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Paki, In re (Matauri X Incorporation) [1996] NZMAC 20 (18 September 1996)

IN THE MĀORI APPELLATE COURT
OF NEW ZEALAND
TAITOKERAU DISTRICT

5 TAITOKERAU APPELLATE MB 16
APPEAL 1996/12

UNDER Section 18(1)(a), Te Ture Whenua Māori

Act 1993

IN THE MATTER OF Matauri X Incorporation

WHAKARIA PAKI Appellant

Hearing: 14 August 1996

(Heard at Whangarei)

Court: Deputy Chief Judge N F Smith (Presiding)

Judge H K Hingston

Judge P J Savage

Appearances: Mr Peters, Counsel for the Appellant Judgment: 18 September 1996

JUDGMENT OF THE APPELLATE COURT

Background

At the conclusion of the hearing on 14 August 1996 the Court reserved its decision.

Akinihi Hone Hamiora (the deceased) died intestate on 29 May 1981 and at her death owned 34.588 shares valued at $7,609.36 (the shares) in the Matauri X Incorporation;
The deceased Widower HONE (JOHN) PAKI (the donee) executed a transfer of these shares on 11th July 1983 in favour of JOHN PAKI son of the deceased and the donor; the share transfer inter alia recited that the donor “being a shareholder in (Matauri X) in pursuance of the intestacy of AKINIHI HONE HAMIORA (deceased) HEREBY TRANSFER to William Paki.....”

On the 3rd September 1983 the share transfer was approved by the Committees of Management of Matauri X Incorporation.

Whakaria Paki (the applicant) a brother of the donee on the 7th of October 1994, filed proceedings in the Māori Land Court at Whangarei pursuant to Section 18(1)(a) of Te Ture Whenua Māori Act 1993 requesting the Court declare the transaction (the transfer of shares to the donee) invalid and then determine the ownership of the shares in favour of the donor as to a life interest with the remainder to all the children of the deceased equally.

The Māori Land Court on 18th March 1996 (80 Whangarei MB 195-201) made an order Section 18(1)(a)/93 determining that the donee was the owner of the 34.588 shares. The Court also dismissed two succession applications concerning the shares. The appellant is seeking to overturn these orders.

The grounds of appeal are:

“That in exercising it’s jurisdiction the Māori Land Court:
1.1 Has erred in law by determining that the Court jurisdiction under

Section 18(1)(a) of the Act is declaratory and/or in the alternative the Court should only exercise the jurisdiction in very limited circumstances.
1.2 Has erred in fact and in law in determining that the deficiencies in

the transactions that were the subject of the Māori Land Court Applications were not serious and accordingly were inconsequential.

1.3 In exercising his discretion by making the orders now appealed

against gave insufficient weight to the legal and equitable claims of the appellant and in doing so exercised its discretion incorrectly.

1.4 Has erred in fact and in law by making determination contrary to

the evidence and its own findings.”

At the hearing Mr Peters elaborated upon these grounds arguing that the Court was wrong;-

1.1 In finding that it had only a declaratory function because the

appellant believed a declaration vitiating the share transaction would have, by operation of law, vested the shares back in the donor.

1.2 In finding that Section 20 Acts, Interpretation Act 1924 applied; the

appellant argued that this act had no relevance.

1.3 That there could not have been an equitable assignment of his

interest by the donor to donee as to accept this would be to assert that the Court’s equitable jurisdiction override a clear Statutory provision.

1.4 In not accepting that it had jurisdiction and finding that the

provision of the legislation operative up to 1 July 1993 was mandatory with the consequence that the share transaction was invalid.

Decision

The following are our findings on the respective grounds argued by the appellant.

1.1 The question of whether Section 18(1)(a)/93 is more then declaratory was

answered by the Court below when it said

“Section 18(1)(a)/1993 is identical to the old Section 30(1)(a) Māori Affairs Act 1953. The Māori Appellate Court on 3 October 1991 In Re Matauri 2F2F Appeal 1991/06 at 3 Tok 20-26 and on 17 November 1993 In Re Waipuka 3B1B1 & 3B1B2B1 C2A at 11 Takitimu Minute Book Folios 2-20 considered its jurisdiction pursuant to Section 30(1)(a)/1953. The Appellate Court found in both these cases that Section 30(1)(a)/1953 is not used to create rights or interests. It is not a vesting section, that is, it does not transfer or create rights by way of vesting interests, but rather, is in place to enable the Court, by order, to declare existing rights of ownership in law or in equity. This Court accepts that the Court’s jurisdiction in Section 18(1)(a)/1993 cannot be used to create rights.”
This statement without qualification is the law as we see it; however the Court below in stating that a declaration may have been forthcoming if the transaction was blatantly wrong and had serious consequences misled itself. The “blatant wrong” and “serious consequences” discussed in A J Burr Ltd v Blenheim Borough Council 2 NZLR 1 go to the substantive issue of whether the share transfer should be set aside and cannot be used to read down the clear statement of the Courts Section 18(1)(a)/93 powers.

The appellant’s contention that a ruling on the question of invalidity would not effect a vesting does not sit well with our view of Section 18(1)(a)/93 being merely declaratory. We believe that where a similar transaction is properly before the Māori Land Court, the Court must first exercise jurisdiction in a separate action be it in tort, in contract, or otherwise, set the transaction aside if that course is established, make any necessary vesting orders, then it can make a declaration as to ownership using Section 18(1)(a)/93.
1.. 2 We agree that Section 20 Acts Interpretation Act 1924 does not assist us in

determining this matter.
1.3 In view of our findings on the question of jurisdiction hereunder there is no

necessity for this Court to make a finding on this argument.
1.4 We are of the opinion that the jurisdiction of the Court to determine this

matter is governed by the law in force at the relevant dates of the transaction, prior to the ₁st July 1993. At all relevant times the shares in the incorporation were personalty and did not become interests in Māori freehold land until after the ₁st July 1993. Therefore the Court had no jurisdiction to intervene. Section 260 Te Ture Whenua Māori Act 1993 determines that shares in a Māori Incorporation shall be deemed for all purposes to be undivided interests in Māori freehold land, and that section goes on to say:

“and except as expressly provided, all the provision of this Act relating to the alienation of or succession to interests in Māori freehold land shall apply to the alienation of or succession to interests in such shares”.

The wording of this section cannot be taken as granting retrospective jurisdiction.

Halsbury’s Law of England 4th Edition, Volume 4(1) paragraph 1433 records:

It is a legal policy that an amending enactment should generally be presumed to change the relevant law only from the time of enactment.” Broome vs Cassell & Co Ltd [1972] UKHL 3; (1972) AC 1027

Whether the registration of the share transfer by the body corporate was legal or otherwise is a matter beyond the jurisdiction of the Māori Land Court.

The final matter we address is whether the Court below, without giving notice to the appellant, properly exercised its jurisdiction in making the Section 18(1)(a)/93 order it did.

It would appear that notwithstanding the result of its deliberations led inexorably to that conclusion, the question before the Court was the share transaction of 1983 and as notice of the Courts intention to consider making the Section 18(1)(a)/93
order was not given to the appellant, there, exists ground to annul the order and substitute a dismissal of the application that was before the Court below.

Order Section 56/93 annulling the Section 18(1)(a)/93 order made in the Court below and substituting a dismissal of the application.

Costs: There being no appearance in opposition to the appellant and as he has been partially successful there is an order that the amount paid on account of security for costs and cost of record be refunded to the appellant’s solicitor.

N F Smith (Deputy Chief Judge) (Presiding Judge)

H K Hingston, Judge

P J Savage, Judge