342

In the Maori Appellate Courtof New Zealand

Tai Tokerau District

Case Stated 1/93

IN THE MATTER of a Case Stated by the Maori LandCourt at Whangarei pursuant to Section 60 of Te TureWhenua Act 1993 to determine the following questions oflaw:-

1. Whether the registration of a transfer pursuant to thelaw prior to and subsequent to the passing of Te TureWhenua Maori Act 1993 had the effect of changingthe status of land to general land? The AppellateCourt should examine the effect of the Insert of theword 'deemed' In Section 2(2)(f)/53.

2. What is the effect of any failure to note amemorandum of transfer in the records of the Courtas required under Section 233/53?

Hearing: Whangarei - 24 November 1993

Comm: Deputy Chief Judge A G McHugh (Presiding)

Judges N F Smith and G D Carter

Counsel: W W Peters for L HaddonR M Bell for M Brown and K MorrisJ A L Oliver for The Registrar-General of Land

DECISION

Delivered at Wellington this 04 3-----tiay of /7V/e1/1--r---4 1994.

Introduction

1. This case stated arose out of proceedings in respect of Pakiri R Block and RahuiTe Kuri Incorporation which are still before the Maori Land Court at Whangarei. Inthe course of those proceedings the Lower Court issued an order of injunctionrestraining the present owners of the Pakiri R Block (formerly the land of theIncorporation) from dealing with the land. An appeal against that order ofinjunction was to be heard at the conclusion of the hearing of this case stated andthe parties represented by Messrs Peters and Bell are the parties to that appeal.

2. In arranging for the hearing of the case stated Deputy Chief Judge McHugh directedthat Counsel involved in the appeal be invited to make submissions on thequestions raised. Having regard to the fact that these questions might affect therelativity of the Maori Land Court and Land Transfer Registers and indefeasibility oftitle the Deputy Chief Judge directed that the Registrar General of Lands be alsoinvited to be represented. This Court notes that all three Counsel have presentedcomprehensive and well-prepared submissions and records its appreciation at theassistance of Counsel in its determination of the issues before it.

3. The questions raised in this case stated are of considerable importance to Judges.of the Maori Land Court. They concern the administration, control andpreservation of the integrity of the Maori Land Court record as opposed to the LandTransfer system and the resolution of any conflict between the two systems havingregard to the doctrine of indefeasibility of land transfer title as developed by caselaw. It would be fair to say that since the decision in Housina Conxtration ofNew Zealand v Maori Trustee [1988] 2 NZLR 662 a feeling has arisen among someJudges that the Land Transfer Office has adopted a somewhat cavalier attitudetowards Maori land and the protective mechanisms of the Maori Affairs Act 1953.Almost all Judges would be able to point to examples of registration of Instrumentsagainst Maori land titles in the Land Transfer Office contrary to the provisions of theMaori Affairs Act 1953 and notwithstanding that such titles are clearly identified asMaori land.

4. The Maori Land Court title system is one which has been developed to protect andregulate Maori land title. It could be said that it accords with Article II of the Treatyof Waitangi which guarantees Maori the full exclusive and undisturbed possessionof their lands and estates. The Maori Affairs Act 1953 provided a code relating tothe administration of that title record and put in place statutory mechanisms toprotect that title. Judges of the Maori Land Court have the task of regulating andprotecting that title record in a judicial capacity. It is understandable that theyquestion as to whether they are required to follow land transfer title and the principleof indefeasibility and thus recognise an alienation when the Maori Affairs Act fromwhich they derive their authority and jurisdiction specifically provides that such

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alienation shall be of no force and effect. As the Maori Land Court provides aseparate code of title record should not the Court proceed to make orders inreliance on its record e /en though such orders may subsequently be registered inthe Land Transfer Office and then derogate from Land Transfer title?

5. We referred earlier to Counsels' helpful submissions. It is worthy of note that oursubstantive findings on the two questions posed in the Case Stated accord primarilywith the opinions and submissions expressed by all three Counsel. We thereforesee no need to repeat or attempt to summarize the respective submissions made byCounsel. However in arriving at their conclusions individual Counsel haveexpressed one or two views on the legal effect of sections of the Maori Affairs Act1953 which do not accord with this Court. While these views may not affect theratio of this Court's findings we have endeavoured to deal with them in this decisionin case it may be thought that by our silence we acquiesed in them.

