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Piahana v Makea - Estate of Philip Makua Makea [2016] NZMLC 108; (2016) 2016 Chief Judges MB 977 (2016 CJ 977) (2 December 2016)

Last Updated: 12 January 2017

IN THE MĀORI LAND COURT OF NEW ZEALAND TAKITIMU REGISTRY

A20100012814

_{CJ 2010/72}

_{RESERVED JUDGMENT OF DEPUTY CHIEF JUDGE C L FOX}

Copies to:

Leo Watson, PO Box 1035, Napier 4112 leowatson@paradise.net.nz

Cara Bennett, Langley Twigg Law, PO Box 446, Napier 4140 cara@langleytwigg.co.nz

Introduction

[1] Keni Parata Piahana filed an application pursuant to s 45 of Te Ture Whenua Māori

Act 1993 (the Act) to cancel a succession order made on 12 May 2000 at 160 Napier MB

30-31 in relation to the interests of Philip Makua Makea (the deceased) in the Karamu Gb

(Balance) and Karamu Gd (Balance) blocks (Karamu shares).

[2] Mr Piahana filed the application on behalf of Frederick Pori Makea (now deceased) and Emaraina Hineora Makea Milroy who are the siblings of the deceased. Mr Piahana’s relationship to the deceased is through marriage. Emaraina is the grandmother to his children.

[3] The applicant claims that the said order is incorrect because of a mistake, error or omission in the presentation of facts of the case to the Court on the grounds that:

(a) Philip was in the process of relinquishing his Karamu to his siblings;

(b) Philip communication his intention to transfer his shares at a hui convened by his siblings at the office of McKay and Hill Lawyers on or about the 14

March 1997. Unfortunately the firm failed to keep accurate records of the hui and failed to provide communication of the same with the whānau;

(c) On or about 5 June 1998, an appointment was made for the deceased and

Frederick to meet with the law firm to re-address matters from the 1997 hui; (d) On 6 June 1998, Philip passed away suddenly; and

(e) When Philip’s wife, Ida Makea applied for succession to her late husband’s land interests, she failed to advise the Court of Philip’s intention to relinquish his Karamu shares.

[4] The applicant further claims that Philip’s siblings have been adversely affected by the order complained of as the Karamu shares have not been vested into their names in equal shares as was intended.

[5] The applicant seeks the cancellation of the orders complained of in respect of the Karamu shares only. Mr Watson, counsel for the applicants essentially submits that there was a constructive trust in existence when the orders were made which was not disclosed to the Court.

Background

[6] The Registrar’s Report and Recommendation dated 30 March 2015 sets out the

background to the application. The report is reproduced in full as set out below:

APPLICATION UNDER SECTION 45 OF TE TURE WHENUA MĀORI ACT1993

REPORT AND RECOMMENDATION

Introduction

1. This application filed by Keni Parata Piahana (the applicant) pursuant to section 45 of Te

Ture Whenua Māori Act 1993 (the Act) seeks to cancel a succession order dated 12 May

2000 at 160 Napier MB 30-31 relating to interests of Phillip Makua Makea, (the deceased), in the Karamu Gb (Balance) and Karamu Gd (Balance) blocks (Karamu lands).

2. The application is filed on behalf of Frederick Pori Makea (now deceased) and Emaraina

Hinerora Makea who are the siblings of Phillip Makua Makea.

3. The applicant states that his relationship to the deceased is through marriage. His

children’s grandmother is Emaraina Makea.

4. The applicant has submitted a 10 page brief (as appendix “A”) claiming that the said order is incorrect because of a mistake, error or omission in the presentation of the facts of the case to the Court on the following grounds that:

a. The deceased was in the process of relinquishing his shares in the Karamu Gb (Balance) and Karamu Gd (Balance) to enable his siblings to receive shares prior to his sudden passing;

b. The deceased’s intention was communicated at a meeting held on 14 March

1997 which his siblings convened at the offices of a local law firm (McKay and Hill). Unfortunately the law firm failed to keep accurate records of the meetings and failed to provide communication of the same with the whānau;

c. On 5 June 1998, an appointment was made for the deceased and his brother (Frederick Pori Makea) to meet with McKay and Hill to re-address the matters from the meeting of 14 March 1997;

d. On 6 June 1998, the deceased passed away suddenly;

e. When the deceased’s wife, Ida Makea, applied to the Court to succeed to her late husband’s land interests, she failed to advise the Court of her husband’s intention to relinquish his interests in the Karamu lands.

