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Maori Land Court of New Zealand |
Last Updated: 14 September 2015
IN THE MĀORI LAND COURT OF NEW ZEALAND WAIKATO MANIAPOTO DISTRICT
A20140009272
UNDER Section 19, Te Ture Whenua Māori Act 1993
IN THE MATTER OF Part Mangatawa 10 Block
BETWEEN WIKITORIA PARAIRE, MARITA RANCLAUD, PHILLIPE RANCLAUD AND PAUL REEDER, TRUSTEES OF THE PARAIRE WHĀNAU TRUST
Applicants
AND ANTHONY IVAN PARAIRE Respondent
Hearings: 9 September 2014 (86 Waikato Maniapoto MB 1-5)
10 October 2014 (88 Waikato Maniapoto MB 24-29)
2 December 2014 (90 Waikato Maniapoto MB 141-150)
22 December 2014 (91 Waikato Maniapoto MB 73-78)
10 February 2015 (92 Waikato Maniapoto MB 287-292)
16 February 2015 (94 Waikato Maniapoto MB 150-157)
7 May 2015 (98 Waikato Maniapoto MB 154-162)
3 July 2015 (101 Waikato Maniapoto MB 68-100) (Heard at Tauranga)
Appearances: Mr J Gear, Counsel for the applicants
Judgment: 31 August 2015
RESERVED JUDGMENT OF JUDGE S R CLARK
Copies to:
Mr J Gear, Koning Webster, Lawyers, P O Box 11120, Papamoa 3151, joshua@kwlaw.co.nz
Introduction
[1] Anthony Paraire has lived in an implement shed situated on the Part Mangatawa 10
Block (“the block”), for approximately 20 years. The block is 15.4463 hectares in size and is situated in the Tauranga district. It is vested in four trustees – Wikitoria Paraire, Marita Ranclaud, Phillipe Ranclaud and Paul Reeder.1
[2] On 4 September 2014 the trustees filed proceedings in the Māori Land Court
seeking a permanent injunction requiring Mr Paraire to vacate the implement shed.
[3] There is a great deal of background to this application, some of which I will touch upon shortly. However the issues I must ultimately decide are:
a) What legal right does Mr Paraire have to occupy the block?
b) Are the trustees estopped from evicting Mr Paraire from the block?
c) Are any other defences available to Mr Paraire?
d) Should a permanent injunction be granted?
Background
[4] The block was formerly owned by Mr Paraire’s grandmother, Taniko Paraire. Following her death in 1983 the block was vested in her late husband Riini Paraire and some of their children, as executors. One of the executors was Anthony Paraire’s mother, Merle Brightwell.
[5] In 1990 Riini Paraire died. In the mid-1990’s Mr Paraire moved onto the block and into the implement shed.
[6] On 7 February 1996 the children of the late Riini and Taniko Paraire met to consider the establishment of a whānau trust. There was unanimous agreement to form the
trust.
1 Computer Freehold Register 358439 – South Auckland.
[7] On 24 November 1997 the Paraire Whānau Trust was constituted pursuant to s 214 of Te Ture Whenua Māori Act 1993 (“the Act”). The trustees appointed at that time were Anthony Paraire, Te Rakaherea Paraire, Jedda Ranclaud and Kaikino Paraire (“initial trustees”).2 The block along with other Māori land interests, were vested in the trustees on that date.
[8] Notwithstanding the appointment of trustees to administer the block, Mr Paraire continued to occupy the implement shed.
[9] In 2001 a number of beneficiaries became dissatisfied with the administration of the trust and the block. On 24 March 2001 some beneficiaries held a meeting to discuss the formation of a new trust. Concern was expressed at that hui that Mr Paraire was not paying any rent for occupying the implement shed. On 1 June 2001 solicitors were instructed to write to Mr Paraire advising him to vacate the block.
[10] On 19 July 2001 the Police service a trespass notice on Mr Paraire. There were a number of meetings held throughout 2001 during which the topic of Mr Paraire’s occupation of the implement shed was discussed and agreement reached from those in attendance for him to be evicted.
[11] On 13 October 2001 various beneficiaries of the whānau trust called a meeting. There was a “vote of no confidence” in relation to Mr Paraire. There was also a motion passed to the effect that new trustees be appointed to the whānau trust following the resignations of Jedda Ranclaud, Te Rakaherea Paraire and the death of Kaikino Paraire.
[12] On 5 December 2001 the Māori Land Court appointed new trustees – Joseph
Paraire, Maria Reeder, Miria Paraire and Elizabeth Ranclaud (“second trustees”).3 On
13 March 2002 those trustees met and resolved that Mr Paraire must vacate the block.
[13] On 21 May 2002 the trustees applied to the Tenancy Tribunal for an order for possession of the implement shed.
2 59 Tauranga MB 134-136 (59 T 134-136).
