117 Taitokerau MB 245 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A20130005308 UNDER IN THE MATTER OF BETWEEN Sections 113 and 117, Te Ture Whenua Màori Act 1993 Walter William Wihongi - Succession Alison Mary Thompson Applicant A20140003912 UNDER Section 328, Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN AND Parahaki 1E2 - Occupation Sheree Harawene Applicant Vaughan Lomax Respondent Hearing: 18 November 2013 24 March 2014 13 October 2014 (Heard at Auckland) Appearances: Bernadette Arapere and Ihapera Peters for Alison Thompson Graeme Mathias for Sheree Harawene Judgment: 2 December 2015 RESERVED JUDGMENT OF JUDGE D J AMBLER
117 Taitokerau MB 246 Introduction [1] Walter Wihongi was the sole owner of Parahaki 1E2 ( the land ). At the time of his death in 2005 he was separated from his wife. He had no children. Pursuant to his will executed in 2002 he left his entire estate to his grand-nephew, Vaughan Lomax. [2] In about 1989 Walter allowed his niece, Sheree Harawene, to build a house on the land. Walter executed a mortgage in favour of the Housing Corporation of New Zealand ( HCNZ ), and Sheree and her first husband executed covenants assuming responsibility for the loan. In 1994 a second mortgage was granted to HCNZ and a further loan taken out to cover rates and mortgage arrears. Sheree and her first husband took responsibility for payments under both mortgages, and since she parted from her first husband, Sheree has taken sole responsibility for those payments. [3] Alison Thompson, another of Walter s nieces and the executrix of his will, has applied to the Court for succession orders to vest the land in Vaughan. Sheree initially opposed those orders as she claimed an interest in the land in relation to her house. She has since filed an application under s 328 of Te Ture Whenua Māori Act 1993 ( the Act ) for an occupation order. She claims ownership of the house and, in the alternative to an occupation order, claims an equitable interest in the land. Sheree no longer opposes Vaughan succeeding to the land providing that her interest in the land is recognised. Alison and Vaughan oppose Sheree having any interest in the land or an occupation order, though they accept she owns the house. [4] Following the final hearing on 24 March 2014 I gave the parties time to negotiate a settlement of Sheree s claim. Despite Vaughan proposing through his lawyer that he grant Sheree a licence to occupy, the parties confirmed on 13 October 2014 that they could not reach a settlement. The primary issue for the Court is therefore whether Sheree is entitled to any interest or remedy in relation to the house and the land. Background [5] The land is Māori freehold land and is approximately 4046 m 2 in area. It is situated at Parahaki, a small rural settlement on Mangakahia Road. The land title was created by
117 Taitokerau MB 247 partition order in 1948 in favour of Walter s late mother. 1 She built a house at the rear of the land ( the homestead ). In 1977 Walter s mother gifted the land to him. It is now held under certificate of title CFR NA 75C/24. Walter has three sisters, one being Sheree s mother and another being Alison s mother and Vaughan s grandmother. [6] In about 1988 Sheree was living in difficult circumstances in a van on a neighbouring block of whanau land. She was expecting her third child. Sheree says that Walter approached her and offered to her that she build a new house on his land beside the road. Sheree says that it was in fact Walter s wife, Bobbee, who promoted this idea. [7] It does not matter exactly how the approach from Walter arose. The important point is that following discussions an application was made to HCNZ for finance to build a house. HCNZ required a mortgage. Walter executed the mortgage in favour of HCNZ. Sheree and her first husband covenanted to take responsibility for payment of the mortgage loan. The house was built on the front part of the land in about 1989. [8] As noted, in 1994 a second mortgage was granted over the land in relation to rates and mortgage arrears. Nevertheless, the evidence is that Sheree and/or her first husband met all payments under the mortgage to HCNZ, and that Sheree continues to meet those responsibilities. Also, since at least 2005, when Walter died, and possibly earlier, Sheree has paid the rates in respect of the land. [9] Sheree continues to live in the house on the land with her second husband and her children. While Sheree was aware that Walter was intending to leave the land to someone else under his will (she thought it was to Vaughan s father), it was not until late 2013 when the succession application was filed that she became aware that it was in fact Vaughan who was to receive the land interests. Issues [10] Alison seeks to complete her duties as executrix and have the land transferred to Vaughan. She disputes that Sheree is entitled to any interest in the land or an occupation order. Vaughan is not prepared to consent to an occupation order though he is prepared to 1 23 Whangarei MB 343 (23 WH 343).
