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Nicholas v Te Amo [2023] NZCA 22 (16 February 2023)

Last Updated: 20 February 2023

JUDGMENT OF THE COURT

1. The appeal is allowed. The decision of the Māori Appellate Court is set aside.
2. There is a determination under s 18(1)(a) of the Te Ture Whenua Māori Act 1993 that the appellant has a right to possession of the house built by her on the block of land known as Te Tuturi C, which entitles her to occupy the house and its curtilage until 31 May 2066.

100. The matter is remitted to the Māori Land Court for reconsideration of the injunction in light of the findings of this Court and, if necessary, the specific area constituting the curtilage.

4. The respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT


(Given by Courtney J)

Introduction

[1] This appeal concerns a house on a block of Māori freehold land in the Western Urewera Mountains.^[1] The block, known as Te Tuturi C, is part of the larger Te Whaiti‑Nui-A-Toi block, which is owned by the trustees of the Te Whaiti‑Nui‑A‑Toi Trust. The appellant, Phyllis Nicholas (nee Martin), is a beneficiary of the trust.

[2] Mrs Nicholas made improvements to the house over a period of years in the late 1990s and early 2000s, after moving a shed onto the land in 1989. Initially her whānau held a licence to occupy it. Later, members of her extended whānau took over occupation, against her wishes. They remained in occupation after the licence expired. Later still, Mrs Nicholas regained possession.

[3] The increasingly acrimonious dispute over who is entitled to occupy the house led the trustees to apply for an injunction prohibiting Mrs Nicholas from occupying the house and requiring her to remove it. Mrs Nicholas cross-applied under s 18(1)(a) of the Te Ture Whenua Māori Act 1993 for a determination that she has “an equitable interest in the land in the nature of ownership rights in a building constructed upon the land” and asserted that these ownership rights include the right to access and occupy the house.

[4] In the Māori Land Court, Judge Coxhead accepted that the house, which is on a concrete foundation and cannot be moved, was part of the land.^[2] Therefore, the house was owned by the trustees, subject to any equitable interest Mrs Nicholas could prove. He found that Mrs Nicholas did have an equitable interest (which he described as ownership of the house) by reason of her financial contribution to the construction of the house and its ongoing upkeep.^[3] However, the Judge held that an order under s 18(1)(a) determining ownership rights did not in itself carry a right of possession or occupation unless, as a result of the trustee’s actions, Mrs Nicholas had formed a reasonable expectation that she was entitled to occupy the house so that it would be unconscionable for the trustees to deny her a right of occupation.^[4] The Judge held that the trustees had not created any such expectation.^[5] He granted the injunction sought, but delayed the issuing of final orders until after Mrs Nicholas made a fresh application to the trustees for an occupation order.^[6] Mrs Nicholas did so, but the trustees refused to grant her a right of occupation. Final orders were therefore issued.^[7]

[5] On appeal to the Māori Appellate Court, there was no challenge to the finding that Mrs Nicholas owned the house. The trustees’ position was and remains that she owns the house and may remove it. However, the Māori Appellate Court held that Mrs Nicholas’ ownership of the house did not carry with it a right of occupation unless she had actually made a contribution to the land itself (as opposed to the house) or that the trustees had done something to create a reasonable expectation that she would be entitled to occupy the house.^[8] It held that neither had occurred and therefore Mrs Nicholas had no right of occupation.^[9] Mrs Nicholas appeals.

[6] The parties identified two questions for determination. One related to the Māori Appellate Court’s decision that Mrs Nicholas could only show an equitable interest in the land by making a contribution to the land apart from the house itself. The other related to the Court’s finding that the trustees had not acted to create a reasonable expectation that Mrs Nicholas would be entitled to occupy the house. For the reasons we come to, we have concluded that the Court erred on the second question; the trustees are estopped from denying Mrs Nicholas a right to occupy the house until May 2066. We record that it is not necessary to distinguish between the present trustees and their predecessors. The trustees’ position is that they did nothing to engender any expectations in Mrs Nicholas but they accept they are bound if their predecessors did so. Since this outcome would resolve the appeal it is unnecessary to determine the first question. However, we make some observations that may be of assistance in future cases.