3 68 Tauranga MB 102 (68 T 102).
[14] Between May 2002 – 25 March 2003 there were a number of hearings before the Tenancy Tribunal. Ultimately the trustees obtained an order for possession with Mr Paraire being required to vacate the implement shed by 31 March 2003.4 However, Mr Paraire did not vacate the implement shed and the trustees attempted to enforce the possession order in early April 2003.
[15] On 9 April 2003 Merle Brightwell, Mr Paraire’s mother and a beneficiary of the whānau trust, filed two applications with the Māori Land Court. She sought:
[16] Notwithstanding the protestations of counsel for the trustees, an interim injunction was granted on 11 April 2003 restraining the trustees from enforcing the order for possession against Mr Paraire until the termination application had been dealt with or until further order of Court.7
[17] Between 11 April 2003 – 28 May 2008 the termination of trust application came before the Court on no fewer than nine occasions.8 The application was adjourned at various times to enable hui to be held between the trustees and Mr Paraire, for a mediation to take place and for a general meeting to discuss the application.
[18] An annual general meeting of the trust was held on 27 October 2007 at which time the beneficiaries unanimously voted against the termination of the trust. Despite being
invited, Mr Paraire and Merle Brightwell did not attend.
4 The order for possession was made pursuant to s 65 of the Residential Tenancies Act 1986. That section permits the Tenancy Tribunal to make an order for possession that a person is in possession of the premises as a squatter, trespasser or otherwise than pursuant to a right of occupation granted to that person by any person having lawful authority to grant that right.
5 Application A20030002554.
6 Application A20030002556.
7 73 Tauranga MB 50-51 (73 T 50-51).
8 77 Tauranga MB 152 (77 T 152); 77 Tauranga MB 153-154 (77 T 153-154); 77 Tauranga MB 156-178 (77 T 156-178); 77 Tauranga MB 208 (77 T 208); 78 Tauranga MB 295-301 (78 T 295-301); 83 Tauranga MB 298-305 (83 T 298-305); 85 Tauranga MB 110-120 (85 T 110-120); 92 Tauranga MB 165-171 (92 T 165-
171); 93 Tauranga MB 58-61 (93 T 58-61).
[19] The applications were recalled on 1 April and 28 May 2008.9 Neither the applicant, Merle Brightwell nor Mr Paraire attended the Court hearings. On 28 May 2008 the termination application was dismissed for want of prosecution. The injunction order was cancelled and leave was granted to the trustees to file a memorandum in relation to costs.10
[20] On the same day new trustees were appointed to the whānau trust – Wikitoria
Paraire, Marita Ranclaud, Phillipe Ranclaud and Paul Reeder (“current trustees”).11
[21] Immediately following their appointment, the new chairperson of the trustees, Marita Ranclaud spoke with Mr Paraire on 29 May 2008 concerning his occupation of the block. She then wrote to him on 2 June 2008 requesting an urgent meeting. No meeting ever eventuated.
[22] In late July 2013 the trustees instructed solicitors to take steps to attempt to remove
Mr Paraire from the block.
[23] Mr Paraire was subsequently served with a notice from Koning Webster Lawyers, dated 1 August 2013 requiring him to vacate the block and remove all personal property by
28 September 2013.
[24] Mr Paraire did not vacate the block. Subsequently the trustees filed this application
with the Māori Land Court on 4 September 2014.
The proceedings
[25] This application has been before the Court on a number of occasions since initially being filed. Many of the hearings have been in the nature of conferences and to set in place and monitor timetabling directions.
[26] Having said that, I record that the application was set down for a substantive hearing on 2 December 2014.12 At the commencement of the hearing, counsel for the
trustees referred to the fact that Mr Paraire was self-represented and the order sought has
9 92 Tauranga MB 165-171 (92 T 165-171) and 93 Tauranga MB 58-61 (93 T 58-61).
10 93 Tauranga MB 61 (93 T 61).
11 92 Tauranga MB 238-239 (92 T 238-239).
12 90 Waikato Maniapoto MB 141-150 (90 WMN 141-150).
serious implications for Mr Paraire if granted. Counsel suggested that the Court consider giving Mr Paraire the opportunity to take legal advice.
[27] Subsequently Michael Sharp, a Barrister of Tauranga was appointed by the Court to act for Mr Paraire.13
[28] The matter was then set down for a substantive fixture on 16 February 2015, which did not proceed, as the parties and counsel took the opportunity to explore settlement, in particular the granting of an occupation order to Mr Paraire. The parties got as far as drawing up terms of settlement and the application was then adjourned to the May 2015 sitting of the Court in Tauranga in anticipation that Anthony Paraire would file an
application for an occupation order.14
[29] The matter returned to Court on 7 May 2015. It became apparent on that day that Mr Paraire had “dismissed” his counsel. The proceedings were adjourned to enable Mr Paraire to file further evidence and then set down for a substantive fixture to take place on
3 July 2015.15
[30] A substantive fixture was eventually heard on 3 July 2015.16 Mr Paraire was
“represented” on that day by a lay advocate William Henry.
