2013 Chief Judge s MB 996 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A20120013889 UNDER Section 45, Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN AND Estate of James Heke - orders made on 1 April 2003 at 6 Taitokerau Appellate Court MB 58-69 VICTOR WILLIAM ROBERT HEKE Applicant ADELINE HEKE Respondent Hearing: 17 April 2013 at 2013 Chief Judge's MB 213-227 (Heard at Whangārei ) Appearances: A Kennedy for the Applicant W Puriri for the Respondent Judgment: 22 November 2013 RESERVED JUDGMENT OF DEPUTY CHIEF JUDGE C L FOX
2013 Chief Judge s MB 997 [1] This application, filed by Victor William Robert Heke ( the Applicant ), one of the trustees of the Hirini Putete Heke Whānau Trust, pursuant to s 45 of Te Ture Whenua Māori Act 1993, seeks to amend Māori Appellate Court orders dated 1 April 2003 relating to an appeal concerning succession to James Heke (deceased). 1 [2] The Applicant initially sought clarification as to the intention of the Māori Appellate Court order made at 6 Taitokerau Appellate Court MB 64. The Applicant seeks to have the orders amended to reflect his view that the life interest awarded in one of those orders is limited to the house block, incorrectly recorded by the Appellate Court as Pupuke 1E1F when it should be Pupuke E1C. He also seeks to have an additional order of the Lower Court revoked and to vest the balance of the lands of the estate of James Heke in the trustees of the Hirini Putete Heke Whānau Trust. [3] The Applicant claims that the he and his fellow trustees of the Hirini Putete Heke Whānau Trust have been adversely affected by the order complained of upon the grounds that the life tenant, Adeline Heke, has obtained an interim injunction over the lands concerned. Background [4] The case manager s Report and Recommendation ( the Report ) dated 1 February 2013 sets out the background of the application and is reproduced below: Introduction 1. This application, filed by Victor William Robert Heke ( the Applicant ) under section 45 of Te Ture Whenua Māori Act 1993 ( the Act ), seeks to amend a Māori Appellate Court order dated 1 April 2003 at 6 APWH 58-69 relating to a succession to James Heke. 2. The Applicant is a brother of James Heke and a Trustee of Te Hirini Putete Heke Whānau Trust. 3. The Applicant claims that there was an error or omission on the part of the Māori Appellate Court ( the Appellate Court ) on the basis that: (a) The title reference to the house block is incorrectly recorded in the order as Pupuke E1E. The house block is, and should be, Pupuke E1C; 4. The Applicant also seeks clarification as to the intention of the Māori Appellate Court when it ordered at paragraph 49(d) of 6 APWH 64; 1 Hirini Putete Heke Whānau Trust v Heke Estate of James Heke (2003) 6 Taitokerau Appellate MB 58 (6 APWH 58).
2013 Chief Judge s MB 998 An order pursuant to Sections 56(1)(f) and 115(2)/93 vesting the house block (Pupuke 1E1F) in Adeline s name for life, with the remainder to the trustees of the Hirini Putete Heke Whānau Trust. During her lifetime, Adeline is to be responsible for the outgoings on the house other than the mortgage payments. 5. The Applicant states Despite the indication from the Court that the life interest extended to Adeline is seemingly restricted to the house block, the Court failed to revoke the Order made in the lower Court and the omission has caused difficulty as set out below. This application is therefore for determination as to Adeline s interest in the land, specifically whether: a) The life interest is limited to the house block (which should correctly be referred to as Pupuke E1C), or b) that interest extends to all of the land, namely Pupuke E1D & E1F. This clarification is necessary, as Adeline Heke has obtained an interim injunction over all of the land referred to above. 6. A letter received from Counsel for the Applicant, on 13 December 2012, also states I confirm that my client wishes to clarify the intention of the Appeal Order as it relates to the Pupuke Blocks...It would be most helpful however for the remainder of the Trust lands, namely Waihapa No2A1 and Tauaki to be clarified at the same point as to record my client s interpretation of the Order... 7. The Applicant claims that he has been adversely affected by the order complained of upon the grounds that the life tenant, Adeline Heke, has obtained an interim injunction over the lands. (ordered 25 May 2011 at 21 TTK 184-193). Concise history of Order sought to be amended 8. James Heke died intestate on 17 July 1998. During his lifetime James inherited a farm property known as Te Pupuke E1A, E1C, E1D, and E1F. James and Olive Heke lived together on the farm and were in a de-facto relationship for 30 years. Although James did not have any issue, he and Olive raised Adeline Heke as their own child from birth. Adeline is a natural child of the daughter of Olive. 9. Various applications were filed with the Court in respect of succession to the estate of James Heke. They were: Olive Heke s claim by virtue of her 30 year de-facto relationship and Adeline Heke s claim as a whāngai daughter of James (A19990005162); Nan Kapa and Victor Heke, a claim by James siblings by reason of his intestacy (A19990002112 and A19990008397); and Ngareta Morris and Isabella Rupapera (James Aunties) also sought the establishment of the Hirini Putete Heke Whānau Trust (A19990008183). 10. The applications were heard at 88 WH 267-303 on 12 October 1999 and the decision of the Court was issued at 90 WH 190-196 on 29 February 2000. The Court made an order vesting the interests of James Heke in the persons beneficially entitled as follows:
