233 Waiariki MB 92

I TE KOOTI WHENUA MĀORI O AOTEAROA

I TE ROHE O TE WAIARIKI

In the Māori Land Court of New Zealand

Waiariki District

A20190002307

WĀHANGA

Under

Section 18(1)(a), Te Ture Whenua Māori Act 1993

MŌ TE TAKE

In the matter of

Te Whaiti-Nui-A-Toi Block

I WAENGA I A

Between

ANDREW TE AMO, DOUGLAS REWI, PETER

WHITE AND RENEE REWI AS TRUSTEES OF

TE WHAITI NUI A TOI TRUST

Ngā kaitono

Applicants

ME

And

PHYLLIS NICHOLAS AND ANDRE

NICHOLAS

Ngā Kaiurupare Tuatahi

First Respondents

ME

And

TREVOR MARTIN

Te Kaiurupare Tuarua

Second Respondent

Nohoanga:

Hearing

3 May 2019, 211 Waiariki MB 157-166

4 June 2019, 213 Waiariki MB 125-127 (teleconference)

15 October 2019, 226 Waiariki MB 217-291

(Heard at Rotorua)

Kanohi kitea:

Appearances

M McKechnie and G Dennett for Applicants

M Sharp for First Respondents

T Martin in person

Whakataunga:

Judgment date

20 May 2020

TE WHAKATAUNGA Ā KAIWHAKAWĀ TITLE INITIAL INITIAL SURNAME

Judgment of Judge C T Coxhead

Copies to:

G Dennett, P O Box 644, Rotorua graeme@graemedennett.co.nz

M McKechnie, P O Box 1227, Rotorua mmckechnie@xtra.co.nz M Sharp, P O Box 5111, Mount Maunganui michael@michaelsharp.co.nz

233 Waiariki MB 93

TABLE OF CONTENTS

Hei tīmatanga kōrero - Introduction ..................................................................... [1]

Kōrero whānui - Background ................................................................................. [3]

Ko te hātepe ture o te tono nei - Procedural history ............................................ [6]

Ngā kaupapa – Issues ............................................................................................ [13]

Na wai ngā whare? - Who owns the structures? ................................................. [14]

Applicants’ submissions ........................................................................................... [17]

Respondents’ submissions ........................................................................................ [18]

Are the structures fixtures? ...................................................................................... [22]

Who owns the structures? ........................................................................................ [23]

Ka āhei a Phyllis Nicholas me Trevor Martin te noho tūturu ki te whenua nei?

- Do Phyllis Nicholas and Trevor Martin have a right to occupy the land? ..... [34]

Applicants’ submissions ........................................................................................... [35]

Respondents’ submissions ........................................................................................ [40]

Discussion ................................................................................................................ [43]

Should permanent injunctions be granted against the respondents? ............... [53]

Applicants’ submissions ........................................................................................... [54]

Respondents’ submissions ........................................................................................ [55]

Discussion ................................................................................................................ [56]

Kupu whakatau - Decision .................................................................................... [68]

233 Waiariki MB 94

Hei tīmatanga kōrero - Introduction

[1] The trustees of Te Whaiti Nui A Toi Trust seek permanent injunctions against both

Phyllis and Andre Nicholas, and Trevor Martin, to prevent their occupation of trust land.

They say neither party has the right to occupy the land and they should be required to remove

the structures they currently have in place (known as “the shed” and “the shack”).

[2] The respondents oppose the grant of injunction on the basis that Phyllis Nicholas has

an ownership interest in the shed, which they say carries with it a right of occupation. They

seek an order determining ownership of the shed in their favour, including a right of

occupation of the land.

Kōrero whānui - Background

[3] Te Whaiti-Nui-A-Toi Block is Māori freehold land with an area of 3,024.9342

hectares. It was created by amalgamation order dated 16 January 1974, which amalgamated

several former blocks of land, including Te Tuturi C, being the area where the current

structures are located.1 On the same day, the land was vested in the Māori Trustee as

responsible trustee pursuant to s 438 of the Māori Affairs Act 1953. A forestry lease was

then granted to the Ministry of Forestry by the Māori Trustee in 1976 for a term of 90 years,

due to expire in 2066. However, the lease was surrendered in 2012.

[4] On 14 August 1989, the Māori Trustee was removed, and new owner trustees

appointed.2 The current trustees are Andrew Te Amo, Douglas Rewi, Peter White and Renee

Rewi.3

[5] On 17 August 2000, Māori reservations were set apart over two areas of the block

for the purposes of a landing site and scenic reserve, for the common use and benefit of the

owners and their descendants.4 The current trustees of the Māori reservations are Whare

Akuhata, Douglas Rewi, Renee Rewi and Andrew Te Amo.5

1 173 Rotorua MB 272-276 (173 ROT 272-276). 2 225 Rotorua MB 42 (225 ROT 42). 3 206 Waiariki MB 189-193 (206 WAR 189-193). 4 “Setting Apart Māori Freehold Land as a Māori Reservation” (17 August 2000) 92 New Zealand Gazette

2233 at 2290. 5 80 Waiariki MB 296-299 (80 WAR 296-299).

233 Waiariki MB 95

Ko te hātepe ture o te tono nei - Procedural history

[6] The application for an injunction was filed by the trustees of Te Whaiti Nui A Toi

Trust on 20 February 2019. The Court issued directions on 21 February 2019 for the service

of documents and notice on the respondents and set the matter down for hearing.