[31] At the conclusion of the hearing I reserved my decision and called for further legal submissions from the parties on the following matters:
a) Whether a bare licence or contractual licence existed in favour of Mr
Paraire;
b) Estoppel;
c) The injunction.
13 Ibid.
14 94 Waikato Maniapoto MB 150-157 (94 WMN 150-157).
15 98 Waikato Maniapoto MB 154-162 (98 WMN 154-162).
16 101 Waikato Maniapoto MB 68-100 (101 WMN 68-100).
[32] Submissions were received from the solicitors acting for the trustees on 7 August
2015 and from Anthony Paraire on 17 August 2015.
[33] I note that Mr Paraire’s “submissions” are not what I consider to be legal submissions. The documentation takes the form of a general application seeking the termination of the Paraire Whānau Trust along with various appendices. I will return to this at the end of my decision.
The applicants’ submissions
[34] In summary the applicants’ submissions are:
a) At best Mr Paraire has a bare licence to occupy the implement shed, which is revocable by the trust at will and on notice;
b) The trustees have given Mr Paraire notice to vacate the implement shed and he simply ignores those notices;
c) No estoppel arises in this case as there has been no representation made to
Mr Paraire upon which he relied to his detriment;
d) If Mr Paraire has incurred costs in fitting out or improving the implement shed he has done so at his own risk;
e) As the legal owners of the block, the trustees are entitled to decide who can reside upon the land. Mr Paraire is unlawfully occupying the implement shed and the trustees are merely exercising their powers under the trust order to prevent a continuing trespass;
f) There has been no breach of trust by the trustees;
g) The trustees are not acting in a biased, unreasonable or improper manner.
The respondent’s submissions
[35] Mr Paraire filed three affidavits in these proceedings.17 His affidavits of 4 October
2014 and 26 May 2015 were filed without the benefit of legal assistance. The majority of the matters referred to in those affidavits are largely irrelevant to the application before me.
[36] During the substantive hearing on 3 July 2015 Mr Paraire was “represented” by a lay advocate. Many of the questions and matters touched upon by the lay advocate were irrelevant to the application before me.
[37] Similarly, the submissions subsequently filed by Mr Paraire on 17 August 2015 are in large a recital of alleged wrongs by the trustees and a signal by Mr Paraire that the trust should be terminated. This is a matter which Mr Paraire has consistently raised but failed to prosecute to any conclusion.
[38] Having said that, Mr Paraire did file a number of documents with the Court which were prepared with the benefit of legal assistance. Those documents were a notice of intention to appear,18 an affidavit19 and legal submissions.20 From those documents and his answers to questions during the course of the substantive hearing, the following matters are raised by Mr Paraire:
a) He was granted a licence to occupy the implement shed in the mid-1990’s
by the executors of the estate of Taniko Paraire;
b) After the whānau trust was established in November 1997, the initial trustees (including Mr Paraire) permitted the continuation of the licence to occupy;
c) There was a common assumption held by the initial trustees and Mr Paraire that he had a long-term or life-long right to reside in the implement shed. Based on that common assumption Mr Paraire spent over $70,000 fitting out
the implement shed;
17 They are dated 4 October 2014, 3 February 2015 and 26 May 2015.
18 Dated 3 February 2015.
19 Ibid.
20 Dated 15 February 2015.
d) The trust has been administered in such a way since 5 December 2001 that
has been prejudicial to Mr Paraire and his whānau; and
e) The trustees have permitted another whānau to occupy the block without any apparent formal arrangements. In taking proceedings to evict Mr Paraire only, the trustees have failed to act in an impartial fashion.
What legal right does Mr Paraire have to occupy the block?
[39] Sometime in the mid-1990’s the executors of Taniko Paraire’s estate permitted Mr Paraire to move onto the block and occupy the implement shed. Mr Paraire gave evidence that his role was to act as a deterrent for those who might illegally want to come onto the block, as well as to and tidy and maintain the block. No formal arrangements were entered into at that time. No correspondence, diary notes or file notes have been produced which record what the arrangements were although we do know that Mr Paraire has never paid any rent or made any contribution towards rates.
[40] It is self-evident that Mr Paraire does not occupy the block pursuant to an occupation order, a lease or a residential tenancy arrangement. The first issue for me to decide is what legal right, if any, did Mr Paraire have to occupy the block?
[41] I accept that Mr Paraire initially had a bare licence to occupy the implement shed. Although there is some suggestion by Mr Paraire that he provided security and maintained the block, there were also assertions made during the various hearings that the block deteriorated whilst Mr Paraire was in occupation.21 Certainly there were no written arrangements and Mr Paraire cannot point towards any consideration that would suggest he had a contractual licence with the executors of the estate of Taniko Paraire.