5. The applicant claims that the siblings of the deceased have been adversely affected by the order complained of because the deceased’s shares in the Karamu lands have not been vested into their names in equal shares.

6. The applicant seeks that the Court cancels the succession order in respect of the interests held by the deceased in the Karamu lands only.

Concise history of Order sought to be amended/cancelled

7. On 12 May 2000 at 160 Napier MB 30-31, an application for succession pursuant to section 113 and 118 of the Act was filed by Ira Ada Makea to the Māori land interests held by the deceased. As a result, the Court made orders vesting those interests into the successors numbered 1-7 in equal shares as set out below:

_{Takitimu District}

_{Successors/Beneficiaries}

Identification of evidence that may be of assistance in remedying the mistake or omission

8. The applicant has provided the following documents in support of his application:

a) A coloured map from the Hastings District Council of the Karamu lands;

b) A 50 point brief outlining the historical background and grounds of the application

(10 pages);

c) A copy of the minute complained of;

d) A copy of the Partition Order for Karamu GD dated 5 March 1902;

e) A copy of the court minutes and orders made at 90 Napier MB 224-225 dated 30

April 1953;

f) A copy of the court minutes and order at 95 Napier MB 342-343 dated 22 March

1962;

g) A copy of an order made at 106 Napier MB 280-282 dated 22 February 1973 vesting the interest held by Kuini Maki in Karamu GD (Bal) equally into the devisees named in her Will, namely; Frederick Pori Makea or Simpson, Emaraina Hinerora Makea; Milly Makea; Phillip Makua Makea and Kari Maraea Papera;

8. A copy of the ownership list for Karamu GD1 showing Karaitiana Wiremu as the sole owner;
   

i) A copy of the court minutes and orders made at 94 Napier MB 290 dated 29 June

1960;

9. The Court research at 160 Napier MB 30-31 sets out the succession to the deceased and is re-produced for the Court as set out below:
   

Philip Makua Makea

Section 118/93

Applicant: Ira Ada Makea

The deceased was my husband. He died on 6th June 1998 at Hastings as evidenced by the Death Certificate filed. I was present at the funeral. He did not leave a Will. He left no assets which required a Grant of Administration. The deceased was married to myself and we had the following issue:

_{COURT: According to searches, the deceased had the following land interests:}

There are funds held by the Māori Trustee on Beneficiary Rent Card No.

1517214 of $137.77

A letter is on filed (sic) from Ira Ada Makea relinquishing her life interest in her

husband’s land interests and this was confirmed in Court.

In accordance with Section 113/93, Numbers 1-7 above to be determined entitled to succeed.

An Order under Section 118/93 is sought for vesting the above land in Numbers

1-7 equally.

An Order under Section 242/93 for the payment of monies held by the Māori Trustee is to be paid to the applicant for refund of filing fee and expenses for bringing the application.

_COURT:

Section 113/93 Order determining that Ira Ada Makea is entitled for life or until remarriage with remainder to Numbers 1-7 inclusive equally.

Ira Makea has relinquished her life interest by letter which is on the file

(sic).

S.118/93 Order vesting the interests of the deceased into Numbers 1-7 inclusive equally.

S.242/93 Order for the payment of monies to the applicant. This is a one off payment. All future payments to the children in equal shares.

Adjourned Sine Die

W Isaac

Deputy Chief Judge

10. The above minute shows that Ira Makea gave evidence that her husband had died without a Will and left no assets which required a Grant of Administration.

11. The Part IV search on the lower court file shows that the deceased held an absolute interest as an owner in the blocks that he held shares in.