The approach on appeal

[7] The Māori Appellate Court treated the appeal as one against the discretion of the Māori Land Court in which it would only interfere if the Māori Land Court had applied a wrong principle, failed to take a relevant consideration into account, taken an irrelevant consideration into account or was otherwise plainly wrong.^[10] This approach was not correct.

[8] Mrs Nicholas had sought a declaration as to the existence of an equitable interest in land, asserting a constructive trust. Although the making of a declaration involves an element of discretion, the determination of equitable interests is not discretionary. The right of appeal against the Māori Land Court’s decision is a right of general appeal conducted by way of rehearing.^[11] It was for Mrs Nicholas to satisfy the Māori Appellate Court that it should differ from the Māori Land Court, in which case she was entitled to a fresh assessment by the Māori Appellate Court in accordance with the approach described by the Supreme Court in Austin Nichols & Co Inc v Stichting Lodestar.^[12]

Background

Mrs Nicholas builds a house on Te Tuturi C block

[9] The Te Whaiti-Nui-A-Toi block comprises approximately 3,024 hectares. It was formed in 1974 by the amalgamation of a number of existing blocks of Māori freehold land, including the Te Tuturi C block. The Te Tuturi C block had been owned by Mrs Nicholas’ whānau and it holds special cultural significance for her.

[10] The Te Whaiti-Nui-A-Toi block was vested in the Māori Trustee who leased it to the Ministry of Forestry until 2066 (the forestry lease). In 1989 individual responsible trustees replaced the Māori Trustee as owners of the block. Later that year Mrs Nicholas sought the trustees’ consent to build a dwelling on the Te Tuturi C block. One of the trustees agreed. Mrs Nicholas moved a shed onto the property at her expense.

[11] Mrs Nicholas then sought a licence to occupy the land. The trustees advised the Ministry of Forestry that they would consent to their granting a licence to the Martin family for this purpose on certain conditions. The trustees’ letter was not in evidence but the part of the letter recording the conditions of their consent was reproduced in the Māori Appellate Court’s decision.^[13] We discuss the terms of the letter in more detail later.

[12] The Ministry granted a licence to occupy to Mrs Nicholas’ brother, Frank Martin (Frank), on 9 July 1990. On Mrs Nicholas’ evidence the licence was granted to Frank because she lived in Te Puke and the Ministry required the licence to be held by somebody who was living nearby who could care for the site. In May 1999 the terms of the licence were varied including to change the name of the licensee to “the Martin Whānau with Frank Martin named as responsible caretaker”. It is not evident what triggered that variation.

[13] Over the next several years, Mrs Nicholas paid for improvements to the shed so that it became a liveable house. In 1991 part of the dirt floor was concreted. Windows, doors, a bathroom, a kitchen and other fittings were installed. In 2002 more concreting was done. It does not appear that any of this work was done with a view to the structure being removable without demolishing it. Mrs Nicholas’ husband and children helped with this work. Mrs Nicholas also met the ongoing insurance costs and paid for power to the dwelling. Mrs Nicholas’ immediate whānau and some of her wider whānau, such as her sister Violet Paul, regularly spent time at the property. Frank also stayed there frequently, although he did not contribute much to the expenses associated with it.

Events after Frank Martin’s death

[14] After Frank’s death in 2003, another of Mrs Nicholas’ brothers, Reo Martin (Reo), and his whānau, progressively took up occupation of the house and eventually refused to allow Mrs Nicholas to use it at all. Reo tried, unsuccessfully, to obtain a licence to occupy from the trustees.

[15] During this time Mrs Nicholas continued to maintain the property, including contributing to a tractor and supplying equipment to keep the site tidy.

[16] The forestry lease came to an end in 2012. Mrs Nicholas was unaware of this. She only learned of it during the current litigation.