[42] A bare licence is revocable at will.22 The decision to revoke a bare licence must be communicated to the licensee for effective revocation. This may be by express or implicit
21 77 Tauranga MB 169 (77 T 169).
22 Bennion, Brown, Thomas and Toomey New Zealand Land Law (2nd ed, Brookers, Wellington 2009) at
[7.2.01].
notice, or by the licensor doing some act inconsistent with the continuance of the licence, or by threatening proceedings for trespass.23
[43] On 24 November 1997, the block was vested in the initial trustees of the Paraire Whānau Trust. Clearly that was an act inconsistent with the continuance of the licence and strictly speaking the bare licence Mr Paraire had enjoyed up until that date ended at that point.
[44] I also note that there was nothing recorded in minutes of a meeting of members of the Paraire whānau held on 7 February 1996 when they discussed the formation of a whānau trust, nor anything during the Court minute of 24 November 1997, which refers to Mr Paraire’s ongoing occupation of the block.
[45] On the ground however nothing much changed. The initial trustees (including Mr
Paraire) simply let him continue to occupy the implement shed.
[46] There is no evidence before me that the initial trustees entered into any formal arrangement with Mr Paraire. There is no evidence of any discussions between the trustees and Mr Paraire about his occupation. We do know that Mr Paraire simply continued to occupy the block without paying any rent or rates.
[47] The position I reach is that from the time of their appointment on 24 November
1997 until the time that the initial trustees were replaced on 5 December 2001, there continued to exist a bare licence between the trustees and Mr Paraire. The real issue for me, which is something I will return to shortly, is whether or not there were any circumstances giving rise to an estoppel.
[48] There is no doubt that in 2001 a group of beneficiaries became dissatisfied with Mr Paraire’s occupation of the implement shed. As noted earlier, attempts were made to evict him. For example on 1 June 2001 a letter was sent by solicitors to Mr Paraire, purportedly acting on behalf of the trust, requesting him to vacate the implement shed. On 19 July
2001 the Police served a trespass notice on Mr Paraire, again purportedly on behalf of the
trustees.
23 Ibid at [7.5.03].
[49] There were also a number of meetings which occurred during 2001 at which beneficiaries expressed their displeasure at Mr Paraire’s ongoing occupation of the implement shed and their desire to evict him.
[50] Those people raising their concerns throughout 2001 were beneficiaries, not the initial trustees. I simply treat that as evidence of beneficiaries being dissatisfied at the ongoing occupation by Mr Paraire of the implement shed.
[51] Following their appointment on 5 October 2001, the second trustees took steps to terminate the licence. They initiated proceedings in the Tenancy Tribunal and gained an order for possession on 25 March 2003. They then became embroiled in defending injunction and termination of trust proceedings which were played out before the Court between 2003 and 28 May 2008. Throughout that period the second trustees were opposed to Mr Paraire occupying the implement shed.
[52] On 28 May 2008 the current trustees were appointed by the Māori Land Court. Although formal action to remove Mr Paraire was not taken until 1 August 2013, their position has always been that Mr Paraire’s legal right to occupy the implement shed is pursuant to a bare licence.
[53] Having reviewed the evidence I am persuaded that Mr Paraire’s right to occupy the block was pursuant to a bare licence. I reject any suggestion that he occupied the block pursuant to a contractual licence.
[54] Mr Paraire is the only person who has given evidence as to the reasons why he moved into the implement shed. Even based on his evidence, the terms of any initial agreement are unclear. The extent of his obligation to maintain the land, the duration of the licence, whether or not improvements were expected, permitted or even explained to the trustees I simply have no evidence about. There was no evidence or corroboration of any original agreement, other than Mr Paraire’s own evidence.
[55] As highlighted earlier there was certainly no formal documentation entered into. There are no letters, file notes, diary entries, minutes of meetings which would support the contention that Mr Paraire had a contractual licence. We also know that Mr Paraire never
made any contribution towards rates and has never paid rent during the 20 odd years he has been in occupation.
[56] Thus I find that Mr Paraire’s occupation of the implement shed was pursuant to a
bare licence.
Are the trustees estopped from evicting Mr Paraire from the block?
[57] In his affidavit dated 3 February 2015, Mr Paraire said:24
My whanau and I moved into the shed not long after that. Because it was just a basic implement shed it needed a lot of work done to make it liveable. From that time, when I could afford it, I made improvements to the shed so it would be comfortable for my whanau and me to live in. This included putting up internal walls, putting in internal connections for power and plumbing, putting in kitchen and bathroom facilities, and laying floor coverings. Over the years I estimate that I would have spent well over $70,000.00 on the improvements.
