UNDER Section 45, Te Ture Whenua Maori Act Lucy Williams also known as Lucy Kapu Welch or Lucy Kapu Pahi. Applicant

Transcription

1 2014 Chief Judge's MB 476 IN THE MAORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A CJ UNDER Section 45, Te Ture Whenua Maori Act 1993 IN THE MATTER OF BETWEEN Lucy Williams also known as Lucy Kapu Welch or Lucy Kapu Pahi GLADY PAH! Applicant Judgment: 23 October 2014 RESERVED DECISION OF CHIEF JUDGE W W ISAAC

2 2014 Chief Judge's MB 477 Introduction [1] This application filed by Glady Pahi ("the Applicant") pursuant to s 45 ofte Ture Whenua Maori Act 1993 ("the Act") seeks to amend a succession order dated 30 April 2008 at 129 Waikato MB relating to the interests of Lucy Williams also known as Lucy Kapu Whelch or Lucy Kapu Pahi, the applicant's mother. [2] The applicant claims the said order is incorrect because of a mistake, error or omission in the presentation of the facts of the case to the Court on the following grounds: (a) The applicant is the eldest son of the deceased; and (b) When succession was made to the deceased's interests, the applicant was not included as a successor. [3] The applicant claims that he has been adversely affected by the order complained of upon the following grounds: (a). At birth, the applicant was whiingai by the deceased's parents, Tom Paahi and Taniko Paahi and brought up as their son. (b) The applicant's uncles and aunts (whom the applicant looks up to as his brothers and sisters) regard him as their younger brother, and not as a nephew. (c) When Taniko Paahi passed away in 1977, succession orders were filed by the deceased, and the applicant was not included as an issue or as a whangai child. (d) The deceased never recognised the applicant as her son.

3 2014 Chief Judge's MB 478 (e) The applicant did not know the deceased was his mother until he was nine years of age. By that time the deceased had married and had other children. ; (t) When the deceased died in 2007, the applicant was not included in the succession to her interests, even though he is her biological child. [4] The applicant seeks the Court to amend the order at 129 Waikato MB by including him as a successor to the deceased. Background [5] The Case Manger's Report and Recommendation dated 2 May 2014sets out the background to the application. The report is produced in full as follows: Introduction 1. This application filed by Glady Pahi ("the applicant") pursuant to section 45 qfte Ture Whenua Maori Act 1993 ("the Act") seeks to amend a succession order dated 30 April 2008 at 129 Waikato MB relating to Lucy Williams also known as Lucy Kapu,Whe1ch or Lucy Kapu Pahi, ("the deceased"), and mother of the applicant. 2. The applicant claims the said order is incorrect because of a mistake, error or omission in the presentation?fthe facts of the case to the Court on the following grounds: a. The applicant is the eldest son of the deceased; b. When succession was made to the deceased's interests, the applicant was not included as a successor. 3. The applicant claims that he has been adversely affected by the order complained of upon the following grounds: a. At birth, the applicant was whangai by the deceased's parents, Tom Paahi and Taniko Paahi and brought up as their son. b. The applicant's uncles and aunts (whom the applicant looks up to as his brothers and sisters) regard him as their younger brother, and not as a nephew. c. When Taniko Paahi passed away in 1977, succession orders were filed by the deceased, and the applicant was not included as an issue or as a whangai child. d. The deceased never recognised the applicant as her son. e. The applicant did not know the deceased was his mother until he was nine years of age. By that time the deceased had married and had other children. f When the deceased died in 2007, the applicant was not included in the succession to her interests, even though he is her biological child.

4 2014 Chief Judge's MB loc applicant sccks the Court to amcnd the ordcr at 129 Waikato MB by including him as successor to the deceased. Concise history of Order sought to be amended/cancelled 5. On 30 April 2008, at 129 Waikato MB , succession was made by Bcvcricy Williams to the interests held by the deceased in the following blocks: - Waikato-Maniapoto District Lot 9 Deposited Plan 9874 Tiros E Aotea District ",' " Hauhungaroa 7 Pukcmakoiti Rangitoto Tuhua 54C Waiariki District Pouakani C No. 1 B Sec. 1 & Pouakani C No. 1 B Sec. 2 Aggregated Pouakani CD No] or Ohincariki Pouakani CD No2 or Parakiri Section 2 Block IV Marotiri Survey District Tuaropaki E (being Part Tuaropaki E Block, Lot 1 Deposited Plan South Auckland and Lot I Deposited Plan South" Auckland ) Tumunui Tumunui I Waihaha : The Court dctcnnined that the persons entitled to succeed to"the deceased's land interests numbered I to 9 equally and vested the same interests into those persons entitled as set out below: SuccessorslBenefieinries Name Sex Proportion Karen Dale)' F 1/9 2 Severley Willinms F 1/9 3 John Williams M 1/9 4 Rangipo Williams M 1/9 5 Peter Oak M 1/9 6 Mark Merriek M 1/9 7 Deborah Apiata F 1/9 8 Eli7.abeth Morgan F 1/9