Question 1 Whether the reg istration of a transfer pursuant to the law prior to and subsequent to the passing of Te Ture Whenua Maori Act 1993 had the effect ofchanging the status of land to general land? The Appellate Court is directed to examine the effect of the insert of the word 'deemed' In Section 2(21(f1/53

Under the Maori Affairs Act 1953

6. We will deal first with the situation under the Maori Affairs Act 1953. Statutoryprovisions relevant to the question before this Court cover the definitions of 'Maoriland' and 'Maori freehold land' as are included In the definitions under the heading'Land' In Section 2 of that Act; the provisions of Section 2(2)(f) relating to the statusof land which has been transferred; and the provisions of Section 30(1)0) whichgives the Court jurisdiction to determine whether land is Maori freehold land orgeneral land.

7. These provisions are:

'S2 - Interpretation - (1) In this Act unless the context otherwise requires:

'Land' includes Crown land, [General land], and Maori land asthose terms (subject to the special provisions contained insubsection (2) of this section) are herein defined, that is to say:

oMaori land' means customary land or Maori freehold land:

'Maori freehold land' means land other than [General land] which,or any undivided share in which, is owned by a Maori for abenefical estate in fee simple, whether legal or equitable:

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S 2(2) Unless expressly provided in this or any other Act with respect toany specified or defined area, and notwithstanding anything in theforegoing definition of the term 'land' or in any of the subsidiarydefinitions included therein, -

(f) Maori freehold land the legal fee simple in which has beentransferred otherwise than by an order of the Court or of a Registrarshall, except where it appears on the face of the instrument oftransfer that the land has remained Maori freehold land, be deemedto be [[General land]] until either -

An order is made by the Court under paragraph (i) ofsubsection (1) of section 30 of this Act determining that theland is Maori freehold land; or

(ii) Any other order is made by the Court as a consequence ofwhich the land becomes or is deemed to have becomeMaori freehold land].

S30(1)(i) To determine for the purposes of any proceedings in the Court orfor any other purpose whether any specified land is Maori freeholdland or is [General land]:

In the course of the hearing the attention of the Court was drawn to three decisionsof the Maori Land Court concerning the interpretation of Section 2(2)(f). The first ofthese was in In Re Kopua Deceased [1978] 15 Ruatoria MB 238. In this case theCourt was required to determine for the purposes of succession whether land whichwas held by the deceased who was a Maori and was Maori land when acquired bytransfer from another Maori, was Maori land for the purposes of his estate.

Judge Russell, after considering the effect of Section 2(2)(f) found that the land wasgeneral land and that the Court therefore had no jurisdiction to deal with the land onsuccession. He commented on the effect of Section 2(2)(f) as follows:-

'The effect of the amendment was to bring certainty by creating an irrebuttablestatutory presumption. Between registration of the transfer or the amendmentof the Act, whichever first occurred, land was general land for ail purposes upuntil such time as the Court made an order. The effect of the order, whetherdetermining status or otherwise, was that from the date of the order, and notbefore, the land became again Maori land.'

He then went on to say:–

. . What s. 2 (2) (f) requires everyone to do is to disregard the actual statusand apply an irrebuttable presumption. This land to be treated as if it weregeneral land irrespective of its actual status.'

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10. The second decision was in Re Otoronanoa A4A and the Deputy Registrar [1984]63 Waikato MB 246. The situation again involved the transfer of Maori land from aMaori to a Maori. The Court there found that the land remained Maori freehold landwithin the definition under Section 2 and was not affected by the provisions ofSection 2(2)(f). This decision was issued on 3 February 1984.

1 1 . The third decision was in Re Haumingi 9B2A and the Deputy Registrar [1984] 210Rotorua MB 106. This was a decision of Judge N F Smith which was issued on28 June 1984. There again the Court had to consider the effect of a transfer ofMaori land from a Maori to a Maori and in this case in reliance on the provisions ofSection 2(2)(f) found that the land was general land and determined the statusaccordingly.

12. The provisions of the Maori Affairs Act 1953 have been repealed and superseded bythe provisions of Te Ture Whenua Maori Act 1993 which came into effect as from1 July 1993. The Importance of the question before the Court relative to the 1953Act will therefore diminish as time goes on although the Court may have to havereference to those provisions from time to time in establishing the status of land asat the commencement of the 1993 Act.