[58] At the substantive hearing Mr Paraire was cross examined by counsel on this issue as follows:25
J Gear: You talk about the amount of funds that you have invested into the implement shed to make it liveable?
A Paraire: Yes.
J Gear: That $70,000 figure would not have been expended right up front would it?
That’s over a period of time?
A Paraire: Yes, and I didn’t put those figures on but I don’t know. But, you’re right, yes it
would have just been expended over a period of time.
J Gear: So you say you didn’t put the figures on, who did?
A Paraire: The falla at the front there.
J Gear: And that was in discussion with yourself?
A Paraire: Yes.
J Gear: So you told him that was the amount and he put that in there?
A Paraire: No, I disagreed with that sum. I didn’t tell him.
[59] Later the following exchange took place between the Bench and Mr Paraire:26
24 Affidavit of Anthony Ivan Paraire dated 3 February 2015 at [5].
25 101 Waikato Maniapoto MB 89 (101 WMN 89).
26 101 Waikato Maniapoto MB 91-92 (101 WMN 92-92).
The Court: When did you first start making those improvements?
A Paraire: From the moment I stepped in there.
The Court: And when exactly did you move back onto the block?
A Paraire: My daughter is 21, 21 years ago.
The Court: So about 1995?
A Paraire: Yes.
The Court: Around about then?
A Paraire: Yes.
The Court: And why were you making these improvements to the shed?
A Paraire: It was just a shell. The tractors used to be kept in there. Initially it was put up for hydroponics but that didn’t last. My grandfather wasn’t able to work it. So it was just a shell of a structure.
The Court: Okay but I need to know what you’re saying. Is it so it would be habitable?
So the shed would be able to be lived in, is that what you’re saying?
A Paraire: Yes, yes.
The Court: Who was living with you at that time?
A Paraire: The mother of my children and my two sons when I got them back. Yes, when
I got them back into my care for a couple of years.
The Court: There’s a figure of $70,000 which Mr Gear asked you about.
A Paraire: Yes.
The Court: You seem to disagree with that. Are you saying it was less or more or as a guess or what are you saying?
A Paraire: A guess because, you know, it was just a figure that come up with Mr Sharp so, yes, he put it down. I really have no idea.
The Court: So does that mean we can effectively ignore that figure or?
A Paraire: Certainly a considerable amount has been put into it but I don't think it’s
anywhere near that not in terms of materials, all the direct materials.
The Court: Did you pay for anyone to do work on it or did you do it yourself?
A Paraire: I did most of it myself.
[60] Mr Sharp, then counsel for Mr Paraire, in written submissions dated 15 February
2015 submitted that equitable estoppel can arise in circumstances where the parties proceed on the basis of an underlying assumption on which they have conducted dealings
between themselves and it would be unfair to allow one of the parties to go back on that assumption.27
[61] Mr Sharp referred to the fact that Mr Paraire had been given a licence to occupy the implement shed in the mid-1990’s. After the whānau trust was formed in 1997 he submitted that it was a common understanding that Mr Paraire’s right to occupy carried on as he was allowed to continue living in the implement shed.
[62] After referring to Mr Paraire spending money to improve the implement shed, Mr
Sharp submitted as follows:28
... the only common assumption that could reasonably [be] held by both the Trustee owners of the property and Mr Paraire was that he held a long term right to reside in the shed. Otherwise it would have been totally unreasonable to expect Mr Paraire, a man of limited financial resources, to expend such a large amount of money on improving the shed.
The law
[63] In the case of Gillies v Keogh, the Court of Appeal referred to what are known as the five probanda required to be shown by a party seeking to rely upon the doctrine of proprietary estoppel.29
[64] Richardson J noted that there had been a trend away from the strict application of those five probanda to a more flexible test of unconscionability. Despite that he considered that there are three essential elements which need to be satisfied namely:30
a) The creation or encouragement of a belief or expectation;
b) Reliance by the other party; and
c) Detriment suffered as a result of that reliance.
27 Respondent’s submissions dated 15 February 2015 at [12].
28 Ibid at [18].
29 [1989] NZCA 168; [1989] 2 NZLR 327 (CA) at 345, line 11.
30 Ibid at 345-346.
Discussion
[65] There is scant evidence to support any contention by Mr Paraire that he was granted a long-term or lifetime licence to occupy the implement shed.
[66] Mr Paraire provided no evidence either in affidavit form or at the hearing referring to any belief or expectation created by the executors of the estate of Taniko Paraire. There is no evidence of any discussions, representations or omissions by the executors. Mr Paraire’s evidence is simply that he moved into an implement shed and, in order for it to be made habitable and/or comfortable to live in, he carried out internal work to the shed.
[67] Mr Paraire has not pointed to any evidence following the appointment of the initial trustees in 1997 from which it can be said that they created a belief or expectation that he had a long-term or lifetime licence to occupy the shed. Mr Paraire has not pointed to any representations on their part.