[17] Reo’s whānau continued to occupy the house. After Reo died in 2016 Mrs Nicholas and her whānau made efforts to secure a fresh licence to occupy the property. They obtained the agreement of half the Martin whānau for the proposal. However, Reo’s son, Victor Martin, also applied for a licence to occupy. By 2019 another of Reo’s sons, Danny Martin (Danny), was in occupation. On Mrs Nicholas’ account he was causing trouble with other whānau, including threatening a cousin, Trevor Martin (Trevor), who had begun to build a shed near the house.^[14] Mrs Nicholas went to the property to tell Danny to leave. He called the police, who required him to leave. Mrs Nicholas then moved into the property.

[18] The trustees, unhappy with the ongoing, and escalating, dispute between whānau members over the use of the land, maintained that none of the whānau have the right to live in the house. They commenced the proceedings that have led to this appeal.

The Māori Land Court decision

[19] The trustees’ application for an injunction was brought on the grounds that Mrs Nicholas and her associates had forcibly removed the existing occupant of the house, unlawfully taken possession of it, and refused to obey a trespass notice.

[20] Mrs Nicholas brought her cross-application under s 18(1)(a) of Te Ture Whenua Māori Act, which provides:

18 General jurisdiction of court

(1) In addition to any jurisdiction specifically conferred on the court otherwise than by this section, the court shall have the following jurisdiction:

(a) to hear and determine any claim, whether at law or in equity, to the ownership or possession of Māori freehold land, or to any right, title, estate, or interest in any such land or in the proceeds of the alienation of any such right, title, estate, or interest:

[21] As noted, the determination Mrs Nicholas sought was that she had “an equitable interest in the land in the nature of ownership rights in a [house] constructed upon the land”. The grounds for her application were that she:

(a) had moved the house onto the land in 1989 and since then has paid for improvements to it and expenses relating to it;

(b) had always treated the house as her own and her ownership had or should reasonably have been accepted by the trustees; and

(c) her ownership rights include the right to access and occupy the house so that she could not be treated as a trespasser.

[22] Mrs Nicholas’s application was advanced on the basis of a constructive trust arising from her contributions to the house over the years. She asserted that she had a reasonable expectation as a result of these contributions and from the licence to occupy, and that she had ownership rights over the house. As to occupation, she had argued that ownership of a building on Māori freehold land may include a right of possession of the surrounding land — essentially a right of occupation — engaging principles of constructive trust or equitable estoppel where the trustees had allowed the building to be constructed.

[23] Judge Coxhead identified the relevant issues as being: (1) who owned the house; (2) whether Mrs Nicholas had a right of occupation of the land; and (3) whether a permanent injunction should be granted.

[24] The Judge adopted the principles and approach set out by Judge Milroy in Nga Uri a Maata Ngapo Charitable Trust v McLeod.^[15] In that case, the Judge had said:

[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.

[25] Applying Auckland City Council v Ports of Auckland, the Judge accepted that the house, with its concrete foundation, could not be moved and was to be treated as part of the land. In accordance with conventional common law principles, ownership of the house would run with the land. Accordingly, the trustees were the legal owners of the house.^[16]

[26] However, the Judge acknowledged that the trustees’ ownership rights were subject to any equitable interests and noted, further, that the trustees did not claim ownership of the house, and instead took a “neutral” position.^[17] The Judge turned to consider Mrs Nicholas’ claim that she had an equitable interest in the house. He canvassed the relevant principles on the existence of constructive trusts based on improvement to property by reference to Lankow v Rose,^[18] Stratulatos v Stratulatos^[19] and Tipene v Tipene.^[20] The Judge held that, as a result of the improvements Mrs Nicholas had undertaken, she was the owner of the house.^[21] Although the Judge used the word “ownership” it is probably more apt to say that Mrs Nicholas had an equitable interest in the house, which is how her claim had been advanced.

