IN THE MAORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 15 Taitokerau MB 76 (15 TTK 76) A Applicant

Transcription

1 IN THE MAORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 15 Taitokerau MB 76 (15 TTK 76) A UNDER Section 131, Te Ture Whenua Maori Act 1993 IN THE MATTER OF Te Keti A2 BETWEEN DEPUTY REGISTRAR Applicant Hearing: 23 January 2007 (Heard at Auckland) Judgment: 21 January 2011 RESERVED JUDGMENT OF JUDGE D J AMBLER Introduction [1] The Māori Freehold Land Registration Project ( the Project ) has revealed various anomalies in the Court s title record. The present application under s 131 of Te Ture Whenua Māori Act 1993 ( 1993 Act ) provides another example. [2] I heard this application when the Project first got underway. It raised two difficult issues in relation to the operation of s 2(2)(f) of the Māori Affairs Act 1953 ( 1953 Act ). First, whether s 2(2)(f) was triggered by the settlement of land under the Joint Family Homes Act 1964 ( 1964 Act ). Second, whether s 2(2)(f) was triggered by the registration of a transfer in breach of the confirmation requirements of the 1953 Act. [3] I reserved my decision in the expectation that similar issues might arise during the course of the Project and in the hope that counsel might be involved to assist to untangle those issues. As it happened, I have dealt with the first issue in a reserved decision 1 but, although the second issue has arisen on at least one other occasion, I have not had the assistance of counsel and nor have I 1 Deputy Registrar Te Touwai B14A (2009) 136 Whangarei MB 74 (134 WH 74) DEPUTY REGISTRAR MLC 15 Taitokerau MB January 2011

2 delivered a fully reasoned written decision. Accordingly, now, at the very tail of the Project, I return to address the two issues raised by this application. Background [4] On 27 January 1876 the Native Land Court determined title to the Te Keti block. On 6 December 1904 the land was partitioned into Te Keti A and Te Keti B. On 3 March 1949 the land was further partitioned creating Te Keti A2 which was vested in Pikau Eriapa Uruamo. The land was Native freehold land. [5] On 4 December 1984 the Court vested the land in John Ned Porter (the son of Pikau Uruamo) pursuant to s 136 of the 1953 Act. The land was not surveyed until 1985, following which certificate of title NA60B/34 was issued on 8 January Pikau Eriapa Uruamo was recorded as the first registered proprietor. [6] On the same day that the title issued, 8 January 1986, the s 136 vesting order was registered vesting the land in John Porter and the land was then settled under the 1964 Act on John Porter and his wife Janice Rae Porter. The application for settlement under the 1964 Act was noted in the Court s record as required by s 25 of the 1964 Act. [7] On 13 July 1990 a transfer of the land to the Helensville Family Welfare Trust ( the trust ) was registered against the land transfer title. The trust was described in the transfer as a trust board duly incorporated under the Charitable Trusts Act 1957 and was by reason of s 13 of that Act a body corporate. The transfer did not stipulate that the land was to remain Māori freehold land. Significantly, the transfer was not confirmed by the Court in breach of s 224(1) of the 1953 Act. [8] In 1990 the land was mortgaged to the Housing Corporation of New Zealand. The mortgagee is now the Home Mortgage Company Limited. The mortgage was not noted with the Court in breach of the 1953 Act. [9] Accordingly, today, the Court record shows John Porter to be the sole owner of the land even though the settlement of the land on him and his wife was noted by the Court. The land is shown as Māori freehold land. The Court record otherwise makes no mention of the transfer to the trust or the mortgage. Conversely, the land transfer title shows the trust to 15 Taitokerau MB 77

