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Maori Land Court of New Zealand |
Last Updated: 30 April 2011
Place: Gisborne
Present: Judge Wickliffe
K Lardelli, Clerk of the Court
Date: 1 August 2003
Application No: A20000052757
A20000051530
Subject: Waitangi A1A1 — Determination of
Ownership and Injunction; Succession
Section: 18(1)(a)(c)(h)(i)/93 & 19(1)(b)/93; 113,
118/93
DECISION
Waitangi A1A1 has been the subject matter over which a bitter internecine struggle between different factions of the same family has been fought. It has resulted in the criminal prosecution of whanau members, the imprisonment of one and the intimidation of others. It has been a struggle that has ranged from the Family Court, the Criminal Court, the Maori Land Court in Hastings and back to the Maori Land Court in Gisborne. It is a struggle over ownership of Waitangi A1A1. At its heart is the issue of whether a trust was created or gift made in favour of the applicant such that he now holds an equitable title to Waitangi A1A1 and the dwelling on that land. The fate of the interim injunction extant this Court will depend on the answer to that question.
Background
Waitangi A1A1 is a block of Maori freehold land created by partition order on 28 April 1953 at 121 Waiapu MB 9, in favour of Wi Pewhairangi Reedy (Snr - deceased). It is situated near Ruatoria, on the East Coast of New Zealand. It is approximately 0.607 hectares with an approximate capital value of $42,000 as at 1999. The property rises from the state-highway to a whanau home and the extended Reedy whanau urupa (Turangarahui). The house overlooks the Waiapu valley, the Ngati Porou marae and the three mountains Hikurangi, Aorangi and Taitai.
Wi Pewhairangi's son, Mr Hikiera Tuterangi Reedy (Tuterangi — now deceased) succeeded to the block pursuant to a will dated 14 June 1972. Tuterangi left a will dated 24 March 1995. In that will he left all his Maori land interests to his two sons, Godfrey and Wi Pewhairangi, subject only to a life interest in the annual income off those lands in favour of Mrs Akurangi-Reedy. Waitangi A1A1 was mentioned explicitly in the will as including Tuterangi's interest in the property at Ruatoria. However, title has passed on succession to Tuterangi's children by Tuterangi's will and by order of the Court dated 7 April 2000 (See 159 NA 260-263). Title to the block is now in the names of Wi Pewhairangi Reedy and Godfrey James Reedy. Although the Court made the orders on 7 April 2000, the application for succession was adjourned sine die, presumably to allow the family to take action against the applicant in these proceedings.
Applications
The applicant (plaintiff) in these proceedings is Robert Penewaru Reedy, a half brother to Tuterangi Reedy. Both Robert and Tuterangi are sons of Wi Pewhairangi Reedy (Snr). Robert was not raised on the property but was given to a family in Tikitiki (The Huriwai Whanau) as a whangai. In comparison, Tuterangi was brought up on the property.
Determination of Ownership — The Substantive Application
The first statement of claim raising equitable ownership issues was first filed on 17 April 2000 along with the application for an injunction. In that statement of claim, the applicant sought a determination of ownership of Waitangi Al Al in his favour.
On 24 May 2000 the Maori Land Court received an application under section 18(1)(a)(c)(h)(i)/93 and amended statement of claim filed by the applicant through his solicitor.
Injunction
The application under section 19 of Te Ture Whenua Maori Act 1993 was filed on 17 April 2000. It sought an injunction preventing Godfrey James Reedy, Wi Pewhairangi Reedy (Jrn) and Martha Rose Akurangi from dealing with Waitangi ALAI and in particular by entering onto the land or authorising any other person to enter onto the land in adverse possession to the applicant plaintiff.
The grounds for bringing the application were that:
order that the land be vested in him.
built by Wi Pewhairangi Reedy (Snr);
♦ The applicant's half brother, Tuterangi, had given him permission to live in the house and that he had in effect abandoned it; and
♦ The applicant had expended money on the house and that he had paid the rates for 22 years.