2013 Chief Judge s MB 999 Name Adeline Heke Lands & Shares Vested For a life interest, she paying all outgoings (excepting the principal and interest on the mortgage registered against the land at the time of James death). Subject to Adeline providing her mother Olive Heke with an income from the land for her maintenance and support or such terms as they may mutually agree. Pokaka B2B 0.334 Te Pupuke E1F 1.000 Waihapa 2A1 3.332 Te Pupuke E1C 1.000 Te Pupuke E1E 0.376 Tauaki 0.167 Te Pupuke E1A 1.667 Te Pupuke E1D 1.000 With a remainderman interest to: Victor Heke 1/9 John Heke 1/9 Tangi Paniora 1/9 Martha Walker 1/9 Nan Kapa 1/9 Eva Johns 1/9 Helen Martin 1/9 Hariata Taylor 1/9 Edward White 1/9 Paul Heke 1/18 Cindy Heke 1/18 11. The Court also made further orders constituting the Hirini Putete Heke Whānau Trust ( the Trust ) and appointing trustees. 12. On 28 April 2000 the Trust filed a Notice of Appeal in respect of the orders made at 90 WH 190-196 on the grounds that the lower Court had erred in law and/or fact in: (a) finding a constructive trust in favour of Olive Heke; (b) granting the benefit of income from the land to Olive Heke as per section 116 of the Act; (c) failing to sever the dwelling from the rest of the farm property; and (d) providing a life interest to Adeline Heke as per section 115 of the Act. 13. The Appellate Court heard the appeal at 5 APWH 264-292 on 16 November 2001 and the judgment was issued at 6 APWH 58-69 on 1 April 2003.
2013 Chief Judge s MB 1000 14. At 6 APWH 61 the Appellate Court considered that the main issues to be determined were: 12....whether the lower Court correctly determined the persons entitled to succeed to James Heke and whether it correctly determined the interests to which they were entitled 13. In considering these matters we will examine Adeline s entitlement, Olive s entitlement, the mortgage, and the practicality of the orders made in the Lower Court 15. At 6 APWH 68 the following orders were then made: (a) An order pursuant to Section 56(1)(a) dismissing the appeal against the Court s finding as to a constructive trust in favour of Olive. (b) An order pursuant to Section 56(1)(f) making an order pursuant to Section 116/93 that Olive is to receive all the income from the estate during her life time, and that she is to continue to be responsible for mortgage payments. She is also to pay for upkeep and maintenance of the farm blocks. However, in the event of Olive s quitting the house, or in the event of her death, the income from the estate will revert to the trustees. At that point the trustees assume responsibility for the mortgage payments. (c) An order pursuant to Section 56(1)(a) dismissing the appeal against the Court s finding that Adeline is a whangai of the deceased pursuant to Section 115/93. (d) An order pursuant to Sections 56(1)(f) and 115(2)(93) vesting the house block (Pupuke 1E1F) in Adeline s name for life, with the remainder to the trustees of the Hirini Putete Heke Whānau Trust. During her lifetime, Adeline is to be responsible for the outgoings on the house other than the mortgage payments. Upon Olive s death or upon her quitting the house, Adeline s responsibility for the outgoings on the house (other than the mortgage payments) continues. Identification of evidence that may be of assistance in remedying the mistake or omission 16. The Applicant has provided the following documents in support of his application: a) Copies of the minutes and orders complained of; and b) Copies of the minutes and orders of the lower Court decision. Details of subsequent Orders affecting lands to which application relates 17. In April 2011 Adeline Heke lodged an application for injunction. The application was heard at 21 Taitokerau MB 184-193 on 25 May 2011. 18. The Court granted an interim injunction preventing Victor Heke and Kadel Heke from trespassing or causing injury over Pupuke E1C, E1D, and E1F. 19. At 21 Taitokerau MB 192 the Court commented on two issues in relation to the Appellate Court s decision, namely: [21] First, all of the parties before me today accept that the block that has the house on is E1C. The Māori Appellate Court s decision assumed the house to be on either E1E or E1F. In that respect, there appears to be an error in the decision [22] Second, the Māori Appellate Court s decision did not expressly address whether it intended to overturn Judge Spencer s decision that Adeline Heke was entitled to receive