[68] Written submissions provided on his behalf suggested that there were shared assumptions by Mr Paraire and the initial trustees however again there is no evidence pointing to that. Other than the evidence of Mr Paraire himself, no evidence was given from any of the initial trustees. On 13 May 2004, at one of the hearings concerning the termination application, Maria Reeder a then trustee, made lengthy comments to the Court about Mr Paraire’s occupation of the implement shed. She referred to four sections that had been set aside by Riini Paraire and asked why Mr Paraire doesn’t build on one of those
sections. In relation to the shed she went on to say:31
Why take the shed that belongs to the Whānau Trust. Admittedly he’s been doing a lot of renovations lately. He’s so sure that he will be the owner of it. He calls it his residential home. Ma’am, that’s not a residential home. The rates on it a [sic] paid by the Whānau Trust. It is part of the farm. It is not paid by him individually so I can’t see if this will ever be resolved out of Court. I think it is far better left here.
[69] I have considerable difficulty in accepting that Mr Paraire acted upon any action, representation or omission by either the executors of the estate of Taniko Paraire or the initial trustees. When one critically examines his evidence all that he is really saying is that in order for the implement shed to be made habitable and comfortable he carried out
some improvements to it. He says nothing more than that.
31 77 Tauranga MB 170 (77 T 170).
[70] I am also left in considerable doubt about the extent, scope and value of any improvements made to the implement shed by Mr Paraire. In an affidavit he referred to a figure of $70,000 as being the value of the improvements. At the substantive hearing he conceded that figure was wrong. He said that was a figure arrived at by his former counsel and his own evidence was that it was significantly less than that.32
[71] It is accepted by the current trustees that Mr Paraire has carried out some work to the implement shed. For example Marita Ranclaud said some plywood walls and electrical wiring had been put in place.33 I refer also to the comments made in 2004 by Maria
Reeder.34 However there is no acceptance by them that that work was carried out in
reliance upon any suggestion that Mr Paraire had a long-term or lifetime right to occupy the shed.
[72] In summary I reject any contention that the trustees are estopped from evicting Mr
Paraire. I say that for the following reasons:
a) There was very little evidence on which I could be satisfied that significant improvements had been carried out to the implement shed. For example, I might have been expected to have sighted photographs, invoices or detailed evidence from Mr Paraire as to when, how and who carried out the work to the implement shed;
b) There is a concession from Mr Paraire that his figure of $70,000 worth of improvements was incorrect. On his own evidence it was nothing near that figure;
c) Accepting for the moment that some improvements had been carried out to the implement shed, I am in considerable doubt as to whether or not they were carried out based on any expectation or belief encouraged by the executors of the estate of Taniko Paraire or the initial trustees. The way I have read the evidence is that Mr Paraire carried out that work in order to
simply make his habitation comfortable; and
32 101 Waikato Maniapoto MB 91-92 (101 WMN 91-92).
33 101 Waikato Maniapoto MB 86 (101 WMN 86).
34 77 Tauranga MB 170 (77 T 170).
d) Mr Paraire was unable to point to any actual representations, oral or written, any actions, any course of conduct or indeed any omission on the part of those executors or the initial trustees, which could be said would lead to a belief or encouragement that he could reside on the block long-term or for life and carry out improvements to the implement shed.
Are any other defences available to Mr Paraire?
[73] Although not specifically raised by Mr Paraire, I have considered whether the affirmative defences of laches or acquiescence apply.
[74] I was particularly mindful to examine the actions of the current trustees since their appointment on 28 May 2008. In particular formal steps to terminate the bare licence were not taken until the trust’s solicitors wrote to Mr Paraire on 1 August 2013.
[75] Ultimately I come to the conclusion that the affirmative defences of laches and acquiescence are not available to Mr Paraire in the circumstances of this case.
[76] There was no prejudice to Mr Paraire. He has continued to remain in occupation of the implement shed rent free since 28 May 2008. Indeed he has lived in that shed for over
20 years and nothing has really changed in that respect.
[77] There is some evidence that the current trustees did attempt to take steps to address this situation. The day after their appointment, the chairperson of the trustees spoke to Mr Paraire and raised the issue of his ongoing occupation. A meeting was arranged for 2 June
2008 but Mr Paraire failed to make himself available. Mr Paraire was rung by the chairperson on that day and ultimately the call became disconnected.
[78] On the same day the chairperson wrote to Mr Paraire asking him urgently to contact her to discuss, inter alia, whether or not he was prepared to negotiate a licence to occupy.