3 be the registered proprietor subject to the mortgage. The title does not disclose the status of the land. Hearing [10] Prior to the hearing I directed that notice be given to the trust and the mortgagee 2. The mortgagee wrote to the Court to advise of its first mortgage over the land and that: The security for this loan was assessed on the basis that the land was General land. As such we would not be in a position to support a change in the land status back to Māori Freehold land and are concerned that the change may erode the value of our security. [11] This statement reflects a misunderstanding of the nature of the application. It is not an application to change the status of the land but rather to declare its existing status. [12] The mortgagee and the trustees of the trust did not appear at the hearing. However, John Porter appeared and outlined the history of the land. He explained that he and his wife were the original trustees of the trust and that his brother and his brother s wife are the current trustees. John Porter and his wife now look after the home on the land and intend to repurchase it from the trust. Thus, the land remains closely connected to John Porter and his whanau. [13] John Porter explained that he always considered the land to be Māori freehold land, both before and after the transfer: 3 Court: Alright. By the time the transfer was made there was nothing on the transfer document to confirm that the status was intended to remain as Māori land. What was your understanding? Hoani Porter: Well, at the time it was never ever my intention to take it out of Māori land ownership, on the basis that it was a whanau you know it was more than that just this particular block. I m a believer in Māori affairs, keeping Māori stuff Māori, in the affairs of Māori. So I never really pursued that side of it. As far as I was concerned it was always Māori land, it will always be Māori land as long as I ve got anything to do with it Issues [14] I am satisfied that prior to 8 January 1986 the land was Maori freehold land. In order to determine the current status of the land I must address the two issues identified Whangarei MB (109 WH ) 33 Auckland MB 98 (33 AT 98) 15 Taitokerau MB 78

4 earlier. Namely, first, whether s 2(2)(f) was triggered by the settlement of land under the 1964 Act and, second, whether s 2(2)(f) was triggered by the registration of the transfer in breach of the confirmation requirements of the 1953 Act. Section 2(2)(f) Maori Affairs Act 1953 [15] Section 2(2)(f) provided: Unless expressly provided in this or any other Act with respect to any specified or defined area, and notwithstanding anything in the foregoing definition of the term land or in any of the subsidiary definitions included therein, - (f) Māori freehold land the legal fee simple in which has been transferred otherwise than by an order of the Court or of a Registrar shall, except where it appears on the face of the instrument of transfer that the land had remained Māori freehold land, be deemed to be General land until either (i) An order is made by the Court under paragraph (i) of subsection (1) of section 30 of this Act determining that the land is Māori freehold land; or (ii) Any other order is made by the Court as a consequence of which the land becomes or is deemed to have become Māori freehold land. [16] In Re Pakiri R Block 4 the Māori Appellate Court considered s 2(2)(f) in relation to transfers registered prior to and following the enactment of the 1993 Act and the effect of a failure to note a memorandum of transfer in breach of s 233 of the 1953 Act. The Court commented on s 2(2)(f) as follows: 24 In the Kopua case Judge Russell indicated that the effect of Section 2(2)(f) was to bring certainty. This Court agrees with that statement and that the purpose of the use of the word deemed in Section 2(2)(f) was to put beyond doubt a particular construction that might otherwise be uncertain. The effect of the provision is such that once a transfer is registered then anyone dealing with the title is entitled to do so in reliance on that provision. That is not to say that the Court could not by Order under Section 30(1)(i)/53 determine that the land was still Māori land where the transfer had been from Māori to Māori. It is our understanding that the Māori Land Court has from time to time made such determinations where it is appropriate and where the land has not been dealt with in a manner inconsistent with a determination that it is Māori land. However until such determination is made the land is deemed to be general land. 25 The effect of Section 2(2)(f) as Judge Russell stated, is to apply an irrebuttable presumption that the land is to be treated as general land irrespective of its true status. A transferee may avoid that presumption by having it noted on the transfer that the land remains Māori freehold land. Alternatively he may seek an order of the Court under Section 30(1)(i) determining the land to be Māori land in which case the presumption or deeming remains in effect until such order. 26 The provisions of Section 2(2)(f) are such that any transferee is entitled to rely on them. Although this question is not before the Court, it is our view 4 (1994) 3 Taitokerau Appellate Court MB 178 (3 APWH 178) 15 Taitokerau MB 79