117 Taitokerau MB 248 consider some form of occupation licence once the land is vested in him. Sheree says that she is entitled to an occupation order or some other equitable interest in the land as of right. I therefore address the issues in terms of the application for an occupation order, the claim to an equitable interest in the land, and the succession to the land. Occupation order [11] Sheree says that she is entitled to an occupation order. The immediate problem with that claim is that Sheree does not come within the category of persons in respect of whom an occupation order may be granted under s 328(1) of the Act, which provides: 328 Occupation orders (1) The Maori Land Court may, in its discretion, make, in relation to any Maori freehold land or any general land owned by Maori, an order vesting in (a) (b) The owner of any beneficial interest in that land; or Any person who is entitled to succeed to the beneficial interests of any deceased person, in that land, exclusive use and occupation of the whole or any part of that land as a site for a house (including a house that has already been built and is located on that land when the order is made). [12] Sheree s counsel, Graeme Mathias, argues that Sheree qualifies under either s 328(1)(a) or (b). [13] In terms of s 328(1)(a), Mr Mathias argues that as Sheree owns the house, which is a fixture and therefore part of the land, she qualifies as an owner of any beneficial interest in the land. Further, as Sheree claims an equitable interest in the land by way of either a trust or equitable estoppel, she is an owner of a beneficial interest in the land. Mr Mathias did not refer to any authority or case law in support of his argument. [14] I am not persuaded that Sheree s ownership of her house (which is undisputed) or her claim to an equitable interest in the land qualifies her as the owner of a beneficial interest in the land for the purposes of s 328(1)(a). The terms beneficial interest or beneficial owner are used throughout the Act but are nowhere defined by it. This general issue was discussed by the Māori Appellate Court in Whaanga Mahia Township Sections 90 and 91 where the Court was primarily concerned with the use of the term beneficially
117 Taitokerau MB 249 owned by one or more Māori in relation to general land for the purposes of s 133 of the Act. 2 In relation to the concept of beneficial ownership under the Act the Court observed that: 3 Section 133(3)(a) requires that the land be beneficially owned by one or more Māori;. Inevitably general land will be subject to Land Transfer Title and the Land Transfer Registry, unlike the Māori Land Court Title system has no process which recognises or differentiates between legal owners and beneficial owners. Land Transfer Title simply records the legal owner and the question therefore arises as to how far the Court can go behind the land ownership to determine the beneficial ownership of General land. Once the Court is satisfied that section 133(3)(a) applies it then must consider the other provisions of section 133(3). It is noted that ss (3)(b) and (c) both refer to owners rather than beneficial owners. In most cases the legal owners of the land will also be the beneficial owners. However the context of ss (3) requires that the word owners includes those who are found to beneficially own the land under ss (3)(a) Throughout Te Ture Whenua Maori Act 1993 there are various references to beneficial owners, beneficial ownership, owners of beneficial interests and beneficial estates. Part IV relating to succession by virtue of Section 100(1) applies to all estate of deceased persons (whether or not Māori) comprising in whole or in part any beneficial interests in Māori freehold land. In Part VII the rights of owners to alienate are set out and extend to beneficial owners pursuant to section 149 which is headed Alienation of Equitable Interests and provides: In the case of any Māori freehold land that is vested in a trustee, every person who is absolutely entitled to any beneficial interest in the land has the same capacity to alienate that interest as that person would have if the legal interest were vested in that person. Trusts are provided for under the Act and are commonly used to facilitate the administration and development of Māori lands. Not only does the Court as part of its title register record the names of the trustees as legal owners, it also maintains a record of the beneficial owners of any lands subject to a trust. That record is kept current by entry of any orders of succession or alienation affecting Māori lands. The Act acknowledges the difference between legal ownership and beneficial ownership in its requirement for registration of Court orders in the Land Transfer Office. The effect of Sections 122 and 123 is to exclude from that requirement any order vesting the beneficial ownership of the land or any interest in the land in any person other than a person in whom the legal ownership is vested. Section 127(1) requires the Registrar of the Court to establish and maintain a record (in subsections (2) and (4) of this section referred to as an ownership list) of the legal and beneficial ownership of all Maori freehold land and in the district and of any trusts affecting the land or any individual interest in the land. 2 3 Whaanga Mahia Township Sections 90 and 91 (2000) 34 Gisborne Appellate Court MB 12 (34 APGS 12). Ibid at MB 14-16.