13. This Court is faced with the interpretation of the provisions of Section 2(2)(0/53. Ithas before it conflicting decisions of the Lower Court over the interpretation of thissection. it therefore behoves this Court to examine and resolve the conflictbetween those decisions.

14. in the Otorohanga A4A case Judge Cull relied heavily on the decision of the HighCourt in in Re Puhl Mehl to Hutchison [1919] NZLR 82. That case turned on thedefinition of Native freehold land under Section 2 of the Native Land Act 1909 andproviso (c) of that section. The relevant provisions are:-

'2. In this Act, unless a contrary intention appears, -'Native freehold land° means land which, or any undivided share inwhich, is owned by a Native for a beneficial estate in fee-simple,whether legal or equitable:Provided that, except where otherwise expressly provided by thisAct, -

(c) Native land which has become subject to a contract of saleor to any other contract of alienation of the free-simplethereof, made before or after the commencement of thisAct, shall be deemed to remain Native land,notwithstanding that contract, until the contract has beencompleted by a transfer of the legal fee-simple:'

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15. Judge Cull in his decision, referred to the headnote to the Puhi Mahi case:-

The conveyance of Native freehold land from one Native to another does notdeprive it of its character as Native land. The effect of proviso (c) to thedefinition of 'Native freehold land" in s. 2 of the Native Land Act, 1909, is toprevent Native land from ceasing to be such because of a mere contract ofsale to a European; but to infer that a transfer or conveyance of such landfrom one Native to another changes its character would be to allow the provisoto overrule the definition.

Dictum of Lord Watson in West Derby Union v. Metropolitan LifeAssurance Society(1) as to the effect of a proviso applied.

(1) [1897] A.C. 647, 652.°

16. Further at-folio 249 of his decision Judge Cull referred to the statement of Stout, CJat page 84 of In Re Puhi Mehl:-

it was contended that this proviso (c) implied that once the transfer wascomplete the land ceased to be Native land. That would mean that thedefinition, without express words, of 'Native freehold land s - viz., land ownedby a Native for a beneficial estate in fee-simple, whether legal or equitable' -would be overruled. That is not the function of a proviso; there is nothingrepugnant in it. It has an operation, and a useful operation; and, as LordWatson said in the House of Lords in West Derby Union v. Metropolitan LifeAssurance Society(1), 1 am perfectly clear that, if the language of the enactingpart of the statute does not contain the provisions which are said to occur in it,you cannot derive these provisions by implication from a proviso.'

I am therefore of opinion that the proviso does not declare that a transfer ofNative freehold land from one Native to another makes the land cease to beNative freehold land.'

17. Judge Cull then went on to state the ratio of his decision at folio 250 as follows:-

'Does then the creation of a new subsection for similar provisions which werepreviously shown as provisos to the definition of °Native freehold land' changetheir character? I am of the view that the principle enunciated in the abovecase equally applies to the provisions of our present Act and thoughsection 2(2) does not specifically state that paragraphs (a) to (f) are provisos tothe definition of Maori freehold land, relying on the Puhi Mahi case I considerthat the paragraphs (a) to (f) are in fact in the nature of provisos to thedefinition of Maori freehold land and as such cannot overrule it.

Accordingly following the decision of Stout CJ where such a transfer Isexecuted from Maori owner to another Maori the land does not lose its status

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as Maori freehold land notwithstanding the provisions of section 2(2)(f) of theMaori Affairs Act 1953.*

18. The argument which was put forward in the Puhi Mahi case was one which wasderived by implication from the proviso (c). The High Court rejected that argument.This must be contrasted with the situation under Section 2(2)(f) where it is expresslystated that where Maori freehold land is transferred otherwise than by Order of theCourt it is 'deemed to be general land . .' Judge Cull found that this provisionwas in the nature of a proviso and therefore could not overrule the definition. Wedoubt whether the Puhi Mahi case extends to an express proviso and feel that theratio may simply be that a proviso cannot by implication overrule a definition.

19. Leaving that argument aside it is quite clear from a perusal of the provisions ofSection 2 of the Maori Affairs Act 1953 that the definition of 'Maori freehold land' asit appears under Section 2 is intended to be affected and qualified by the provisionsof Section 2(2)(f). We earlier referred to the definitions of Maori land and Maorifreehold land. it must be noted that those definitions under Section 2 of the MaoriAffairs Act 1953 are expressed to be '(subject to the special provisions contained insubsection (2) of this section)'. Subsection (2), of course, includes Section 2(2)(f).