Judge Marumaru granted two interim injunctions on 20 April 2000 at 97 Aotea MB 165167 to remain in effect until such time as the substantive issues in these proceedings are determined by the Court. The first injunction requires Martha Rose Akurangi, Wi Pewhairangi Reedy (Jrn) and Dick Reedy and any other person occupying the house property on Waitangi A1A1, without the express consent of the applicant, to vacate the property. The second injunction prohibits Wi Pewhairangi Reedy (Jrn), Godfrey James Reedy and Martha Rose Akurangi, their contractors, agents, servants, workers or invitees from entering upon, dealing with or removing any chattels or items from, or doing any injury to the property.
Hearings
Nothing further was done by the applicant to prosecute this matter until the Court received a letter from the solicitors for the respondents in March 2002. The Court directed that the applications be set down for hearing and that all counsel were to provide updates on the position of their respective clients regarding the applications extant the Court.
The substantive application was heard by the Court for the first time on 10 June 2002 at 62 Rua MB 208. On that date the matter had to be adjourned as affidavits upon which the respondents were to rely were filed too late for them to be properly considered by counsel for the applicant.
A full hearing was finally held on 26 July 2002. On that date the Court received and heard evidence or comments from the applicant, Peter Howard Te Ratahi Te Kani A Tamatea Cross, Sue Te Huinga Wiremu Nikora, Maraki Tautuhi Oronga Reedy, Te Manana Kaua Te Rangi Reedy, Martha Rose Akurangi Reedy, Parekura Oneroa, Takatu Antonisen, Bill Walker, Wikitoria Wright and Rawinia Oneroa-Clarke. On that date the matter was adjourned and I directed the Registrar to summons Mr Haua Nepe to attend the next sitting. For reasons soon to become apparent, I also required a report from the Maori Trust Office on all transactions between the applicant and the Maori Trust Office that occurred in 1978-1980 relating to the leasing of 2 blocks previously leased by Tuterangi.
The matter came back before the Court on 18 November 2002 at 64 Rua MB 160-202. On that date I heard evidence from Haua Nepe and Pekema Tawera and legal submissions from counsel for the applicant and the respondents. Again the Court was unable to complete hearing the matter so it was adjourned until 17 December 2002 at 64 Rua MB 246-264. On that date I heard from the Maori Trust Office, Mr Rongo Tuhuru and Mr Aaron Reedy. On that day I reserved judgment for a written decision.
The Evidence for the Applicant
The applicant filed four affidavits in these proceedings. He gave evidence that after his father died in 1972, Tuterangi remained living in the house on Waitangi A1A1. In 1978, Tuterangi and his wife moved to live in a caravan on the applicant's property in Gisborne for three months. It seems that Tuterangi was disillusioned with living on whanau land and was concerned about his wife and children. My understanding of the evidence of the applicant was that Tuterangi was at this stage expressing a desire to abandon the property. After three months living with the applicant, Tuterangi and his wife bought a house of their own in Gisborne.
Two months later, Tuterangi asked the applicant if he would consider going home and taking over his leases of Maori land. The applicant alleged that Tuterangi wanted him to go home and take over the leases which he wanted to sell and to rectify breaches of lease covenants. This evidence was substantiated by the documents filed by the Maori Trustee during these proceedings including a section 118 Property Law Act Notice dated 5 October 1977. The Maori Trustee eventually agreed to transfer the leases into the applicant's name in November 1979. Negotiations over the transfer were reignited in 1982 due to the Maori Trustee's continuing concerns that the covenants had not been addressed adequately by the applicant. During this entire time the applicant received legal advice and at no stage was any attempt made to formalise ownership of Waitangi A1A1.
Additionally, and some time therein, in response to the applicant's question "Where am I going to live?" Tuterangi said "there's our father's house it's your house. I'll be f'd if I am coming back there again." Later on the applicant received further assurances from Tuterangi that he could have the house. In June 1979, the applicant and his wife, traveled to Ruatoria to look at the property. The house, he claimed, was in bad condition. His wife asked Robert to approach Tuterangi and buy the house. Back in Gisborne, the applicant asked Tuterangi about buying the house and Tuterangi replied "I already told you once before, its our father's house and now it's your house, I'm never going back there and I'm not repeating myself."