5 2014 Chief Judge's MB 480 Michael Williams M 1/9 Identification of evidence that may be of assistance in remedying the mistake or omission 7: The applicant has provided the following documents in support of his application: a) A certified copy of the applicant's Birth Certificate showing him to be a child of Luey Pahi; b) A certified copy of the Death Certificate for Mary Te Pania (whakapapa provided by applicant states Mary Te Pania also known as Mary Taniko Paahi or Taniko Haa or Taniko Paahi or Taniko Haa Moctu) c) A certified copy ofthe Death Certificate for Tom Paahi d) A certified copy of the Death Certificate for Luey Kapu Whclch c) Whakapapa f) A letter dated 14 September 2001 from ledsen Waymouth Lawyers of Taupo, with photocopies of further supporting documentation as follows: a. Estate ofkaka Paahi (maternal grandfather and whangai father) No. P 265/72 i. Administration Bond dated 24/04/1972 ii. iii. Letters of Administration appomtmg Taniko Paahi (maternal grandmother and whangai mother) administratrix dated 11/ Ex Parte Motion to Lead Grant of Administration dated , iv. Affidavit in Support of Motion to Lead Grant of Administration sworn by Taniko Paahi dated 24/ Take note that in clause 3 of Taniko's affidavit, she states that her husband left eight children namely;.name Kapu Williams Taiki Paahi WatiPaahi Tokomauri Paahi lrihou Paahi Helena Paahi Te Pohi Paahi Poutu Te Rangi Paahi.Also... known~<l~ Lucy Williams (applicants biolo2ical mother) Mike Pahi Wattie Pahi DoakPahi EricPahi HelenaPahi Eddie Edith Pahi Glady Pahi (applicant) b. Estate of Mary Taniko Paahi No. PI 53/87 i. Copy of letters of administration appointing Lucy Williams (the deceased) as administratrix dated 28/09/1987 ii. iii. Ex Parte Notice of Application for Letters of Administration dated 02/ Affidavit to Lead Grant of Letters of Administration dated 25/08/1987

6 2014 Chief Judge's MB 481 Take note that in clause 9 of the affidavit, Lucy states that the-only children left surviving her mother in addition to herself are: : Name Wattie Paahi DaakPaahi MikePaahi Eric Paahi Eddie Paahi Hellina Paahi There is no mention of Glady Pahi in this affidavit. iv. Memorandum to the Registrar dated 15109/1987 v. Further affidavit oflucy Williams dated 15109/1987 confirm there are no other children ofmary Taniko Paahi g) Copy ofthe minute and order complained of at 129 Waikato MB dated 30 April 2008,8. '.At 1 Whanganui Administration ME 181 dated 24 October 1972, the' Court research shows that Tom Paahi passed away on 20 September 1970 and his land interests were vested into his wife, Taniko Paahi as administrator to his estate. 9. At 6 Tokaanu (Alienation) MB 269 dated 16 November Tom Paahi s interests were vested into his wife, Taniko Paahi solely. 10. At 5 Whanganui Administration MB 108 dated 18 January 1987, the Court research shows that Taniko Paahi passed away on 25 August 1977 and her land interests were vested into her daughter, Lucy Williams as administrator to the estate. 11. At 10 Wanganui Registrar s MB dated 7 March orders were made. vesting Taniko's interests from Lucy as administrator into the seven children oftaniko and Tom Paahi. The applicant was not included. 12. At 129 Waikato MD dated 30 April succession was made to the deceased's interests. She had died intestate and her successors were determined pursuant to section 108 of the Act. The Court determined the persons entitled to succeed being the nine children she had with Alec Whelch. The succession did not include the applicant. Details of subsequent Orders affecting lands to which application this relates 13. There are no subsequent orders affected by this application. Details of payments made as a result of the Order 14. On 26 September 2013, letters were sent to the following Trusts to confirm holds being placed over the client accounts affected by this application and to provide what payments (if any) have been made to date. LNam e ofl'rusi -" A.dministnitor _. ~, Pukemakoiti Trust Whenua Kete Limited, PO Box 6. Otorohanga 3940 Tiroa E Trust Tiroa E & Te Hape B Trusts, PO Box 51, Te Kuiti 3941 Pouakanui CIBl & CIB2 Titiraupenga, Kevin Weir, RD5, Aggregated Ahu Whenua Trust Te Kuiti 3985 Tuaropaki Kaitiaki Limited Strettons Chartered Accountants, PO Box 214, Taupo 3351 Hauhungaroa 7 Trust Maori Trustee,