5 that in any application under Section 30(1)(i) to which Section 2(2)(f) applies it would not be appropriate for any order to be made determining the land to be Māori land without the consent of the registered proprietor. 27 In his submissions Mr Bell contends that The words in S.2(2)(f) be deemed to be General land are expressly limited by the conditions subsequent in subclauses (i) and (ii); The words be deemed do not create a conclusive presumption but only provide a provisional status for the land as General land; consequently where the Court makes an order under Section 30(1)(i)/53 determining land to be Māori freehold land, that is a declaratory decision based on events giving rise to that status and therefore records the status retrospectively. He adds that the power to change status of Māori freehold land is under Section 433 and that the legislative purpose of protecting Māori land would be undermined if Section 2(2)(f) were allowed to operate as a back door method of changing the status of Māori freehold land. 28 The aforegoing submissions differ from the views of this Court and the difference largely turns on the interpretation of deem. As stated, we regard its use in the context of Section 2(2)(f) as to put beyond doubt the question of status which might otherwise have been uncertain. Following registration of a transfer anyone dealing with the land, be it the registered proprietor or otherwise, is entitled to rely on the words of the statute as to status. There are many dealings with land which do not involve registration. The effect of treating an order under Section 30(1)(i) with retrospective effect would be to introduce an element of uncertainty over the period between the transfer and the order which is the very factor the legislation has sought to avoid. 29 Mr Bell expresses concern at Section 2(2)(f) being used to effect a change of status instead of Section 433. Yet, in his submissions he accepts that while the land has provisional status under Section 2(2)(f) it might be sold to a third party and undergo a further change of status. It seems to the Court that once it is accepted that a transferee of land can deal with the land as General land pursuant to Section 2(2)(f) the status so conferred must be regarded as conclusive and could not in any way be described as provisional. 30 The wording of Section 2(2)(f) prescribed that the deeming takes effect until other orders are made. The use of the word until suggests that the status conferred by the Act enures until the point in time that an Order of the Court is made. Section 34(1)/53 provides that an Order shall take effect according to its tenor as from the commencement of the day on which it is so pronounced. There is nothing in Section 2(2)(f) or Section 30(1)(i) to indicate that an order thereunder is of retrospective effect or overrides or supersedes the specific words of Section 2(2)(f) over the period from the date of the transfer to the date of the Section 30(1)(i) order. For the above reason, we differ on this point, from the views expressed by Mr Bell. [17] The Court did not address the issue before me of the effect of non-confirmation of a transfer on s 2(2)(f) see paragraph Taitokerau MB 80

6 Settlement under the Joint Family Homes Act 1964 [18] I addressed the issue of whether a settlement under the 1964 Act triggered s 2(2)(f) in a reserved decision in 2009, Deputy Registrar Te Touwai B14A 5. I concluded that a settlement did not amount to a transfer for the purposes of s 2(2)(f) and that, consequently, that section was not triggered. The present case is no different. Therefore, following the settlement of the land on John Porter and his wife in 1986, s 2(2)(f) did not apply and the land remained Māori freehold land. Transfer to Helensville Family Welfare Trust [19] The 1990 transfer was registered without first being confirmed by the Court in breach of s 224(1) of the 1953 Act, which provided: Except as may be otherwise expressly provided in this or any other Act no alienation of Māori land by way of transfer by a Māori shall have any force or effect unless and until it has been confirmed by the Court. (emphasis added) [20] What effect, if any, does the highlighted wording in s 224(1) have on the operation of s 2(2)(f)? Specifically, if s 224(1) provides that a transfer is to have no force or effect, does that mean that the transfer does not trigger s 2(2)(f)? [21] The leading High Court decisions of Housing Corporation of New Zealand v Māori Trustee and Registrar-General of Land v Marshall 6 addressed the related but different issue of registration of instruments that had not been noted by the Court in breach of s 233(1) of the 1953 Act and s 83 of the Māori Affairs Amendment Act 1967 ( 1967 Act ) respectively. Like s 224(1), s 233(1) provided that an instrument did not have any force or effect unless and until endorsed by the Registrar and noted in the records of the Court, though s 83 did not go that far. The High Court concluded in both decisions that the Land Transfer Act 1952 ( 1952 Act ) trumped the 1953 Act and that the interests arising from registration were indefeasible even though the instrument had not been endorsed and noted. [22] Subsequent to these two decisions it remained unclear whether registration of a transfer in breach of s 224(1) would likewise give rise to an indefeasible interest. The High Court eventually answered that issue in Warin and others v Registrar-General of Land and 5 6 (2009) 136 Whangarei MB 74 (136 WH 74) Housing Corporation of New Zealand v Māori Trustee [1988] 2 NZLR 662 and Registrar-General of Land v Marshall [1995] 2 NZLR Taitokerau MB 81