20. Subsection (2) which includes Ss2(2)(a) to (2)(f) commences:-

'Unless expressly provided in this or any other Act with respect to anyspecified or defined area, and notwithstanding anything in the foreaoingdefinition of the term 'land' or in any of the subsidiary definitions included therein, - '

Thus we find that firstly the definitions of "Maori land' and 'Maori freehold land' areexpressed to be subject to the provisions contained in subsection (2) whichIncludes Ss2(2)(f) and secondly that those subsections are expressed to take effectnotwithstanding anything in the definitions of those terms. Clearly the legislationcontemplates that these definitions be qualified by and subject to the provisions ofSection 2(2)(f).

21. There is one further distinction between the 1909 and 1953 Acts which is relevant tothe interpretation and effect of the definition and which was not referred to by JudgeCull in re Otorohanga A4A (supra).

Section 2 of the Native Land Act 1909 commences -

"2. In this Act, unless a contrary intention ap pears . .(emphasis added).

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Section 2 of the Maori Affairs Act 1953 commences -

°2. Interpretation - (1) In this Act, unless the context otherwise requires'

(emphasis added)

Applying the 1909 definition in the Puhi Mahi case, it could well be argued, in thecircumstances in which Maori land was transferred from one Maori to another, that

the land retained its status as Maori land "unless a contrary intention appeared'.But in 1984 when the Otorohanga A4A decision was given Section 2 had been

changed to provide °unless the context otherwise requires'. In effect the 1953 Actremoved the relevance of 'intention' from the interpretative process and thus clearlydistinguished the position between the 1919 Puhi Mahi decision and the lawgoverning the 1984 Otorohanga A4A decision of Judge Cull.

The position since the 1953 Act has been to interpret and define by looking at the

context of the words. We shall shortly deal with just this issue when we look at themeaning of the word 'deemed'.

22. For the above reasons we disagree with the decision in the Otorohanga A4A caseand agree with the interpretation of Section 2(2)(f) in the other two cases.

23. Under Section 2(2)(f), land, following a transfer thereof, is deemed to be generalland. 'Deemed" is often inserted in legislation and can have a number of uses.These are summarised by Lord Radcliffe in St Aubyn v Attorney-General [1951] 2 AllER 473 at 498:-

'The word 'deemed' is used a great deal in modem legislation. Sometimes ItIs used to impose for the purposes of a statute an artificial construction of aword or phrase that would not otherwise prevail. Sometimes it Is used to putbeyond doubt a particular construction that might otherwise be uncertain.Sometimes it Is used to give a comprehensive description that includes what is

obvious, what is uncertain and what is, in the ordinary sense, impossible.'

24. In the Kopua case Judge Russell indicated that the effect of Section 2(2)(f) was tobring certainty. This Court agrees with that statement and that the purpose of theuse of the word 'deemed* In Section 2(2)(f) was to put beyond doubt a particularconstruction that might otherwise be uncertain. The effect of the provision is such

that once a transfer is registered then anyone dealing with the title is entitled to doso in reliance on that provision. That is not to say that the Court could not by Orderunder Section 30(1)(i)/53 determine that the land was still Maori land where the

transfer had been from Maori to Maori. It is our understanding that the Maori Land

Court has from time to time made such determinations where it is appropriate and

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where the land has hot been dealt with in a manner inconsistent with adetermination that it is Maori land. However until such determination is made theland is deemed to be general land.

25. The effect of Section 2(2)(f) as Judge Russell stated, is to apply an irrebuttablepresumption that the land is to be treated as general land irrespective of its truestatus. A transferee may avoid that presumption by having it noted on the transferthat the land remains Maori freehold land. Alternatively he may seek an order ofthe Court under Section 30(1) (i) determining the land to be Maori land In which casethe presumption or 'deeming° remains in effect until such order.

26. The provisions of Section 2(2)(f) are such that any transferee is entitled to rely onthem. Although this question is not before this Court, it is our view that In anyapplication- under Section 30(1)(I) to which Section 2(2)(f) applies it would not beappropriate for any order to be made determining the land to be Maori land withoutthe consent of the registered proprietor.