[27] However, the Judge considered that ownership and occupation were separate matters and that an order under s 18(1)(a) determining ownership rights in a building does not, in itself, carry with it a right of possession or occupation.^[22] Rather, because the land is administered by a trust, the trustees, as the legal owners of the land, control the use and occupation of it, subject to questions of equitable estoppel:

[45] Where ownership of a building is determined as being owned separately, the question of any right to occupy the land will ordinarily need to be negotiated with the trustees. Where the Court can intervene, is if equity requires it in order to do justice as between the parties.

...

[50] ... In my view, the correct position is that ownership and occupation are two separate matters. If the Court finds ownership and the owner wants the house to remain on the land, then they need to seek authority from the trustees for that occupation, as the trustees as legal owners control the occupation and use of the land. Where the Court can intervene is where the trustees have created a reasonable belief that the owner would have some right to occupation, the owner has relied on that expectation to their detriment and it would be unconscionable for the trustees to deny this. In such situations the Court intervenes in equity to prevent the trustees from enforcing their legal rights to have the building removed.

[28] The Judge went on to conclude that the trustees had not done anything to create an expectation that Mrs Nicholas could acquire an interest in the land. Her right to occupy depended on the licence to occupy, which had expired in 2012:

[51] I consider that the criteria to establish a constructive trust or equitable estoppel do not exist in the present case. The trustees have not, by their actions, given rise to any valid assumption, belief or expectation for Phyllis Nicholas to rely on. ... The most Phyllis Nicholas could rely on is the licence to occupy and nothing the trustees did or said created any belief or expectation that she would have an interest in the land. Further, there is no evidence the trustees were aware of any arrangements regarding the licence as between Frank Martin and Phyllis Nicholas and, while it may have been expected that the forestry lease would continue until 2066, it was terminated in 2012. The rights granted by the licence under that lease could not as a matter of law go beyond the lease. [While the trustees have arguably allowed the wider Martin whānau to occupy the land since 2012, at most this would be a bare licence and it is clear by commencement of these proceedings that any such licence is now intended to be revoked.] It is therefore my view that Phyllis Nicholas, as the owner of the shed, has no authority to have that shed on the land.

[29] Given that the trustees had considered and refused Mrs Nicholas’ request for occupation of the land and had made it clear that they did not want the shed to stay on the land, the Judge concluded that an injunction should issue.^[23]

The finding that the trustees were not estopped from denying that Mrs Nicholas has a right of occupation

[30] Mrs Nicholas’ position is, essentially, that the trustees are estopped from denying that she has a right to occupy, notwithstanding the termination of the forestry lease. She argued that while the forestry lease and licence to occupy were in place there was no need for her to have any separate agreement with the trustees and that the terms of the trustees’ consent to the licence to occupy created a reasonable expectation that she was entitled to remain in occupation until 2066.

[31] The finding of the Māori Land Court that the house was part of the land and that Mrs Nicholas owned the house were not challenged. The Māori Appellate Court agreed that the right to occupy the house was dependent upon the licence to occupy. It did not accept that the trustees had done, or omitted to do, anything that might have justified an expectation by Mrs Nicholas that she was entitled to occupy the property beyond the termination of the forestry lease.^[24]

[32] The Māori Appellate Court noted particularly that Mrs Nicholas did not have consent from the advisory trustees to occupy the land, and that even if such consent had been given, the authority to grant a licence to occupy lay with the Ministry of Forestry. There was, therefore, no basis on which Mrs Nicholas could reasonably have expected to occupy the land, except as set out in the licence granted by the Ministry, and when the forestry lease came to an end in 2012 that also brought the licence to occupy to an end.^[25]

[33] The Māori Appellate Court said:

[39] Ultimately, although the appellant hoped to occupy the land for a much longer duration, she ought to have been aware that the right of occupation under the licence would end if the Ministry of Forestry’s lease came to an end. This is explicit in the Deed of Licen[c]e to Occupy. We see nothing in the evidence in terms of the conduct of the trustees that would support a reasonable expectation that [Mrs Nicholas] would be entitled to a right of continuing occupation once the forestry lease ended.

