Brokenshaw - Te Kaha B6X2 (2003) 81 Opotiki MB 18 (81 OPO 18) [2003] NZMLC 6 (25 February 2003)

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On the 26th of June 2001, the Court received three applications from Caroline Brokenshaw with respect to the house on Te Kaha B6X2. Caroline Brokenshaw is the daughter of the late Raewyn Rakairoa Ottoway, who once owned this block. Rakairoa died in October 1998. She had four children, namely Caroline Honecombe, Allan Honecombe, Donna Honecombe and Mervyn Honecombe. After Rakairoa's death, the Maori Land Court granted orders for succession to her estate, including this block of land, in favour of her natural children. They are now the owners of the land. During her lifetime, Rakairoa Ottoway occupied the block with Mr William Kay Ottoway, her second husband. He survived her until he died on 4 March 2001. Mr William Kay Ottoway had three children of his own. They are Lillian Ottoway who resides in Australia, Glenis Dalgliesh who resides in London, England and Valerie Ottoway who resides at the property known at Te Kaha B6X2.

This matter basically concerns the occupancy of Te Kaha B6X2 by Valerie Ottoway. It seems that she cared for her father during his last few years of life as he struggled and lost the fight against cancer.

Caroline and her siblings, as the natural children of Raewyn Rakairoa Ottoway, now object to her being in occupancy. They say that since Valerie has occupied the house, she has denied them access to the property. They assert their ownership to the land and all the fixtures on the land.

Her sister Lillian Ottoway in Court represented Valerie. The Ottoway children say that their father funded the building of the house and outbuildings on the block entirely from his own resources. They want recognition that their father owned the buildings or alternatively that they receive compensation from the current owners for the time and money expended by their deceased father (Mr Ottoway) and their family, on the property.

Caroline first filed this application in July 2001 for a determination of ownership of the house on Te Kaha B6X2. The ground for bringing the application is the previous ownership of the land by Rakairoa Ottoway, her mother.

This application was filed exparte by Caroline under section 19 1(b)/93 and 19 1(d)193. It is an application for an injunction over Te Kaha B6X2. Caroline sought to have the Court impose the injunction over the block in order to prevent Valerie occupying the house on the site and receiving income by way of rental from the property. She noted that as owners of the land, the Honecombes had not given Valerie permission to occupy. She also indicated that as Valerie had tenants in the house, the Court should seek the eviction of all parties in order to allow her family to reclaim possession of the land and the house. She also expressed concerns about the chattels in the house.

This application was filed with the application under section 20/1993. In support of the application Ms Brokenshaw filed an affidavit requesting that the Court consider the following. First of all that she had filed an application under section 18(1)(a)/1993 determining ownership of the house and garage on Te Kaha B6X2. Secondly, that the block was owned jointly by herself and her siblings and furthermore that ownership was recognised by the Court at 73 OPO 128-130. The next ground for filing the application was on the basis that there was no substance to the claim by Valerie to have possession of the house or to receive income from renting the property. She had not come to any arrangement giving her licence or tenancy of the property, nor did she have authority to act as agent of the owners. The application under section 18(1)(a)/93 had been part heard and was adjourned while a summons on Valerie was served on her to appear at the November Court. Caroline deposed that she had only found out that Valerie had tenants in the house since that adjournment.

I refused to hear the matter exparte and the application was set down for hearing.

Caroline filed the application exparte under section 20(d)/93. It was filed with the application under section 19/93. It was filed to obtain orders to restore occupation of Te Kaha B6X2 to the owners and to order Valerie and any other occupiers to surrender occupation. I refused to hear the matter exparte and the application was set down for hearing.

Te Kaha B6X2 is a block of Maori freehold land situated on the East Coast of New Zealand at Te Kaha Township. Te Kaha B6X2 is 1420 m2 in size. The block was created by way of partition order dated the 13th day of September 1918. It was subsequently vested in Raewyn Rakairoa Ottoway on the 12th day of October 1983. The last recorded valuation in the Court records indicates that as at the 1/9/95 the capital valuation for the block was $144,000.00.

After her death, the Maori Land Court granted succession to the block on 4 October 1999 at 73 Opotiki MB 128-130 in favour of the following people:

This matter first came before the Court on 5th September 2001 at Minute Book 76 OPO 206. During the hearing, I was advised that Valerie was in occupation of the house. I adjourned the application in order to allow the Registrar to issue and serve a summons on Valerie to attend the next Court sitting in order to obtain additional information about the reasons why she was in residence. It was also important to ascertain the extent to which Mr Ottoway had made contributions towards the house.

