IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A Applicant. ERIC HIKUWAI Respondent RESERVED JUDGMENT OF JUDGE D J AMBLER

Transcription

1 143 Taitokerau MB 135 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 Wainui D Block RAIHA FREDRICSEN Applicant ERIC HIKUWAI Respondent Hearing: 19 November 2015 (Heard at Kaikohe) Appearances: Mr Blaikie for the respondent Judgment: 21 December 2016 RESERVED JUDGMENT OF JUDGE D J AMBLER Copy to: D Blaikie, P O Box 382, Kaikohe blaiklaw@paradise.net.nz

2 143 Taitokerau MB 136 Introduction [1] This is an application seeking a permanent injunction in relation to Wainui D block. The applicant, Ms Raiha Fredricsen, claims that the respondent, Mr Eric Hikuwai, who is one of the owners of the block, has entered into an arrangement with a third party for beehives to be placed on the land without the consent of the other owners. She argues that Mr Hikuwai, as a minority shareholder, has no ability to enter into such arrangements on behalf of all the owners and any such agreement is invalid and fraudulent. She therefore seeks an injunction to restrain the third party from entering onto the land. Background [2] Wainui D Block is Māori freehold land, 319 hectares in area. It was created by partition order dated 21 November In 1969 one of the three owners of the land at the time, Hikuwai Hikuwai, applied to the Court to partition out his shares. The Court however directed a sale in lieu of partition, and appointed the Māori Trustee as agent of the owners for the purpose of the sale of the land. 2 The land was subsequently sold in 1972 to Hikuwai Hikuwai and noted in the records of the Court as General land. [3] Sometime later, on the filing of an application to change the status of the land back to Māori freehold land, it became apparent that the sale had not been registered against the certificate of title, which had remained in the names of the three owners as at Transmission of the shares of Hikuwai Hikuwai had occurred, along with the transfer of part of the resulting shares under a matrimonial property agreement, which had been registered. Orders were subsequently made confirming that the status of the land had remained Māori freehold land and determining the correct ownership of the shares. 3 [4] There are currently seven owners of the land holding a total of shares. Procedural History [5] The application was filed by Ms Fredricsen on 10 September 2015, together with an affidavit setting out her grounds in support of the grant of an urgent injunction. A copy Northern MB (32 N 33-34); 32 Northern MB 48 (32 N 48). 45 Whangarei MB (45 WH ). 51 Taitokerau MB (51 TTK ).

3 143 Taitokerau MB 137 of the application was served on Mr Eric Hikuwai by the applicant at the time of filing, which he confirmed on 14 September [6] The application was initially referred to the Court for directions on 14 September It was considered that the nature of the application was not urgent and the matter was subsequently referred to me and set down for hearing. I issued directions on 18 September 2015 for the applicant to serve a copy of the application, supporting material and notice of the hearing on Eric Hikuwai at least 21 days prior to the hearing. [7] The hearing was then held in Kaikohe on 19 November 2015, at the conclusion of which I reserved my decision. 4 Applicant s submissions [8] Ms Fredricsen submitted that Mr Hikuwai is purporting to act on behalf of the owners in negotiating an agreement with Comvita, a natural health products company, who have beehives on the land. She sought an urgent injunction and trespass order to prevent Comvita and its agents from entering onto the land in any capacity, other than to remove their beehives. [9] Ms Fredricsen noted that her application is supported by the other owners, Jo Waiatua Hikuwai, Maraea Hikuwai Meikle and William Hikuwai, and by Jonathon Boyack, who is the father of Piers Hikuwai-Boyack, son of deceased owner Miriama Hikuwai Boyack. [10] Ms Fredricsen submitted that Mr Hikuwai did not consult the owners regarding his intentions and does not have authority to act on their behalf. She argued that, as a minority shareholder in the land, he cannot enter into an agreement with Comvita, and any such agreement is invalid and fraudulent. Respondent s submissions [11] Mr Blaikie, counsel for the respondent, submitted that Mr Hikuwai was entitled to grant a licence to Comvita in relation to the portion of the land representing his ownership Taitokerau MB (118 TTK 56-74).