12. There is no evidence on the lower court file to show that the deceased had made an application to vest his interests in the Karamu lands to his siblings.

Details of subsequent Orders affecting lands to which application this relates

13. At 200 Napier MB 20-23 dated 5 March 2009 – the Phillip Makua and Ira Ada Makea Whānau Tust was constituted and vested in to the following Trustees namely: David Michael Makea, Ferne Catherine Huia Makea, Haunui Robert Makea, Ira Maria Elizabeth Makea (Johns) and Tui Christopher Makea.

Details of payments made as a result of the Order

14. Mā o r i Tr ustee Office: In a letter to the Court dated 17 January 2011, the Māori Trustee advised that they do not administer any of the blocks noted on the order under review any funds held for the deceased were paid out to Ira Ada Makea as per the section 242 order for payment which closed the estate’s client account.

15. Karamu lands: The Māori Land Court does not have a record of any current administration over the Karamu lands and as a result, it cannot be determined if the affected lands are revenue producing.

Reference to areas of difficulty

16. There are no areas of difficulty relating to this application.

Consideration of whether matter needs to go to full hearing

17. The applicant seeks the Court to cancel the succession order in respect of the interests held by the deceased in the Karamu lands only.

18. The applicant claims that the order is incorrect because of an omission in the presentation of the facts of the case to the Court on the grounds that Ira Makea had omitted to advise the Court of the deceased’s intention to relinquish his interests in the Karamu lands.

19. There is no requirement upon a person making an application for succession to advise the Court of a deceased’s intent unless there was a Will in existence. Based on the evidence given at the hearing, Phillip Makea had died without a Will.

20. The deceased held an absolute interest in the Karamu lands. An absolute ownership of land interests means that the interests or shares owned by the person is not subject to any other restrictions or orders and as such if the owner is deceased, those interests can be transferred to the beneficiaries of the estate under section 118 of the Act. Accordingly, there were no restrictions or orders over the Karamu lands which would affect the application for succession being made.

21. Having considered the above, it is recommended that this matter does not require a hearing and can be dealt with on the papers before the Court.

22. There is no evidence to show that the Court had made an error when making succession orders to the deceased’s land interests. Therefore, on the grounds set out above, it is recommended that this matter be dismissed.

Recommendation of course of action to be taken

23. If the Chief Judge is of a mind to exercise his jurisdiction, then it would be my recommendation that:

a) A copy of this report be sent to all affected parties to give them an opportunity to comment or respond, in writing, within 28 days of the date of this Report; and

b) If objections are received then the matter should be referred to the Court for directions.

c) If no objections are received, then the application should be dismissed. (Footnotes omitted)

Procedural History

[7] On 30 March 2015 the Registrar’s Report and Recommendation was distributed to

parties. On 7 April 2015 the application was delegated to me for completion.1

[8] Leo Watson and Cara Bennett filed their respective responses to the Registrar’s

Report on 28 April 2015.

[9] Following that, on 5 May 2015, I issued a timetabling direction for the filing of evidence from the applicants by the end of May 2015 and evidence in reply from the respondent by the end of June 2015. I then set the application down for hearing in

_{Hastings on the 7 July 2015.}2

1 _{2015 Chief Judge’s MB 379 (2015 CJ 379).}

2 2015 Chief Judge’s MB 339 (2015 CJ 339).

[10] On 7 July 2015,3 I took evidence from witnesses on behalf of the applicant’s. The matter was then adjourned to 10 December 2015 at Whakatāne for further evidence to be taken from Emaraina Milroy.4

[11] At the end the hearing on 10 December 2015, I adjourned proceedings to 21 March

2016 at Hastings for evidence to be taken from witnesses for the respondent.5 By consent both Counsel agreed to file final submissions as set out in my direction.6

[12] Final submissions were filed by Leo Watson and Cara Bennett on 2 August 2016 and 1 September 2016 respectively.

Applicants’ submissions

[13] Mr Watson submits that Ira Makea failed to disclose the circumstances regarding the Karamu shares which were held by the deceased on trust for his four siblings, and as such could not be vested in the children of the deceased, or in their whānau trust.