7 2014 Chief Judge's MB 482 Hurakia Ahu Whcnua Trust Pacwhenua Trust Tumunui Lands Trust PO Box 5038, WcllinRton 6145 ci- Secretary, Stephen Graham, PO Box 6 Rotorua 3040 Mark McKenzie, McKenzie Strawbridge, PO Box 37, Otorohanga 3940 ci- Lau Lasike, PO Box 492, Rotorua Tuaropaki Trust: On 1 October 2013 an cmail was received from Strettons Chartered Accountants confirming that 8 hold had been placed on the following shareholder accounts pending the outcome of this application. The only payment made to date was to Eli7.abeth Morgan on 20103/2013 of$ Nilme Shareholder Payments made 10 "Undarmcd Number date - dividends Peter Oak 7760 Nil $ Karen Daley 7761 Nil $ Deborah Apiata 7762 Nil $ John WilJiams 7763 Nil $ Michael Williams 7764 Nil $ Mark Merrick 7765 Nil $ Bcvcrlcy \Villiams 7766 Nil $ Rangipo Williams 7767 Nil $ Elizabeth MorRan 7768 $ Nil 16. Tumunui Lands Trust: On 4 October 2013, an cmail wa.;; received from Andrcw Kusabs on behalf of the Tumunui Lands Trust confirming that holds have been placed on the funds held in the accounts of Kapu Pahi and Lucy Williams. 17. Pukcmakoiti Trust: On 19 November 20 13~ an cmail was received from Whenua Kctc Limited on behalf of the Pukemakoiti Trust confirming that a hold had been placed on the following shareholder accounts pending the outcome of this application and that no payments have been made to the owners since Name Shares held - No funds a\vaiting distribution Beverley Williams.0009 Nil Deborah Apiata.0009 Nil Eli7.abeth Morgan.0009 Nil John WilJiams.001 Nil. Karen Daley.0009 Nil Mark Merriek.001 Nil Michacl Williams.0009 Nil Peter Oak.001 Nil Rangipo William,.001 Nil 18. 1Iroa E Trust: On 19 November 2013, correspondence was received from Tiroa E & Te Hape B Trusts on behalf of the Tiroa E Trust confirming that a hold had been placed on the following shareholder accounts pending the outcome of this application. The only owner who has been paid the dividends is Beverley Williams. A breakdown of the unclaimed dividends for the other owners arc listed as follows:

8 2014 Chief Judge's MB On 4 March 2014, follow up letters were sent to Pouakani CIBI & CIB2 Aggregated Ahu Whenua Trust, Hauhungaroa 7 Trust, Hurakia Ahu Whcnua Trust and Pacwhcnua Trust to confirm holds being placed over the client accounts affected by this application and to provide what payments (if any) have been made to date. 20. Paewhcnua Trust: On 11 March 2014, an cmail was received from Gavin Hazlcdon Clf}. behalf of the Pacwhcnua Trust continning that a hold had been placed on the following shareholder accounts pending the outcome of this application. A breakdown of the unclaimed dividends for the other owners are listed as follows:, Name Sharcholding Amount Year Amount Unclaimed % due paid dividends K Daicy Nil $ B WiIliams Nil $i32.62 J WiIliams Nil $ R WiIliams Nil $ roak Nil $ M Mcrrick Nil $ DApiata Nil $ EMorgan Nil $ M Williams Nil $ Hauhungaroa 7 Trust On 24 March 20]4, correspondence was received from Te Tumu Pacroa (previously the Maori Trustee Office) who administer the Hauhungaroa 7 Trust.'. They confirm that no funds have been distributed to owners since 2000 as O\rners "moved a resolution to retain the income for investment and that holds have been placed of over the affected clients accounts as follows: '. 22. At the date of this report, there have been no responses received from Pouakani CIBJ & CIB2 Aggregated and Hurakia Ahu Whenua Trust's in regards to the letters sent on 26/ and 04/