The matter was heard by me on the 4th October 2001 and at that Court sitting after hearing the evidence of Valerie and Caroline, and after being concerned about the relationship that existed between them, I granted the injunction but with a variation. The injunction was granted under section 19(1)(a)/93 forbidding the applicant from entering the property until such time as the Court had dealt with the application for determination under section 18(1)(a). Further to that, I also granted the injunction under section 19(b)/1993 preventing Valerie or any person having occupation of the dwelling on Te Kaha B6X2 from removing, dealing with or doing any injury to any chattels in the house or any other part of the property of Te Kaha B6X2 or the associated garage on the property. The injunction was expressed as a temporary injunction to be of interim effect only until the hearing of the section 18(1)(a)/93 application. The first part of the injunction under section 19(1)(a)/93 preventing the applicant from entering the property also extended to her family. I noted that the injunction was effective until the Court dealt with the section 18(1)(a)193 application. That direction of the Court has, of course, been in place and continues to be in place until a final order is granted.

The matter came back before the Court on 12th of November 2001, recorded at 77 OPO 84. On that date, a request for a further adjournment for Valerie was granted as her sister Lillian was ill and was not able to prepare for Court.

At the next sitting on 7th February 2002, at 77 OPO 296, Valerie was represented by Lillian Ottoway. The matter was again adjourned until April 2002 as new material was produced at the hearing. The adjournment was to enable Mr Peterson time to respond to that material.

The final hearing was held on 2nd April 2002. Further new material was raised. Again the Court needed to give Mr Peterson time to respond. However, the Court imposed a timetable for submissions and any further evidence to be filed. That timetable was not adhered to and has contributed to the delay in completing this judgment.

At that hearing, Mr Peterson representing Caroline, advised the Court that the applications made for an injunction and determination of ownership of the house had been filed because the Ottoways had no right to occupy the house. The owners had not consented. He also contended that there was no evidence indicating that their father had contributed to the house and therefore had some claim in equity to the house. The family was concerned that Valerie may take their mother's personal effects and stepfather's personal effects at the property. Caroline gave evidence that she had tried to deal with the Ottoways in a friendly manner but that they have claimed all rights to the property because their father was occupying it when he died.

Miss Lillian Ottoway then responded with the following points. First of all, she submitted that the Maori Land Court had in fact recognised his ownership of the house and interests in the block when it granted the order for succession to the estate of the late Rakairoa Ottoway or Tukaki or Honecombe. A consideration of the minute where that order was granted at 73 OPO MB 128 indicates that His Honour Judge Savage on the 4th October 1999 recognised that her four natural children were entitled to succeed to the interests of Rakairoa Ottoway. During the Court hearing the Court asked the following question:

"Court: Well really just at this stage [-] simply a matter of leaving your late wife's estate to her 4 children".

"Mr Ottoway: Yes that is my intention. I had nothing to do with it except the one block, the house, the one that was gifted to her and me after we were married."

"Court: Is there anything you can help on this Mr Wepa is it simply making those orders. (That is correct Sir). Thank you very much. There are orders accordingly. Copy of minute to applicant."

Lillian argued that the Court minute indicated no intention to vest Te Kaha B6X2 in the Honecombe children. Rather that block should have remained in the ownership of her father. However, the Court notes that the orders made above at 73 OPO 128130 did not reflect her understanding. In addition, the gift discussed by Mr Ottoway above, was in fact a gift of land from Mr Albert Edward James to Mrs Ottoway. (See 60 Waikato Minute Book, 315 and 63 Waikato Minute Book 78)

Valerie produced evidence indicating that Mr Ottoway had paid for work completed on the house by a local builder Mr Jack Bell of 93 Woodlands Road, Opotiki.

She testified that Valerie, her sister, had been under severe stress since her father died which had been compounded by a physical assault on her by the applicant Caroline only a few weeks after his death. This resulted in Caroline being asked by Police to refrain from entering the property.

Unfortunately, as the new material produced by Lillian during the Court hearing had not been viewed or seen by Mr Peterson, a further adjournment was granted to enable him to take instructions and respond to the points raised in the material provided to the Court. I noted at the time that the Ottoways should obtain legal advice and I indicated that due to the complexity of the matter involving quite technical points of law, that they should be legally represented.

The matter came back before me on 2nd April 2002 at 78 OPO 98. At the hearing Mr Peterson in reply argued that Mrs Ottoway was the owner of the land and all its fixtures before her death. Although there was no direct evidence produced as to any contribution made by Mrs Ottoway to the house, given that she was married to Mr Ottoway, she in fact contributed to the house even if it was in the nature of inequitable contribution. In his submission the house was a fixture of the land.