[14] Mr Watson contends that had the Court been provided with the correct facts concerning the Karamu shares, it would have determined that, Philip Makea was in fact a constructive trustee of the Karamu shares.

[15] Mr Watson submits that should the Court find that a constructive trusts exists then the Karamu shares should be put into the names of the deceased’s siblings. He submits this is the appropriate remedy as the “promise” or “trust” cannot be adequately remedied by payment.

[16] Evidence in support of the applicants was received from Emaraina Hinerora Makea, Justine Gabrielle Amelia Milroy, Richard Edward John Makea, Julie Kelly Makea and

_{Jeanne Marie Makea.}

3 _{2015 Chief Judge’s MB 460-561 (2015 CJ 460-561).}

4 _{134 Waiāriki MB 273-299 (134 WAR 273-299).}

5 _{2016 Chief Judge’s MB 244-349 (2016 CJ 244-349).}

6 2016 Chief Judge’s MB 646-647 (2016 CJ 646-647).

Respondent’s submissions

[17] Ms Bennett for the respondent submits that the original application did not plead a constructive e trust or a breach of promise rather it sought only to challenge the Will of Kuini Okena Maki Makea. The evidence of the applicant also seeks to do the same.

[18] Ms Bennett argues that the applicants are unhappy about the manner in which Kuini’s estate was distributed; however no claim was made to challenge the will under the relevant legislation of that time.

[19] Further it was submitted that the orders complained of were made pursuant to ss

113 and 118 of the Act. In accordance with the law as set out in Part IV of the Act the persons beneficially entitled were Philip’s spouse for a life interest with remainder to his children.

[20] Ms Bennett contends that the orders as made would not have been any different even if the Court was made aware of the circumstances concerning the Karamu shares.

[21] Further, Ms Bennett submits that there is no documentary evidence or proof to support the existence of the alleged agreement between the deceased and his siblings.

[22] Ms Bennett argues that the application is misconceived, misdescribed and inappropriate. She contends that the interests of justice weighs heavily in the respondents favour as divesting them of their property will be a direct breach of their indefeasible titles.

[23] Ms Bennett submits that this would run contrary to Kuini Makea’s testamentary

freedom as expressed in her will and the Deed of Family Arrangement.

[24] In addition, Ms Bennett argues that there is a fundamental legal policy for ensuring certainty and finality of Court decisions. The application under s 45 was not filed until 3

December 2010 some 44 years after the death of Kuini Makea, 42 years after the Letters of Administration with Will was granted for Kuini Makea, 39 years after the binding Deed of Family Arrangement was entered into, 12 years after the death of the deceased and 10 years and 7 months after the orders for succession were granted.

[25] Ms Bennett further contends that there could be no constructive trust or breach of promise, given the evidence of inaction by the applicants.

[26] Evidence in support of the respondent was filed by Kathy Akarangi Spooner Wairau, Ira Maria Elizabeth Johns, Philip Ngaiwi Stephen Makea, Ferne Catherine Huia Makea, Ira Ada Makea, Kareen Elizabeth Takerei, William Koro Henderson and David Michael Makea.

The Law

[27] The Chief Judge’s jurisdiction to amend or cancel an order of the Māori Land Court

is set out in section 44(1) of the Act:

44 Chief Judge may correct mistakes and omissions

(1) On any application made under section 45, the Chief Judge may, if satisfied that an order made by the court or a Registrar (including an order made by a Registrar before the commencement of this Act), or a certificate of confirmation issued by a Registrar under section 160, was erroneous in fact or in law because of any mistake or omission on the part of the court or the Registrar or in the presentation of the facts of the case to the court or the Registrar, cancel or amend the order or certificate of confirmation or make such other order or issue such certificate of confirmation as, in the opinion of the Chief Judge, is necessary in the interests of justice to remedy the mistake or omission.