7 another 7 in the context of the 1993 Act. Allan J concluded that the registration of a transfer without confirmation in breach of ss 126 and 156 of the 1993 Act gave rise to an indefeasible interest in the land. It follows that registration of a transfer in breach of s 224(1) of the 1953 Act also gives rise to an indefeasible interest. [23] Nevertheless, the issue before me is not whether there is indefeasible title. There is no dispute that the trust has an indefeasible fee simple title and that the mortgagee has an indefeasible mortgage interest. Rather, the issue is whether the registration of the noncomplying transfer triggered s 2(2)(f) and thereby changed the status of the land to General land. Housing Corporation of New Zealand v Māori Trustee, Registrar-General of Land v Marshall and Warin and others v Registrar-General of Land and another did not address this issue. Neither did Re Pakiri R Block. [24] However, in Re Marshall-Part Allotment 65B2B Parish of Whangape 8 Judge Carter addressed the related issue of the effect of registration of a transfer in breach of s 83 of the 1967 Act on s 2(2)(f). This was the first instance decision that led to Registrar-General of Land v Marshall. After discussing the background and setting out s 2(2)(f), Judge Carter concluded: 36. In the light of that provision, what is the effect of the transfer to E C Marshall on the status of the land? I have some difficulty in accepting that a transfer which does not comply with the provisions of Section 83/67 and which has been registered by the District Land Registrar contrary to the provisions of that Section should have the effect of changing the status of the land from Māori to general land. Yet, this is what I perceive has happened. Māori Land Court title orders and instruments of conveyance until registered in the Land Transfer Office affect the equitable title to the land only. Section 36(3)/53 makes this clear. The Court is therefore bound in matters of title to have regard to the legal title which is established as the Land Transfer Title. Section 75 of the Land Transfer Act 1952 clearly establishes the standing of the Land Transfer Title from an evidenciary point of view. 75 Certificate to be evidence of proprietorship Every certificate of title duly authenticated under the hand and seal of the Registrar shall be received in all Courts of law and equity as evidence of the particulars therein set forth or endorsed thereon, and of their being entered in the Register, and shall, unless the contrary is proved by production of the Register or a certified copy thereof, be conclusive evidence that the person named in that Certificate of Title, or in any entry thereon, as seised of or as taking estate or interest in the land therein described is seised or possessed of that land for the estate or 7 8 Warin and others v Registrar-General of Land and another (= Whangarei, CIV /00245, 31 October 2008) Re Marshall-Part Allotment 65B2B Parish of Whangape (1990) 69 Waikato MB (69 W 136) 15 Taitokerau MB 82

8 interest therein specified as from the date of the Certificate or as from the date from which the same is expressed to take effect, and that the property comprised in the Certificate has been duly brought under this Act. 38. The Court is therefore bound to take notice of the legal title and the fact that E C Marshall acquired it by transfer. Consequently pursuant to section 2(2)(f), the land is deemed to be general land. While the Court has power to determine otherwise pursuant to Section 30(1)(l)/53, the Court has no grounds for such determination. [25] Judge Carter s ruling is instructive but does not apply to the present circumstances as he was concerned with s 83 which stops short of declaring a non-complying transfer to be of no force or effect : 83 Transmission to administrator, etc (1) The transmission to an administrator of a freehold interest in Māori freehold land and the transfer by the administrator of any such interest to any other person (whether a beneficiary in the estate or otherwise) shall not be deemed to be alienations of Māori land by way of transfer by a Māori for the purposes of Part XIX of the principal Act so as to require confirmation thereunder. (2) Any such transmission and any such transfer to or by an administrator shall be produced to the Registrar for a memorial thereof to be made in the records of the Maori Land Court, and the District Land Registrar shall not accept any such transmission or transfer for registration under the Land Transfer Act 1952 unless it bears an endorsement by the Registrar of the Māori Land Court to the effect that the instrument has been recorded in the records of the Māori Land Court. [26] Consequently, Judge Carter did not have occasion to address the effect of wording similar to that in s 224(1) on s 2(2)(f). I must address it myself. [27] The wording in s 224(1) speaks for itself. An alienation of Māori land by way of transfer by a Māori is said to be of no force or effect if it has not been confirmed by the Court. If the transfer is of no force or effect, then it must follow that the Court cannot undertake the exercise contemplated by s 2(2)(f) of considering the nature of the wording of the instrument of transfer. Section 224(1) effectively deems there to be no transfer to consider. It makes no difference whether or not the transfer purported to preserve the status of the land as Māori freehold land. The instrument of transfer is to be ignored. [28] This interpretation is consistent with the operation of the 1953 Act. The Act governed the status of land. As per s 2(2)(f), the status of land could change upon the registration of a transfer. However, as per s 224(1), the transfer could only be relied on if the Act s confirmation requirements had been met. In other words, a purchaser could not 15 Taitokerau MB 83