As new material had been introduced again, Ms Ottoway was given 7 working days in order to produce any additional material she had relating to the case and Mr Peterson was, within 2 weeks of receipt of that material, to file in the Court any written evidence that he felt important to the case and any legal submissions that he wished to make.

Subsequent to that hearing, Lillian produced further new documents in support her of her family claim. These documents included the affidavit of Mr Jack Bell, a letter from Mr Jack Bell, a barristers and solicitors account from Huntly indicating the payment of fees associated with the sale of Mr and Mrs Ottoway's house, and an application dated 17th of August 1987 filed by Mr Ottoway for a building permit and a plumbing and drainage permit.

Other materials were also filed but they bear no great weight on the issues before the Court.

On the 12th of April 2002, I directed that these documents be circulated to Mr Peterson.

Then an affidavit from Caroline was filed in April 2002 without the advice of counsel. The Court was told that prior to Valerie caring for her father, her sister Donna Honecombe had looked after her stepfather and her mother. Donna stayed at the house until some time after her mother died. Valerie Ottoway came 4-5 months later. She also responded to a number of allegations made by Lillian.

In the affidavit she affirms her mother's ownership of the land and denies the right of the Ottoway children to any interest in the land itself. There is much other material covered in the affidavit, most of that material is irrelevant to the proceedings in the same way that much of the personal material filed by the Ottoways is in fact irrelevant to the proceedings. The Court notified Mr Peterson of the affidavit and he was invited to deal with the matter by way of submissions.

The Court received further submissions from Lillian on the 6th of June 2002. Again, as with Caroline's affidavit, a lot of material raised in those submissions is outside the boundaries of the applications before the Court. She does, however, acknowledge that the land, Te Kaha B6X2, belongs to the Rakairoa Ottoway children but she claims ownership of all the buildings on the property.

She produced some evidence that Mrs Ottoway wanted to have the property transferred to Mr Ottoway before her death. I pause here to note that given that Mr Ottoway had no direct relationship with the land, it is unlikely that such a transfer could take place unless confirmed by the Court by way of sale under the provisions of Part 8.

Lillian submitted that in making a decision on the applications that the Court should consider two issues. The first issue is who should own the house, carport and garage. She argues that Section 77 of the Administration Act requires that the personal assets up to $121,000 should go to the surviving spouse and or his/her successors. In her submissions the buildings should, therefore, be the legal property of the Mr Ottoway's family. As for the buildings being fixed to the land, she submitted that the house and carport were not fixtures. Neither was the garage a fixture. Both were relocatable chattels. In her submission a house on its own, of the type existing on this block is a chattel at law and therefore can be removed. Lillian concedes that this is Maori land and as such the requirements of Section 77 of the Administration Act do not apply.

The second issue raised in Ms Ottoway's submissions concerns the rights Mrs Rakairoa Ottoway might have had to the house, carport and garage. She contended that Mr Ottoway was the major contributor to the purchase of the house, carport and garage. In addition, he made significant contributions to the marriage including caring for Mrs Ottoway during her period of illness as a result of cancer. He also shared the costs of her tangi.

She finalised her submissions by pointing out that in 1999 the land value was $54,000 and the dwelling was worth $74,000. She argued that this is the valuation that the Court should utilise for these proceedings.

In her view, the land was to go to Rakairoa's successors and all dwellings on Te Kaha B6X2 to go to the Ottoway family. She quantified the contributions of the Ottoway's as follows:
Rates Valuation of dwellings October 1999 $ 74,000.00

(State Insurance Policy No C1380299/004)
Premium for the past 2 years @256.47pa $ 512.94

(State Insurance Policy No C1380299/003)
Premium for past 2 years @ $113.46pa $ 226.92

Contents Insurance
(State Insurance Policy No C1380299/002)
Premiums for past 2 years @ $353.90 pa $ 707.80

Financial Assistance given by my family from 1997 to the present, to maintain Te Kaha B6X2

50% of Lost rental revenue @ $100.00 per week for 1 year

SUBMISSIONS OF COUNSEL

$ 20,000.00
$ 2, 600.00
$ 111,303.11

On 30th May 2002, the Court received submissions from Mr Peterson. He noted that Lillian had acknowledged the land belongs to the applicant. He also noted the Court order vesting the interests in the land held by Mrs Ottoway, in her four children. He contended that Mr Ottoway was not Maori and neither were his children, therefore, they did not fall within the preferred class of alienees and could never claim title to the land.