2013 Chief Judge s MB 1001 a life interest in all the other blocks in addition to the block with the house on. Clearly, the Court s ownership record today records that Adeline Heke has a life interest in all those blocks and has been prepared on the basis that the Māori Appellate Court did not tamper with that part of Judge Spencer s decision. But paragraph 49 of the decision is not explicit in this regard.... [23] As I say there has been no challenge to the Māori Appellate Court s decision or the Court s record of ownership. So, I must proceed on the basis of what that record of ownership tells me, which is that Adeline Heke has a life interest in all of these blocks. 20. At 50 Taitokerau MB 157, dated 1 November 2012, Counsel for Victor Heke advised the Court that an application to the Chief Judge had been lodged. The interim injunction remains in place and the application for a final injunction has been adjourned pending the outcome of this Chief Judge application. Details of payments made as a result of the Order 21. There were no payments made in regard to the Order to which this application relates. Reference to areas of difficulty 22. The Applicant seeks clarification as to the Appellate Court s 2003 decision under section 45 of the Act 23. Section 44 of the Act states; 44 Chief Judge may correct mistakes and omissions (1) On any application made under section 45 of this Act, the Chief Judge may, if satisfied that an order made by the Court or a Registrar (including an order made by a Registrar before the commencement of this Act), or a certificate of confirmation issued by a Registrar under section 160 of this Act, 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, cancel or amend the order or certificate of confirmation or make such other order or issue such certificate of confirmation as, in the opinion of the Chief Judge, is necessary in the interests of justice to remedy the mistake or omission. 24. Section 45 does not provide jurisdiction to seek clarification of a decision. 25. If the Court record contains an error or omission, which is in the interests of justice to correct, then a section 45 applications is appropriate, provided the Applicant can provide evidence of the alleged error or omission. 26. The Applicant has not provided clear evidence or submissions to support a claim that the Appellate Court erred in fact or law in failing to revoke the orders made in the lower Court at 90 WH 190-196. Consideration of whether matter needs to go to full hearing 27. There is an error in the order complained of to the extent that the Appellate Court decision refers to the house block as Pupuke 1E1F and the order refers to the house block as Pupuke E1E. The house block is in fact on Pupuke E1C. 28. There is sufficient evidence on file to amend the Court record and it is not necessary for this matter to proceed to a hearing. 29. The Applicant seeks clarification of the Appellate Court s intention. However, seeking clarification is not within the ambit of a section 45 application.
2013 Chief Judge s MB 1002 30. Further, the onus is on the Applicant to provide evidence to support a claim that the Appellate Court erred in fact or law in not overturning the decision of the lower Court at 90 WH 190-196. No evidence has been provided to support such a claim. It is not necessary for this matter to proceed to a hearing. 31. Section 86 of the Act provides that the Court may make...amendments as are considered necessary to give effect to the true intention of any decision or determination. Therefore, the Appellate Court can amend its own record. However, section 86 should be read in conjunction with section 77(1) which states that orders of the Court over 10 years old cannot be annulled or quashed, or declared or held to be invalid. The exception to section 77(1) are Chief Judge applications lodged under section 44 of the Act. Recommendation of course of action to be taken 32. 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 the following order be made pursuant to section 44(1) of Te Ture Whenua Māori Act 1993 amending the order complained of at 6 APWH 58-69 dated 1 April 2003, by: i. Correcting the house block to be Pupuke E1C and not Pupuke E1E; c) And a further order be made pursuant to section 47(4) of Te Ture Whenua Māori Act 1993 making all other consequential amendments. d) If objections are received then the matter should be set down for hearing [5] The Report was sent to parties on 1 February 2012. The application was heard in Whangārei on 17 April 2013. The Case for the Applicant [6] The Applicant s response to the Report was received on 28 February 2013. The Applicant had no objection to correcting the reference to the house block to its true appellation, Pupuke E1C. However, counsel objected to the view expressed in the Report that there was no evidence to support the revocation or amendment of the orders made in the Lower Court. It was essentially submitted that: (a) On 9 March 2000 at 90 WH 190-196 the Lower Court made an order vesting Adeline Heke a life interest in the lands of James Heke as follows: Adeline Heke as to a life interest, she paying all outgoings thereon (excepting the principal and interest on the mortgage registered against the land at the time of James death). Subject to Adeline providing her mother