117 Taitokerau MB 250 It is apparent that where in the Act there is reference to beneficial owners and beneficial ownership then generally this refers to those owners who have been determined by the Court and entered in its title records. We caution, however, that we have not made an exhaustive study of the Act and the use of those or similar terms need to be construed according to the context in which they are used. By way of example we refer to the words beneficially entitled as they appear in the following sections Section 165(1) Subject to subsection (2) of this section, where any Maori freehold land or any undivided interest in any such land is held by any person acting in a representative capacity, the Court may, by order, vest the land or interest in the person or persons beneficially entitled to it, or in some other person acting in a representative capacity for those persons or the person through whom they claim. Section 170(1) (1) In this Part of this Act, the term owners, in relation to any area of land, means the persons who are beneficially entitled to that land in fee simple as tenants in common, whether legal or equitable or, in the case of any such persons who are deceased, their administrators; In Section 165 the persons beneficially entitled are those who can claim an entitlement to the legal estate. In Section 170 the persons who are beneficially entitled are not those who can claim an interest but those who have been determined as beneficial owners by the Court. The context of the Part of the Act within which Section 170 falls and the Regulations applying thereto pertaining to meetings and voting rights requires this interpretation so that for those purposes the owners are conclusively determined. [15] The Court went on to conclude that where s 133(3) refers to general land beneficially owned by one or more Māori, that can include those persons who the Court is satisfied are entitled to succeed to the interests of a deceased owner. Importantly for present purposes, the Court s general conclusion was that where the Act refers to beneficial owners or beneficial ownership, that relates to those owners determined by the Court and entered into its title records; that is, owners of the freehold estate of the land. [16] I conclude that where s 328(1)(a) refers to the owner of any beneficial interest in the land, that means an owner of a freehold interest in the land as recorded in the Court s ownership list. Arguably that could extend to a person determined to be entitled in equity to a freehold interest in the land. But in my view, it could not relate to a person who holds anything less than a freehold interest in the land. For reasons that I will expand on shortly, I conclude that Sheree is not entitled in equity to a freehold interest in the land. She otherwise does not own any beneficial interest in the land. As such, she does not qualify for an occupation order under s 328(1)(a) of the Act.
117 Taitokerau MB 251 [17] In terms of s 328(1)(b), Mr Mathias argues that Sheree qualifies as a person entitled to succeed to the beneficial interests of a deceased owner as she comes within one of the classes of persons eligible to receive interests from Walter under Part 4 of the Act. That is, notwithstanding that Vaughan is the only person entitled to succeed to Walter s Māori land interests under his will, Mr Mathias maintains that for the purposes of an occupation order, Sheree qualifies under s 328(1)(b) by simply coming within one of the eligible succession classes. [18] I reject Mr Mathias argument. Plainly s 328(1)(b) is concerned with ensuring that the legally-entitled successors to deceased owners are able to secure an occupation order notwithstanding that they have not completed succession. Sheree is not entitled to succeed to Walter s interests because of his will. Further, even if Walter had not left a will and his estate was intestate, Sheree would not have been a person entitled to succeed as Walter s siblings (including Sheree s mother) would have been entitled to succeed. Were Mr Mathias submission to be correct, then in respect of any block of Māori freehold land where there are deceased owners, any person who theoretically could be entitled to succeed under ss 108 or 109 of the Act, but who in fact is not entitled to succeed, could apply for an occupation order. That would be an absurd outcome. [19] Leaving to one side Sheree s inability to qualify under s 328(1) for an occupation order, there are two further reasons why an occupation order cannot be made in the present instance. [20] First, I simply could not be satisfied for the purposes of s 329(2)(b) of the Act that there is a sufficient degree of support for the occupation order. The sole successor to the land opposes an occupation order. That is, without Vaughan s consent, an occupation order is not possible. [21] Second, Mr Mathias framed the application for an occupation order as a form of relief that the Court is able to grant where someone claims an equitable interest in land by reason of either a trust or equitable estoppel. But the occupation order regime under Part 15 is not a form of equitable remedy available to the Court at its discretion. It is a particular statutory interest in the land that can only be granted where the statutory criteria
