IN THE MAORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 15 TAITOKERAU MB 3 (15 TTK 3) A Applicant. TE BACH 2007 LIMITED Affected Party

Transcription

1 IN THE MAORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT 15 TAITOKERAU MB 3 (15 TTK 3) A UNDER Section 131, Te Ture Whenua Maori Act 1993 IN THE MATTER OF Ohawini D8 BETWEEN AND DEPUTY REGISTRAR Applicant TE BACH 2007 LIMITED Affected Party Hearing: 02 December March May August September 2009 (Heard at Whangarei) Counsel: Judgment: W W Peters for Te Bach 2007 Ltd JAL Oliver for Registrar-General of Land 22 December 2010 at 4:05 PM RESERVED JUDGMENT OF JUDGE D J AMBLER Introduction [1] This is an application by the Deputy Registrar under s 131 of Te Ture Whenua Māori Act ( 1993 Act ) to determine the status of Ohawini D8 ( the land ). The application was brought as part of the Māori Freehold Land Registration Project ( the Project ). [2] The Court s title record says that the land is Māori freehold land and that it is solely owned by Hira Hilda Hati. However, computer register CFR NA16A/912 says that the current owner is Te Bach 2007 Limited ( the company ). There is in fact no dispute that the company now owns the land. The sole issue for the Court is whether the land is Māori freehold land or General land. DEPUTY REGISTRAR MLC 15 TAITOKERAU MB 3 22 December 2010

2 Hearings [3] I briefly explain the hearing process lest it be thought that the Court proceeded without giving proper notice to Mrs Hati. [4] The application was filed on 11 November On 15 December 2008 I issued a direction setting down this and several other applications for a special fixture in February The applications were unrelated but shared a common feature in that transfers appeared to have been registered with LINZ without confirmation of the Court in breach of either the Māori Affairs Act 1953 ( 1953 Act ) or the 1993 Act. I directed the Case Manager to: Forward a copy of this minute together with a copy of the application and material making up the file, to the registered proprietors of the land as disclosed in the Land Transfer Act title, the owners of the land as disclosed in the records of the Māori Land Court and to any mortgagee or other persons with a registered interest in the land as disclosed on the Land Transfer Act title. [5] As it transpired, the special fixture did not take place until 11 March Notice was sent to Mrs Hati and to the company on 4 March Mr Gittos appeared at the hearing for the company. There was no appearance for Mrs Hati. Due to Mr Gittos client having had such short notice of the application I adjourned it to a judicial conference in May I also directed that notice be given to the Registrar-General of Land as, in 2006, LINZ had registered a departmental dealing correcting the title by removing a status order declaring the land to be Māori freehold land. [6] The judicial conference took place on 22 May Notice was sent to Mrs Hati and others on 29 April Mr Peters appeared for the company. Mr Oliver appeared for the Registrar-General of Land. Once again, there was no appearance on behalf of Mrs Hati. At the conclusion of the judicial conference I set down the application for hearing in August I also amended the application to include possible orders under ss 18(1)(a) and 128 determining the owners of the land given the discrepancy between the Court s record and the land transfer title. Subsequently, due to the unavailability of counsel for a fixture on 28 August 2009, I vacated that hearing and substituted a hearing on 23 September [7] The hearing took place on 23 September Notice was sent to Mrs Hati and others on 8 September Mr Peters and Mr Oliver appeared at the hearing. There was Whangarei MB Taitokerau MB 4