[34] There was no disagreement as to the essential elements of equitable estoppel. Mrs Nicholas had to prove the creation or encouragement of a belief or expectation by the trustee, reliance by her on that, and detriment as a result.^[26] Mr McKechnie, for the trustees, accepted that Mrs Nicholas may have had a certain belief or expectation in her own mind but submitted that this fell well short of a reasonable expectation that she would be entitled to continue occupying the land after the termination of the forestry lease.

[35] In our view the Courts below placed undue emphasis on the termination of the forestry lease without adequately considering the circumstances in which the licence to occupy had been granted, and in which Mrs Nicholas had incurred the cost of constructing the house.

[36] The trustees had explicitly consented to the Ministry granting a licence to occupy to the Martin family. That consent was made on the following terms:^[27]

1. Provided you are satisfied that the Whakatāne District Council building permit has been fully complied with.
2. You assume responsibility to ensure that the Martin family do actually reimburse you for lost revenue due to the loss of one hectare of trees.

Then the trustees approve the issuing of the building licence to the Martin family of the existing building on the land but that the licence be subject to the following conditions:

1. That the licence to occupy will be for the remaining unexpired portion of the lease only which expires on 31 May 2066.
2. That from 1 June 2066 the future of the building will depend on owners of the land at 31 May 2066.
3. That the Martin family meet all costs associated with the Licence.

[37] The first two conditions required the Ministry to be satisfied of the specified matters. There was no evidence that the Ministry was not satisfied of them and they do not assume any significance in relation to the issues before us.

[38] The remaining three conditions are significant, however. In terms of duration, the first condition conveys that the licence to occupy would run until the expiration of the forestry lease. However, the second condition conveys that the licence to occupy would run until the expiration date of the forestry lease — May 2066 — regardless of when the forestry lease actually ended, meaning that it was only after that date that the right to occupy the house would depend on the trustees. This statement could only reasonably be interpreted as meaning that the trustees would permit Mrs Nicholas to occupy the land until May 2066, and only after that date would her situation depend on whether the trustees agreed to further occupation. To put it another way, the terms of the trustees’ consent amounted to a representation that Mrs Nicholas would be entitled to occupy the house until May 2066, even if the forestry lease were to end before then.

[39] The circumstances around the termination of the forestry lease in 2012 were unclear. Mr Sharp, for Mrs Nicholas, suggested that it may have been connected to the Waitangi Tribunal hearings into the Urewera claims being held at the time, which included a claim regarding the Te Whaiti-Nui-A-Toi forestry lease. But in any event, as we have noted, Mrs Nicholas was not informed of the termination. The trustees, however, were aware that the house continued to be occupied (albeit by Mrs Nicholas’ wider whānau). It is impossible to think that they did not also appreciate that the essential aspects of occupation such as maintenance of the house and grounds were not continuing.

[40] In these circumstances we are satisfied that by the terms of their consent to the licence to occupy, the trustees made a representation that Mrs Nicholas would be entitled to occupy the house until May 2066. We are satisfied that Mrs Nicholas incurred expenditure and undertook work on the house and its surrounding grounds in the belief that that she would be able to occupy the house until May 2066. In our view, it would be unconscionable for the trustees to now go back on that representation. The appeal therefore succeeds on this ground.

The effect of finding that Mrs Nicholas could only acquire a right of occupation by contributing to the land, as opposed to the house

[41] The conclusion we have reached on the previous issue means that, strictly, we do not need to consider the Māori Appellate Court’s conclusion that, notwithstanding Mrs Nicholas’ ownership of the house, she had not acquired any right to occupy it because she had not contributed to the land on which the house stands.^[28] However, given the complexity of this question, our views may be of some assistance to the Māori Land Court and the Māori Appellate Court in future cases.