4 143 Taitokerau MB 138 share. He says Mr Hikuwai holds a one-fifth share in the land, although he calculates this by including the shares of Mr Hikuwai s wife, Dianne Hikuwai, who is also an owner in the land. [12] Mr Blaikie conceded that Mr Hikuwai could not bind the other owners to the agreement with Comvita, however, he noted that there are only approximately 23 beehives in total and they are located on a selected area of the land. He says the other owners are therefore free to put beehives on the remainder of the land or to come to their own arrangement for its use. In addition, Mr Blaikie noted that the agreement with Comvita was for a period of one year, which expired in June Mr Hikuwai orally agreed to extend the licence to November 2015, however, he says that Comvita is aware that they do not have security in respect of the licence. [13] Counsel submitted that Mr Hikuwai lives on the land and has met the costs of maintaining the land, along with the access way used by the local marae for collecting firewood, without contribution from the other whānau members. He says that Mr Hikuwai took an opportunity and agreed for Comvita to put beehives on the land, and part of the money received has been used to offset his expenditure in maintaining the access way. He submitted that, even if the money was not used to meet the costs of the land, Mr Hikuwai does not have an obligation to account to the other owners, as the beehives occupy only part of the land equal to Mr Hikuwai s shareholding. The Law [14] The applicant seeks a permanent injunction per s 19 of the Act, which sets out the Court s jurisdiction as follows: 19 Jurisdiction in respect of injunctions (1) The court, on application made by any person interested or by the Registrar of the court, or of its own motion, may at any time issue an order by way of injunction (a) against any person in respect of any actual or threatened trespass or other injury to any Maori freehold land, Maori reservation, or wahi tapu; or (b) prohibiting any person, where proceedings are pending before the court or the Chief Judge, from dealing with or doing any injury to any

5 143 Taitokerau MB 139 property that is the subject matter of the proceedings or that may be affected by any order that may be made in the proceedings; or (c) prohibiting any owner or any other person or persons without lawful authority from cutting or removing, or authorising the cutting or removal, or otherwise making any disposition, of any timber trees, timber, or other wood, or any flax, tree ferns, sand, topsoil, metal, minerals, or other substances whether usually quarried or mined or not, on or from any Maori freehold land; or (d) prohibiting the distribution, by any trustee or agent, of rent, purchase money, royalties, or other proceeds of the alienation of land, or of any compensation payable in respect of other revenue derived from the land, affected by any order to which an application under section 45 or an appeal under Part 2 relates. (2) Notwithstanding anything in the Crown Proceedings Act 1950, any injunction made by the court under this section may be expressed to be binding on the Māori Trustee. (3) Any injunction made by the court under this section may be expressed to be of interim effect only. (4) Every injunction made by the court under this section that is not expressed to be of interim effect only shall be of final effect. [15] The Māori Appellate Court in Taueki v Horowhenua Sailing Club Horowhenua 11(Lake) Block, discussed the requirements for the grant of a permanent injunction: 5 [15] In applying for a permanent injunction, applicants must also fulfil the legal elements relating to the action of trespass before the Court will exercise its jurisdiction to grant the remedy. These elements are set out below: The action for trespass to land is primarily intended to protect possessory rights, rather than rights of ownership. Accordingly, the person prima facie entitled to sue is the person who had possession of the land at the time of the trespass. Actual possession consists of two elements: the intention to posses the land and the exercise of control over it to the exclusion of other persons. Either element alone is not sufficient [16] Once the elements for the trespass action are made out, the Court then considers what remedy is appropriate. The prima facie rule is that a landowner is entitled to an injunction to restrain a trespass. However, the Court still has discretion as to whether to grant the injunction or not. Matters affecting the exercise of the discretion include the parties conduct. [16] In considering the grant of a permanent injunction, a primary consideration will therefore be whether there is a continuing trespass to the land. If such trespass is 5 Taueki v Horowhenua Sailing Club Horowhenua 11 (Lake) Block [2014] Māori Appellate Court MB 60 (2014 APPEAL 60).