[7] The applicants then requested the Court consider an interim injunction pending the

substantive hearing. Further directions were issued on 25 February 2019 for the applicants

to file an affidavit, as required by the Māori Land Court Rules 2011. The affidavit was filed

by the applicants on 27 February 2019 and an interim injunction issued that same day

prohibiting Phyllis and Andre Nicholas from dealing with, trespassing upon, or doing injury

to the land and property on the block.6

[8] The applicants subsequently advised that the respondents had failed to comply with

the injunction order and they sought a transmittal of the order to the High Court for

enforcement. On 10 April 2019, the Court issued a certificate pursuant to s 85(3) of the Act

and an order transmitting the injunction order to the High Court was issued by the Chief

Judge on 17 April 2019.7

[9] The application was then set down for hearing on 3 May 2019.8 Prior to the hearing,

the respondents sought an adjournment, which was opposed. The Court refused the grant of

adjournment at that stage, given the respondents’ continuing failure to comply with the

interim injunction order.9 At the hearing on 3 May 2019, the issue of adjournment was again

raised. At the conclusion of the hearing, the Court granted an adjournment.

[10] A notice of opposition together with a cross application to determine ownership of a

building on the land was then filed by the respondents on 24 May 2019.

6 207 Waiariki MB 90-91 (207 WAR 90-91). 7 209 Waiariki MB 215-216 (209 WAR 215-216), 211 Waiariki MB 67 (211 WAR 67). 8 211 Waiariki MB 157-166 (211 WAR 157-166). 9 211 Waiariki MB 131-133 (211 WAR 131-133).

233 Waiariki MB 96

[11] After a further adjournment,10 a teleconference was held on 4 June 2019 for the

purposes of timetabling to a substantive hearing.11 Following further directions, a joint

memorandum of counsel was filed with respect to the filing of submissions.

[12] The substantive hearing was then held on 15 October 2019.12 At the conclusion of

the hearing, I granted leave for respondent counsel to file closing submissions regarding a

specific legal point and adjourned the application for a decision to issue in due course.

Further submissions of the respondents were filed on 23 October 2019, followed by closing

submissions in reply from the applicants on 31 October 2019.

Ngā kaupapa – Issues

[13] The issues that arise are:

(a) Who owns the structures?

(b) Do Phyllis Nicholas or Trevor Martin have a right of occupation of the land?

(c) Should permanent injunctions be granted?

Na wai ngā whare? - Who owns the structures?

[14] The Court has jurisdiction to determine who owns fixtures, such as buildings, on

Māori freehold land pursuant to s 18(1)(a) of the Act. That section 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:

10 212 Waiariki MB 223 (212 WAR 223). 11 213 Waiariki MB 125-127 (213 WAR 125-127). 12 226 Waiariki MB 217-291 (226 WAR 217-291).

233 Waiariki MB 97

[15] In Ngā Uri a Maata Ngapo Charitable Trust v McLeod, Judge Milroy summarised

the relevant authorities regarding the determination of ownership of a house on Māori

freehold land:13

[34] Case law makes it clear that the Court's jurisdiction is declaratory in nature —

the Court may declare existing ownership rights at law or in equity but cannot create

new ownership rights. It follows from the wording of the section that the Court may

also determine that a building is not part of the land and that the beneficial owners

of the land as a group are not the owners of the building.

[35] Although common law provides that the owners of the land own any fixtures, s

18(l)(a) enables the Court to recognise that one or more of the owners may separately

own a particular improvement. In determining these matters the Court has equitable

jurisdiction and may recognise constructive trusts.

[36] The Māori Appellate Court has expressed differing views as to the effect of a s

18(1)(a) order, in particular whether, on making the order, a house remains a fixture

or becomes a chattel. There are also conflicting authorities on whether a s 18(l)(a)

order can be made in favour of a non-owner and, if not, whether the Court can grant

some other remedy in favour of a non-owner.

[37] The Māori Appellate Court in Tohu — Te Horo 2B2B2B Residue commented:

[18] An order under section 18(l)(a) /93 appears to separate the house from the title

to land and to treat it as a chattel. There is no ability to succeed to any such order, it

not being an interest in land and the order is treated as being personal to the holder

and lapsing on death. Anyone who wishes to sustain a further claim for the house

needs to apply for another order.

[38] I note that the learned Judge in the decision Stock v Morris — Wainui 2D2B took

a different view of the law and considered that when the Court makes a s 18(1)(a)

order the nature of the improvement as a fixture and the legal ownership of the land

remains unchanged, although as a result of the Court's equitable jurisdiction the

house may be owned separately by those specified in the order. As the learned Judge

put it:

… The Court is merely declaring the co-existence of legal and equitable interests in

land. That is what s 18(1)(a) expressly empowers the Court to do. In my view, there

is no need to conceptualize the house as a chattel.

[39] In the Stock decision the learned Judge set out the history of the preceding

sections to s 18(1)(a) and came to the view that there is no restriction on who may

apply for an order under s 18(l)(a) — the applicants are not restricted to the legal

owners. In reaching that conclusion the Judge relied on the case of Sadlier — The

Proprietors of Anaura which considered s 30(1)(a) of the Māori Affairs Act 1953,

the predecessor section to s 18(1)(a).

[40] I have also made a s 18(l)(a) order in favour of a non-owner in the Matenga v

Bryan case. I note however that in Matenga the decision was that on making the s

18(1)(a) order the house was treated as a chattel and able to be removed by the person

in whose favour the order was made.

13 Ngā Uri a Maata Ngapo Charitable Trust v McLeod – Harataunga West 2B2A1 (2012) 49 Waikato

Maniapoto MB 223 (49 WMN 223).