9 rely on s 2(2)(f) to effect a change of status if the Act s confirmation requirements had been ignored. That is an entirely orthodox approach. [29] Nevertheless, this approach might be thought to conflict with the 1952 Act and the principle of indefeasibility as discussed in Housing Corporation of New Zealand v Māori Trustee, Registrar-General of Land v Marshall, Warin and others v Registrar-General of Land and another and Re Pakiri R Block. As explained above, these decisions are all authority that notwithstanding that an instrument is void by reason of provisions such as s 224(1), registration of an instrument gives rise to indefeasible interests. That is because the Torrens system is a system of title by registration. As was said by Barwick CJ in Breskvar v Wall (1971) 126 CLR 376, : The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formally had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void. The affirmation by the Privy Council in Frazer v Walker of the decision of the Supreme Court of New Zealand in Boyd v Mayor, & C, of Wellington, now places that conclusion beyond question. [30] However, it has long been established that registration of a void instrument does not cloak that instrument with indefeasibility for purposes beyond the Torrens system. That is, registration may effectively validate a void instrument for the purposes of the Torrens system but it does not validate it for purposes beyond the Torrens system. This limitation on the reach of indefeasibility has been discussed in a number of leading decisions. [31] Housing Corporation of New Zealand v Māori Trustee 9 considered the seemingly conflicting decisions of the High Court of Australia in Breskvar v Wall and Travinto Nominees Pty Ltd v Vlattas 10. After discussing the two decisions in some detail, McGechan J summarised the position as follows: I do not have any undue difficulty with the approach of the majority in Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1. The essence of the decision is conveniently encompassed by Barwick CJ in Mercantile Credits Ltd v Shell Co of Australia Ltd (1976) 9 ALR 39, 45: In Travinto Nominees Pty Ltd v Vlattas, supra, the Court decided that a covenant which was illegal when made, obtained no validity or protection from the registration of the instrument in which it was found because its illegality denied the possibility of its specific performance. The position of 9 10 Housing Corporation of New Zealand v Māori Trustee [1988] 2 NZLR 662 at 677 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 15 Taitokerau MB 84

10 covenants for renewal of the term of the lease which are not illegal was left as an open question. It now falls for decision. No Court readily would accept that through the mere event of registration the Court was required to grant specific performance to enforce covenants which were contrary to statute law. A Judge can live with a void transfer or proclamation becoming magically validated by registration, but it is much harder to accept the existence in law of an intention to require Court process to assist in promoting some future illegality. I gain some comfort from the approach of Vautier J in Greenhead v Uncle Albert s General Store Ltd (1981) 1 NZCPR 409, However, I have more difficulty with the simplicity of the solution proposed by Menzies J, and the sophistication required by the approach of Gibbs J. With respect, the drawing of differences between conveyance and estate may cause some major conceptual difficulties in a field where clarity and certainty is essential. What, for example, would the status of the proclamation in Boyd v Wellington City Council be? Is a land transfer mortgage a conveyance or an estate or interest? I need not go further. In the result in the comparable context of Breskvar v Wall a Full High Court of Australia has held that statutory provisions which render instruments void and ineffective do not prevail against registration under Torrens statutes. Registration validates and gives effect to the instruments concerned; subject only to the rider created by Travinto Nominees Pty Ltd v Vlattas that a non-essential term (ie, one not limiting the estate created) which is illegal and unenforceable under the general law is not thereby validated. To hold likewise in relation to s 233 of the Maori Affairs Act 1953 an instruments registered under the Land Transfer Act 1952 would not, therefore, be revolutionary... [32] Barker J also discussed this limitation on the reach of indefeasibility in Church of Samoa Trust Board v Broadlands 11 : Notwithstanding the indefeasibility provisions of the Act and the above words of s 41, case law shows that registration of an instrument does not in all cases give the quality of indefeasibility to every right which the instrument creates. See Mercantile Credits Ltd v Shell Co of Australia Ltd (1976) 9 ALR 39, 49, per Gibbs J. In some cases, the covenant for which protection has been claimed has been held to form part of the estate or interest protected by registration, but in others, not. In Fels v Knowles (1906) 26 NZLR 604, a right to purchase found in a memorandum of lease was held to have become indefeasible on registration of the lease. In Roberts v District Land Registrar at Gisborne (1909) 28 NZLR 616, it was said (at p 617) that a right to renew contained in a registered lease would be similarly protected upon registration. In the Mercantile Credits case, it was held by the High Court of Australia, not without some doubt, that, upon registration of a lease, a right of renewal was specifically enforceable, there being no question of illegality. The right took priority over a subsequently registered memorandum or mortgage. In contrast, in Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1, a covenant which granted an option to renew found in a registered lease was held to be illegal and therefore incapable of specific performance. The High Court of Australia thought it unnecessary to decide whether the equitable interest in the land which would arise by virtue of an 11 Church of Samoa Trust Board v Broadlands [1984] 2 NZLR 704 at Taitokerau MB 85