117 Taitokerau MB 252 are satisfied. If Sheree is able to make out a claim to an equitable interest in the land, then her remedy must be under s 18(1)(a) and not under Part 15 of the Act. Equitable interest in the land [22] Sheree does not face the same jurisdictional hurdles in relation to her claim to an equitable interest in the land. Although her original application was under s 328 of the Act only, by the time of the final hearing on 24 March 2014 Mr Mathias was also relying on s 18(1)(a) of the Act to claim an equitable interest in the land. Section 18(1)(a) provides: 18 General jurisdiction of Court (1) In addition to any jurisdiction specifically conferred on the Court otherwise than by this section, the Court shall have the following jurisdiction: (a) To hear and determine any claim, whether at law or in equity, to the ownership or possession of Maori freehold land, or to any right, title, estate, or interest in any such land or in the proceeds of the alienation of any such right, title, estate, or interest: [23] Mr Mathias argues that the actions of Walter in encouraging Sheree to build a house on the land resulted in a trust in relation to her interest in the land. Alternatively, Mr Mathias relies on the doctrine of equitable estoppel to claim that interest in the land. [24] Exactly what was the nature of the interest Sheree claimed was not always clearly articulated in the current proceeding. In her affidavit of 19 March 2014 Sheree framed that interest in different ways. She claimed a right to remain living on the land and for me to gift my right of occupation by will when I die (paragraph 7); permission not only for me and my family to live their but for my descendants to continue to live in the house which was to be built at my expense, following my death (paragraph 26); and I do not accept that Uncle Walter only wanted me to be able to live there as long as I like, i.e. upon my death my children who were raised in my home no longer have a right to the home or live in the home that I earlier built. To me it was clear that what he wanted was for me and my family to have a perpetual place to live on the land (paragraph 60). [25] When I pressed Mr Mathias on the nature of the interest his client was claiming, he explained that it could be an occupation order or could be the same relief under s 18(1)(a).
117 Taitokerau MB 253 That may entail an interest in the land. Ultimately, he said Sheree was entitled to the relief which would put her in a position that she was given the expectation she could have. 4 [26] There is no doubt that the Court has the jurisdiction under s 18(1)(a) to grant relief broadly in the nature of that claimed by Sheree. In Stock v Morris Wainui 2D2B I discussed the case law concerning s 18(1)(a) of the Act and claims by non-owners of Māori land to ownership of improvements on the land a slightly different scenario from the present one, as the ownership of the house is not in dispute but rather the underlying right (if any) to an interest in the land. I summarised the law as follows: 5 [70] The following principles can be distilled from these cases. There is no bar to the Court making a s 18(1)(a) order in favour of a non-owner. However, an order vesting interests in the land or a right to possession of the land (or part of it) in favour of a non-owner will likely offend the kaupapa and provisions of the Act. Although in Grace the Court of Appeal did not completely rule out that possibility. Where the Court concludes that a non-owner is entitled to equitable relief, the Court will in the first place look to awarding monetary compensation. If monetary compensation is inappropriate, the Court may award ownership of the house if it can be removed from the land. The Court will take into account the non-owner s free occupation of the land as a factor. Ultimately, each case depends on its own facts. [27] Sheree s claim to an interest in the land via a trust is through a constructive trust she does not claim an express trust and there is no written declaration by Walter to support an express trust. In a recent decision in Tipene v Tipene Motatau 2 Section 49A4F Judge Doogan discussed the principles that apply to claims of a constructive trust. 6 In referring to the Court of Appeal decision in Lankow v Rose, 7 Judge Doogan noted the following principles: 8 [53] In that case the Court of Appeal awarded a de facto partner a beneficial interest in a property legally owned by her former partner. The Court did so by imposing a constructive trust. Equity cannot alter or interfere with the defendant s legal estate. However, on the premise that the defendant is acting unconscionably by denying the claimant a beneficial interest, equity treats the defendant as a constructive trustee for the legal estate to the extent of the claimants assessed interest. By 4 5 6 7 8 78 Taitokerau MB 176 (78 TTK 176). Stock v Morris Wainui 2D2B (2012) 41 Taitokerau MB 121 (41 TTK 121) at [70]. Tipene v Tipene Motatau 2 Section 49A4F (2014) 85 Taitokerau MB 2 (85 TTK 2). Lankow v Rose CA 176/93, 2 December 1994. Ibid at [53]-[54].