[42] Mrs Nicholas had asserted “an equitable interest in the land” arising from the interest she had as a result of constructing and maintaining the house, which she had done with the reasonable expectation of acquiring the right to use the house so that the owners of the land could not, in conscience, deny her that right. Essentially, she asserted a constructive trust as was shown to exist in Lankow v Rose.^[29]

[43] The Māori Land Court had accepted that, as a result of a constructive trust, Mrs Nicholas owned the house.^[30] As we have earlier observed, this description does not reflect the findings made and would be more aptly described as Mrs Nicholas having established an equitable interest in the house through a constructive trust. However, the Māori Appellate Court did not accept that a constructive trust could result in an interest in the land on which the house stood so as to permit occupation of the house.^[31] The Court considered that, whereas an orthodox constructive trust as described in Lankow v Rose conferred an equitable interest in the land, that was not possible in relation to Māori freehold land.^[32] The result was that, although Mrs Nicholas was recognised as the owner of the house, she was not permitted to occupy it.^[33]

[44] The Court described the nature of the constructive trusts recognised by Gillies v Keogh^[34] and Lankow v Rose, noting particularly that they provided a way of responding to the fact that de facto relationships were not recognised under the Matrimonial Property Act 1976 and subsequently the Property (Relationships) Act 1976 (PRA).^[35] It concluded that the constructive trusts imposed in these cases affected both land and improvements because the term “matrimonial home” was defined in those Acts as including the house together with any land, buildings or improvements. But since the PRA expressly excludes Māori freehold land from the ambit of the Act, a constructive trust could not be imposed to resolve a relationship property dispute involving Māori freehold land.^[36] Instead, a constructive trust could be imposed over other property so that the non-legal owner could be compensated for their interest in the house, assuming circumstances allowed it.^[37]

[45] Extrapolating from the relationship property context, the Māori Appellate Court concluded that the reasonable expectation test could only lead to an interest in Māori freehold land, as opposed to a house on the land, if the contribution were made to the land itself:

[35] With regard to Māori freehold land, the Courts’ approach to improvements on land differs from that under the Property (Relationships) Act 1976, as the Court can recognise a separation in the ownership of the improvement from the ownership of the land. This is a means of ensuring equity between owners, as the common law assumption is that a fixture is owned by all the owners.

[36] Given that the approach in our jurisdiction is to separate the ownership of the improvement from the ownership of the land, it follows that the reasonable expectation test must be applied with respect to both the improvement and the land if the claim is to succeed. The claimant must satisfy the Court that he or she has a reasonable expectation to own or possess the improvement, and that he or she also has a reasonable expectation to own or possess at least that portion of the land on which the fixture is located. Where land is vested in trustees, the trustees are the legal owners of all of the land rather than those with shares in the land owning a portion according to their share.

[46] Applying that approach to the facts of the case before it, the Court concluded that:

[37] If we accept the submission of counsel for the appellant that a constructive trust ought to be imposed on the basis of a reasonable expectation, the subject matter of the constructive trust is limited to the property to which the appellant made a direct contribution. The lower Court considered the appellant’s financial contributions to the shed and recognised these contributions by granting an order determining ownership of the shed in the appellant’s favour. In our view the appellant’s contributions have been recognised. There is no evidence that the appellant made any direct contributions to the land that would give rise to a reasonable expectation of an interest in the land.

[47] This approach seems inconsistent with that taken in previous decisions of both the Māori Land Court and Māori Appellate Court. It also gives rise to the question: if an order under s 18(1)(a) as to ownership does not confer a right to occupy, what rights does it confer? We make the following observations as a way to identify the relevant principles.

[48] First, both the Māori Land Court and the Māori Appellate Court have long accepted as applicable to Māori freehold land, the common law position that a structure affixed to the land may become part of the land, and if that is the case, be owned by the legal owners of the land.^[38] That is the position in this case.