11 enforceable grant would form part of the interest in the land which the registration of a memorandum of lease would protect. In Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1974) 7 SASR 268, a registered sublease contained covenants which were held invalid because of restraint on trade. It was held that although neither the lease nor the sublease was void, none of the covenants was enforceable. In Green & McCahill Contractors Ltd v Minister of Works [1974] 1 NZLR 251, the plaintiff claimed compensation under the Public Works Act under a proclamation which was void. It was submitted for the plaintiff that the registration of the proclamation had given the void document legal substance and validity. Wilson J rejected the claim on the basis that registration did not have the effect of validating a void transaction; it conferred no rights other than those pertaining to a registered proprietor as such. These cases suggest that there is a line to be drawn between covenants and rights contained in a registered instrument protected by the indefeasibility provisions and those not so protected. On the one hand, covenants affecting the estate or interest with which the instrument deals or rights pertaining to a registered proprietor as such are upheld, notwithstanding invalidity. On the other hand, rights contained in a registered instrument which are not an integral part of the estate or interests of the registered proprietor are not necessarily protected. [33] Notwithstanding that these decisions were mostly concerned with the enforceability of covenants and rights contained in void instruments, the underlying principle applies here. That is, registration of a void instrument gives rise to indefeasibility under the 1952 Act but does not validate the instrument for purposes beyond the 1952 Act. The decision in Green & McCahill Contractors Ltd v Minister of Works is probably the closest to the present case. There, the Court ruled that registration did not validate a void proclamation under the Public Works Act. [34] The 1952 Act was silent on the question of status of land and therefore did not guarantee a particular status. The status of land was governed by the 1953 Act. Therefore, the registration of the void transfer passed indefeasible title to the trust but the transfer remained void for the purposes of the 1953 Act and therefore for the purposes of s 2(2)(f). [35] I do not consider that s 75 alters the situation. Under s 75 the certificate of title is evidence of the ownership of and interests in the land. It proves that the trust is the current owner of the land. However, the inquiry under s 2(2)(f) goes beyond the certificate of title and the question of ownership and into the actual wording of the instrument of transfer. But s 75 does not purport to validate the instrument itself. As per Barwick CJ s comments, the Torrens system is only concerned with the title that arises from registration and not the instrument itself. 15 Taitokerau MB 86

12 [36] What then is the outcome in the present case? Section 2(2)(f) must be disregarded as there is no instrument of transfer to consider. The Court must return to the principal definitions of land in s 2 of the 1953 Act. In accordance with s 75 of the 1952 Act, the trust was the owner of the land from 13 July The trust was a body corporate and was not a Māori. The land was therefore no longer Māori freehold land as it was no longer owned by a Māori: Maori freehold land means land other than [General Land] which, or any undivided share in which, is owned by a Maori for a beneficial estate in fee simple, whether legal or equitable: [37] John Porter assumed that the land remained Māori freehold land. Had Mr Porter wanted the land to retain its status as Māori freehold land then his solicitor should have stipulated that in the transfer document and he should have had the transfer confirmed in accordance with s 224(1). His solicitor did neither. Therefore, the status of the land changed by reason of the principal definition of Māori freehold land in the 1953 Act and not s 2(2)(f). Orders [38] Pursuant to section 131 of Te Ture Whenua Māori Act 1993 I determine Te Keti A2 to be General land. Pronounced in open Court in Whangarei at 4.56 pm on Friday this 21 st day of January D J Ambler JUDGE 15 Taitokerau MB 87