[18] For the benefit of the parties it is necessary to set out the principles that are applied to s 45 decisions. These are to be found in the judgment Ashwell – Rawinia or Lavinia Ashwell (nee Russell) where the Chief Judge summarised certain principles relating to s 45 applications as follows:7

When considering s 45 applications, the Chief Judge needs to review the evidence given at the original hearing and weigh it against the evidence provided by the Applicants (and any evidence in opposition);

Section 45 applications are not to be treated as a rehearing of the original applications;

The principle of Omnia Praesumuntur Rite Esse Acta (everything is presumed to have been done lawfully unless there is evidence to the contrary) applies to s 45 applications. Therefore in the absence of a patent defect in the order, there is a presumption that the order made was correct;

7 Ashwell – Rawinia or Lavinia Ashwell (nee Russell) [2009] Chief Judge’s MB 209 (2009 CJ 209) at [15].

Evidence given at the time the order was made, by persons more closely related to the subject matter in both time and knowledge, is deemed to have been correct;

The burden of proof is on the applicant to rebut the two presumptions above; and

As a matter of public interest, it is necessary for the Chief Judge to uphold the principles of certainty and finality of decisions. These principles are reflected in section 77 of the Act, which states that Court orders cannot be declared invalid, quashed or annulled more than 10 years after the date of the order. Parties affected by orders made under the Act must be able to rely on them. For this reason, the Chief Judge’s special powers are used only in exceptional circumstances.

[19] Section 45 explicitly refers to situations where the Court has made an incorrect decision due to a flaw in the evidence presented, or in the interpretation of the law, and it is necessary in the interests of justice to correct this. For this reason, s 45 applications must be accompanied by proof of the flaw identified, through the production of evidence not available or not known of at the time the order was made.

[20] As stated in Tau v Nga Whanau o Morven & Glenavy – Waihao 903 Section IX Block,8 the Chief Judge must exercise his jurisdiction by applying the civil standard of proof on the balance of probabilities having regard to that standard’s inherent flexibility that takes into account the nature and gravity of the matters at issue. This means that the applicant must establish on the balance of probabilities that there was a mistake or omission.

[28] I adopt the reasoning set out in the judgments above.

Issues

[29] The issues for determination are:

(a) Whether there was a constructive trust? (b) Whether there was a breach of promise?

(c) Whether the claim of constructive trust is merely an attempt to undermine

_{the Will of Kuini Okeroa Maki Makea?}

8 Tau v Nga Whanau o Morven & Glenavy – Waihao 903 Section IX Block [2010] Maori Appellate Court MB

167 (2010 APPEAL 167) at [61].

[30] I consider that despite the fact that the application as originally filed did not specifically raise the issue of a constructive trust it is in the interests of justice that the issue be determined. The application was filed prior to the applicant instructing counsel, and the constructive trust argument is a significant aspect of the applicants’ case.

Whether there was a constructive trust?

[31] The applicants’ main contention is that a remedial constructive trust exists.

[32] Counsel referred me to the Court of Appeal’s decision in Fortex Group Ltd (In Receivership and Liquidation) v MacIntosh.9 That decision was cited in Morrison v Trustees of the Trevor and Dina Maxwell Whanau Trust – Arataua A where the Māori Appellate Court referred to Court of Appeal’s explanation of the term remedial constructive trust:10

...for present purposes, these three types of trusts can be described as follows. An express trust is one which is deliberately established in which the trustee deliberately accepts. An institutional constructive trust is one which arises by operation of the principles of equity and whose existence the Court simply recognises in a declaratory way. A remedial constructive trust is one which is imposed by the Court as a remedy in circumstances where, before the order of the Court, no trust of any kind existed.

The difference between the two types of constructive trust, institutional and remedial, is that an institutional constructive trust arises upon the happening of the events which bring it into being. Its existence is not dependent on any Order of the Court. Such order simply recognises that it came into being at the earlier time and provides for its implementation in whatever way is appropriate. A remedial constructive trust depends for its very existence on the Order of the Court; such order being creative rather than simply confirmatory. This description should not be regarded as definitive or as precluding further developments in this area of the law when greater refinement may be necessary.

...