233 Waiariki MB 98

[41] The leading case in New Zealand on the question of whether an improvement is

a fixture or not is Auckland City Council v Ports of Auckland, which adopted the

approach set out by the House of Lords in Elitestone Ltd v Morris and Anor. In

Elitestone the House of Lords proposed a broader, common sense approach to the

question of whether an improvement could properly be said to have become part and

parcel of the land. The main indicators that an improvement is a fixture are the

degree of annexation and the purpose of annexation.

[16] I adopt the principles and approach set out in this decision.

Applicants’ submissions

[17] Counsel, Mr McKechnie, referred to the dispute between various members of the

Nicholas and Martin whānau regarding ownership of the shed. He advised that the trustees

do not wish to participate in that dispute nor referee it, and the issue of who owns the shed

is for the family to decide. He submitted however, that the question of ownership of the

structures is separate from the issue of whether those structures have a legal right to be on

the land. The trustees’ position is that there is no right of occupancy held by any party, and

both the shed and shack should be removed by those who claim legal entitlement to them.

If the structures are not removed within a reasonable time, then the trustees will seek to have

them demolished.

Respondents’ submissions

[18] The respondents seek an order pursuant to s 18(1)(a) of Te Ture Whenua Māori Act

1993 determining ownership of the shed in their favour, together with a right of occupation.

[19] Counsel, Mr Sharp, submitted that Phyllis Nicholas has a clear equitable interest in

the shed, as she paid for its construction and many of the ongoing expenses over the years.

He asserted the following relevant background facts:

(a) Although initially discussed amongst Phyllis Nicholas and her siblings that

they would all contribute for a whare be built on family land, in the end it was

Phyllis Nicholas alone who bought the shed and had it moved on to the land

in 1989, with the agreement of the advisory trustees at the time;

233 Waiariki MB 99

(b) Phyllis Nicholas then paid for fitting out the shed with rooms, windows,

doors, a bathroom, a kitchen and other fittings to make it into a house. She

also later paid to have the floor concreted;

(c) An occupation licence was granted to Phyllis Nicholas’ brother Frank Martin

by lessee Crown Forestry in 1990. However, this was on the basis that Crown

Forestry required the licensee to be living on or close to the site to make sure

the surrounding forest area was not threatened. The advisory trustees at the

time signed consent to the occupation licence;

(d) From that time until Frank Martin’s death in the early 2000s, although Frank

Martin’s whānau regularly used the shed, so too did Phyllis Nicholas and her

whānau. Phyllis Nicholas would regularly be at the shed carrying out

maintenance and improvements, and she paid for all expenses, including

insurance and power;

(e) Later in the 2000s, another brother of Phyllis Nicholas, Reo Martin, and his

whānau progressively moved into the shed and eventually locked others out.

They unsuccessfully tried to obtain a licence to occupy from the trustees.

Phyllis Nicholas disputed her brother’s claim but decided against going to

Court. She continued to pay for the power and insurance;

(f) When Reo Martin passed away in 2016, Phyllis Nicholas and her whānau

attempted to reclaim the house. After Police intervention, she left. Reo

Martin’s whānau subsequently applied to the Court for an injunction to

prevent her from entering the shed, which was dismissed;

(g) In 2017, Phyllis Nicholas followed the trustees’ advice and applied for a new

occupation licence from the trustees. Reo Martin’s whānau filed a competing

application and the trustees advised they would need further information to

decide who should get the licence. The trustees have not progressed the

matter since; and

233 Waiariki MB 100

(h) In February 2019, when Phyllis Nicholas became aware that one of Reo

Martin’s sons, Daniel Martin, was living in the shed and causing trouble to

neighbours, she went there to ask him to leave. The Police intervened and

asked Mr Martin to remove himself. There was no forced removal.

[20] Mr Sharp submitted that, given Phyllis Nicholas paid to build the shed and paid for

its upkeep over the years, she is the owner. He says this is supported by Phyllis Nicholas’

sister, Alice Martin, along with a kaumatua and other owners in the land.

[21] Counsel argued that there are no circumstances which would form a reasonable

expectation by Reo Martin’s whānau that they had ownership of the shed. They did not

make any contribution to it before moving into it in the late 2000s. There was also no

indication from Phyllis Nicholas that she was giving them ownership of the shed. The fact

that she continued to pay for the power and insurance should, of itself, have been a strong

indication to them that she retained her ownership rights. While it appears Reo Martin’s

whānau may have carried out some improvements, including building a garage, this was to

make their occupation more comfortable and could not raise the expectation of ownership.

Are the structures fixtures?

[22] Whether an improvement is a fixture or a chattel depends on the degree and purpose

of annexation.14 Mr Sharp submitted that the shed is clearly a fixture as it has a concrete

foundation and cannot be moved. I agree that the shed and shack are both fixtures.

Who owns the structures?

[23] In accordance with conventional common law principles, the ownership of any

fixtures run with the land. Accordingly, the legal ownership of the structures rest with the

trustees of Te Whaiti Nui A Toi Trust as the legal owners of the land. However, their legal

ownership is subject to any equitable interests and the trustees have acknowledged the claims

of Phyllis Nicholas and the Martin whānau.

[24] Phyllis Nicholas claims equitable ownership in the shed on the basis that she

purchased the shed and paid for it to be moved on to the land and renovated. She also paid

14 Auckland City Council v Ports of Auckland [2000] 3 NZLR 614 at [72]-[76].

233 Waiariki MB 101

for the maintenance and upkeep, together with the ongoing expenses, including the power

and insurance. Phyllis Nicholas has provided evidence of her expenditure in the form of

receipts and bank account records.

