IN THE MĀORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A Applicant

Transcription

1 156 Waiariki MB 250 IN THE MĀORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT A UNDER IN THE MATTER OF BETWEEN Sections 37(3), 18(1)(a), 116 and 118, Te Ture Whenua Māori Act 1993 Estate of Ronald Clifford Bennett MATAI BENNETT Applicant Hearing: 95 Waiariki MB dated 3 April Waiariki MB dated 4 August Waiariki MB dated 11 December 2015 (Heard at Rotorua) Appearances: Curtis Bidois, counsel for Janet Bennett Judgment: 10 February 2017 JUDGMENT OF JUDGE M P ARMSTRONG Copies to: Curtis Bidois, East Brewster, PO Box 1742, Rotorua, curtis.bidois@eastbrewster.co.nz

2 156 Waiariki MB 251 Introduction [1] On 5 August 2014, and 10 October 2014, the Court determined who was entitled to succeed to the Māori land interests of Ronald Clifford Bennett. 1 [2] This decision addresses the remaining issues in this proceeding: (a) Determining ownership of a house on Pukawa C per s 18(1)(a) of Te Ture Whenua Māori Act 1993 (the Act); and (b) Determining whether Janet Bennett should receive a life interest in the income from Ronald Bennett s Māori land interests per s 116 of the Act. Background [3] Ronald Bennett passed away on 18 August He did not leave a will. He had three relationships. With Joy Bennett he had four children: Hinewai Fergusson, Whetu Bennett, Kahu Bennett and Matai Bennett. With Awatea Mateparae he had two further children: Murdoch McKenzie and John Bennett. Ronald was then in a de-facto relationship with Janet Bennett up until his death. They did not have any biological children together. Janet had a daughter, Kiri, to a previous relationship. [4] The house that is the subject of this proceeding is located on Pukawa C (the block). This block is ha of Maori freehold land located on the shore of Lake Taupo near Turangi. Part of this block is set apart as a Maori Reservation. The balance is vested in the Pukawa C Ahu Whenua Trust (the trust). The current trustees of the trust are Sir Tumu Te Heuheu, Katherine Webb, Luke Kahu, Michelle Hoko, Tui Epiha, Pompey Epiha and William Chadwick. Ronald and Janet built the house on this block pursuant to a tripartite deed dated 26 February 1996, entered into between themselves, the (then) trustees, and the Housing Corporation of New Zealand (HCNZ). 1 Bennett Estate of Ronald Clifford Bennett (2014) 101 Waiariki MB 290 (101 WAR 290); 105 Waiariki MB (105 WAR 270).

3 156 Waiariki MB 252 [5] Under the terms of the tripartite deed, HCNZ granted a loan to Ronald and Janet to build the house. The loan was secured against the house, which HCNZ could remove from the block in the event of default. On or around 9 January 2001, the loan and the security against the house were transferred to The Home Mortgage Company Ltd as lender. [6] On 23 January 2014, Matai applied to succeed to his father s Māori land interests. The application came before the Court on 3 April 2014, 2 and on 4 August [7] On 5 August 2014, the Court issued a reserved decision recognising Kiri as a whāngai but not entitled to succeed as if a natural child. The Court further determined that those entitled to succeed were Ronald s biological children with substitution of issue. The Court issued directions on whether any of the biological children wished to include Kiri as to a life interest in the shares they were to receive, and also whether Janet should be entitled to income from the interests per s 116 of the Act. 4 [8] Hinewai advised that she wanted Kiri to receive a life interest in half of the shares she was to receive. On 10 October 2014, orders were granted giving effect to this by consent. 5 [9] On 5 November 2014, I convened a telephone conference to address whether Janet should receive income from the land interests, and whether Janet was seeking ownership of the house. Matai, Kahu and Murdoch attended the conference call and advised that they oppose Janet receiving an interest in the income, and oppose Janet receiving ownership of the house. 6 I subsequently issued directions timetabling the filing of evidence and set the application down for further hearing. 7 [10] The application was then heard in Rotorua on 11 December Janet appeared and was represented by Mr Bidois. Matai appeared in person Waiariki MB (95 WAR 40). 102 Waiariki MB (102 WAR 26). Bennett Estate of Ronald Clifford Bennett (2014) 101 Waiariki MB 290 (102 WAR 290). 105 Waiariki MB (105 WAR 270). 107 Waiariki MB (107 WAR 139). 110 Waiariki MB (110 WAR 103). 134 Waiariki MB (134 WAR 184).