Relying on those statements, the applicant sold his own home so, he claimed, to enable him to refurbish the dwelling on Waitangi A1A1. It was his view that the house was then in a state of disrepair. He has occupied the property for 22 years from November 1979 and he has paid the rates. During that time he claims that he has painted, wall papered, changed lino, revarnished floors, overhauled the electrical system in the house, installed a new stove, paid for the rectification of the pump and sewer system, replaced weather boards, fenced the property and repaired the roof. The applicant gave evidence that he took up residence to prevent the abandonment of the property.
Upon questioning, he acknowledged that his foster son now lives in the house and that he only returns fortnightly to check the house. He also noted the intimidation in 2000 from the respondents resulted in the house being vacated for a short period of time and there appears to be general unease on his part about being able to live in the house because of those incidents.
Mr Bill Walker told the Court during the hearings that on his visits with Tuterangi during the 1990s he demonstrated no interest in the land and that he believed that Tuterangi left the land in the care of the applicant. He pointed to the long occupation (22 years) of the applicant which, in his view, required some recognition, either acknowledging the applicant as caretaker or owner of the land. Mrs Wikitoria Wright asked for the applicant to be given the right to live in the house for the period of his lifetime.
The Evidence for the Respondents
The following is a summary of the evidence of the witnesses or supporters for the respondents.
Mr Peter Cross gave evidence that he had two conversations with Tuterangi in 1995 and in 1996 regarding whether or not Godfrey should be allowed to fulfil his wish to return to Ruatoria to live on Waitangi A1A1. On both occasions Tuterangi advised that Godfrey was too young to return to live there. However, Tuterangi said nothing that would suggest that Godfrey's expectation was erroneous. The implication suggested is that this is not consistent with Tuterangi having gifted the land to Robert. Under cross-examination he remembered that proxy forms had been signed by Tuterangi for the applicant to be able to speak on his behalf during meetings of the Reedy ahu whenua trust lands. (See 63 Rua 126)
Martha Rose Akurangi-Reedy, Tuterangi's common-law wife of 35 years, gave evidence that she did not believe that Tuterangi ever indicated to Robert that he would never return to Waitangi A1A1 or that he intended that ownership of the property should pass out of his hands and not pass on to his son. She contested a lot of the evidence of the applicant concerning the improvements he claimed to have done to the property. In particular, she produced photographs of the house as an attempt to verify that the house was in a good state. In my view, it is not possible to rely on the photographs to demonstrate the veracity of her evidence, though the grounds do look tidy. However, her evidence is corroborated by the documents filed by the Maori Trust Office and in particular the letter dated 21 July 1978 from Burnard Bull & Co, previously solicitors for the applicant, to the Maori Trustee. In that letter it is recorded:
Our client instructs us that he is going to live in Mr H.T. Reedy's house which has electricity, water and access to it. The existence of this comfortable house makes the repair of the old house [on Waiaranga A2C] unreasonable.
Ms Akurangi-Reedy also denied that the lands leased by Tuterangi at the time of the alleged conversation with Robert were in the state suggested. Given the material filed by the Maori Trust office regarding breaches of covenants her understanding is obviously not correct.
She also gave evidence that a reoccurring theme in family discussions was that one-day they would all return to the property. During these conversations, Tuterangi never said anything to disabuse the family of that possibility but rather responded that they would return when the time was right. Godfrey's expectations that he would return to live and work on the land were underscored by the arrangements made concerning his upbringing. He was raised in part, by a whanau member who taught him basic farming skills. Consistent with the family understanding, her sons were to take this property and carry on the ancestral links with it and her two daughters would inherit her lands in Nuhaka.
She further claimed that on occasion Tuterangi paid the rates and insurance on the property. She highlighted the importance of the property to the extended Reedy whanau given its location. Although addressed to the applicant, all rate demands produced for the benefit of the Court, still list Tuterangi as the owner.
Later she told the Court that in 1999 a Mr Haua Nepe visited their house and asked Tuterangi who owned the home — suggesting at the same time that the applicant did. According to her this appeared to upset Tuterangi and he told Mr Nepe in no uncertain terms to kick the applicant out of the house and that Mr Nepe should take over occupancy himself. Mr Nepe was summoned to appear at the next hearing. Mr Nepe could not remember such a conversation taking place and he agreed with the Court that there was never a conversation where Tuterangi made it clear that he either owned the house or that the applicant owned it. (See 64 Rua 171).