2013 Chief Judge s MB 1003 Olive Heke with an income from the land for her maintenance and support or such terms as they may mutually agree. (b) This order was not revoked on appeal. Instead the Appellate Court issued an order stating that Olive Heke was to receive all the income from the estate of James Heke during her life time. Olive was to continue to be responsible for mortgage payments and to pay for the upkeep and maintenance of the farm blocks. The Appellate Court ordered that in the event of Olive s quitting the house, or in the event of her death, the income from the estate was to revert to the trustees of the Hirini Putete Heke Whānau Trust. At that point the trustees assume responsibility for the mortgage payments. The Appellate Court further ordered that the house block be vested in Adeline Heke s name for life, with the remainder to the trustees of the Hirini Putete Heke Whānau Trust. During her lifetime, Adeline was to be responsible for the outgoings on the house other than the mortgage payments. (c) In essence the Applicant contends that the Appellate Court decision is in conflict with the decision of the Lower Court, issued on 9 March 2000 at 90 WH 190-196. There is no mention, for example, of the Appellate Court vesting a life interest in anything other than the house block in Adeline s name. It did not vest in her a life interest in the balance of the farm lands. Counsel contended that:... the practical meaning of the Appeal Court s decisions is given in the Order, however the omission that the Lower Court Order was revoked has caused difficulty in implementing the Order. It is submitted that the plain reading of the Appeal Court Judgement is as follows: a) That Adeline Heke is to have a life interest in the house block only (now recognised as Pupuke E1C), b) The balance of the land is to revert to the Trustees who will be responsible for paying the mortgage. (d) Thus, it was submitted, the Appellate Court judgment dated 1 April 2003 contained an omission as required by s 45 namely, it omitted to revoke the order made in the Lower Court that Adeline Heke has a life interest in all of the land interests held by James Heke.
2013 Chief Judge s MB 1004 (e) The Applicant is particularly concerned that Adeline Heke sought and was granted an interim injunction on 25 May 2011 preventing representatives of the trustees entering onto the lands inherited from James Heke. As the Appellate Court did not revoke the Lower Court order, which gave Adeline a life interest over these lands, the trustees must abide by the injunction and are unable to access the land to develop or maintain it. (f) The Māori Land Court granted that interim injunction at 21 Taitokerau MB 192-193. In his oral judgment, his honour Judge Ambler noted that the Appellate Court did not expressly revoke the order granting Adeline Heke a life interest over all the lands of James Heke and that the record of ownership still records that Adeline Heke has a life interest in the blocks. [7] At the Court hearing held in Whangārei on 17 April 2013, the Applicant further submitted that: (a) That the Appellate Court recognised the difficulties that arose when the Lower Court granted Adeline Heke a life interest in the house block and the balance of the land. 2 It was contended that during the Appellate Court proceedings, the parties through counsel, agreed that a compromise could be reached should a life interest in the house block be awarded in Adeline s favour. 3 Although the Appellate Court referred to this compromise in its decision at [29] and indicated it would return to this agreement, this was not done unambiguously. Rather the Court ordered that Olive was to receive income from the estate during her life time, to be responsible for mortgage payments, and to maintain the farm blocks. (b) Counsel further submitted: 4...whilst the Court didn t exactly say Olive has a life interest in the homestead block and the balance of the farm, I would suggest that this is what their Honours meant in terms of context. It is plain that if she is to get the income and be responsible for the upkeep, then in order to effectively do that she must have a life interest. But that isn t stated. Nor is it stated 2 3 4 2013 Chief Judge s MB 215 (2013 CJ 215). 2013 Chief Judge s MB 216 (2013 CJ 216). 2013 Chief Judge s MB 216 (2013 CJ 216).