[25] As noted, the trustees do not claim ownership of the shed and appeared to take a

neutral position on the matter, referring to the dispute between the Nicholas and the Martin

whānau. In saying that however, affidavits addressing claims of the Martin whānau were

included in the trustees’ evidence and counsel for the trustees also cross-examined Phyllis

Nicholas and other witnesses regarding those claims. The affidavits filed by the trustees

were those of Victor Martin, son of Reo Martin, together with those of Gary Aldridge and

Stanley Phillips, associates of Reo Martin. Those affidavits refer to improvements they say

were carried out by Reo Martin during his occupation, such as the building of a garage,

woodshed and veranda, the pouring of the concrete floor and the repair of the roof and water

piping. Victor Martin claimed that his father and other siblings contributed to the purchase

and placement of the shed on the land and that his father also paid for the concrete floor, the

replacement iron and the garages, and for the power and water to be connected. However,

no receipts or other evidence of this expenditure were provided, and Victor Martin did not

appear at the hearing to be cross-examined on his evidence.

[26] As to the claimed improvements by Reo Martin, at the hearing, Phyllis Nicholas

accepted that there was some work completed on the shed by Reo Martin. However, she

denied claims that he paid for the concrete flooring and roof replacement and noted that any

other improvements were done without her consent. In regard to the water piping, Phyllis

Nicholas noted there were existing water pipes in the shed and Reo Martin only wished to

improve them for his own benefit. Mr Sharp submitted that, even with these improvements,

there are no circumstances which would form a reasonable expectation by Reo Martin’s

whānau that they had ownership of the shed. Phyllis Nicholas continued to pay the ongoing

expenses and gave no indication that she was giving away her ownership. The improvements

carried out after Reo Martin began living in the house, were to make his and his whānau’s

occupation more comfortable.

[27] The Court has on previous occasions considered renovations of a property to be

relevant to determining ownership. In Tipene v Tipene, the Court considered the principles

of constructive trust to recognise contributions made by way of renovations to a house

233 Waiariki MB 102

legally owned by a whānau trust. The Court referred to the approach of the High Court in

Stratulatos v Stratulatos where it stated:15

Standing in the shoes of the plaintiff as claimant, (both as successor to Spiros and in

the plaintiff's own right), would a reasonable person have understood their efforts

would result in an interest in the property? The answer must be "yes". It was a major

upgrading of the property over a considerable period of time. at significant personal

effort and expense. It went far beyond routine maintenance, or a gesture of

appreciation for a right to occupy. The plaintiff's family assisted in a way which

would not have been forthcoming unless it was known that the plaintiff herself would

gain benefit. Testing the situation by converse, would it have been reasonable to

suppose they expected no rights in the property? Testing the question more generally,

why else would they undertake this major task? The answers are obvious. If no

interest in the property was to be gained, I have no doubt this young couple would

have put their money and efforts into obtaining a first home elsewhere without cloudy

title. It is a clear enough case of improvement through encouragement and in the

expectation of interest…

[28] The Court also referred to the Court of Appeal decision in Lankow v Rose, which

identified the following four features, which if established would show it would be

unconscionable to deny the claimant an interest:16

(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; and

(d) That the defendant would reasonably expect to yield the claimant an interest.

[29] The Court in Tipene v Tipene went on to find a constructive trust was established in

relation to the significant renovations that the applicant had made to the property and

awarded monetary compensation as the appropriate remedy in that case.

[30] However, not all renovations to property will result in a reasonable expectation of an

interest. In Clarke v Rewha Judge Armstrong found:17

[27] I consider that Robert and Louise undertook the renovations themselves as they

were intending to move into the shed. They did so and ended up living there for three

15 Stratulatos v Stratulatos [1988] 2 NZLR 424 (HC) at 437. 16 Lankow v Rose [1995] 1 NZLR 277 at 294. 17 Clarke v Rewha – Hauai No 2G Sec 2B (2019) 186 Taitokerau MB 68 (186 TTK 68).

233 Waiariki MB 103

years. It is not surprising that they wanted to make the shed more comfortable,

installing running water and a flush toilet. I accept Edith’s evidence that she and

Tommy had nothing to do with the renovations and that Robert and Louise chose to

do this in order to make the shed more comfortable for them to live in.

[28] For these reasons, I find that the Works Trust sold the shed to Tommy. Although

Louise and Robert provided a loan to purchase the shed, Tommy and Edith repaid

this money. As such, Tommy owned the shed outright.

[29] I accept that Robert and Louise paid for the renovations to the shed. However,

they chose to do so to make it more comfortable before they moved in. They lived in

the shed between 2001 and 2004 and have used it for storage since then. Any claim

they may have over the renovations to the shed is offset by the significant benefit

they received from using the shed over a prolonged period.

[31] The only dispute as to Phyllis Nicholas paying for and moving the shed on to the land

was from Reo Martin’s son Victor, who said his father and his father’s siblings also

contributed to the purchase. However, I note that Phyllis Nicholas has attached receipts as

evidence of her expenditure on the shed, maintenance and ongoing costs. While affidavits

were filed by Reo Martin’s son and two of his friends, there is no concrete evidence of such

claimed expenditure. Victor Martin did not give evidence in person and neither did any of

the other whānau of Reo Martin appear or file submissions regarding their alleged claim to

ownership. It is also doubtful that Victor and the friends of Reo Martin would have been

privy to such matters as who paid for the improvements to the shed. Reo Martin may indeed

have carried out some work, however, this might still have been funded by Phyllis Nicholas.