117 Taitokerau MB 254 this means equity requires the defendant to account to the claimant for her interest. [54] 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; c) That such expectation is a reasonable one; d) That the defendant would reasonably expect to yield the claimant an interest. [28] The claim to an equitable interest in the land by reason of equitable estoppel relies on similar criteria: 9 (a) A belief of expectation has been created or encouraged through some action, representation or omission to act by the party against whom the estoppel is alleged; (b) The belief of expectation has been relied on by the party alleging the estoppel; (c) Detriment will be suffered if the belief or expectation is departed from; and (d) It would be unconscionable for the party against whom the estoppel is alleged to depart from the belief or expectation. [29] Turning to the evidence, I find that Walter clearly wanted to help out his niece by allowing Sheree to build her home on his land. This was no short-term gesture. Had he wanted to help out Sheree on a short-term basis, Walter could simply have allowed her to live in the homestead. The fact that Walter allowed Sheree to build her own house on the land, and mortgaged the land on two occasions, tells me that he saw this commitment as being a long-term one for the benefit of Sheree and her young family. The relationship 9 Andrew Butler (ed), Equity and Trusts in New Zealand (second ed, Thomson Reuters, Wellington, 2009 (at pp 613-614)).
117 Taitokerau MB 255 between Walter and Sheree remained sound, and there was certainly no evidence of a fallout between Walter and Sheree prior to Walter s death. [30] What remains puzzling is what Walter contemplated for Sheree following his death and Vaughan succeeding to the land. I note in this regard that Walter s will is a very simple document, containing three clauses and comprising one page only, though prepared by solicitors. There is no evidence that Walter turned his mind to Sheree s situation when he gave instructions for the will. Yet by that time Sheree s house had been on the land for 13 years, and Walter had granted two mortgages over the land. [31] Notwithstanding the apparent inconsistency between the will and Sheree s ongoing occupation of the land, I conclude that Walter s attitude to Sheree s situation was consistent throughout. In agreeing to Sheree building on the land and granting mortgages, Walter agreed to Sheree s long-term occupation of that part of the land. He knew that it would take many years for Sheree to pay off the loan, and he knew that a new house would be expected to last at least 50 years. He may have assumed that because the loan was from HCNZ, that arrangement automatically gave Sheree some form of right to occupy the land but that is speculation on my part. Importantly, I do not believe Walter intended to negate the arrangement with Sheree when he executed his will. There is no evidence that their relationship had deteriorated or that he begrudged her being on the land. [32] In terms of the criteria necessary to establish a constructive trust or equitable estoppel, I conclude: (a) Through his words and actions, Walter represented to Sheree that she would have long-term occupation of the land associated with her house. However, he did not turn his mind to what legal steps or additional legal steps might need to be taken to secure Sheree s right to occupy that area of land. I return below to the question of the length of the term of occupation contemplated by Walter and Sheree; (b) Sheree relied on Walter s representations and actions by building the house on the land, paying the mortgage loan repayments and rates for the land, improving that part of the land on which the house is situated, and taking
117 Taitokerau MB 256 care of the land as a whole. Her reliance on the expectation that she would have long-term occupation of that part of the land was entirely reasonable; (c) Sheree will suffer detriment if her long-term occupation of the land were to be denied. She would be required to uplift her house and shift it to another piece of land. There is no evidence that Sheree owns any other land. She may therefore be forced to sell her home. Furthermore, the potential for her right of occupation to be denied at any time creates significant uncertainty for her and her family in terms of their home; (d) It would be unconscionable for Walter, Alison or Vaughan to depart from the understanding between Walter and Sheree concerning long-term occupation of the land. There is nothing to suggest that Walter intended departing from that arrangement. It would seem that he trusted that the arrangement would survive his death and Vaughan taking ownership of the land. To the extent that Walter failed to provide for Sheree s arrangement in his will, then Walter s failure does amount to unconscionable conduct in that it potentially allows the arrangement to be defeated. It would be equally unconscionable for Alison or Vaughan to deny Sheree s long-term occupation of the land. [33] Alison and Vaughan s counsel, Bernadette Arapere, submitted that there was delay by Sheree in applying to the Court for a remedy, that Equity does not reward the dilatory, and that Sheree should not be entitled to relief. I reject the claim of delay. The evidence is that there was no challenge to Sheree s occupation of the land prior to the filing of the succession application in June 2013. When Sheree became aware of that application, and its potential to disturb her occupation of the land, she filed documents with the Court setting out her interest in the land and her position in relation to the succession application. All of this was done in a reasonably timely manner. I do not consider that she needed to take the steps to secure her interest prior to late 2013, as there had not been any challenge to her occupation of the land. [34] The task for the Court is to ensure that equity is done between the parties. Sheree is entitled to be put in the position she and Walter could reasonably expect when the arrangement was first made to build the house. Sheree did not expect ownership of the