4 156 Waiariki MB 253 At that hearing, Matai advised that he no longer opposed Janet receiving a life interest in the income from the land interests, nor did he oppose an order determining that Janet owned the house. Ronald s other biological children did not appear. After hearing from the parties I adjourned the application and issued the following directions: (a) The Registrar was to send a copy of the minute from the hearing to all affected parties, including Ronald s biological children, the trustees of the trust, and The Home Mortgage Company Ltd; (b) Those parties were to file any further submissions by 29 February 2016; (c) Mr Bidois was to file any further submissions, on behalf of his client, within 14 days; and (d) I would issue a decision in writing. [11] I also granted leave for any party to seek a further hearing to present those submissions in person if necessary. [12] The Home Mortgage Company Ltd filed a letter dated 18 May 2016 advising that their only interest is in the security they hold concerning the house. On the basis that their interest is not affected by the application, they indicated that they will abide the decision of the Court. [13] Mr Bidois filed further submissions on 8 June No further submissions were received from the trustees of the trust or from Ronald s biological children.

5 156 Waiariki MB 254 Who owns the house? The Law [14] In Ngā Uri a Maata Ngapo Charitable Trust v McLeod Harataunga West 2B2A1 Judge Milroy summarised the relevant authorities on determining ownership of a house on Maori freehold land: 9 [34] Case law makes it clear that the Court's jurisdiction is declaratory in nature the Court may declare existing ownership rights at law or in equity but cannot create new ownership rights. It follows from the wording of the section that the Court may also determine that a building is not part of the land and that the beneficial owners of the land as a group are not the owners of the building. [35] Although common law provides that the owners of the land own any fixtures, s 18(1)(a) enables the Court to recognise that one or more of the owners may separately own a particular improvement. In determining these matters the Court has equitable jurisdiction and may recognise constructive trusts. [36] The Maori Appellate Court has expressed differing views as to the effect of a s 18(1)(a) order, in particular whether, on making the order, a house remains a fixture or becomes a chattel. There are also conflicting authorities on whether a s 18(1 )(a) order can be made in favour of a non-owner and, if not, whether the Court can grant some other remedy in favour of a non-owner. [37] The Maori Appellate Court in Tohu Te Horo 2B2B2B Residue commented: [18] An order under section 18(1)(a)/93 appears to separate the house from the title to land and to treat it as a chattel. There is no ability to succeed to any such order, it not being an interest in land and the order is treated as being personal to the holder and lapsing on death. Anyone who wishes to sustain a further claim for the house needs to apply for another order. [38] I note that the learned Judge inthe decision Stock v Morris Wainui 2D2B took a different view of the law and considered that when the Court makes a s 18(1)(a) order the nature of the improvement as a fixture and the legal ownership of the land remains unchanged, although as a result of the Court's equitable jurisdiction the house may be owned separately by those specified in the order. As the learned Judge put it:... The Court is merely declaring the co-existence of legal and equitable interests in land. That is what s 18(1)(a) expressly empowers the Court to do. In my view, there is no need to conceptualize the house as a chattel. 9 Ngā Uri a Maata Ngapo Charitable Trust v McLeod Harataunga West 2B2A1 (2012) 49 Waikato Maniapoto MB 223 (49 WMN 223) (footnotes omitted).