[49] Secondly, it has also long been the position in the Māori Land Court jurisdiction that the interests of the legal owners are subject to equitable interests. These can include interests arising by way of constructive trust over structures that have become part of the land, which may be recognised by way of an order under s 18(1)(a).^[39] How such an interest is recognised depends, however, on whether the person having an equitable interest is also a legal owner of the land. In Stock v Morris, the Māori Land Court explained:^[40]

[65] Section 18(1)(a) enables the Court to “do equity” in relation to Māori freehold land. While the Preamble and ss 2 and 17 set the kaupapa of the Act and promote the interests of the owners, the Court cannot allow the actions of owners to cause injustice to non-owners. The case law provides helpful guidance on the appropriate remedies where non-owners have contributed to improvements on Māori freehold land.

...

[70] ... 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 ... 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.

[50] In Tipene v Tipene, the Māori Land Court applied the principle from Lankow v Rose that “a constructive trust can be given practical effect by such means as the justice of the case requires.” In doing so, Judge Doogan commented:^[41]

... The most common means are either a vesting order or an order for payment of the assessed value of the beneficial interest ... I note for completeness that I share the reservations expressed by Judge Ambler in the Stock v Morris case as to whether or not a non-owner can be granted a right of possession under s 18(1)(a).

[51] Thirdly, in previous cases under s 18(1)(a)’s predecessor, s 30(1)(a) of the Māori Affairs Act 1953, the Māori Land Court has expressly said that where a co‑owner of multiply owned Māori freehold land builds a house with the acquiescence of their co-owners, they acquire exclusive possession of the part of the land the house stands on.^[42] In Stock v Morris, the Judge observed that although the references to partition in these older cases are no longer as relevant under s 18(1)(a), the “essential point made is that the order creates an equitable charge or right that is distinct from the legal ownership of the land”.^[43]

[52] The effect of the Māori Appellate Court’s decision in the present case would be that a co-owner of Māori freehold land who acquires the equitable ownership of a house that is part of that land does not acquire any right of occupation unless they have also contributed to the land on which the house is situated. It is not clear what this means in a practical sense and it seems to be inconsistent with the principles that we have just discussed, which have long been applied in the Māori Land Court jurisdiction. A review of the case law suggests that (at least in the case of a co-owner such as Mrs Nicholas) there is no impediment to a constructive trust being given practical effect by a right of occupancy, should justice require it in the circumstances of that particular case. Where a constructive trust is made out in respect of a house, and neither compensation nor removal of the property are possible or appropriate, there seems to be no reason that the equitable owner cannot enjoy occupation rights.

[53] Acknowledging the distinct jurisdiction and expertise of the Māori Land Court and Māori Appellate Court, we nevertheless cannot see a principled basis for the Māori Appellate Court’s finding that in order for a constructive trust to give rise to a right to occupancy, separate contributions to the land itself must also be made out.

Results

[54] The appeal is allowed. The decision of the Māori Appellate Court is set aside.

[55] There is a determination under s 18(1)(a) of the Te Ture Whenua Māori Act 1993 that the appellant has a right to possession of the house built by her on the block of land known as Te Tuturi C, which entitles her to occupy the house and its curtilage, until 31 May 2066.

[56] The matter is remitted to the Māori Land Court for reconsideration of the injunction in light of the findings of this Court and, if necessary, the specific area constituting the curtilage.

[57] The respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.





Solicitors:
Te Whenua Law, Rotorua for Appellant
Graeme Dennett, Rotorua, for Respondents

^[1] Although the decisions of the courts below refer to the structure as a shed, given the nature of the improvements we think it more accurate to refer to it as a house.

^[2] Te Amo v Nicholas – Te Whaiti-Nui-A-Toi Block (2020) 233 Waiariki MB 92 (233 WAR 92) [Māori Land Court judgment] at [22].

^[3] At [23]–[32].

^[4] At [50].

^[5] At [51].

^[6] At [69].

^[7] Te Amo v Nicholas – Te Whaiti-Nui-A-Toi Block (2020) 234 Waiariki MB 188 (234 WAR 188).

^[8] Nicholas v Te Amo – Te Whaiti-Nui-A-Toi Block [2021] Māori Appellate Court MB 274 (2021 APPEAL 336) [Māori Appellate Court judgment] at [36].