[32] It is clear that Phyllis Nicholas paid to build the shed, to have it moved on to the land,

and paid for its upkeep over the years. While other improvements may have been carried

out by Reo Martin’s whānau, I agree with Mr Sharp that there are no circumstances which

would provide a reasonable expectation by Reo Martin’s whānau that they had ownership of

the shed. There is no evidence they made any contribution to the shed before moving into it

in the late 2000s. There was also no indication from Phyllis Nicholas that she was giving

them ownership of the shed. The fact that she continued to pay for the power and insurance

should, of itself, have been a strong indication to them that she retained her ownership rights.

I agree that any improvements made by Reo Martin’s whānau was to make their occupation

more comfortable and could not raise the expectation of ownership. Therefore, in my view,

Phyllis Nicholas is the owner of the shed.

[33] There is no dispute that Trevor Martin is the owner of the shack.

233 Waiariki MB 104

Ka āhei a Phyllis Nicholas me Trevor Martin te noho tūturu ki te whenua nei? - Do

Phyllis Nicholas and Trevor Martin have a right to occupy the land?

[34] Given Phyllis Nicholas is the owner of the shed and Trevor Martin is the owner of

the shack, a further issue which arises is whether they have any right to have these fixtures

on the land.

Applicants’ submissions

[35] The trustees of Te Whaiti Nui A Toi Trust seek permanent injunctions against the

respondents and Trevor Martin to prevent their continuing occupation of the land. They

assert that neither party has a right to occupy the land and they should be required to remove

their structures.

[36] Mr McKechnie submitted that the question of ownership of the structures is separate

from the issue of whether those structures have a legal right to be on the land. As noted

earlier, the trustees’ position is that there is no right of occupancy held by any party and both

the shed and shack should be removed by those who claim legal entitlement to them. If the

structures are not removed within a reasonable time, then the trustees will seek to have them

demolished.

[37] In terms of the shed, Mr McKechnie submitted there is no evidence of any building

permit or consent from the local authority. A licence was granted by the Ministry of Forestry

(Crown Forestry) to Frank Martin, which was to terminate when the Ministry of Forestry no

longer had a stake or interest in the premises. Under that licence, there was no compensation

for improvements and no entitlement to remove buildings, fixtures of fittings within three

months of determination of the licence. As the Ministry of Forestry surrendered their lease

in 2012, the licence expired at that time. Counsel asserts that Phyllis Nicholas accepts there

is no current occupation licence. She applied for a new occupation licence from the trustees

in 2017, which was not granted.

[38] Counsel further submitted that the respondents’ contention that orders under s

18(1)(a) of the Act can include rights to occupy the relevant buildings and surrounding areas

is not accepted. The two authorities referred to by the respondents either did not address

whether the right to occupy a house gave a beneficial interest in the land or was a case where

233 Waiariki MB 105

the Court granted an interest and occupation right to the applicant based on the principles of

constructive trust or equitable estoppel. Mr McKechnie submitted that none of the criteria

to establish a constructive trust or equitable estoppel exist in the present case. The shed was

built without reference to the trustees and there has never been any documented arrangement

between them. The only right of occupation came about when the licence was granted by

the Ministry of Forestry. That licence came to an end in 2012. Further, the trustees have

not, by their actions, given rise to any valid assumption, belief or expectation for Phyllis

Nicholas to rely on in terms of an interest in the land, and fundamentally the trustees could

not have granted such an interest.

[39] In terms of the shack, it similarly has no building permit or consent from local

authority. Mr McKechnie submitted that there is no evidence that Trevor Martin had any

right to erect the shack on the land and the evidence he gave at the Court hearing also did

not establish any right. The shack should therefore also be removed.

Respondents’ submissions

[40] Mr Sharp submitted that an order per s 18(1)(a) of the Act determining ownership of

a building on Māori freehold land, may include a right of possession of the surrounding land,

essentially a right of occupation. In later submissions, he clarified that such a right of

occupation would arise to satisfy principles of constructive trust or equitable estoppel where

trustees have allowed the building to be built on the land.

[41] On this point, Mr Sharp referred to the decisions of the Court in Stock v Morris,

Thompson – Succession to Walter William Wihongi, and Herewini – Maungaroa No 1 Section

23K.18 He submitted that following the law as developed in those cases it can be said that

where a claim under s 18(1)(a) is made for rights to a building on Māori land, including

rights of possession, then:

(a) The rights held will be assessed broadly in accordance with the equitable

principles of constructive trust and equitable estoppel, which in turn are based

18 Stock v Morris – Wainui 2D2B (2012) 41 Taitokerau MB 121 (41 TTK 121); Thompson – Succession to

Walter William Wihongi (2015) 117 Taitokerau MB 245 (117 TTK 245); and Herewini – Maungaroa No

1 Section 23K (Keterau) (2013) 85 Waiariki MB 141.

233 Waiariki MB 106

upon the reasonable expectations between the applicant and the owners of the

land;

(b) If there is a basis for recognition of ownership rights, these will normally

include rights of possession; and

(c) If the owners of the land at the time the building was built allowed the

applicant to build and occupy the building, this would normally be a strong

indication of ownership rights including possession.

[42] Mr McKechnie did not agree with the submissions of Mr Sharp. He reiterated that

the question of ownership of a building on Māori land is separate from the issue of any right

to occupy the land. In other words, even if a person owns a building on Māori land, that is

a different issue to whether that building can lawfully remain on the land. He further

submitted that none of the criteria to establish a constructive trust or equitable estoppel exists

in the present case.