9 2014 Chief Judge's MB 484 Reference to areas of difficulty 23. On 26 September 2013, notice of this application was sent to the applicants siblings whom we had addresses for: a. Beverley WiIliams, 15 Hockin Place, Fairfield, Hamilton 3214; and h. Peter Williams, 59 Sunnyvale Street, Bell Block, New Plymouth The letter also requested any contact details for the other siblings namely; a. Karen DaJey b. John Williams c. Rangipo Williams d. Mark Merrick e. Deborah Apiata f. Elizabeth Morgan g. Michael Williams 25.. On 7 October 2013, the mail was returned for Reverley Williams. There has been no contact from Peter Williams. 26. On 7 October 2013, the Court obtained an address for Elizabeth Morgan, 52 Buchanan Street, Opotiki, The same letter as above was sent. There has been no contact from Elizabeth Morgan. 27. On 13 March 2014, thc applicant provided an address for his sibling Karen Dean, 151 Edgar Street, Portland, Melbourne 3305, Australia. The same letter as above was sent on 19 March Searches have been made on the internet to find contact details but no success. Consideration of whether matter needs to go to full, hearing 29. The evidence provided by Glady Pahi supports the claim that he is a natural child of the deceased. a. The birth certificate states that Glady Pahi is a child of the deceased, Lucy Pahi; and b. The affidavit of Taniko Paahi names Poutu Tc Rangi Paahi, also known as Glady Pahi as a child of Kaka Paahi alongside Kapu Williams also known as Lucy Williams or Lucy Kapu Paahi. c. Glady Pahj was a whangai child of Tom Paahi and Taniko Paahi. 30. Based on the evidence provided by the applicant, it is clear that he is entitled to be recognised as a child of the deceased and to succeed to the deceased's interests accordingly. Recommendation of course of action to be taken 31.' If the Chief Judge is of a mind to exercise his jurisdiction, then it would be my recommendation that: a) -, A copy of this report be 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' b) If no objections are received, then an order be made pursuant to section 44(1) of Te Ture Whenua Maori Act 1993 amending the order complained of at 129 Waikato MB dated 30 April 2008 by: i. including Glady Pahi in the estate of Lucy Williams also known as Lucy Kapu WheJch or Lucy Kapu Paahi and; ii. to adjust the proportional shares at this minute from 1/9 th to 1I1Oth share.

10 2014 Chief Judge's MB 485 c) And a further order be made pursuant to section 47(4) of Te Ture Whenua Maori Act 1993 making all other consequential amendments where necessary. d) If objections arc received then the matter should be refered to the Court for directions. Discussion [6]. On J2,May 2014, the Case Manager's Report and Recommendation was 'sent to all'partieswith'written responses or objections to the Report due no later than 13 June No objections have been received to the Report... [7] Pursuant to s 44 ofte Ture Whenua Maori Act 1993 the Chief Judge may cancel or amend an order made by the Court or a Registrar, if satisfied that the order was erroneous in fact or in law because of any mistake or omission on the part of the Court or the Registrar or in the presentation of the facts of the case to the. Court or the Registrar. The Chief Judge may also make such other orders as, in the opinion of the Chief Judge, is necessary in the interests of justice to remedy the mistake or omission. [8] The applicant has requested that the Chief Judge amend the'erder that is the subject of this application. In terms of Tau v Nga Whanau 0 Morven & Glenavy - Waihao 903 Section IX block' and Ashwell - Rawinia or Lavinia Ashwell (nee Russell/ the burden of proof rests with the applicant to prove. that there was a mistake or error in the order complained of. [9] Having considered the Case Manager's Report, I am satisfied that an error had been made in the presentation of facts of the case to the Court. [10] In this case the applicant has provided evidence to support his ~laim that he is a.natural child of the deceased and therefore it is Clear that he is entitled to be recognised as a child of the deceased and to succeed to the deceased's interests accordingly. 1 [2010] MaoriAppellate Court MB 167 (2010 APPEAL 167) 2 [2009] Chief Judge's MB (2009 CJ 209)

11 2014 Chief Judge's MB 486 [11] As a result, I am satisfied that there was an error in the presentation of the facts to the Court. Orders [12] Accordingly, in terms of section 44(1) ofte Ture Whenua Maori Act I make the following orders: (a) Amending the order made at 129 Waikato ME 243 c 244 dated 30 April 2008 by: (i) Including Glady Pahi as a successor to the deceased; and '(ii) Adjusting the proportional shares at this minute from!19 th to!lloth share. (b) And a further order is made pursuant to section 47(4) of Te Ture Whenua Maori Act 1993 making all other consequential amendments where necessary. [13] The foregoing orders are to issue forthwith pursuant to rule 7.S(2)(b) of the Maori Land Court Rules [14] The Case Manager is to distribute a copy of this decision to all parties. Dated at Wellington this the 23 rd day of October WWIsaac CHIEF JUDGE