Mr Paraire failed to respond to that letter.35
35 Affidavit of Marita Ranclaud dated 27 November 2014, Exhibit “MR”.
[79] In answer to questions from the Bench the chairperson explained the delay in formally taking any steps to terminate the licence. She explained that she attempted to call Mr Paraire on at least two occasions. She also indicated that invitations to Mr Paraire and his mother were sent to attend AGMs or general meetings but there was no response.36
[80] She said that the current trustees inherited a situation in which they needed to spend time sorting out lease issues and other matters. She explained that the trust simply had no money to progress any legal action prior to July of 2013 when solicitors were instructed.37
[81] There is also nothing which suggests that during the period 28 May 2008 –
1 August 2013 the trustees in any way gave hope or encouragement to Mr Paraire that he would be allowed to continue to live on the block. Mr Paraire is not able to point to any evidence which suggests that the trustees had formed a view that he could continue to live on the block for his lifetime unimpeded. What appeared to occur was an uneasy stand-off between the parties but nothing which would entitle Mr Paraire to avail himself of the defence of laches or acquiescence.
Should a permanent injunction be granted?
[82] By way of relief the trustees seek a permanent injunction pursuant to s 19(1)(a) of the Act that Mr Paraire vacate the implement shed on the block.
[83] The Māori Appellate Court has in recent times considered the remedy of permanent injunction. In Eriwata v Trustees of Waitara SD Sections 6 & 91 Land Trust,38 the Court stressed that as a matter of general law when legal ownership is vested in trustees they are prima facie entitled to an injunction if the land is trespassed upon whether by a beneficial owner or not. It is for the trustees to control the land.
[84] In the case of Te Hokowhitu v Proprietors of Matauri X,39 the Court also noted that an injunction may not issue where there was some matter that could have influenced the
exercise of the discretion to the contrary. The Court referred to the English decisions of
36 101 Waikato Maniapoto MB 85 (101 WMN 85).
37 Ibid.
38 (2005) 15 Wanganui Appellate MB 192 (15 WGAP 192).
39 [2010] Maori Appellate Court MB 566 (2010 APPEAL 566).
Shelfer v City of London Electric Lighting Co,40 and Jaggard v Sawyer.41 The Court noted the “good working rule” set out in Shelfer provides that where a wrongful act is committed the plaintiff is prima facie entitled to an injunction. However, damages may be awarded in substitution for an injunction if the injury to the plaintiff’s legal rights are small and it is one which can be adequately compensated by damages, and where it would be oppressive to the defendant to grant an injunction. The conduct of the parties will also be a relevant factor.
[85] In this case I have paid particular attention to the allegation by Mr Paraire that since late 2001 the trustees have acted in a biased fashion against him and his mother, Merle Brightwell. To support this claim Mr Paraire points to another whānau having built a house on the block without having any apparent formal arrangements in place and not paying any rent. The claim made by Mr Paraire is that the trustees have failed to act even- handedly between the two different sets of beneficiaries.
[86] The evidence is that a house was built on the block by Joseph Paraire, a former trustee. That house, together with a shed, and caravan are currently occupied by Joseph Paraire’s daughter, Wikitoria and her whānau. In answer to questions from the Bench, Marita Ranclaud the trust chairperson, conceded that there was no licence or occupation order in place. There has also been some difficulty in finalising arrangements given that Wikitoria Paraire is herself a trustee.42
[87] Marita Ranclaud was asked directly whether the trustees had treated Wikitoria
Paraire favourably in contrast to Mr Paraire’s position. In response she said:43
b) Wikitoria Paraire hasn’t hindered the lessee;
42 101 Waikato Maniapoto MB 81-82 (101 WMN 81-82).
43 Ibid.
d) By contrast Mr Paraire has not attempted to engage with the trustees;
[88] I see no real difficulty with the way in which the trustees have approached the different circumstances of Mr Paraire and Wikitoria Paraire. On the one hand it appears that Wikitoria Paraire is co-operative and will be prepared to enter into arrangements with the trustees in due course. In contrast Mr Paraire has for a very long period of time refused to meet and/or entertain any form of arrangement with the trustees. I do not accept that any allegation of bias can be made out against the trustees.
[89] Having considered the trustees’ conduct overall it cannot be said that there is any disentitling conduct on their part. Indeed the trustees, both current and previous, have been extraordinarily patient with Mr Paraire. Insisting upon their legal rights and bringing proceedings to enforce those rights, cannot be said under any circumstances to be disentitling conduct.
[90] Furthermore, the trustees have at all times been consistent in their position that Mr Paraire is entitled to occupy the block but not the implement shed. There is evidence before me that four sections were set aside for various branches of the beneficiaries. The suggestion has been made by past and current trustees that Mr Paraire occupy one of the sections, however he refuses to move into that papakāinga area.44
[91] I note the attempts by both the incumbent and previous trustees to formalise Mr Paraire’s occupation. At no stage has he taken up the offer of a formal licence to occupy or occupation order.45 A mediation was also attempted by Judge Milroy, ultimately that was
unsuccessful.46
44 Affidavit of Marita Ranclaud dated 4 August 2014 at [60].
45 101 Waikato Maniapoto MB 87 (101 WMN 87) and affidavit of Marita Ranclaud dated 27 November
2014, Exhibit “MR” at MR1-2.