Mr Te Manana Kaua Te Rangi Reedy, gave evidence concerning the whanau background and the personalities of Wi Pewharangi Reedy (Srn) and Tuterangi. He concluded by advising that the general feeling of the "third generation" of the Reedy whanau is that the house belongs to Tuterangi's children as their inheritance from their grandfather to their father. The applicant denied that Mr Reedy had a right to speak on behalf of this section of the whanau. Te Manana Kaua Te Rangi Reedy also told the Court that if the applicant had not gone back and occupied the property someone else would have and that although the outcome of this litigation might mean that the applicant had to leave the property, he (the applicant) had enjoyed the possession and occupation of the land rent free for years.
Mr Maraki Orongo Reedy gave evidence that he spoke to Rongo Tuhuru, whom the applicant claimed completed work on the property. According to Mr Reedy the work completed was limited to welding a gas tank. This evidence was corroborated by Mr Peter Cross and Mrs Nikora. The applicant suggested that Mr Tuhuru could speak for himself. Mr Nepe was summoned to appear at the next hearing. When he was finally able to attend the Court, Mr Tuhuru agreed that the house on Waitangi A1A1 was in good condition for a period during the time Tuterangi and his family still occupied it in the 1970s. However, by 1979 when the applicant took over he assisted with some work including roofing work, repairing a hot water cylinder and the sewer system. However, he stated that most of the work on the property was done by the applicant, eg wall papering, painting, replacement of window-panes etc.
Sue Te Huinga Wiremu Nikora gave evidence that she visited the house before Tuterangi moved with his family to Gisborne in 1978. According to her the property was immaculate and in "good nick." She raised issues of tikanga regarding the responsibilities associated with having occupation of the property including maintenance of the urupa. She obviously did not believe that the applicant was the person who could discharge those responsibilities and she wanted him to vacate the property in order to allow Wi Pewhairangi (Jrn) and Godfrey to return home. The applicant noted that the responsibility for maintenance of the urupa was the responsibility of whoever leased the block above the house and at the time of the hearing that was Pekama Tawera and his brothers.
Rawinia Oneroa-Clarke and Parekura Clarke expressed support for the respondents.
Mr Brian Richard Hancock gave affidavit evidence that he met with Tuterangi on 17 March 1995 and on that date took instructions for preparing Tuterangi's will. He produced the notes he made during that meeting. Those notes record that the applicant was in the house and that Maori land interests (including Ruatoria house) were to go to his two sons with Martha taking a life interest in income off those land holdings.
Mr Pekama Tawera gave evidence that the two leases held by the applicant over the lands he returned home to care for in 1978, were transferred to Mr Tawera and Mr Manana Reedy for the total sum of $48,000.
Issues
Despite the respondents having legal title, the particular issues that I must determine are:
Legal Submissions Applicant
The applicant claims that during the period 1978-1979, Tuterangi created a trust over the land in terms whereby he became the beneficial owner of the land. He further claims that Tuterangi did not want the land and that he stated the applicant could have the land. Finally, the applicant claims that in reliance of that trust he:
♦ Sold his house in Gisborne and moved to live on the land; + Made improvements to the land;
♦ Paid the out-goings on the land;
♦ Maintained the dwelling on the land;
♦ Lived on the land from that time to the present;
He seeks a declaration that he is beneficially entitled to the land and an order vesting the land in him. In addition, he wants an order for costs. For this aspect of the applicants case, counsel relied on.
In the alternative, if the Court did not find there was a trust, the applicant claims:
♦ That Tuterangi gifted the land and that Tuterangi's descendants were wrongly trying to dispossess him of that land. If that were established, the applicant wants an order vesting the land in him and an order for costs;
♦ That in and about 1978-1979 Tuterangi encouraged and allowed the applicant to occupy the land and in such circumstances the doctrine of proprietary estoppel applies and that Tuterangi's descendants were wrongly trying to dispossess him of that land. If that were established, the applicant wants an order vesting the land in him and an order for costs.