It was his submission that the buildings on the land are fixed to the land and that there is no evidence of any intention that they become chattels so they are legally part of the land. It was his submission that as the buildings are part of the land, they are owned by Rakairoa Ottoway's successors on intestacy, namely, the four children of the Honecombe family. He pointed out that even had there been a will, the only interest that Mr Ottoway could have taken would have been a life interest.

He acknowledged that the Court does have the jurisdiction to hear a claim in equity for the establishment of an interest in the land. It was his submission that the respondents needed to establish an obligation by the applicant and her family to reimburse or compensate the Ottoways for the improvements made to the land by their father.

Mr Peterson contended that the evidence as to where the money came from for the expenditure on the property was insufficient to found the claim and it would be too difficult, indeed speculative, for the Court to conclude that all the money that was applied for improvements, was applied solely from funds held by Mr Ottoway. In his submission, there was no evidence that Mr Ottoway intended to set the house aside as separate property for himself at the time that it was constructed on the land, particularly given that Rakairoa owned the land. The circumstances point to Mr Ottoway either not having addressed that issue at all, or that he was satisfied that he had secured the land for his lifetime and that no further provision was required. While Mr Ottoways conduct at the time of Mrs Ottoway's death shows there was some concern to retain an interest in the property, that interest had not been secured by order of the Court.

In the event that the Court found an equitable interest in the buildings, the Court would be precluded from finding an obligation for monetary compensation because of the objects of Te Ture Whenua Maori Act 1993 and the effect of such a finding. The finding of an obligation to make payment of monies for compensation for improvements inadvertently made to the land of the Maori owner will bring into jeopardy the continued ownership of that land. Protection of the continued ownership of that land is the primary objective of the Court pursuant to Section 17/93.

Mr Peterson requested a discharge of the injunction placed against Caroline and confirmation that Caroline on behalf of her family could direct the care and use of the garage on the property once vacated by Valerie.

On 18th day of June 2002, Mr Peterson filed further submissions in answer to Lillian's submissions of 5 June 2002. In these submissions, Mr Peterson argued that the evidence submitted by the Ottoways did not support the contention that the buildings were relocatable. Secondly, that the respondent introduced into her final submissions new claims and evidence concerning building construction methods and financial contributions that should not be accepted by the Court.

It was his submission, that the claims before the Court are for the determination of ownership of the house and curtilage at Te Kaha B6X2 and the matter of the injunction order restoring occupation. The Court must determine the ownership of the house and the block as being with the legal owners of the land and accordingly it must restore to them the right to occupy. Having made those orders it is not appropriate that the injunction be sustained and it should be discharged.

A further letter was received from Mrs Lillian Ottoway on 31st July 2002. In that letter she expressed concern regarding the fact the Court had received a second submission from Mr Peterson. I pause again here, to point out that she is not in a position to object because Mr Peterson is in fact correct. She did introduce further evidence and Mr Peterson was entitled to respond to those additional matters raised by her.

In total, there are three applications before the Court, all of them relating to the same property. One is under section 19/93, one under section 20/93 and one under section 18(1)(a)/93. However, it is the Court's decision on the Section 18(1)(a)/93 application that will affect the outcome of all other applications.

That section provides the Court with the general jurisdiction to hear and determine claims, whether at law or in equity, to the ownership or possession of Maori 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. The Appellate Court has held previously that under s18(1)(a)/93 the Court has power to make a determination as to entitlement or ownership and to follow that by making an order under the appropriate section of the Act so as to give effect to that determination. (See Re An Appeal by Ngahuia Tawhai [1998] NZMAC 1; [1998] NZAR 459, 471) What the Maori Land Court should do with such applications is to review and consider the particular circumstances of the case to determine such claims. (See for example Re Okurupatu B4B2A Block (2000) 13 ACTK 154 and see also Re Waimanoni 1B3B2A (1996) Kaitaia MB 227-235).

In this case we have a claim made by Caroline on behalf of all the owners to all buildings on the land. Mr Peterson has argued that they are fixtures. If they are fixtures, the owners are entitled to orders in their favour. (See Alston & Ors Land Law (Brookers, Wellington, 2000) 8-12.

There is no competing application under section 18(1)(a)193 before me. However, Lillian and her family have opposed the applications on the basis that their father had an interest in the dwelling house, carport and garage. She has argued that these buildings are chattels on the basis that they are relocatable and not fixed to the soil and that Mr Ottoway always intended that his interests in the buildings should be preserved. If the buildings are chattels, then his family is entitled to claim ownership.