3 no appearance on behalf of Mrs Hati. However, on 22 September 2009 Ms Mangu, counsel acting for Mrs Hati, wrote to the Case Manager by way of to follow up on a telephone conversation that had taken place on 16 September Ms Mangu related the discussion on 16 September 2009, posed questions about the application before the Court and then advised that neither Mrs Hati nor Ms Mangu would attend the Court sitting. The explained that Mrs Hati was not aware of the circumstances of the application and that it had caused her some stress. However, there was no suggestion that Mrs Hati retained any interest in the land. As will become apparent, that is because Mrs Hati sold the land in [8] I brought Ms Mangu s to the attention of counsel before the hearing got underway. Neither counsel expressed a view. I concluded that the hearing should proceed. I did so as notice had been given to Mrs Hati, Ms Mangu had not sought an adjournment and, in any event, Mrs Hati s interest in the land had ceased in Title history [9] Title to the land was created by partition order on 18 December 1953 in favour of Mere Tauteka. It was a coastal section of less than a quarter of an acre. The land was Māori freehold land. [10] On or about 30 June 1969 the Registrar issued a status declaration under s 6 of the Māori Affairs Amendment Act 1967 ( 1967 Act ) declaring the land to be General land. The title was sent for registration on that date. Certificate of title NA 16A/912 issued on 29 August Mere Tauteka was recorded as the registered proprietor. The title recorded two encumbrances being the 1969 status declaration (A412961) and a reference to the land being subject to s 10 of the 1967 Act. [11] On 2 June 1977 the Court made an order under s 68 of the Māori Affairs Amendment Act 1974 ( 1974 Act ) changing the status of the land back to Māori freehold land. The application had been brought by the Registrar under s 68(5) of the 1974 Act as Mere Tauteka was deceased at the time of the 1969 status declaration. In terms of s 68(4) of the 1974 Act, the order only took effect upon registration of the order. This did not take place until 22 February Taitokerau MB 5

4 [12] On 27 November 1978 the Court vested the land in the Māori Trustee under s 438 of the 1953 Act. The vesting order was not registered against the certificate of title. The terms of trust were expressly limited: 1. To sell the land by tender or as the Māori Trustee should decide to a descendant of the owner at not less than special valuation price. 2. The nett proceeds of sale to be retained until a further order of the Court is issued. [13] The Court record does not disclose the circumstances of the vesting of the land in the Māori Trustee. Nevertheless, I note that it was not a testamentary trust but a trust under s 438. As such, the Māori Trustee held the land as trustee and in terms of s 221 of the 1953 Act was not caught by the alienation provisions in Part XIX of that Act. [14] It took some time for the Māori Trustee to identify a purchaser for the land. On 26 July 1983 the Māori Trustee executed a Memorandum of Transfer ( the transfer ) of the land to Mrs Hati in accordance with an acceptance of tender dated 13 May The transfer was registered on 1 December [15] The wording contained in the transfer is important in light of s 2(2)(f) of the 1953 Act. It records that the Māori Trustee was acting in terms of the order of 29 November It identifies the land. It goes on to describe the three encumbrances registered against the title being the 1969 status declaration (A412961), the reference to s 10 of the 1967 Act and the 1977 status order (B ) under section 68(2)(4) of the Māori Affairs Amendment Act 1967 this should have been a reference to the 1974 Act. These were the encumbrances registered as at 26 July [16] Some time in late 1995 or early 1996 Mrs Hati decided to sell the land. By this time the 1993 Act was in force and s 2(2)(f) no longer applied. Mrs Hati executed a Memorandum of Transfer dated 1 March 1996 transferring the land to Mr and Mrs Taylor. That transfer was registered on 11 March However, prior to its registration Mr and Mrs Taylor s solicitor sought to clarify the status of the land. [17] In January 1996 Mr and Mrs Taylor s solicitor contacted the Court with regard to the status of the land. On 10 January 1996 Mr Wilson, a Deputy Registrar of the Court, wrote to the solicitor in the following terms: 15 Taitokerau MB 6