A range of legal authorities were cited and these proved to be extremely helpful. I refer to them below and in the context of my findings.
Respondents
The respondents in these proceedings, Godfrey James Reedy, Wi Pewhairangi Reedy (Jrn) and Martha Rose Akurangi, deny that a constructive trust was created, or that a gift was made or that promissory estoppel applies to the circumstances of this case.
They rely on the fact that Godfrey and Wi have been awarded title to the land pursuant to Tuterangi's will and succession orders of the Maori Land Court under sections 113 and 118/93. They are the legal owners of the land and the dwelling on Waitangi A1A1. They also claim that prior to Tuterangi's death the applicant did nothing to assert title to the property, rather he asserted nothing but a tenancy right over the property. For the reasons I outline below, I reject this contention. The applicant, is able to assert more than tenancy rights in the circumstances of this case.
It was submitted by their counsel that the authority of Harper v Whittaker [1921] NZLR 783 requires corroboration of the testimony of the donee in a claim against the estate of a deceased person. In the Harper Case, the Court acknowledged that although not a rule of law, this is a rule of prudence because it is too easy to tell the story of a gift from a dying man and very difficult to contradict this after he is dead. It was submitted that although this alleged trust or gift was made well before Tuterangi became unwell, the Maori Land Court should adopt the same cautious approach to this case. The applicant has not been able to corroborate his own testimony that Tuterangi said he could have the house. I agree with this submission and that is why I have taken a cautious approach to the evidence as outlined below.
In this case there has been a significant delay in the applicant asserting title and counsel for the respondent stated that a " ... fundamental principle of equity is that delay defeats equity or defeats equities. Equity aids the vigilant and not the indolent...
Where conscience, good faith and reasonable diligence are found wanting, equity will not intervene." Consequently, the respondents rely on the doctrine of Laches and argue that should prevent the applicant being able to succeed in this case. Furthermore, there has been no detriment to the applicant or unjust enrichment on the part of Tuterangi.
It was further submitted, that while this Court has broad powers to hear and determine claims at law or equity to the ownership or possession of Maori freehold land under section 18(1)(a)193, that fundamental to the exercise of this power are the principles of the Treaty of Waitangi and recognition that land is a taonga tuku iho of special significance to Maori people. Furthermore, it is the role of this Court to promote the retention of that land in the hands of its owners their whanau and their hapu. I accept these submissions are correct in light of the Preamble, sections 2 and 17/93. As the arrangement at the centre of this case involves two brothers, I do not think these submissions assist the respondents any further.
However, arguments pertaining to the relevance of sections 106, 108 and 109193 to the exercise of jurisdiction under section 18/93 are less obvious. What I do accept is that there was a will in this case where Tuterangi's intention has been clearly articulated, that there are succession orders giving effect to that intention and that the applicant could have appealed that decision, and or applied to contest the will in the High Court. He has chosen instead to file proceedings of this nature. But that is his right and nothing further can be made of that.
The respondents seek to have the application under section 18/93 dismissed and the interim injunction cancelled so that they can assert their ownership viz a viz the applicant.
Court's Findings on Gift
I agree with counsel for the respondents that it is too easy to make the claim that the arrangement as pleaded took place over the period 1978-1979 when the only other witness, Tuterangi, is dead. Therefore, and in my view, it would be unwise for the Court to rely solely on the applicant's evidence in this case. Therefore, I prefer to look to the evidence in its entirety.
Twenty-two years has passed since the conversations took place in 1978-1979 between these two brothers. A very long-time indeed. Yet the applicant remembers them word for word. There is no corroborating evidence. Even if the conversations were in the nature suggested, the most that can be said about them is that they were consistent with Tuterangi giving Robert the right to occupy the house on Waitangi A1A1.
Yes, Tuterangi made it clear that he would never return to live and he did not. But Tuterangi never said he would give or transfer title of Waitangi A1A1 to the applicant, and after 22 years, he did not. All he did was say to the applicant that he could have the house and that was said in the context of the applicant being able to live there. Indeed, the fact that he would not sell the house, is consistent with him wishing to retain title and not, as suggested by the applicant, consistent with him giving him ownership of the property.