The question of existence and certainty of subject-matter has to be viewed in a different light in the case of a suggested remedial constructive trust. As indicated at the outset, this kind of trust does not exist until the Court imposes it. This all that is necessary, from the point of view of subject-matter, is for there to be some asset or assets in the defendants hands in respect of which the Court considered it appropriate to impress a trust in favour of the plaintiffs...But before the Court can contemplate declaring that assets owned in law by A should by way of remedy, be held by A in trust for B, there must be come principled basis for doing so, both vis-

9 [1998] 3 NZLR 171.

10 [2013] Māori Appellate Court MB 189 (2013 APPEAL 189).

à-vis A and vis-à-vis any other person who has a proper interest in the subject matter which would be affected by the imposition of the trust.

[33] The Māori Appellate Court noted that the Court of Appeal had no need to consider further the Court’s power to impose a remedial constructive trust. Rather the Court of Appeal opined that whether such power exists in New Zealand, and if so on what basis and in what circumstances, can await another case in which those issues necessarily arise.

[34] The Māori Appellate Court went on to state that:11

[20] In Commonwealth Reserves I v Chodar Glazebrook J considered that there must be a principled basis for the imposition of a remedial constructive trust. She noted that:

There appear to be two potential triggers for the exercise of the Court’s discretion to grant a remedial constructive trust. One is unjust enrichment. The other is unconscionability.

[21] The appellants must therefore demonstrate that there has been unjust enrichment or unconscionability that favours the finding of a remedial constructive trust.

[35] I note that in cases involving property relationship issues, the Court of Appeal has awarded de facto partners a beneficial interest in property legally owned by former partners by imposing a remedial constructive trust. While equity cannot alter or interfere with the defendant’s legal estate, the Courts will impose a trust where a respondent has acted unconscionably by denying the claimant a beneficial interest.12 In such situations, equity treats the defendant as a constructive trustee for the legal estate to the extent of the claimants assessed interest. By this means equity requires accounting to the claimant for their interest.

[36] In Fortex the Court of Appeal identified four features which if demonstrated would mean it would be unconscionable for the legal owner to deny the claimant an interest. In these circumstances, the Court would intervene to impose a constructive trust. A claimant must show:

a) Contributions, direct or indirect, to the property in question;

_{b) The expectation of an interest therein;}

11 [2013] Māori Appellate Court MB 189 (2013 APPEAL 189) at [20]-[21].

12 See Lankow v Rose CA 176/93 2 December 1994 at pp 8-9.

c) That such expectation is a reasonable one;

d) That the defendant would reasonably expect to yield the claimant an interest.

[37] For the reasons set out below I am not satisfied that the essential elements of a constructive trust have been met.

[38] First, I note that the applicants have made no contribution to the Karamu shares held by Philip but rather profited from his joint management of the family affairs administered by him and Frederick Makea. Secondly, Philip died within a year of the 1997 meeting being held. It would be unreasonable to suggest that the applicants acted upon any undertaking he may have given within that short space of time to contribute to the property the deceased owned. In fact the evidence was clear that the deceased and his grandson (after him) looked after the land.

[39] While the applicants claim an interest in the Karamu lands, the expectation said to exist between 1973-1997 could not be said to be a reasonable one given the Deed of Family Arrangement made in 1973. The Deed is expressed to be full and final settlement of all issues concerning Kuini’s estate. Further, the applicants could not have held a reasonable expectation that they would receive the interests following the 1997 meeting as any discussion of relinquishment did not materialise in an application to the Māori Land Court for a transfer of shares. No further action was taken until 2010 when this application was filed. When Philip was alive it would have been relatively easy to file an application in the Māori Land Court to transfer his Karamu shares but neither he nor the applicants did so.

[40] I am not persuaded that the applicants’ evidence demonstrates that the deceased reasonably expected to yield up his interest in those shares. Rather the evidence raises a number of inconsistencies. For example, it was claimed that the deceased promised to yield up his shares upon Kuini’s death however that alleged promise would have been made prior to the Deed of Family Arrangement. The Deed confirms his desire to retain the shares. The applicants’ evidence does not satisfactorily explain why the siblings all agreed to and signed the Deed if they expected that the Karamu shares were to be transferred to their names.