5 The land transfer title shows that on 22 February 1983 an order of this Court was registered changing the status of this land from General to Māori freehold and any following alienation of the land should have therefore been confirmed by this Court pursuant to Part XIX of the Māori Affairs Act The transfer to Hira Hilda Hati was not confirmed by the Māori Land Court but regardless of this the District Land Registrar accepted it for registration and Mrs Hati now holds a guaranteed title. Section 2(2)(f) of the Māori Affairs Act 1953 says: Māori freehold land the legal fee simple in which has been transferred otherwise than by an order of the Court shall, except where it appears on the face of the instrument of transfer that the land has remained Māori freehold land, be deemed to be General land In this instance the transfer was not by way of Court order and I am informed that the transfer lodged in the Land Transfer Office has no notification on its face that the land is to remain Māori land and therefore in my view the land is General land and the title has been removed from the Māori Land Court s current titles register. [18] It would seem that Mr and Mrs Taylor s solicitor settled the purchase in reliance on the letter from the Deputy Registrar. Certainly, at no time did Mr and Mrs Taylor or their solicitor apply to the Court under s 131 of the 1993 Act to determine the land to be General land. Furthermore, the 1977 status order (B ) remained on the title. [19] In late 2006 Mr and Mrs Taylor looked to sell the land. Their solicitor, Mr Gittos, had a discussion with a Court staff member who expressed the view that the status of the land was General land and referred Mr Gittos to the letter of 10 January However, once again, no one applied to the Court to determine the status of the land under s 131. Instead, on 13 December 2006 Mr Gittos wrote to the District Land Registrar with the following request: We wish to have the correct status of the land noted on the title by deletion of the Status Order B and the deletion of the reference to section 10 of the Māori Affairs Amendment Act [20] I have not seen any response from the District Land Registrar. However, on 18 December 2006 Mr Gittos wrote to the Court to advise that he had arranged for LINZ to remove the status order and enclosed the updated computer register for the land. It no longer included the status order, though it still made reference to s 10 of the 1967 Act. The historical search copy of the computer register discloses the following departmental dealing dated 12 December 2006 at 3:59 pm surprisingly, the day before Mr Gittos letter requesting the correction in the following terms: Departmental dealing correcting the memorials by deleting Court Order B (no longer Māori Freehold Land). 15 Taitokerau MB 7

6 [21] On 20 February 2007 the transfer of the land from Mr and Mrs Taylor to the company was registered. There are no other encumbrances or interests registered against the land save for the continued reference to s 10 of the 1967 Act. Issues [22] Mr Peters and Mr Oliver presented thorough and helpful submissions. The application raises three issues. [23] First, what was the effect of the 1977 status order? [24] Second, and of most significance, what was the status of the land following the 1983 transfer from the Māori Trustee to Mrs Hati? [25] Third, what issues, if any, arise from the 2006 departmental dealing? 1977 status order [26] The 1977 status order returned the status of the land to Māori freehold land. It was made under s 68 of the 1974 Act which provided: 68. Certain European land may again become Māori land (1) The provisions of this section shall apply to any parcel of [General land] which ceased to be Māori freehold land by reason of the registration of a status declaration under Part I of the Māori Affairs Amendment Act 1967 if the land is owned by the person or persons who owned it at the date of issue of the status declaration (inclusive of any persons in whose favour a vesting order has been made by the Court under section 10 of the Māori Affairs Amendment Act 1967). (2) On the application of the owner or owners of any land to which the provisions of this section apply, made within 2 years after the date of the commencement of this Act, the Court may make an order declaring that the status of the land shall cease to be that of [General land]. (3) An order under this section may be registered in accordance with section 36 of the principal Act. (4) Upon registration of the order, the land to which it relates shall cease to be [General land] and shall for all purposes be and be deemed to be Māori freehold land. (5) Notwithstanding any of the foregoing provisions of this section, the Court may, on the application of an owner of the Registrar, exercise the jurisdiction 15 Taitokerau MB 8