6 156 Waiariki MB 255 [39] In the Stock decision the learned Judge set out the history of the preceding sections to s 18(1)(a) and came to the view that there is no restriction on who may apply for an order under s 18(l)(a) the applicants are not restricted to the legal owners. In reaching that conclusion the Judge relied on the case of Sadlier The Proprietors of Anaura which considered s 30(1)(a) of the Maori Affairs Act 1953, the predecessor section to s 18(l)(a). [40] I have also made a s 18(1)(a) order in favour of a non-owner in the Matenga v Bryan case. I note however that in Matenga the decision was that on making the s 18(1)(a) order the house was treated as a chattel and able to be removed by the person in whose favour the order was made. [41] The leading case in New Zealand on the question of whether an improvement is a fixture or not is Auckland City Council v Ports of Auckland, which adopted the approach set out by the House of Lords in Elitestone Ltd v Morris and Anor. In Elitestone the House of Lords proposed a broader, common sense approach to the question of whether an improvement could properly be said to have become part and parcel of the land. The main indicators that an improvement is a fixture are the degree of annexation and the purpose of annexation. Is the house a chattel or a fixture? [15] As noted, the main indicators that an improvement is a fixture are the degree and purpose of annexation. 10 In the present case, Janet has filed photographs of the house showing that it is fixed to timber piles. Janet also filed a letter dated 28 May 2015 from a retired builder, Barry Isaac, who inspected the house. Mr Isaac advised that: The house is set on wooden piles with the bearers and joists set out in accordance with a transportable home. [16] Mr Bidois argued that the house is fixed to the land in order to provide a dwelling. Mr Bidois adopted the principles in Auckland City Council v Ports of Auckland Limited, 11 and submitted that the house is a fixture. [17] I accept Mr Bidois submission. The house is fixed to timber piles for the purpose of providing a permanent dwelling. Although the house is capable of removal that does not, on its own, make the house a chattel Auckland City Council v Ports of Auckland Ltd [2000] 3 NZLR 614 (CA). Ibid.

7 156 Waiariki MB 256 [18] The terms of the tripartite deed do not alter this finding. In Housing Corporation of New Zealand Waimanoni 1B3B2A (Housing Corporation), 12 Deputy Chief Judge Smith reviewed a tripartite deed between HCNZ, the trustees, and the beneficial owner and found that those parties had treated the house as a chattel. [19] In Anderson Te Raupo, 13 Judge Ambler distinguished the decision in Housing Corporation. Judge Ambler considered that the terms of the tripartite deed before him did not expressly state that the house was to be regarded as a chattel. In particular, Judge Ambler referred to clause 21(b) of that deed which stated: THAT if the lender shall elect pursuant to clause 20 hereof to sever and remove the House from the Site then the following provisions shall apply. (b) The House (excluding the site) shall be valued at or about the time of the severance as a chattel personal by a Valuer [20] Judge Ambler concluded that clause 21(b) only applied after default by the borrower and upon the lender electing to sever and remove the house. 15 Judge Ambler determined that the house in that case remained a fixture unless or until the lender had triggered the right to remove the house. It was only once those provisions were triggered that the house became a chattel. As such, Judge Ambler considered that the wording of the deed did not rebut the presumption that the house was a fixture. Judge Ambler also considered that such a finding did not affect the lender s security under the deed. 16 [21] In the present case, the tripartite deed is remarkably similar to that in Anderson. I consider that the same approach applies. [22] For these reasons, I determine that the house in this case is a fixture Housing Corporation of New Zealand Waimanoni 1B3B2A (1996) 19 Kaitaia MB 227 (19 KT 227). Anderson Te Raupo (2015) 99 Taitokerau MB 206 (99 TTK 206). At [50] (emphasis in original). At [51]. At [58]-[59].