Discussion

[43] I agree that the Court has jurisdiction to determine whether a person has an equitable

interest in a building on Māori land and whether they may have a right of possession or

occupation. However, I consider these are two distinct matters and an order per s 18(1)(a)

of the Act determining ownership rights in a building, does not itself carry with it a right of

possession or occupation.

[44] In the case of Māori land which is administered by a trust, the trustees are the legal

owners of the land. As such, they control the use and occupation of the land. In Eriwata v

Trustees of Waitara SD Sections 6 and 91 Land Trust, the Māori Appellate Court held:19

[5] When trustees are appointed to an Ahu Whenua Trust, they take legal ownership.

The owners in their shares, in the schedule of owners, have beneficial or equitable

ownership but do not have legal ownership, and do not have the right to manage the

land or to occupy the land. Trustees are empowered and indeed required to make

decisions in relation to the land and they are often hard decisions. Their power and

obligation to manage the land cannot be overridden by any owner or group of owners

or even the Māori Land Court, so long as the trustees are acting within their terms of

19 Eriwata v Trustees of Waitara SD Sections 6 and 91 Land Trust – Waitara SD Sections 6 and 91 (2005)

11 Waiariki Appellate MB 4 (11 AP 4).

233 Waiariki MB 107

trust and the general law, and it reasonably appears that they are acting for the benefit

of the beneficial owners as a whole. A meeting of owners cannot override the trustees.

Decisions to be taken for the land are to be the decision of the trustees. They decide

who can enter and who can reside there and how the land is managed.

…

[8] As a matter of general law, when legal ownership is vested in trustees they are

prima facie entitled to an injunction if the land is trespassed upon whether by

beneficial owner or not. It is for them to control the Land. They have a power to

permit occupation. That is the power that is vested in them. It is not vested in the

Court, and so long as they are acting within the terms of their Trust Order, then the

Maori Land Court will not interfere. …

[45] Where ownership of a building is determined as being owned separately, the question

of any right to occupy the land will ordinarily need to be negotiated with the trustees. Where

the Court can intervene, is if equity requires it in order to do justice as between the parties.

[46] As Mr Sharp noted, the Court has previously considered the principles of

constructive trust and equitable estoppel in determining whether a person has a right of

occupation in relation to Māori land. In Thompson – Succession to Walter William Wihongi,

the Court considered whether the applicant had an equitable interest in the land on the basis

that she was allowed to build on the land with the consent of the sole owner, her uncle.20

The ownership of the house was not in question, rather it was her underlying right to an

interest in the land. The Court referred to the principles of both constructive trusts, as set

out earlier in Tipene v Tipene, and the similar criteria of equitable estoppel, as follows:

[28] The claim to an equitable interest in the land by reason of equitable estoppel

relies on similar criteria:

(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.

20 Thompson – Succession to Walter William Wihongi (2015) 117 Taitokerau MB 245 (117 TTK 245).

233 Waiariki MB 108

[47] The Court in Thompson went on to find that the applicant’s uncle had, by his actions

and words, represented to the applicant that she would have long-term occupation of the land

associated with her house. She had relied on that representation by building the house and

paying the mortgage and rates and would suffer detriment if that occupation were denied,

and it would be unconscionable to depart from the understanding between her and her uncle.

The Court made orders determining the applicant as the owner of the house and granted a

right of occupation to her and her successors for her lifetime plus a period of 20 years.

[48] In the present case, Mr Sharp argues that Phyllis Nicholas’ had a reasonable

expectation of long-term occupation of the land based on the actions of the trustees. Phyllis

Nicholas’ evidence was that she obtained the agreement of the trustees in 1989 to construct

a building on the land. In normal circumstances, Phyllis Nicholas may have arranged for a

licence to occupy the area around the building site to be granted by the trustees. However,

with the lease to the Ministry of Forestry in place that was not possible, and the building

proceeded without formal rights of occupation. Mr Sharp argued that it must have been

understood between Phyllis Nicholas and the trustees that they would support a long-term

licence being granted by the Ministry of Forestry, otherwise Phyllis Nicholas could not

reasonably be expected to incur the significant expense and time in purchasing a building

and establishing it on the land. The trustees did subsequently consent to the grant by the

Ministry of Forestry of a licence to her brother Frank Martin, who she says held the licence

on behalf of the wider Martin whānau in accordance with the lessee’s requirements. That

the licence was held in such manner is supported by the fact the licence was later sought to

be varied to reflect that reality. Mr Sharp noted that the trustees’ letter of consent notes that

it was being granted to the scheduled end of the lease in 2066.

[49] Counsel argued that the trust therefore created an expectation that if Phyllis Nicholas

built on the land she would have an ownership interest in the buildings, and her and her

whānau would have long-terms rights of occupation in the surrounding area for the term of

the forestry lease, set to expire in 2066. Accordingly, in reliance on the expectations, Phyllis

Nicholas invested considerable time in establishing, improving and maintaining the shed on

the surrounding area. She would suffer detriment if these expectations of long-term rights

were not fulfilled and it would be unconscionable for the trust to maintain the stance it has

now taken. Mr Sharp further noted that, up until the recent dispute amongst the wider Martin

233 Waiariki MB 109

whānau, the trust has had no issue with members of the whānau occupying the area, even

after the expiry of the forestry lease in 2012.