27. In his submissions Mr Bell contends that -

The words In S.2(2) (f) 'be deemed to be general land' are expressly limited bythe conditions subsequent In subclauses (I) and (II);The words 'be deemed* do not create a conclusive presumption but onlyprovide a provisional status for the land as general land; consequently wherethe Court makes an order under Section 30(1)(1)/53 determining land to beMaori freehold land, that is a declaratory decision based on events giving riseto that status and therefore records the status retrospectively.

He adds that the power to change status of Maori freehold land is underSection 433 and that the legislative purpose of protecting Maori land would beundermined if Section 2(2)(f) were allowed to operate as a back door method ofchanging the status of Maori freehold land.

28. The aforegoing submissions differ from the views of this Court and the differencelargely turns on the interpretation of 'deem°. As stated, we regard its use in thecontext of Section 2(2) (f) as to put beyond doubt the question of status which mightotherwise have been uncertain. Following registration of a transfer anyone dealingwith the land, be it the registered proprietor or otherwise, is entitled to rely on thewords of the statute as to status. There are many dealings with land which do notinvolve registration. The effect of treating an order under Section 30(1)(1) withretrospective effect would be to introduce an element of uncertainty over the periodbetween the transfer and the order which is the very factor the legislation hassought to avoid.

29. Mr Bell expresses concern at Section 2(2)(f) being used to effect a change of statusinstead of Section 433. Yet, in his submissions he accepts that while the land has

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'provisional" status under Section 2(2)(f) it might be sold to a third party andundergo a further change of status. It seems to the Court that once it is acceptedthat a transferee of land can deal with the land as general land pursuant toSection 2(2)(f) the status so conferred must be regarded as conclusive and couldnot In any way be described as provisional.

30. The wording of Section 2(2)(f) prescribed that the 'deeming' takes effect until otherorders are made. The use of the word 'until' suggests that the status conferred bythe Act enures until the point In time that an Order of the Court is made. Section34(1)/53 provides that an Order 'shall take effect according to its tenor as from thecommencement of the day on which it is so pronounced.' There is nothing InSection 2(2)(f) or Section 30(1)(i) to indicate that an order thereunder Is ofretrospective effect or overrides or supersedes the specific words of Section 2(2)(f)over the period from the date of the transfer to the date of the Section 30(1)0 order.For the above reasons, we differ on this point, from the views expressed by Mr Bell.

When Does Status Change?

31. In his submissions Mr Peters contended that it was only on registration that statuschanged under Section 2(2)(f). While this Court would probably agree that suchwas the case where mere noting of a transfer was required, different considerationsmight well apply where a transfer had been confirmed by the Court This is not amatter which this Court has to consider under the terms of the Case Stated and ittherefore expresses no firm views on it.

Under Te Ture Whenua Maori Act 1993

32. The situation under Te Ture Whenua Maori Act 1993 is governed by Section 130:-

'No land shall acquire or lose the status of Maori customary land or of Maorifreehold land otherwise than In accordance with this part of this Act, or asexpressly provided in any other Act"

The 1993 Act contains none of the provisions which were contained under the 1953Act and which were referred to above. Accordingly by virtue of the provisions ofSection 130 the conveyance or transfer of land from Maori to Maori or Maori to non-Maori does not affect the status of the land. Change of status of land from Maoriland to general land can only be effected in accordance with the provisions ofSections 135, 136 and 137 of Te Ture Whenua Maori Act 1993 and these involve anapplication to the Court and an order by the Court in accordance with theprovisions of one or more of those sections.

2.

33. Answers to Question 1

The answers to Question 1 are -

(1) Registration of a transfer pursuant to the law under the MaoriAffairs Act 1953 had the effect of changing the status of the landfrom Maori land to general land except where it is apparent onthe face of the transfer that the land is to remain Maori land.

(ii) The status of the land is deemed to be that of general land andmust so remain until there is an order under Section 30(1)(i)determining the land to be Maori freehold land or some otherorder of the Court whereby the land becomes or is deemed tobecome Maori freehold land.

(iii) The transferee is entitled to rely on the provisions ofSection 2(2)(f) deeming the land to be general land and theCourt should not make an order under Section 30(1)(i)determining the land to be Maori land without the consent of theregistered proprietors.

(iv) Under the provisions of Section 130 of Te Ture Whenua MaoriAct 1993 the status of the land is not affected by registration of atransfer executed after the passing of that Act. Maori landwould therefore remain Maori land.