2013 Chief Judge s MB 1005 that by superimposing this order, Adeline s lower Court life interest would be revoked in favour of this new proposal. So, the very fact that the lower Court has not revoked Adeline s life interest in the house block and the farm block to enable this to take its place, would mean that Adeline s life interest in the home block and the balance of land continues because it s not revoked. And it s supposed to sit side by side with the new order that has been imposed by the Appeal Court which actually gives Olive the interest in the house and the farm block. [8] I note that the order under s 116 made by the Appellate Court does not depend on a life interest being recognised in Olive s favour. As that Court noted, ss 109, 114 and 115 determine how the Court orders succession to land. Olive did not fall into any of the categories then recognised as persons that could succeed to land. While the Lower Court found a constructive trust existed in favour of Olive, the Appellate Court gave nothing other than the right to income, and nothing said in that regard convinces me that there was an error of law or omission in the Appellate Court s judgment with respect to the order made under s 116. [9] Other submissions made by counsel are addressed below. Relevant Law [10] The Chief Judge s jurisdiction to amend or cancel an order of the Māori Land Court is set out in s 44(1) of Te Ture Whenua Māori Act 1993: 44 Chief Judge may correct mistakes and omissions (1) On any application made under section 45, the Chief Judge may, if satisfied that an order made by the court or a Registrar (including an order made by a Registrar before the commencement of this Act), or a certificate of confirmation issued by a Registrar under section 160, 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, cancel or amend the order or certificate of confirmation or make such other order or issue such certificate of confirmation as, in the opinion of the Chief Judge, is necessary in the interests of justice to remedy the mistake or omission. [11] In Ashwell Rawinia or Lavinia Ashwell (nee Russell) the Chief Judge summarised the principles to consider when dealing with s 45 applications as follows: 5 5 Ashwell Rawinia or Lavinia Ashwell (nee Russell) 2009 Chief Judge s MB 209 (2009 CJ 209) at [15].
2013 Chief Judge s MB 1006 When considering section 45 applications, the Chief Judge needs to review the evidence given at the original hearing and weigh it against the evidence produced by the Applicant (and any evidence in opposition); Section 45 applications are not to be treated as a rehearing of the original application; The principle of Omnia Praesumutur Rite Esse Acta (everything is presumed to have been done lawfully unless there is evidence to the contrary) applies to section 45 applications. Therefore, in the absence of a patent defect in the order there is a presumption that the order made was correct; Evidence given at the time of the order was made, by persons more closely related to the subject matter in both time and knowledge, is deemed to have been correct; the burden of proof is on the Applicant to rebut the two presumptions above; and as a matter of public interest, it is necessary for the Chief Judge to uphold the principles of certainty and finality of decisions. These principles are reflected in section 77 of the Act, which states that Court orders cannot be declared invalid, quashed or annulled more than 10 years after the date of the order. Parties affected by orders made under the Act must be able to rely on them. For this reason, the Chief Judge s special powers are used only in exceptional circumstances. [12] As a titles Court, the principle of indefeasibility is extremely important to the work of the Māori Land Court and, by necessary extension, to the work of the Māori Appellate Court. Consequently orders are not lightly amended or cancelled under s 45. [13] The Chief Judge can, however, amend or cancel an order of the Māori Land Court or the Māori Appellate Court where he is satisfied inter alia that either of those Courts has not made a correct decision because of any mistake or omission on the part of the Court and where it is necessary in the interests of justice to correct it. [14] Section 45 applications must be accompanied by proof of the flaw, identified through the production of evidence or submission. The burden of proof requires the Applicant prove their case on the balance of probabilities. 6 If the Applicant merely wishes to disagree with a Māori Land Court or Maori Appellate Court decision, then the s 45 process is not the correct one to follow. In other words, the s 45 process is not another opportunity to appeal or be reheard. 7 As the Māori Appellate Court noted in Grant v Raroa A1B1B, 8 s 45 applications cannot be used to circumvent the rehearing or appeals process. As a matter of public interest, it is important that the Chief Judge uphold the principles of 6 7 8 Tau v Nga Whanau o Morven and Glenavy Waihao 903 Section IX Block (2010) 2010 Māori Appellate Court MB 167 (2010 APPEAL 167) at [61]. Bennett Te Puna Parish Lot 154G Block 2011 Chief Judge s MB 68 (2011 CJ 68) at [5]. Grant v Raroa A1B1B (1993) 33 Tairawhiti Appellate MB 35 (33 APGS 35).