However, the evidence does suggest an agreement was made between the brothers to progress Tuterangi’s desire to transfer the leases he was responsible for to the applicant. As an incentive, Tuterangi granted the applicant the right to live in the house. I accept that by entering into that agreement, he laid the foundation for the applicant to reasonably believe that he had been granted some form of interest and that on that basis the applicant acted by completely changing his life.
I accept that there has been no exclusive payment of rates and insurance consistent with ownership by the applicant and indeed the rate notices are still in Tuterangi's name. However, that evidence does not diminish the nature of my finding that the applicant had some equitable interest, short of full title, in the property.
I also agree that the evidence of the applicant regarding the state of the house was open to some challenge, given the letters from his solicitor to the Maori Trustee during 1978. However, I accept that by the time he took actual occupation of the house in late 1979, some interior damage may have been done to the house, which had been vacant from the time Tuterangi and his family left it in 1978. Consequently, the applicant's evidence of the work needed to make the house habitable again is accepted.
I also accept that the applicant did a reasonable amount of maintenance work on the property over the 22 years he has lived in it. I note, however, that no verifying independent financial evidence was provided to the Court to demonstrate expenditure. Consequently, these contributions can not be accepted of such significance such as to warrant the Court finding that the applicant has a full equitable interest in the property.
I also accept that both these men involved in this arrangement were extremely careful in their dealings over the critical period 1978-1982. They were both legally represented. The applicant appears to have taken all necessary steps to secure his position in relation to the leases transferred to him from Tuterangi. He also took measures to secure his occupancy of Waitangi A1A1 by having his lawyer write to the Maori Trustee recording the agreement with Tuterangi. Put another way, he took the legal issues agreed upon by the parties as far as he was able to. That he was unable to secure legal title to the house on Waitangi A1A1 during the period suggests that it was never part of the agreement between the brothers. There was, in other words, never an outright gift.
Court's Findings on Constructive Trust and Proprietary Estoppel
The question then becomes, what was the arrangement. The evidence suggests that a constructive trust was created by Tuterangi's actions over the 22 years at issue here. The applicant is of the preferred classes contemplated by Te Ture Whenua Maori Act 1993. It is possible for this Court to find that a constructive trust was created pursuant to which the applicant is entitled to recognition that he had some equitable interest in the house. (See Grace v Grace [1994] NZFLR 961) Furthermore I can find that the nature and extent of the equity should be remedied by the grant of a life-interest in the house. (See Pascoe v Turner [1979] 2 All ER 945) In light of existence of the constructive trust, it would be inequitable or unconscionable to allow Tuterangi's successors to assert full ownership of the property. (See Stratulatos v Stratulatos [1988] 2 NZLR 424)
As regards the submission for the respondents that the applicant has not suffered detriment, this is not the only aspect that needs to be considered in cases such as these. Also to be considered are notions of sacrifice, reliance, and the actual relationship of the parties. (See Gillies v Keogh [1989] 2 NZLR 327) This case involves two brothers, who were very close. One brother, the applicant, changed his life to absolve the other when he was in difficulty, namely the applicant accepted a transfer of leases where there were breaches of lease covenants. He sold his house to do so, gave up his job in Gisborne and expended money. While there has been delay, that delay can be justified by the fact that the applicant believed he did not have to do anything further to progress the arrangement he entered into with Tuterangi.
In concluding this section, I accept that it may be that once Tuterangi's son's started to express an interest in the property, his commitment to the arrangement with the applicant may have changed. That would explain his instructions regarding the way the property was to be dealt with pursuant to his will. But at least until then, there is no evidence that he wanted to unsettle the arrangement.
Furthermore, the fact that Tuterangi provided for his sons in his will is not relevant to whether the trust was created, as that action came too late, in my view. Furthermore, even after he signed his will, he did nothing to displace the applicant in favour of his sons. However, though the trust exists, Tuterangi's legal ownership of the title remains and so the scheme for succession outlined in the will must remain, but subject to the life-interest of the applicant. For that reason, the applicant will need to make an application under section 45/93 to have the order of the Maori Land dated 7 April 2000 (See 159 NA 260-263) amended.
Order
JUDGE
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