8 156 Waiariki MB 257 Who owns the house? [23] Conventional common law provides that a fixture belongs to all of the owners of the land according to their respective interests. However, there is a clear line of authorities in relation to Māori freehold land that, even where a house is a fixture, this Court has equitable jurisdiction per s 18(1)(a) of the Act to determine ownership of a house as distinct to ownership of the underlying land. 17 [24] Mr Bidois argued that notwithstanding that legal ownership of the land vests in the trustees of the trust, ownership of the house has always rested in equity with Ronald and Janet as joint tenants. Mr Bidois submitted that as Ronald has passed away, Janet is now the sole owner of the house by right of survivorship. [25] I agree that the terms of the tripartite deed indicate that Ronald and Janet were to own the house jointly. They are both described as the Borrower under the deed, and all provisions refer to them in a joint capacity as opposed to having separate rights as tenants in common. The licence to occupy the dwelling site was granted to both Ronald and Janet, and the schedule to the deed provides that the term of the licence is for: the lifetime of R I and J I BENNETT or for 30 years whichever is the longer. [26] Joint ownership of the house is also supported by the contributions that Ronald and Janet made to the house. Janet gave evidence that she and Ronald became a couple in In the late 1980s they decided to move to Turangi to build our retirement home. In her evidence Janet stated that: We agreed that Roy would pay the deposit for the house out of a lump sum payment he had received from ACC and he would pay for any occasional maintenance and upkeep costs out of a sickness benefit. Because I would still be working full-time, we agreed I would pay all the fixed monthly costs including the loan payments, the rates, the insurance and electricity bills. I paid those costs from my wages in different jobs, firstly at the local Garden 17 See Tohu Te Horo 2B2B2B Residue (2007) 7 Taitokerau Appellate MB 34 (7 APWH 34); Bidois Te Puna 154D3B2B (2008) 12 Waiariki Appellate MB 102 (12 AP 102); Ngā Uri a Maata Ngapo Charitable Trust v McLeod Harataunga West 2B2A1 (2012) 49 Waikato Maniapoto MB 223 (49 WMN 223); Stock v Morris Wainui 2D2B (2012) 41 Taitokerau MB 121 (41 TTK 121); Anderson Te Raupo (2015) 99 Taitokerau MB 206 (99 TTK 206).

9 156 Waiariki MB 258 Centre and then later at the Omori Store, and lastly as a Care Giver until I went onto Superannuation. [27] Janet has also filed bank statements and other supporting documents showing the contribution she has made towards repayment of the loan. [28] As such, I find that Ronald and Janet owned the house jointly. Upon Ronald s death Janet became the sole owner of the house by right of survivorship. [29] A further issue arises as to whether it is appropriate to grant an order determining Janet as the sole owner of the house given that she does not hold any interests in the underlying land. Janet does not own any shares in this block. On 5 August 2014, the Court determined that, as Janet was Ronald s de-facto partner, she was not entitled to a life interest in his lands, including his shares in this block. 18 Those shares have already been vested in Ronald s biological children, with a life interest to Kiri as to part of those interests, as noted above. [30] In Stock v Morris, Judge Ambler held: 19 [70] The following principles can be distilled from these cases. There is no bar to the Court making a s 18(1)(a) order in favour of a non-owner. However, an order vesting interests in the land or a right to possession of the land (or part of it) in favour of a non-owner will likely offend the kaupapa and provisions of the Act. Although in Grace the Court of Appeal did not completely rule out that possibility. Where the Court concludes that a non-owner is entitled to equitable relief, the Court will in the first place look to awarding monetary compensation. If monetary compensation is inappropriate, the Court may award ownership of the house if it can be removed from the land. The Court will take into account the non-owner s free occupation of the land as a factor. Ultimately, each case depends on its own facts. [31] This approach has been adopted in a number of other decisions. 20 [32] This issue does not arise in the present case. Although Janet is not an owner in the underlying land, she is a licensee under the licence to occupy granted in the tripartite deed Bennett Estate of Ronald Clifford Bennett (2014) 101 Waiariki MB 290 (101 WAR 290) at [21]. Stock v Morris Wainui 2D2B (2012) 41 Taitokerau MB 121 (41 TTK 121). See Brokenshaw Te Kaha B6X2 (2003) 81 Opotiki MB 18 (81 OPO 18); Tipene v Tipene Motatau 2 Section 49A4F (2014) 85 Taitokerau MB 2 (85 TTK 2); Matenga Parish of Tahawai Lot 18C-F and 18I (2003) 73 Tauranga MB 150 (73 T 150); Ngā Uri a Maata Ngapo Charitable Trust v McLeod Harataunga West 2B2A1 (2012) 49 Waikato Maniapoto MB 223 (49 WMN 223); Rautangata v Rautangata Opuatia No 6D No 2D Block (2011) 27 Waikato Maniapoto MB 252 (27 WMN 252).