6 143 Taitokerau MB 140 established, the Court will consider whether the grant of a permanent injunction is appropriate. Discussion [17] Before determining whether to grant a permanent injunction, I note that Ms Fredricsen made submissions and filed material with the Court in relation to a separate block of whānau land not connected with these proceedings. That material is somewhat personal in nature and clearly relates to a disagreement between the whānau regarding those dealings. Mr Blaikie submitted that the block in question was General land and beyond the jurisdiction of the Court. He argued that the matter related to default under a mortgage and that the law is clear on the rights of the parties with respect such matters, however it was not relevant to the present proceedings. [18] I record that Ms Fredricsen and Mr Eric Hikuwai are siblings and the issue referred to is an estate matter rather than one related to the block. While it is regrettable that there is friction on those matters, I agree that the material filed is not relevant to the grant of an injunction over Wainui D block. Accordingly, that material will not be considered in this decision. Trespass and the rights of co-owners [19] The basis of the applicant s claim is that Mr Hikuwai has no authority to grant Comvita a right to put their beehives on the land, and Comvita s presence on the land therefore amounts to a trespass. The applicant however noted that the claim was against both Comvita and Mr Hikuwai. [20] As noted earlier, there are seven owners in the land. There currently exists no management structure over the land and the owners therefore hold the land as tenants in common. Tenants in common enjoy unity of possession and are equally entitled to occupy, use and enjoy all of the land. In general, an action in trespass cannot therefore be maintained against a co-owner in possession, unless such possession completely excludes the other co-owners from possession of the land and they are deemed to have been ousted. 6 6 T Bennion, D Brown, R Thomas and E Toomey New Zealand Land Law (2 nd ed, Brookers, Wellington, 2009) at

7 143 Taitokerau MB 141 [21] In Nicholls v Nicholls Part Papaaroha 6B Block the Court noted that an action in trespass by one co-owner of Māori land could not be brought against another co-owner, unless legal ownership of that land is vested in a trust or incorporation. 7 [86] Each co-tenant is entitled to be present on the land and to make normal use of it. It follows that a tenant in common may not sue another co-tenant in trespass where that co-tenant is simply making normal and ordinary use of the land, regardless of whether their consent has been obtained. This is because such consent is not necessary (see U-Needa Laundry Limited v Hill [2000] 2 NZLR 308). [87] Therefore, neither co-tenant can sue the other co-tenant for trespass unless that co-tenant ousts the other co-tenant from the land, or destroys the subject matter of the tenancy. In these circumstances, a co-owner s action is usually termed an action for recovery of land, rather than an action for trespass. [96] In the normal run of cases involving Māori land, co-owners cannot bring an action for trespass against another co-owner unless the legal ownership of the land is vested in a trust or incorporation. This is because co-owners have equal rights to possession of the land. There are very unique circumstances when one co-owner may be successful against another co-owner in an action of trespass. [22] Each tenant in common can also deal with their undivided share by leasing it or by unilaterally granting a license to a third party, although they cannot bind the other coowners. 8 [23] In terms of a bare licence, there is some debate as to whether a bare licence may be revoked by any of the co-owners or only by the owner who granted it. The authors of New Zealand Land Law note that Australian authorities suggest the matter goes to the issue of the reasonable reconciliation of rights between co-owners and the guiding principle is whether the licence is within the scope of what is reasonable and incidental to the licensor s possessory rights, or whether it exceeds such rights or unduly interferes with the possessory rights of other non-consenting co-owners. 9 [24] In Ngatai v Tarawa Matakana 1A7B, the Māori Appellate Court considered a grant of occupation by co-owners of Māori land and the action of trespass under the provisions of the Māori Affairs Act The Court noted: Nicholls v Nicholls Part Papaaroha 6B Block (2009) 120 Hauraki MB 116 (120 H 116). T Bennion, D Brown, R Thomas and E Toomey New Zealand Land Law (2 nd ed, Brookers, Wellington, 2009) at [6.6.10], [7.2.01(2)]. Above n 8, at [7.5.03]. Ngatai v Tarawa Matakana 1A7B (1968) 14 Waikato Maniapoto Appellate MB 169 (14 APWM 169).