7 conferred on it by subsection (2) of this section in respect of any land to which this section applies if it is satisfied that at the time when the status declaration was made an owner of the land was deceased. (6) For the purposes of subsection (5) of this section the term owner includes any person claiming to be entitled to any interest in the land under the will or on the intestacy of a deceased owner. [27] The Registrar had brought the application under s 68 as Mere Tauteka was deceased at the time of the 1969 status declaration. The order records that the Court was satisfied that...it is in the interest of the persons entitled to the interests of the deceased owner that such order should be made. [28] Mr Oliver submitted that the 1977 status order ought to have gone as soon as the estate was dealt with. That is, he characterised the order as being transitory in nature and for the sole purpose of enabling the Māori Trustee to be able to deal with the estate. [29] It may well be that the catalyst for the status order was the need to deal with the estate, however, I do not agree that the order was intended to end on the completion of the estate. Status orders under s 68 were not expressed or intended to be transitory. Section 68 was enacted to assist in reversing the provisions of Part I of the 1967 Act whereby Māori freehold land compulsorily lost its status. It is a matter of historical record that Māori complained bitterly about the impact of the 1967 Act. The 1973 repeal of Part I of the 1967 Act together with the enactment of s 68 of the 1974 Act was Parliament s resounding response. [30] Consequently, the 1977 status order was of permanent effect until some other step was taken to change the status of the land transfer [31] By reason of s 221 of the 1953 Act the Māori Trustee was not required to obtain confirmation of the sale of the land to Mrs Hati under Part XIX of the Act. Therefore s 224 did not apply. The Māori Trustee simply needed to register the transfer, which he did. In this regard it is pertinent to note that the Deputy Registrar was incorrect in his letter of 10 January 1996 wherein he stated that the transfer from the Māori Trustee to Mrs Hati should have been confirmed by the Court. 15 Taitokerau MB 9

8 [32] The primary issue is whether the transfer came within the exception to s 2(2)(f) of the 1953 Act, which provided: 2 Interpretation (2) 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) Maori 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 has remained Maori freehold land, be deemed to be [General Land] until either (i) (ii) An order is made by the Court under paragraph (i) of subsection (1) of section 30 of this Act determining that the land is Maori freehold land; or Any other order is made by the Court as a consequence of which the land becomes Maori freehold land. (emphasis added) [33] As explained above, the transfer document referred inter alia to the 1977 status order which was registered against the title in The transfer did not otherwise expressly record that the land has remained Māori freehold land. Nevertheless, I queried Mr Oliver as to what I should make of the reference in the transfer to the 1977 status order. That is, does the reference in the transfer to the 1977 status order mean that the face of the instrument of transfer has indicated that the land has remained Māori freehold land? [34] Mr Oliver noted that in 1996 the Deputy Registrar had concluded that there was no notification on the face of the transfer that the land was to remain Māori freehold land. As far as the reference to the 1977 status order was concerned, he doubted that the Māori Trustee gave any thought to the effect of s 2(2)(f). Mr Oliver considered that the reference in the body of the transfer to the three encumbrances including the 1977 status order was simply a matter of standard conveyancing practice. That is, if the transfer had not included reference to all encumbrances the transfer would likely have been rejected for registration. [35] There appears to be little case law on the issue of what is required to satisfy the exception in s 2(2)(f). The only discussion on the topic that I have been able to uncover is the decision of Judge Russell in Re Succession to Nehe Kopua. 2 This decision was one of three referred to by the Māori Appellate Court in Re Pakiri R Block. 3 The Appellate Court endorsed Judge Russell s approach to s 2(2)(f). 2 3 Re Succession to Nehe Kopua (1978) 15 Ruatoria MB Re Pakiri R Block (1994) (3 Taitokerau Appellate Court MB 178 (3 APWH 178) 15 Taitokerau MB 10