46 77 Tauranga MB 208 (77 T 208) and 78 Tauranga MB 295-301 (78 T 295-301).
[92] Indeed during the course of these proceedings the parties were very close to reaching a settlement of the matter. This matter was set down for a substantive hearing on
16 February 2015. On that day all parties were represented by counsel. Rather than proceed with the substantive hearing, counsel spent the better part of the day exploring settlement options. A settlement was recorded in writing in anticipation of Mr Paraire filing an application for an occupation order. However when the matter returned to Court on 7 May 2015, Mr Paraire refused to adhere to the terms of the settlement and advised the Court that he had dismissed his Court appointed counsel.
[93] During the course of the hearing on 3 July 2015 Mr Paraire was asked whether there was any compromise position which he would be prepared to consider. I put to him that the trustees were still prepared to enter into a formal agreement with him by way of occupation order or licence to occupy or a move to the papakāinga area set aside on the block. He was unwilling to consider any of those options. His solution to the dilemma he
finds himself in is to:47
a) Terminate the trust because it has failed him, his children and mokopuna;
and
b) Partition out his interests.
[94] A flavour of how Mr Paraire sees himself vis-à-vis the block can be gleaned from material he filed. He stated in his affidavit of 4 October 2014 as follows:
70. That I am in absolute, the inheritor and the interests are in allodial [sic] and on behalf of my hapu I claim my inheritance and lawful title.
71. That due to the unnecessary actions of these proceedings, my health has suffered serious complications. Refer attached letter BOP District Health Board (H).
72. That I hereby make a statement as the rightful heir and successor to Taniko
Ngatai Tapihana-Paraire.
73. That I hereby make a statement as the rightful heir and successor to Riini
Paraire-Pine.
47 101 Waikato Maniapoto MB 93-94 (101 WMN 93-94).
[95] To the extent that Mr Paraire holds those views, he is misguided. He is one of many beneficiaries of the whānau trust. There is more than a hint that Mr Paraire believes that he can completely ignore the trustees and the wishes of his fellow beneficiaries.
[96] This is not a case in which I consider that the trust can be adequately compensated by money. Nor is the injury to the trust small. The implement shed is a trust asset which has not been able to be utilised by them in the running of their farming activities for nearly
20 years.
[97] I do not consider it unduly oppressive if I grant the injunction order sought by the trustees. Whilst I am conscious of Mr Paraire’s health issue, I do not see that as a barrier to making the injunction order as sought. Since at least late 2001 until now Mr Paraire has been well aware that previous and incumbent trustees have challenged his right to occupy the implement shed. Mr Paraire has done nothing to assist his cause. He has been invited to take up occupation of one of the papakāinga sections – he refuses to do so. He refuses to formalise any occupation arrangements with the trustees – the legal owners of the land. Mr Paraire has a sense of entitlement that he can occupy the block notwithstanding the views of the trustees.
[98] Mr Paraire has also had the benefit of occupation for over 20 years without paying rent or rates. To the extent that he may have carried out some improvements to the implement shed I would suggest that the cost of those has been matched or exceeded by the benefit of free occupation since the mid-1990’s.
[99] I see no grounds upon which I could in all good conscience refuse the issue of a permanent injunction to the trustees.
Decision
[100] Mr Paraire was entitled to occupy the implement shed situated on the Part Mangatawa 10 Block pursuant to a bare licence, revocable at will. The trustees took an express, unequivocal step to revoke that licence by serving Mr Paraire with a notice to vacate on 1 August 2013.
[101] The trustees are not estopped from evicting Mr Paraire from the block.
[102] The equitable affirmative defences of laches and acquiescence are not available to
Mr Paraire.
[103] There are no grounds on which I can refuse to grant an order of a permanent injunction in favour of the trustees.
Order
[104] The Court makes an order pursuant s 19(1)(a) of the Act by way of a mandatory injunction requiring Mr Anthony Paraire to vacate the Part Mangatawa 10 Block and remove all personal effects no later than 12 October 2015.
Mr Paraire’s submissions of 17 August 2015
[105] Mr Paraire has, for some time, maintained that the solution to his dilemma is to seek a termination of the whānau trust and partition out his interests. Indeed the “submissions” he filed on 17 August 2015 in reality take the form of an application for termination of trust. Should Mr Paraire wish to pursue a termination of the Paraire Whānau Trust he can do so by bringing an application in the ordinary way which will be progressed before the Court. I remind Mr Paraire, as I have done previously, there is currently no application to terminate the trust and he needs to bring a stand-alone application should he wish to pursue that option.
Pronounced in open Court at 4.30 pm in Hamilton on the 31st day of August 2015.
S R Clark
JUDGE
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