10 156 Waiariki MB 259 The term of the licence is for the lifetime of Ronald and/or Janet and it was intended that Janet was to continue to have the right to occupy the site even if Ronald predeceased her. This has been confirmed in a letter dated 29 May 2012 from Merilyn Connelly, the secretary of the trust, to the Taupo District Council, which states: This is to confirm that the Licensee of this Lot, Ronald Bennett, has now died, and that the Licence has passed to his widow, Mrs Jan Bennett, for her lifetime. Under the terms of the Licence Mrs Jan Bennett is responsible for payment of the share of rates payable to your Council in respect of this section. [33] While Janet is not an owner in the underlying land, she has a right to occupy the land by license from the trustees. As such, there is no need to consider whether Janet s claim of ownership should be recognised by an award of compensation or by a direction to remove the house. Janet is the sole owner of the house and has a right to occupy the house site for her lifetime. [34] Any issue that may arise as to ownership or occupation of the house upon Janet s death can be addressed at that time. If the house were to pass to a person who was not an owner in the underlying land, or who did not receive a right to occupy the land from the trustees, a further application could be filed if necessary. The house is capable of removal and it would be open to the Court to determine whether compensation should be paid, or whether the house should be removed, in those circumstances. Should Janet receive a life interest in the income from Ronald s Māori land interests? [35] Section 116 of the Act states: 116 Court may make special provision relating to income (1) Subject to subsection (2), in the exercise of its powers under this Part in respect of any estate, the court may make an order conferring on any person the right to the whole or any part of the income derived from any beneficial interest in Maori freehold land, or to the whole or any part of the proceeds of sale of any such interest, belonging to the estate, for life or for any shorter period. (2) The court shall not make an order under this section in favour of any person whose claim, in the opinion of the court, fell or falls within the jurisdiction of the High Court under the Law Reform (Testamentary Promises) Act 1949 or the Family Protection Act 1955.

11 156 Waiariki MB 260 (3) In enacting this provision, Parliament has in mind particularly the possibility of injustice arising in individual cases from the prohibitions enacted by this Act against the alienation of beneficial interests in Maori freehold land to persons outside defined classes, and is therefore desirous of conferring on the court some flexible, if limited, powers to ameliorate any such injustice. [36] Section 116 is a discretionary power, enacted to address the possibility of injustice arising in individual cases to those persons who fall outside the defined classes able to receive Māori land interests on succession. [37] Section 116(2) of the Act provides (inter alia) that the Court shall not make an order under s 116 in favour of any person whose claim fell or falls within the jurisdiction of the High Court under the Family Protection Act 1955 (FPA). An issue arises in this case as to whether any claim by Janet to the income derived from Ronald s Māori land interests fell or falls within the High Court s jurisdiction under the FPA, and if so, whether I am prevented from granting an order in her favour per s 116(2) of the Act. [38] Janet gave evidence that she was in a de facto relationship with Ronald for 35 years. Janet advised that her relationship with Ronald began in 1975 and that they lived together as husband and wife (although not legally married) until Ronald s death in This evidence was not challenged. [39] I accept Janet s evidence that she was in a de facto relationship with Ronald for 35 years. The issue in this case is whether her claim fell or falls under the FPA, precluding an award per s 116 of the Act. [40] The FPA applies to the estate of any person whether testate or intestate. 21 Section 3 sets out the persons entitled to claim under that Act: 3 Persons entitled to claim under Act (1) An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons: (a) the spouse or civil union partner of the deceased: 21 Family Protection Act 1955, s 4.