Whether or not the buildings are chattels depends on all the circumstances of the particular case and the degree of the annexation of the building to the land. (See Lockwood Buildings v Trust Bank [1995] 1 NZLR 22) I find that the buildings were indeed fixtures for the following reasons:

death of Mr Ottoway; All indications from the evidence demonstrate the both Mr and Mrs Ottoway intended that the buildings would be fixtures, even if they had hoped that the property as a whole could be transferred to Mr Ottoway.

In finding that the buildings were fixtures, I am also mindful of the significant contribution made by Mr Ottoway during his marriage to the property and to the welfare of his late wife. That being the case I have considered the obvious intention of Mr and Mrs Ottoway that he have some recognised interest.

If the marriage had broken down before their deaths, Mr Ottoway could have claimed compensation for his contributions. (See Matrimonial Property Act 1976 now cited as the Property (Relationships) Act 1976 and see Grace v Grace [1995] 1 NZLR 1) Only monetary compensation could be claimed, as the land is Maori land. (See generally Te Ture VVhenua Maori Act 1993. See also the Property (Relationships) Act 1976, s6 which excludes Maori land from the effects of 1976 Act)

Furthermore, the facts suggest a remedial constructive trust in Mr Ottoway's favour could have been established if he were still alive. (See Gillies v Keogh [1989] 2 NZLR 327; Lankow v Rose [1995] 2 NZLR 277; and Grace v Grace [1995] 1 NZLR 1) I make this finding because if a reasonable person were standing in the shoes of Mr Ottoway, they would have expected that their contribution both to the marriage and the property would result in at least the right to claim compensation. That is because there has been enough evidence produced to demonstrate that he contributed a significant sum of money to the construction of the buildings. In addition, his wife obviously intended that he would have an interest.

I further find that his rights to such a claim can be transferred to the administrators (and by implication the successors) of his estate. (See Stratulatos v Stratulatos [1988] 2 NZLR 424) To hold otherwise would result in unjust enrichment for the successors of Mrs Ottoway's estate.

That being the case, the only issue now is what monetary compensation should be payable. In my view, the level of monetary compensation should be assessed using the formula that was applied in the Stratulatos Case (1988). As in that case, there are difficulties in assessing the precise determination of Mr Ottoway's contribution.

It would be improper for the Court to find for the Ottoways in line with the sum assessed by Lillian. After all, the house was the matrimonial home of both Mr and Mrs Ottoway. The contributions were not one sided, she contributed the land and she may have contributed more. The evidence is not clear on the exact extent of the contributions from either her side or that of Mr Ottoway's. What we do know is that at the time the building was constructed in 1987, it cost $50,000 to build. There was evidence, acknowledged by Mr Peterson that some or all of the money for the construction of the house must have came from the sale of Mr Ottoway's property in Auckland. The funds from that sale produced $45,412. Despite that, after a marriage of this duration, Mrs Ottoway could have claimed an equal interest in the buildings before her death in 1998. That being the case, an award that recognises equal benefit from the capital growth of the buildings as at the date of her death or thereabouts is the fairest way to effect distribution in the particular circumstances of this case.

I am not persuaded that any further contributions made by the Ottoway family should be recognised as Valerie enjoyed the benefit of occupying the property for approximately 2-3 years rent-free.

Mrs Ottoway's successors paying within five years to Ms Lillian Ottoway, as the administrator of her fathers estate and for the benefit of his successors, one half of the value of all the buildings on the property to be assessed as at October 1998 by a registered valuer. Mrs Lillian Ottoway is to provide that valuation report to the applicant and file that report with the Court within two months. This condition, but not the order, will lapse within two months, if Lillian Ottoway and the applicant jointly advise the Court through Mr Peterson, that they have settled this matter in accordance with the offer as recorded below.

I note that the applicant has offered to the Ottoway's the right to remove the house and carport from the property within twelve months. This offer was made in recognition of the relationship between the applicant and respondent and on condition that the personal chattels and belongings of the deceased are divided at the site between Caroline and Lillian. If the offer is accepted the rates on the property and insurance on the dwelling and carport should be paid by the respondent until the dwelling is removed from the property. If the building is not removed from the property within the twelve months then any claim to the building should lapse and become the unencumbered property of the owners.

Maori Land Court of New Zealand

Brokenshaw - Te Kaha B6X2 (2003) 81 Opotiki MB 18 (81 OPO 18) [2003] NZMLC 6 (25 February 2003)