevant legislation. The Report does not suggest the Deputy Registrar did not act without due diligence, but attempts to illustrate that the nature of the transaction means that there is not a lot of information on the records available. The Report is not suggesting the endorsement was just 'rubber stamped' as Maori Land Court processes would ensure that the correct procedure was followed. 41. Counsel for the Respondent submitted that there is no statutory authority for the Registrar to make enquiries into the terms of the transaction or to enquire as to whether the relevant legislation had been complied with. 42 Counsel for the Applicant asselis that the legislation contains something to the effect that the Registrar is to make enquiries and ensure that relevant legislation has been satisfied. 43. On fuliher research about a Registrar's role, the following resources were found: a) 'A guideline for endorsements' document written by WH Colbert (Registrar) in 1983 (a copy of which is attached and marked "A"); b) A position/action sheet for endorsements (a copy of which is attached and marked "B"); c) An application (Hahau A20B2BN Block) involving a Registrar's endorsement for lease documents where the Registrar made an assessment that there were some matters that may work to invalidate the instrument. These comments were made in light of the below High Court decision (a copy of which is attached and marked "C"); d) A High Court decision on the point of Registrar's endorsements: Pihema v Pihema v Pehikano & Ors [1983] 1 NZLR 625 (HC)7 (a copy of which is attached and marked "D") and e) HOllsing Corporation of New Zealand v Maori Trustee [1988] 2 NZLR 662 (HC)8 which applies Pihell1a v Pehikano & Or 9 s, a copy of which is attached and marked "E" A Guideline for Endorsements: Attachment "A" dated 21 July 1983 by WH Colbeli, Registrar. 44. An extract of the guidelines is reproduced: l. Section 233 of the Maori Affairs Act 1953 requires the instrument by which an alienation of Maori Freehold land is effected, which is not required to be confirmed, to be endorsed with a memorial that it has been produced to the 7 Pihell1a v Pihema v Pehikano [1983] 1 NZLR 625 (HC). 8 Housing Corporation of New Zealand v Miiori Trustee [1988] 2 NZLR 662 (HC) at Ibid at 3.