9 [36] Judge Russell discussed the operation of s 2(2)(f) and offered the following observations in relation to the transfer: 4 The memorandum of transfer of this land to deceased was registered in the Land Transfer Office on 4 th August I have inspected the transfer. His name, Nehe Kopua, suggests that he might have had Māori ancestry. However, for it to appear on the face of the instrument of transfer within the meaning of the Act that land has remained Māori land something unequivocal is required such as a recital in the transfer that the transferee is a Māori within the meaning of the Act and that therefore the land remains Māori freehold land. A transferee named Nehe Kopua might have had less than the half Māori blood ancestry then required to be a Māori within the meaning of the Act, while a transferee with the name of William Smith might have been of more than half Māori ancestry. (emphasis added) [37] I adopt Judge Russell s expression of the law. In order for the exception in s 2(2)(f) to apply, something unequivocal needed to be set out on the transfer. Furthermore, s 2(2)(f) contemplated that those completing the transfer would take an active step to indicate that the land was to remain Māori freehold land. As far as the transfer from the Māori Trustee to Mrs Hati is concerned, that did not occur. Merely reciting the existing registered encumbrances was not enough. I agree with Mr Oliver that the reference to the 1977 status order was simply there as a matter of conveyancing practice. [38] Accordingly, I conclude that from the time of the registration of the transfer to Mrs Hati, being 1 December 1983, the land was General land. There has been no subsequent change of status to the land. In accordance with s 129 of the 1993 Act the land today remains General land. I will make an order to that effect departmental dealing [39] Notwithstanding that I have concluded that the land is General land and that a status order will follow, the 2006 departmental dealing requires comment. [40] I offer comment as this Court is fundamentally a land titles Court. The Court s relationship with LINZ is governed by statute and, where that relationship comes into conflict, this Court has a role in providing comment, albeit that it may be obiter only. 4 Re Succession to Nehe Kopua at [242] 15 Taitokerau MB 11

10 [41] Prior to the registration of the transfer on 1 December 1983 the land was Māori freehold land. The Court had declared it to be such in Furthermore, on 22 February 1983 that status order had been registered against the title. Thus, the status order affected the legal title to the land under the Land Transfer Act 1952: s 68(4) of the 1974 Act. [42] However, following the registration of the transfer on 1 December 1983 the actual status of the land was a little clouded. On the one hand, the legal title disclosed on its face that the land was Māori freehold land. On the other hand, s 2(2)(f) operated to deem the land to be General land. [43] Mr Peters and Mr Oliver emphasised throughout the hearing the paramountcy of the land transfer title and the Land Transfer Act 1952 in relation to Māori freehold land and referred to the leading authorities in Housing Corporation of New Zealand v Māori Trustee, Registrar-General of Land v Marshall and Warin v Registrar-General of Land. 5 Given the paramountcy of registration, it would seem to follow that the registered status order was also paramount in defining the status of the land notwithstanding s 2(2)(f). Thus, the land transfer title acquired by Mr and Mrs Taylor remained Māori freehold land. [44] Certainly, the letter from the Deputy Registrar of 10 December 1996 had no legal status. It was simply the opinion of a Court staff member which, as it transpires, was incorrect in stating that the transfer had to be confirmed by the Court but was otherwise correct as to the operation of s 2(2)(f). [45] In my view, Mr and Mrs Taylor proceeded incorrectly and took a significant risk in settling the purchase in reliance on the Deputy Registrar s letter and in leaving the 1977 status order in place. The proper course was to apply to the Court under s 131 of the 1993 Act to determine the land to be General land and for that order to then be registered against the title. Equally, when Mr and Mrs Taylor came to sell the land, the proper course was to apply to the Court for an order under s 131 to determine the land to be General land. [46] Importantly, I respectfully suggest that the Registrar-General of Land and his delegate should not have used the departmental dealing procedure to remove the 1977 status order from the title. 5 Housing Corporation of New Zealand v Māori Trustee [1988] 2 NZLR 662, Registrar-General of Land v Marshall [1995] 2 NZLR 189, Warin v Registrar-General of Land HC Wellington CVI , 31 October Taitokerau MB 12