117 Taitokerau MB 257 land. She expected to be able to use the house for her lifetime and for her children to be able to use it. Walter contemplated the same thing. That is not an interest in the freehold of the land. The arrangement must have some parameters. As for the term of that right of occupation, Walter and Sheree did not fix on a specific term. It is therefore up to the Court to decide what is fair. In my view the right should be for Sheree s lifetime plus 20 years (to give the children some security) or for 50 years from 1989 (reflecting the nominal lifespan of a house), whichever is the greater period. [35] That right is personal to Sheree and her descendants. It is not unlimited, and with it goes an obligation to continue to meet the mortgage repayments and rates associated with that part of the land, to fence-off the house site, and to not interfere with Vaughan s use of the balance of the land. [36] As noted earlier, Sheree s equitable interest cannot give rise to an occupation order. However, the order I make under s 18(1)(a) of the Act will determine ownership of the house and entitlement to occupy the house site. That order will be able to be succeeded to by her children. [37] If at any point in time Sheree wishes to remove the house from the land then her right of occupation will come to an end. At the end of the term of occupation Sheree and her successors can remove the house and improvements from the land, but if they fail to do so ownership of the house and improvements will be forfeited in favour of the owner of the land. [38] The actual area of the land that Sheree is entitled to occupy needs to be properly defined. I note that in support of the application Sheree identified the area on an aerial photograph. It should be a simple matter of her arranging for a surveyor to define that area on an occupation plan. However, one small change is required. At present access to the balance of the land is via the neighbouring property occupied by Sheree s mother. That may work for now, but whether that arrangement works in the future is simply unknown. In my view, Sheree must leave a strip of, say, five metres on the southern boundary of the land unimpeded for future access to the rear of the land. The surveyor can show that on his occupation plan.
117 Taitokerau MB 258 Succession to land interests [39] Vaughan is entitled to succeed to the land interests, though the land itself is subject to the orders I make confirming that Sheree owns the house and is entitled to occupy the house site. I will therefore make the orders in favour of Vaughan pursuant to ss 113 and 118 of the Act. Outcome [40] Pursuant to the Act I make orders as follows: (a) Section 113 determining that Vaughan Walter Lomax is entitled to succeed to the interests of Walter William Wihongi in Parahaki 1E2; (b) Section 118 vesting the said land interests in Vaughan Walter Lomax; (c) Section 18(1)(a) determining that Sheree Harawene is the owner of the house erected on Parahaki 1E2 in or about 1989 and the associated improvements, and that Sheree Harawene and her successors are entitled to occupy the house site on Parahaki 1E2 for the lifetime of Sheree Harawene plus 20 years or until 31 December 2039, whichever is the greater period, on the following terms: (i) Sheree Harawene and her successors shall pay all payments due on the loan secured by mortgages over the land; (ii) Sheree Harawene and her successors shall pay any rates and other charges due in relation to the house site; (iii) Sheree Harawene and her successors shall not interfere with the land owner s use and occupation of the balance of the land and shall ensure that access to the balance of the land is available; (iv) The right of occupation of the land shall come to an end if Sheree Harawene or her successors remove the house from the land; and
117 Taitokerau MB 259 (v) At the conclusion of the term of occupation of the land Sheree Harawene and her successors may remove the house and improvements from the land failing which ownership of the house and improvements shall be forfeited to the owner of the land. (d) Section 73 the order in (c) above is conditional upon Sheree Harawene engaging a surveyor to prepare an acceptable occupation plan of her house site per the diagram filed with her application but excluding a 5 metre access-way on the southern boundary to provide access to the rear of the land. That plan is to be filed by 31 March 2016. [41] Finally, Ms Arapere sought leave to address costs. I conclude that in the present circumstances where both parties have been partly successful, the Court was asked to give effect to an historic oral family arrangement, the close relationship of the parties and the need for that relationship to heal, costs should lie where they fall. Pronounced in open Court at 4.33 pm in Whangarei on Wednesday this 2 nd December 2015. day of D J Ambler JUDGE