2013 Chief Judge s MB 1007 certainty and finality of decisions and can only interfere if he is satisfied on the balance of probabilities that there is a clear error of law or mistake and it is in the interests of justice to amend the error of law or mistake. Discussion [15] At the hearing held in April 2013, counsel for Adeline, after traversing the history of the application before the Lower Court, submitted that the judge in that Court made a sincere effort to accommodate all parties in his decision. In counsel s view, I should not exercise the jurisdiction of the Chief Judge other than to correct the house block s appellation to E1C. He did, however, acknowledge that the Appellate Court did not expressly address the order made by the Lower Court concerning Adeline s life interest in the balance lands and interests. However, he submitted that there is no basis to exercise my jurisdiction under s 45 in a manner that takes away any of her entitlements or benefits. [16] Conversely, counsel for the Applicant submitted that the Appellate Court limited Adeline s interest to a life interest in the house block but was silent as to the balance of the land and interests. She contended that if the Appellate Court had intended Adeline to have a life interest in all the balance lands and interests as well as the house block, it would have made a statement to that effect. If the judgment is not read in the manner contended for by the Applicant, then the Appellate Court has made the same order as the Lower Court as to the life interest in the house block, but has not done the same for the balance lands and interests. It must have intended, but omitted, to revoke the Lower Court order. [17] There is much logic in this aspect of the case made for the Applicant and I find that this is the only reasonable interpretation of the judgment of the Māori Appellate Court, particularly at [47]-[49]. [18] In their discussion on the balance lands and interests the Appellate Court referred to submissions made by the Hirini Putete Whānau Trust concerning the Lower Court s failure to balance the interests of the respective parties. At paragraph [47] the Court referred to counsel for Adeline and their acknowledgment that an alternative solution to the situation would be to relinquish all lands to the Trust with the exception of the homestead block. At paragraph [48] there is some suggestion that the Appellate Court was critical of the Lower
2013 Chief Judge s MB 1008 Court for failing to address s 17 adequately. Thus it looked to exercise its duty to promote practical solutions to problems arising in the use and management of land. Finally, at paragraph [49] the Appellate Court refers to its overall findings in the judgment and the need to make orders that address the reality of the parties situation at the same time as upholding the legal principles set out in the judgment. [19] In terms of the orders made, I note that upon Olive s death, or upon her quitting the house, the balance of the income was to revert to the Hirini Putete Heke Whānau trustees who would become responsible for paying the mortgage. If they were to be responsible for the mortgage, then they must be able to generate the income from the land to be able to meet that commitment. Whether the mortgage has been discharged since then is neither here nor there. At the time the judgment issued, the mortgage was attached to the land and thus it had to be taken into account. The only reasonable way that the trustees could meet such a commitment is by having access to the land. Therefore, the omission in terms of that order was in not stating that the balance lands and interests vest in the trustees at that point as the representatives of the successors to the deceased. [20] Furthermore, I note that the Appellate Court ordered that Adeline Heke was to have a life interest in the house block (now recognised as Pupuke E1C) but once Adeline dies, the house block and the balance lands and interests will revert to the Hirini Putete Heke Whānau Trust. There was no need to have made such an order given the Lower Court order already granted this life interest. The Appellate Court could have simply dismissed the appeal. [21] It is these aspects of the judgment that indicate that the Appellate Court omitted to revoke the order of the Lower Court so that they could substitute the orders with those listed at paragraph [49] of the judgment. [22] Thus, I am satisfied on the balance of probabilities that the order made by the Māori Appellate Court at 6 APWH 58-69 was erroneous in law because of the omission on the part of that Court of failing to revoke the order of the Lower Court made at 90 WH 190-196 granting Adeline Heke a life interest in the balance lands and interests. Accordingly, I have determined to amend the orders as follows.
2013 Chief Judge s MB 1009 Amendment of Orders [23] Pursuant to s 44 of Te Ture Whenua Māori Act 1993, the orders made at paragraph [49] at 6 Taitokerau Appellate Court MB 58-69 are amended as follows: (a) Remains the same; (b) Remains the same; (c) Remains the same; (d) Remains the same with the appellation amended to read (Pupuke E1C); An order pursuant to s 56(1)(f) revoking the order of the Lower Court as to the life interest of Adeline Heke to the balance lands and interests of James Heke and substituting the trustees of the Hirini Putete Heke Whānau Trust as the representative of his successors determined in accordance with Te Ture Whenua Māori Act 1993. (e) Remains the same. [24] A copy of this decision is to be sent to all parties. Dated at Wellington this day of November 2013. C L Fox DEPUTY CHIEF JUDGE