Question 2

'What is the effect of any failure to note a memorandum of transfer in therecords of the Court as required under Section 233/53r

34. We must emphasise that the question before the Court relates to non-noting of atransfer under Section 233 and not the effect of non-confirmation of a transfer that isrequired to be confirmed. The latter question has not been considered by thisCourt and could raise different questions of law from those which were before us.

35. Section 233(1)/53 provides:

'No alienation of Maori freehold land which Is not by this Part of this Actrequired to be confirmed by the Court shall have any force or effect unless anduntil the instrument by which the alienation is effected has endorsed thereon amemorial that it has been produced to the Registrar and has been noted in therecords of the Court.'

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36. We clarify the above question in that it is aimed at seeking the effect of non-notingon a transfer registered against a land transfer title. If a transfer is not noted andnot registered then in accordance with Section 233(1) it is of no force and effect.

This Court cannot envisage any dispute arising over a transfer which is notregistered as the situation can be remedied by the simple expedient of arranging for

the document to be noted. It is the situation where a transfer has been registeredin the Land Transfer Office without noting under Section 233/53 that this question

seeks to address.

37. Land Transfer Title - Indefeasibility

Various provisions of the Land Transfer Act 1952 are aimed at the recognition andprotection of the estate of the registered proprietor of a land transfer tine. In

particular we refer to:-

Section 62:

Notwithstanding the existence in any other person of any estate or interest,

whether derived by grant from the Crown or otherwise, which but for this Actmight be held to be paramount or to have priority, [but subject to theprovisions of Part I of the Land Transfer Amendment Act 1963], the registeredproprietor of land or of any estate or interest In land under the provisions of

this Act shall, except in case of fraud, hold the same subject to suchencumbrances, liens, estates, or interests as may be notified on the fdium ofthe register constituted by the grant or certificate of title of the land, butabsolutely free from all other encumbrances, liens, estates, or interests

whatsoever, -

(a) Except the estate or interest of a prorietor claiming the same land undera prior certificate of title or under a prior grant registered under theprovisions of this Act; and

(b) Except so far as regards the omission or misdescription of any right ofway or other easement created in or existing upon any land; and

(c) Except so far as regards any portion of land that may be erroneouslyincluded in the grant, certificate of title, lease, or other instrumentevidencing the title of the registered proprietor by wrong description ofparcels or of boundaries

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and

Section 75:

Every certificate of title duly authenticated under the hand and seal of theRegistrar shall be received in all Courts of law and equity as evidence of theparticulars therein set forth or endorsed thereon, and of their being entered Inthe register, and shall, unless the contrary is proved by production of the

register or a certified copy thereof, be conclusive evidence that the personnamed in that certificate of title, or in any entry thereon, as seised of or as

taking estate or interest in the land therein described is seised or possessed ofthat land for the estate or interest therein specified as from the date of thecertificate or as from the date from which the same is expressed to take effect,and that the property comprised in the certificate has been duly brought under

this Act.

38. Other provisions which seek to protect the registered proprietor are Section 63(against claims for possession), Section 64 (guaranteeing title of registeredproprietor) and Sections 181 and 182 which provide indefeasible title to purchaseror mortgagee bona fide for valuable consideration from registered proprietor.

39. The effect of registration of a void Instrument is dealt with by the learned authors ofintroduction to Land Law (2nd Ed.)' Hinde McMoriand and Sim at paragraph 2.055(pages 81 to 90 inclusive) which contains a comprehensive summary of appropriatelaw. The question of indefeasibility of title is now well settled and this Court sees nopoint in further reviewing the authorities. It cites the extract at page 87 as beingIndicative of accepted law as to how registration confers indefeasible title:-

°Frazer v Walker has settled two points. First and foremost, the Privy Councilhas finally pronounced in favour of immediate indefeasibility. Their Lordships

have laid down the principle that registration of an instrument which is forged,or which Is void for any other reason, is effective to vest and to divest title and

to protect the registered proprietor against adverse claims. Secondly, it hassettled that a bona fide purchaser for valuable consideration of an estate in fee

simple who buys from a mortgagee who is exercising the power of sale underthe mortgage is entitled to the protection of s 183 to the same extent as if that

bona fide purchaser had taken title direct from the registered proprietor of theestate in fee simple.