12 156 Waiariki MB 261 (aa) (b) (c) (d) (e) a de facto partner who was living in a de facto relationship with the deceased at the date of his or her death: the children of the deceased: the grandchildren of the deceased living at his death: the stepchildren of the deceased who were being maintained wholly or partly or were legally entitled to be maintained wholly or partly by the deceased immediately before his death: the parents of the deceased. (1A) A parent of the deceased may not make a claim under this Act unless (a) (b) the parent was being maintained wholly or partly, or was legally entitled to be maintained wholly or partly, by the deceased immediately before his or her death; or at the date of the claim, none of the following is living: (i) (ii) (iii) the spouse or civil union partner of the deceased: a de facto partner of the deceased in whose favour the court can make an order under this Act: a child of the marriage, civil union, or de facto relationship of the deceased. (2) In considering any application by a grandchild of any deceased person for provision out of the estate of that person, the court, in considering the moral duty of the deceased at the date of his death, shall have regard to all the circumstances of the case, and shall have regard to any provision made by the deceased, or by the court in pursuance of this Act, in favour of either or both of the grandchild's parents. [41] Janet is a person entitled to bring a claim under per s 3(1)(aa) of the FPA. The evidence demonstrates that Janet was Ronald s de facto partner and was living in a de facto relationship with Ronald at the date of his death. [42] Section 106 of the Act states: 106 Special provisions relating to testamentary promises and family protection (1) Notwithstanding anything in the Law Reform (Testamentary Promises) Act 1949 but subject to subsection (3), no order may be made under that Act in respect of any estate to which this Part applies having the effect of alienating any beneficial interest in Maori freehold land belonging to the estate to any person to whom that interest could not have been left by the deceased owner by will.

13 156 Waiariki MB 262 (2) Notwithstanding anything in the Family Protection Act 1955 but subject to subsection (3), no order may be made under that Act in respect of any estate to which this Part applies having the effect of alienating any beneficial interest in Maori freehold land belonging to the estate to any person other than a child or grandchild of the deceased owner. (3) Nothing in subsection (1) or subsection (2) shall limit the power of the High Court to make an order conferring the right to reside in any dwelling or affecting any income derived from any beneficial interest in Maori freehold land. (4) For the purposes of the Family Protection Act 1955, a Maori who, before 1 April 1952, was married to another Maori in accordance with tikanga Maori, and whose marriage to the deceased was subsisting at the time of the death of the deceased, shall be deemed to have been the widower or widow of the deceased unless at the time of the death of the deceased either party was legally married to some other person. [43] Section 106(2) of the Act restricts any award under the FPA, which would have the effect of alienating any beneficial interest in Maori freehold land, to a person other than the child or grandchild of the deceased owner. Janet does not come within the classes of persons entitled to receive an award under the FPA per s 106(2) of the Act. However, s 106(3) of the Act provides that the restriction in s 106(2) does not prevent the High Court from granting an order concerning income derived from any beneficial interest in Maori freehold land. [44] This was confirmed by the Court of Appeal in the decision of Grace v Grace: 22 We are not required to consider whether and if so how the jurisdiction of the High Court should be exercised in a case such as the present. That must be for the Court concerned. Clearly the High Court, or the Māori Land Court where proceedings are in that Court, would have regard to the policy of the legislation which in terms of the preamble is designed to promote the retention of Maori freehold land in the hands of its owners, their whanau, and their hapu. And an owner of an undivided interest in Maori freehold land may alienate that interest only to a person who belongs to one or more of the preferred classes of alienee (s 148). Spouses are not included. That principle of restriction of beneficial interests in Maori freehold land to the blood line also applies in the distribution of estates, whether by will (s 108) or on intestacy (s 109). The exception in favour of a surviving spouse allows only for a life or shorter period interest to pass to the spouse (s 108(4) and s 109(2)). That is reinforced by s 106 confining the making of orders under the Family Protection and Testamentary Promises legislation but not precluding the High Court from making an order conferring the right to reside in a 22 Grace v Grace [1995] 1 NZLR 1 (CA) at 5 (emphasis added).