[41] Further the applicants’ claim that their solicitor was clearly instructed to progress

the issue of relinquishment of the shares in the Māori Land Court following the meeting in

1997. Emaraina Milroy states that a meeting took place and that Philip was present. I accept her evidence on that point. However, I do not accept the various accounts of the meeting that indicated that Phillip agreed to give up his shares. The evidence is ambiguous and inconsistent with different witnesses for the applicants stating that he said different things at the meeting. Furthermore, the letter produced from the solicitor dated 21 May

1998 asking “Has there been any formalisation of the relinquishment?” indicates that if there was to be a transfer, then the solicitor did not understand it was his role to prosecute the matter. It is not clear who was to pursue the “relinquishment”. It may have been Philip, but equally it may have been something that Frederick, as the administrator, was trying to individually pursue. In any event the purported transfer was never completed and ultimately it was Philip’s choice as to whether he would complete the transfer.

[42] I find therefore that there is insufficient evidence to establish there was a constructive trust.

Whether there was a breach of promise?

[43] The applicants relied upon Gillies v Keogh endorsed by that same Court in Goldstar

Insurance Co Limited v Gaunt.13

[44] In Gillies, Cooke P commented that the test in such cases was a more flexible test of unconscionability. Richardson J considered that there were still three essential elements which had to be satisfied namely:14

(a) The creation or encouragement of a belief or expectation; (b) A reliance by the other party; and

(c) Detriment suffered as a result of that reliance.

[45] I am not convinced that there is sufficient proof to show that Philip’s actions

_{amounted to creating or encouraging a belief or expectation on the part of his siblings that}

13 _{[1989] NZCA 168; [1989] 2 NZLR 327, at 345-347 and [1998] 3 NZLR 80.}

14 [1989] NZCA 168; 1989] 2 NZLR 327, at 345-347.

he would relinquish his shares. The evidence filed for the applicants is self-serving from those who stand to benefit from asserting that such a promise was made.

[46] The applicants have failed to demonstrate that Philip clearly and unequivocally stated he would relinquish his shares and the Deed of Family Arrangement points to the opposite position – namely that he wanted to retain his Karamu shares.

[47] Furthermore, the applicants have not demonstrated that they reasonably relied on such an expectation. There was no loss suffered, detriment or prejudice to the applicants during Philip’s lifetime as they all seemed happy with the financial arrangements then in place. After his death, however, his successors became entitled to Philip’s portion of rentals and that money needs to be made available to them. However, the exercise of their legal entitlement cannot be described as a detriment to the applicants as they are not entitled to the money.

[48] In fact the inaction on the part of the applicants suggests that they were all comfortable with the manner in which Frederick Makea administered the family fund and with the manner in which dividends were paid. But Philip’s acquiescence cannot be taken to mean he was giving his siblings the right to his Karamu shares. The evidence demonstrates that during his lifetime Philip provided for his siblings and his family. No one suffered detriment to justify the intervention of equity.

[49] Having regard to the overall circumstances of the case I do not consider it would be unconscionable for Philip’s Estate to enforce their strict legal rights. Nor am I convinced that the interests of justice would be served by making such a finding as I am not persuaded that Philip acted in an unconscionable manner.

Conclusion

[50] The applicants have failed to provide evidence to the standard required to meet the tests for establishing a remedial constructive trust and breach of promise. As such, there is no need to consider the issue of whether or not this application was filed primarily to defeat the intentions of Kuini Makea as expressed in her will or whether the Limitations Act applies.

[51] Accordingly, I determine that there is no basis to cancel the order dated 12 May

2000 at 160 Napier MB 30-3.

Orders

[52] There is an order dismissing this application.

[53] The foregoing order is to issue forthwith pursuant to rule 7.5(2)(b) of the Māori

Land Court Rules 2011.

The Case Manger is to distribute a copy of this decision out to all parties. Dated at Gisborne this 2nd day of December 2016

C L Fox

DEPUTY CHIEF JUDGE