[50] With respect, Mr Sharp’s submissions change position between the proposition that

a s 18(1)(a) order has an accompanying right of occupation, to one where a s 18(1)(a) order

can have a right of occupation where there are grounds to find a constructive trust or

equitable estoppel. In my view, the correct position is that ownership and occupation are

two separate matters. If the Court finds ownership and the owner wants the house to remain

on the land, then they need to seek authority from the trustees for that occupation, as the

trustees as legal owners control the occupation and use of the land. Where the Court can

intervene is where the trustees have created a reasonable belief that the owner would have

some right to occupation, the owner has relied on that expectation to their detriment and it

would be unconscionable for the trustees to deny this. In such situations the Court intervenes

in equity to prevent the trustees from enforcing their legal rights to have the building

removed.

[51] I consider that the criteria to establish a constructive trust or equitable estoppel do

not exist in the present case. The trustees have not, by their actions, given rise to any valid

assumption, belief or expectation for Phyllis Nicholas to rely on. The terms of any alleged

agreement between Phyllis Nicholas and the trustees is unclear, and, as acknowledged by

Phyllis Nicholas, there were no formal occupation rights. The most Phyllis Nicholas could

rely on is the licence to occupy and nothing the trustees did or said created any belief or

expectation that she would have an interest in the land. Further, there is no evidence the

trustees were aware of any arrangements regarding the licence as between Frank Martin and

Phyllis Nicholas and, while it may have been expected that the forestry lease would continue

until 2066, it was terminated in 2012. The rights granted by the licence under that lease

could not as a matter of law go beyond the lease. [While the trustees have arguably allowed

the wider Martin whānau to occupy the land since 2012, at most this would be a bare licence

and it is clear by commencement of these proceedings that any such licence is now intended

to be revoked.] It is therefore my view that Phyllis Nicholas, as the owner of the shed, has

no authority to have that shed on the land.

233 Waiariki MB 110

[52] I also consider it clear that the shack has no authority to be on the land. The shack

has no building permit or consent from local authority, and there is no evidence that Trevor

Martin had any right to erect the shack on the land.

Should permanent injunctions be granted against the respondents?

[53] Having found that there is no authority for the shed and the shack to be on the land

block, the next issue is whether those structures should be required to be removed?

Applicants’ submissions

[54] The trustees’ position is that there is no right of occupancy held by any of the

respondents and both the shed and shack should be removed by those who claim legal

entitlement to them. The trustees seek permanent injunctions against both the respondents

and Trevor Martin, requiring removal of the shed and shack within a reasonable time or,

failing that, authority for the trustees to demolish those structures.

Respondents’ submissions

[55] In terms of the injunction, Mr Sharp submitted that Phyllis Nicholas cannot be said

to be trespassing on the land, as the ownership rights she has in the shed also encompass

rights of occupation and access. Mr Sharp also argued that Phyllis Nicholas has satisfied the

criteria to establish a constructive trust or equitable estoppel in her favour. He says a

reasonable expectation was created by the trust at the time that if Phyllis Nicholas built on

the land she would have an ownership interest in the buildings and her and her whānau would

have long-term rights of occupation. Phyllis Nicholas relied on this expectation and invested

considerable time and effort in establishing, improving and maintaining the shed and

surrounding area, and will suffer detriment if she and her whānau can no longer access and

use the shed and land. Mr Sharp submitted that it would be unconscionable for the trust to

be able to obtain a permanent injunction against Phyllis Nicholas and her whānau.

Discussion

[56] The Court has jurisdiction to grant injunctions per s 19 of the Act. The relevant part

of that section states:

233 Waiariki MB 111

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 Māori freehold land, Māori reservation, or wahi

tapu; or

…

(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.

[57] The principles for the grant of a permanent injunction were set out by the Māori

Appellate Court in Taueki v Horowhenua Sailing Club – Horowhenua 11 (Lake) Block:21

[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.

[58] The Māori Appellate Court also referred to its earlier discussion of the law in Te

Hokowhitu v Proprietors of Matauri X, where it noted:22

[39] There are limited Māori Appellate Court authorities on this point. But some

guidance can be taken from the Māori Appellate Court decision of Eriwata v Trustees

of Waitara SD Sections 6 & 91 Land Trust (2005). Although involving a Māori Land

Trust, the principles concerning the rights that attach to legal owners apply equally

21 Taueki v Horowhenua Sailing Club – Horowhenua 11 (Lake) Block [2014] Māori Appellate Court MB 60

(2014 APPEAL 60). 22 Te Hokowhitu v Proprietors of Matauri X – Matauri X [2010] Māori Appellate Court MB 566 (2010

APPEAL 566).

233 Waiariki MB 112

to Māori land Incorporations. The Court found that legal ownership prima facie

entitles the trustees to an injunction where a trespass has been committed. This rule

applies whether the tort of trespass is committed by a stranger or beneficial land

owner of a trust. The Māori Appellate Court did note that an injunction may not issue

where there was some matter that could have influenced the exercise of discretion to

the contrary.

[59] As I have noted above at paragraph [51] the criteria to establish a constructive trust

or equitable estoppel do not exist in the present case and the trustees have not, by their

actions, given rise to any valid assumption, belief or expectation for Phyllis Nicholas to rely

on. As I have also noted, in my view Phyllis Nicholas’s ownership rights in the shed do not

encompass rights of occupation. Therefore, in order for Mrs Nicholas to have the shed

remain on the land, she needs permission from the trustees, as it is they who control the

occupation and use of the land.

[60] The trustees, who have possession of the land, made it clear that they do not consent

to the shed or the shack remaining on the land. Therefore, without clear authority to have

the shed and shack on the land there is a trespass. As the legal owners, the trustees are prima

facie entitled to an injunction to restrain a trespass. However, the Court still has discretion

as to whether to grant the injunction or not.