11 [47] The 1977 status order was made by the Court after following the statutory procedure set out in the 1974 Act. It was a prescribed, judicial process. Only this Court and the High Court have the power to determine the status of land and, indeed, there is High Court authority that the question of status may be best left for this Court as the specialist tribunal. 6 [48] Furthermore, it must follow as a matter of constitutional principle that only this Court or a Court of higher jurisdiction can overturn the effect of an order of the Court, whether a status order or otherwise. The Registrar-General of Land is not empowered to negate orders of this Court and I am not aware of him having any jurisdiction to determine the status of land. Certainly, Mr Oliver did not argue that he had any such jurisdiction. [49] Instead, Mr Oliver argued that the Registrar-General of Land s delegate must have acted pursuant to the power in s 80 of the Land Transfer Act 1952, which provides: 80 Errors in register may be corrected (1) The Registrar may, upon such evidence as appears to him sufficient, subject to any regulations under this Act, correct errors and supply omissions in certificates of title or in the register, or in any entry therein, and may call in any outstanding instrument of title for that purpose. (2) The Registrar may cancel or correct any computer register and, if appropriate, create a new computer register in order to correct any error or supply any omission in any computer register. [50] The Registrar-General of Land s power in s 80 is to correct errors and supply omissions. But the 1977 status order was not made in error. Nor was it registered in error. Rather, what had occurred was that s 2(2)(f) had supposedly been triggered. I say supposedly as whether or not s 2(2)(f) had actually been triggered was a matter for this Court to determine under s 131 and not for a Deputy Registrar or the Registrar-General of Land s delegate to decide. In essence, the Court needed to reconsider the status of the land. Accordingly, I suggest that it is very doubtful whether the grounds existed for the Registrar- General of Land to invoke s 80. [51] But, even if the Registrar-General of Land s power under s 80 was available, I respectfully suggest that it was not the appropriate procedure to adopt. The proper procedure was to bring an application to this Court pursuant to s 131 or to apply to the High Court. Mr and Mrs Taylor s solicitor should have been directed to bring an application. 6 Warin v Registrar-General of Land at [139] 15 Taitokerau MB 13

12 More to the point, the Registrar-General of Land or his delegate could have brought an application: 131 Court may determine status of land (2) Without limiting the classes of person who may apply to the Court for the exercise of its jurisdiction, the District Land Registrar for the Land District in which any land is situated may apply to the Court for the exercise of its jurisdiction under this section in respect of that land. [52] Thus, I suggest that there was an error in procedure in acting under s 80 when s 131 is expressly designed for these circumstances. But the problem in using s 80 is not only procedural. It is also goes to the substance of the status of the land. [53] The title, as it currently stands, is silent as to the status of the land. Mr Peters did not accept this point during the hearing and referred to the departmental dealing which, after deleting the Court order, states: (no longer Māori freehold land). He invited me to conclude that the register now showed the land to be General land. [54] I do not agree with Mr Peters. The words in brackets do nothing more than explain the reason for the departmental dealing. But it is not a status determination. The Registrar- General of Land has no jurisdiction to make such a determination. The departmental dealing merely removed the 1977 status order. The title no longer shows any particular status. Importantly, there is no statutory presumption regarding the status of land under the Land Transfer Act In that sense, the title is silent as to status. [55] Accordingly, if, hypothetically speaking, I had concluded that the Deputy Registrar was wrong and that the exception in s 2(2)(f) of the 1953 Act had been triggered, the land would have remained Māori freehold land while owned by Mrs Hati. Furthermore, Mr and Mrs Taylor and the company would have acquired Māori freehold land. The departmental dealing would have made no difference to the status of the land: status is determined in accordance with the definitions in s 129 of the 1993 Act. I would have then been obliged to determine the land to be Māori freehold land. Of course, the question of whether the Registrar-General of Land would have then registered the status order raises separate issues of indefeasibility of title which, happily, I am not required to resolve. [56] In summary, my concerns in regard to the departmental dealing are that the Registrar-General of Land and his delegates should not use that procedure to delete status orders from titles and that the failure to use the proper procedure under s 131 of the 1993 Act gives rise to potential uncertainty over the actual status of land. Fortunately, as I agree 15 Taitokerau MB 14

13 with the Deputy Registrar that the land did become General land, no uncertainty arises in the present case. [57] As for the question of whether the reference to s 10 of the 1967 Act should remain on the title, that is certainly a matter for the Registrar-General of Land to address. Order [58] Pursuant to section 131 of Te Ture Whenua Māori Act 1993 I determine Ohawini D8 as contained in CFR NA16A/912 to be General land. Pursuant to rule 66(3) of the Māori Land Court Rules 1994 the order is to issue immediately. Pronounced in open Court in Whangarei at 4.05 on Wednesday this 22 nd day of December D J Ambler JUDGE 15 Taitokerau MB 15