8 143 Taitokerau MB 142 The rights of a tenant in common were considered by Adams J. in Burfitt v Johansen (1958) NZLR 506. Part of the headnote at page 507 ibid reads: A tenantin-common so entitled to possession, though not, as against a co-owner, to sole possession; and his rights include the right to let other persons into possession as his tenant. If, however, the other co-owners do not concur therein, such tenancies will confer no rights as against them, and the tenants thereunder may be obliged to share possession with such co-owners or their tenants The above statement of the law would I consider require modification in the case of Māori land because any informal licence or permission to occupy granted by one co-owner, being by virtue of the Māori Affairs Act 1953 of no force or effect, could not be set up against another co-owner. It seems to me therefore that any such licence or permission granted by one co-owner could be revoked at any time by that coowner, or any other co-owner. [25] In the present case, Mr Hikuwai has granted a licence to Comvita to have their beehives on the land. As Mr Blaikie noted, the original licence has expired, as has the extension granted to November 2015, and he says Comvita are aware that the licence could be revoked at any point. Accordingly, it appears that Comvita may only currently hold either an expired contractual licence or a bare licence. While the applicant and owners have expressed their concern over the arrangement, I do not understand there to have been an attempt to revoke any licence. [26] I consider that Mr Hikuwai is within his rights as a co-owner to grant a licence to Comvita. As Mr Blaikie pointed out, there are only approximately 23 beehives, which are confined to a selected area of the land, although the exact size of that area was not detailed. Mr Blaikie contended that such area equated to the shareholding of Mr Hikuwai, being a one-fifth share of the land. If that is the case, the licence therefore does not seek to bind the other owners or interfere with their rights as co-owners. Given such grant of licence, the presence of Comvita s beehives on the land is not unlawful and the action of trespass against Comvita cannot be maintained. [27] I do comment however, that Mr Hikuwai currently holds only shares out of the total The calculation of the one-fifth share includes the shares of his wife. As Mr Hikuwai cannot bind other owners to his grant of licence, Dianne Hikuwai s consent would be required for her shares to be included in the calculation of any area of occupation under the licence. While there is no indication that consent has not been given, I simply note that without such consent the difference in the area equivalent to Mr Hikuwai s shares alone is significant.

9 143 Taitokerau MB 143 [28] In addition, I consider that there is no evidence to show that Mr Hikuwai is attempting to exclude the other owners from either occupation or from dealing with the remainder of the land. There was also no suggestion by the applicant or the other owners in support that they are seeking to occupy the particular areas of the land which currently contain the beehives or are being used by Mr Hikuwai. Their main complaint focused on the lack of consultation from Mr Hikuwai and their view that he is purporting to deal with their shares. Accordingly, I do not consider the other owners to have been ousted from the land to allow a claim against Mr Hikuwai for trespass or recovery of the land. Duty to account to co-owners [29] For completeness, I note that there may be a duty for Mr Hikuwai to account to the other owners for the income he has received from the licence with Comvita. I raised this issue with Mr Blaikie at the hearing. He argued that there was no duty to account as the money received was only in relation to Mr Hikuwai s portion, and, in any case, part of the money had been used for the upkeep of the land. [30] Generally, one co-owner cannot oblige others to contribute to their expenditure for repairs or improvements on the land. Such matters only become relevant considerations when the co-ownership ends by sale or partition. 11 The issue therefore will be whether the income Mr Hikuwai has received amounts to more than his share in relation to the land. [31] This matter however was not pursued by the applicant and I merely signal this issue for the parties benefit. Other injury to land [32] Although I have found that trespass cannot be maintained against either Comvita or Mr Hikuwai, the other consideration under s 19(1)(a) is whether there has been any other injury to the land for which an injunction should issue. 11 T Bennion, D Brown, R Thomas and E Toomey New Zealand Land Law (2 nd ed, Brookers, Wellington, 2009) at [6.6.11].

10 143 Taitokerau MB 144 [33] The applicant did not specifically argue this issue but there was some concern expressed regarding care of the land, and in particular the use of the Roundup weed killer by Comvita. [34] Mr Hikuwai denied that Roundup was being used on the land and the applicant or other owners did not present any evidence to show any actual injury to the land by the actions of either Comvita or Mr Hikuwai. I consider therefore that this ground is also not made out. Outcome [35] The grounds are not made out for the grant of a permanent injunction under s 19 of the Act. The application is therefore dismissed. Formation of an ahu whenua trust [36] By way of final comment, I note from the tone of the discussions throughout these proceedings, that it is clear that the occupation and use of the land remains an ongoing concern for the owners. The applicant also signalled that the effect of the arrangement with Comvita may raise potential issues with respect to an application to the Far North District Council for remission of the rates on the land. [37] I consider that such issues may go some way to being resolved by the formation of an ahu whenua trust and the appointment of trustees to manage the land and make decisions on its use and development on behalf of all owners. It may also allow the parties to remove the personal nature of some of the conflict and formalise the present situation with regard to the land. [38] I therefore urge the parties to consider this option. Pronounced at 4.56 pm in Whangarei on Wednesday this 21 st day of December D J Ambler JUDGE