IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A Applicant. STEWART RUDDELL Respondent. (Heard at Chambers, Whangarei)

Transcription

1 162 Taitokerau MB 50 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A UNDER Section 19, Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN AND Oue 2B2B2 TE REO HAU Applicant STEWART RUDDELL Respondent Hearing: On the papers (Heard at Chambers, Whangarei) Judgment: 26 October 2017 JUDGMENT OF JUDGE M P ARMSTRONG

2 162 Taitokerau MB 51 Introduction [1] Te Reo Hau seeks an urgent interim injunction preventing Stewart Ruddell, his agents, servants and workmen, from farming Oue 2B2B2, pending the determination of Mr Hau s substantive application. The current issue is whether an interim injunction should be granted. The land [2] Oue 2B2B2 is Maori freehold land located near Parakao off Mangakahia Road. It is hectares in size and has 70 owners. There is no management structure in place administering this land. The Law [3] Section 19 of Te Ture Whenua Māori Act 1993 provides the Court with jurisdiction to grant interim injunctions. The following issues arise: (a) Is there a serious question to be tried? (b) Where does the balance of convenience lie? (c) Where do the interests of justice lie? Is there a serious question to be tried? [4] It is accepted that Mr Ruddell is grazing cattle on the land. Mr Hau argues he is doing so without the consent of all owners. In his substantive application, Mr Hau seeks a permanent injunction requiring Mr Ruddell to vacate the land. He also seeks damages for use of, and injury caused to, the land. [5] In response, Mr Ruddell argues he has farmed the land since Mr Ruddell has filed four lease agreements which he says were entered into with various owners to farm the land over this period. The latest lease is dated 20 October It has been signed by Errol Wirihana Mau, Kahu Wirihana Mau and Connie Mau for and on behalf of THE OWNERS OUE 2B2B2 by its duly authorised agent(s).

3 162 Taitokerau MB 52 [6] Mr Hau accepts that Errol is an owner, but states Kahu and Connie are not. He argues they had no authority to act as agents or enter into the lease on behalf of the owners. Mr Hau submits the consent of the other owners has not been obtained, and this lease was signed after his application was filed, in an attempt to circumvent this proceeding. [7] There is no management structure over this land. The owners hold the land as tenants in common. They enjoy unity of possession and are equally entitled to use and occupy all of the land. In general, an action in trespass cannot be maintained against a coowner in possession, unless such possession completely excludes the other co-owners and they are deemed to have been ousted. Each tenant in common can also deal with their undivided share by leasing it or by granting a licence to a third party, although they cannot bind the other co-owners. 1 [8] There is no evidence that Errol Mau had authority to act as an agent for the owners when he signed the lease. However, Errol is an owner in the land. He is entitled to deal with his undivided share by leasing it to a third party. There is no evidence that the other owners have been prevented from using the land and have been ousted. This supports that the lease is valid. [9] There is some debate whether a lease granted by one owner can be revoked by any of the co-owners, or only by the owner who granted it. In any event, there is no evidence that Mr Hau has revoked this lease. Mr Hau states he asked Mr Ruddell to vacate the land, but this occurred before the latest lease was signed. There is also an issue over whether such an oral request is sufficient to revoke a lease. [10] This case is finely balanced. Whether the lease is valid, has been revoked, or whether the other owners have been ousted, are matters for determination at the substantive hearing. No doubt further evidence and submissions will be filed addressing these issues. On the limited material before me, I am satisfied Mr Hau has raised legitimate issues and there is a serious question to be tried. 1 Fredricsen v Hikuwai Wainui D Block (2016) 143 Taitokerau MB 135 (143 TTK 135).

4 162 Taitokerau MB 53 Where does the balance of convenience lie? [11] Mr Ruddell has been farming this land since While Mr Hau now questions whether he is entitled to do so, his use of this land is not a new issue. There is no apparent prejudice to Mr Hau if Mr Ruddell continues to farm the land until the substantive application is determined. [12] If Mr Hau s application is upheld, he may be entitled to a permanent injunction and an award of damages. I consider this would provide an adequate remedy and an interim injunction is not required to protect Mr Hau s position. [13] Mr Ruddell states he has factored the use of this land into his dairy operation for the next two years. In these circumstances, Mr Ruddell may suffer significant prejudice if he was required to vacate the land, and I later found that the lease was valid and he was entitled to use it. [14] I find the balance of convenience is against the grant of an injunction. Where do the interests of justice lie? [15] Mr Hau has raised legitimate issues on whether the lease to Mr Ruddell is valid and whether it should continue. However, the length of time that Mr Ruddell has been farming the land, and the delay in bringing this application, goes against the grant of an interim injunction. [16] Mr Ruddell also argues that one of the earlier leases was signed by Mr Hau. I have not heard from Mr Hau on that issue. If Mr Ruddell is correct, Mr Hau will have to explain why the lease he signed was valid and this one is not. [17] While there are serious questions in this case that need to be answered, I do not consider that an injunction should be granted in the interim. Any appropriate relief can be considered at the substantive hearing.

5 162 Taitokerau MB 54 Decision [18] Mr Hau s application seeking an urgent interim injunction is dismissed. I have already issued directions timetabling the substantive application towards hearing. Pronounced in open Court at Whangarei at am on Thursday this 26 th day of October M P Armstrong JUDGE