[61] In considering whether to grant a permanent injunction, it must be remembered that

Phyllis Nicholas bought the shed and had it moved on to the land in 1989 with, it appears,

the agreement of the advisory trustees at the time. Phyllis Nicholas then paid for

improvements, maintenance and expenses relating to the shed. While her brother, was

granted an occupation licence, she has never had any formal authority for occupation.

[62] While no one spoke about it, the whānau’s ongoing dispute as to ownership of the

shed, which has included Police intervention, appears to have contributed to the trustees

seeking an injunction. In 2017, Phyllis Nicholas followed the trustees’ advice and applied

for a new occupation licence from the trustees. In doing so, there was no certainty that

Phyllis Nicholas would be granted an occupation licence, as the trustees were, at that time,

only seeking to give consideration to an application. When Reo Martin’s whānau filed a

competing application, the trustees advised they would need further information to decide

who should get the licence. A clear obstacle to deciding whether an occupation licence could

be issued has been the difficult question of ownership and the dispute within the whānau.

233 Waiariki MB 113

Mr Sharp submitted that the trustees have not progressed the matter since. However, the

trustees have clearly not granted either Phyllis Nicholas or Reo Martin’s whānau an

occupation licence. It is unclear if this was following proper consideration of the competing

applications or whether any decision has simply been deferred due to the dispute as to

ownership of the shed.

[63] The trustees do not appear to have immediate plans for the specific areas where the

shed and shack currently reside. They did not refer to any intentions to develop the area or

of a need of the area for a licence or lease. However, the trustees have now clearly had

enough of the whānau’s ongoing dispute. Having the unauthorised buildings on the land,

with a whānau in dispute, is clearly an impediment to allowing the trustees to properly

administer the land. There is also no evidence that either the shed or the shack have building

permits or consents from the local authority, which creates issues for the trustees as the legal

owners and provides further reason against allowing the buildings to remain on the land.

[64] I consider that this is not a case where damages may be awarded in substitution for

an injunction. The injury to the trustee’s rights is not small and there is an obvious difficulty

with estimating damages. The grant of an injunction for the removal of the shed and the

shack will no doubt be an inconvenience to the respondents, however, I do not consider it

will be oppressive. Neither of the structures appear to be the primary residence for the

respondents or Trevor Martin and Mr Martin conceded at the hearing that he would remove

the structure if required.

[65] In weighing all the factors, I am of the view that permanent injunctions should be

granted and both the shed and shack should be removed from the land. However, I intend

to delay the issuing of final orders in relation to the shed, until the trustees have considered

a new application from Phyllis Nicholas for an occupation licence. As I have noted above,

the dispute regarding the ownership of the shed appears to have been an impediment to the

trustees considering the 2017 occupation licence application. This decision resolves the

issue of ownership and it will now allow the trustees to give full consideration to an

application from Phyllis Nicholas. To be clear, I in no way look to indicate how the trustees

should decide the occupation licence application. That is a matter for the trustees and Mrs

Nicholas should not expect that my decision in any way guarantees her being granted an

233 Waiariki MB 114

occupation licence. The trustees must give due consideration to a whole range of factors in

coming to their decision, including their trust order and trustee duties.

[66] Phyllis Nicholas should therefore file a fresh occupation licence application with the

trustees. The trustees are to convene a meeting of trustees to consider that application. Given

the current Covid-19 situation, this may take longer than normal and I therefore direct that

this should all be completed within four months from the date of this judgment.

[67] Mr Trevor Martin is in a different position, given there has never been any suggestion

that the shack was erected with the consent of the trustees or that Mr Martin has been allowed

to reside there. Therefore, Mr Martin is to remove the shack from the land. Once again,

given the current Covid-19 situation, this may take longer than normal. I direct that the

removal of the shack is to be completed within six months. If it is not removed within that

time, the trustees are authorised to remove or demolish the shack.

Kupu whakatau - Decision

[68] I make the following findings and orders:

(a) Phyllis Nicholas is determined as the owner of the shed and Trevor Martin is

determined as the owner of the shack. Orders pursuant to s 18(1)(a) of Te

Ture Whenua Māori Act 1993 are issued accordingly;

(b) Both Phyllis Nicholas and Trevor Martin, as the owners of the shed and shack,

have no current authority for those structures to remain on the land; and

(c) There is an order pursuant to s 19(1)(a) of Te Ture Whenua Māori Act 1993

prohibiting Trevor Martin, his agents, employees, contractors or invitees from

occupying the land, and directing Mr Martin to remove the current structure

known as the shack from the land within six months. If the shack is not

removed within that time the trustees are authorised to remove or demolish

the shack.

[69] I am also satisfied that the Court should grant an injunction pursuant to s 19(1)(a) of

the Act prohibiting Phyllis Nicholas, her agents, employees, contractors or invitees, from

233 Waiariki MB 115

occupying the land and directing Mrs Nicholas to remove the current structure, known as

the shed, from the land within a six-month timeframe. However, the issuing of final orders

is delayed pending Phyllis Nicholas filing an occupation licence application with the

trustees. The trustees are to convene a meeting of trustees to properly consider the

application. I have directed that this process should all be completed within four months

from the date of this judgment.

The trustees are to inform the Court of their decision on Phyllis Nicholas’ occupation licence

application. The appropriate orders will then be made following notification of the trustees’

decision.

I whakapuaki i te 11.30am i Rotorua-nui-a-Kahumatamomoe te 20 o ngā rā o Haratua te tau

2020.

C T Coxhead

JUDGE