14 156 Waiariki MB 263 dwelling or apply any income derived from any beneficial interest in Maori freehold land. [Emphasis added] [45] While Grace v Grace involved proceedings by the deceased s wife, this decision confirms that s 106 of the Act does not preclude the High Court from granting an order under the FPA applying income derived from any beneficial interest in Maori freehold land. [46] Surprisingly, there are very few decisions in this Court, or the Māori Appellate Court, concerning the application of s 116(2) of the Act in relation to a de facto partner. In Hirini Putete Heke Whānau Trust Estate of James Heke (Heke), 23 the Māori Appellate Court granted an order per s 116 of the Act in favour of the deceased s de facto wife Olive Heke. However, s 3(1)(aa) of the FPA, which allows a de facto partner to make a claim under that Act, was inserted by s 5(1) of the Family Protection Amendment Act Section 3 of the Family Protection Amendment Act 2001 provides that s 3(1)(aa) of the FPA only applies with respect to estates where the deceased died on or after 1 February In Heke, James Heke died on 17 July As such, s 3(1)(aa) of the FPA did not apply and the Māori Appellate Court was not precluded from granting an award per s 116(2) in that case. [47] In Nicholas v Kameta Estate of Whakaahua Walker Kameta (Nicholas), 24 the Māori Appellate Court also granted an order per s 116 of the Act in favour of the deceased s de facto partner: [67] We agree that Judge Savage could have made provision for Ms Nicholas per s116 of the Act but declined to do so. We consider, however, that this is a case where due to the operation of law, the defacto partner of Mr Kameta, contrary to his express wishes, has been left without her life interest in the land. She would also lose any potential revenue that the land may generate. We consider that as she has lived upon the land for many years and that her children are of the relevant class of beneficiaries, that the overall justice of the case requires that she should continue to enjoy the benefits of the land during her life time. [68] Our conclusion is that the provisions of s116 of the Act should be invoked in favour of Ms Nicholas Hirini Putete Heke Whānau Trust Estate of James Heke (2003) 6 Taitokerau Appellate MB 58 (6 APWH 58). Nicholas v Kameta Estate of Whakaahua Walker Kameta Te Puke 2A2A3B1 and 2A2A3B2 [2011] Māori Appellate Court MB 500 (2011 APPEAL 500).

15 156 Waiariki MB 264 [48] The finding in Nicholas can be distinguished from the present case. In Nicholas, the deceased left a will which provided that his de facto partner was to receive a life interest in some of his Māori land interests. The Māori Appellate Court also found that the de facto partner s children were entitled to succeed to some of the deceased s Māori land interests under the will per s 108 of the Act. The Māori Appellate Court relied on these factors in making an award per s 116 of the Act in favour of Ms Nicholas. Those facts do not apply in the present case. [49] It is also apparent that the application of s 116(2) of the Act was not raised before the Māori Appellate Court in Nicholas. This is surprising given that both parties were represented by counsel. As this issue was not raised, the Māori Appellate Court did not consider whether s 116(2) prevented the Court from granting an order per s 116 of the Act in favour of a de facto partner. [50] For these reasons, I consider that any claim by Janet seeking an order conferring on her the right to the whole or any part of the income derived from Ronald s Māori land interests fell or falls within the jurisdiction of the High Court under the FPA. As such, I am precluded from making an order in her favour per s 116(2) of the Act. Decision [51] I grant the following orders pursuant to Te Ture Whenua Māori Act 1993: (a) Sections 37(3) and 18(1)(a) determining that Janet Bennett is the sole owner of the house built by her and Ronald Bennett on the Pukawa C block; and (b) Dismissing the application by Janet Bennett seeking orders per s 116 of the Act. Pronounced in open Court in Whangarei at 3:30pm on Friday this 10 th day of February M P Armstrong JUDGE