^[9] At [38].

^[10] Māori Appellate Court judgment, above n 8, at [14], citing Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

^[11] Te Ture Whenua Māori Act 1993, ss 55, 58 and 58A.

^[12] Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4]–[5].

^[13] Māori Appellate Court judgment, above n 8, at [7].

^[14] Trevor Martin was a party to the proceeding in the Māori Land Court in respect of this shed (referred to in the judgment as “the shack”) but is not a party to the appeal. We do not need to refer to his position.

^[15] Nga Uri a Maata Ngapo Charitable Trust v McLeod – Harataunga West 2B2A1 (2012) 49 Waikato Maniapoto MB 223 (49 WMN 223) (footnotes omitted).

^[16] Māori Land Court judgment, above n 2, at [22]–[23], citing Auckland City Council v Ports of Auckland Ltd [2000] NZCA 190; [2000] 3 NZLR 614 at [72]–[76].

^[17] Māori Land Court judgment, above n 2, at [23]–[25].

^[18] Lankow v Rose [1995] 1 NZLR 277 at 294.

^[19] Stratulatos v Stratulatos [1988] NZHC 467; [1988] 2 NZLR 424 at 436–437.

^[20] Tipene v Tipene - Motatau 2 Section 49A4F (2014) 85 Taitokerau MB 2 (85 TTK 2).

^[21] Māori Land Court judgment, above n 2, at [32].

^[22] At [43].

^[23] Māori Land Court judgment, above n 2, at [65].

^[24] Māori Appellate Court judgment, above n 8, at [39].

^[25] At [38].

^[26] Goldstar Insurance Co Ltd v Gaunt [1998] 3 NZLR 80 at 86.

^[27] Recorded in the Māori Appellate Court judgment, above n 8, at [7].

^[28] Māori Appellate Court judgment, above n 8, at [37].

^[29] Lankow v Rose, above n 18.

^[30] Māori Land Court judgment, above n 2, at [32].

^[31] Māori Appellate Court judgment, above n 8, at [28].

^[32] At [32].

^[33] At [40].

^[34] Gillies v Keogh [1989] NZCA 168; [1989] 2 NZLR 327.

^[35] Māori Appellate Court judgment, above n 8, at [31]–[32].

^[36] At [32]–[33], citing Property (Relationships) Act 1976, s 6.

^[37] At [34].

^[38] Tohu – Te Horo 2B2B2B Residue (2007) 7 Whangarei Appellate MB 34 (7 APWH 34) at [16]; Stock v Morris – Wainui 2D2B (2012) 41 Taitokerau MB 121 (41 TTK 121) at [20]‑–[22]; Nga Uri a Maata Ngapo Charitable Trust v McLeod, above n 15, at [48]–[52]; Clarke v Rewha – Hauai No 2G Sec 2B (2019) 186 Taitokerau MB 68 (186 TTK 68) at [14]–[16].

^[39] Stock v Morris, above n 38 at [22]; Matenga v Bryan – Parish of Tahawai Lot 18C-F and 18I (2003) 73 Tauranga MB 150 (73 T 150); Nga Uri a Maata Ngapo Charitable Trust v McLeod, above n 15 at [35] and [55]; Thompson – Succession to Walter William Wihongi (2015) 117 Taitokerau MB 245 (117 TTK 245) at [26]–[27]; and Tipene v Tipene – Motatau 2 Section 49A4F (2014) 85 Taitokerau MB 2 (85 TTK 2).

^[40] Stock v Morris, above n 38.

^[41] Tipene v Tipene, above n 39 at [63], citing Lankow v Rose, above n 18, at 8. Footnote omitted.

^[42] See Kopa v Kopa – Kotuku B1 Block (1983) 62 Whangarei 182 (62 WH 182) at 186; and Sadlier – The Proprietors of Anaura (1987) 24 Ruatoria MB 61 (24 RUA 61) at 63.

^[43] Stock v Morris, above n 38, at [29].