The judgments of the Court of Appeal show that the Privy Council could havedisposed of the appeal simply by holding that Mr Walker was protected againstMr Frazer's action by s 183. In other words, the case could have been treatedas a deferred indefeasibility situation. On this ground it has been suggested

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that the pronouncement in favour of immediate indefeasibility was obiter. It is

submitted that this view is not correct. The Privy Council plainly wished tosettle the conflict of opinion which had for so long centred round its earlier

statements about indefeasibility of tide in Gibbs v Messer and Assets Co Ltdv Mere Roihi. From the way in which their Lordships approached the case it

would seem abundantly clear that they intended to decide whetherindefeasibility is immediate or deferred, and based their advice firmly on theground of the immediate indefeasibility of Mr and Mrs Radomskl's title asmortgagees of Mr Frazer's interest in the land. It is surely not permissible to

say that their pronouncement in favour of Immediate indefeasibility is obiterbecause they could have disposed of the appeal on another ground if they hadchosen to do so. It is submitted with respect that the true ratio decidendi ofFrazer v Walker was accurately stated by Street J in the Supreme Court ofNew South Wales in Equity in these words:

'The Privy Council's decision is direct and binding authority laying downthat a registered proprietor who acquires his interest under an instrument

void for any reason whatever obtains on registration an indefeasible title.This will avail him against all corners unless (a) there is a specific basisunder the statute rendering him open to challenge; an example of sucha specific basis of challenge is actual fraud on his part or on the part ofhis agent . . . or (b) he is subject to a personal obligation by which hemay be bound in personam to deal with his registered title In some

particular manner' .

(in Mayer v Coe [1968] 2 NSWR 747, 754.) '

Mr Oliver, for the Registrar-General of Lands, in his submissions relied heaviy on'Introduction to Land Law (2nd Ed.)° and the authorities cited therein. Drawingfrom the same source he went on to submit:-

'4.11 Mayer v Coe was approved by the High Court of Australia in BreskvarWall (1971) 126 CLR 376 at 387 per Barwick CJ, and by Barker J inNew Zealand in Merbank Corporation Ltd v Cramp [1980] 1 NZLR 721.Particular reference Is made to pp 727-730 of Barker J's decision.

4.12 The Merbank case is an illustration of the principle that it is not theparties who effectively transfer [or create a charge over] the land, but It Isthe State that does so, and in certain cases more fully than the partycould.[Commonwealth v State of New South Wales (1918) 25 CLR 325, 342].

Some Australia judges have been prepared to go perhaps even further

than the New Zealand High Court did in the Merbank case. In Rock v

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Todeschino (1983) QdR 356, 363, McPherson J said:

°.. . [S]ince the decision in Bresicvar v Wall, it is not, onceregistration has taken place, the validity or even the existence of aninstrument that determines questions of title under the TorrensSystem. What is decisive is the fact of registration.°

4.13 Thus it does not matter whether what is registered is a transfer, amortgage or charge, a transmission, or a joint family home application.It is the act of registration that confers indefeasibility.'

41. Mr Oliver then referred to two conflicitng decisions in the Maori Land Court. Thefirst was a Hamilton decision, In Re Marshall. Part Allotment 65628 Parish ofWhangape-delivered on 3 September 1990 at 69 Waikato MB 136 and the second aHastings decision, In Re Estate Mana Hunter, Waipuka 3B1B1 and 361B2B1C2ABlocks dated 23 July 1993 at 135 Napier MB 165. In both cases the facts weresimilar. The land was Maori land for which there was land transfer title. Theregistered proprietor was deceased and transmission to an administrator wasregistered against the land transfer title without prior noting in the Maori Land Court.Subsequent instruments were then registered against the land transfer title, againwithout noting in the Maori Land Court. Under Section 233/53 fakir° to note anInstrument of alienation which was not otherwise required to be confirmed meantthat it was 'of no force or effect'.

42. In the Hamilton decision the Lower Court, after reviewing the authorities onindefeasibility of title, and in particular the decision in Housing Cor poration ofNew Zealand v Maori Trustee [1988] NZLFi 662 which we will refer to later on in thisdecision, found that consequent upon registration the present registered proprietorhad obtained indefeasible title and that the land was now general land. Converselyin the Hastings decision the Court found In favour of the owner as recorded In theMaori Land Court record. There at page 168 of his decision the learned Judgesaid:-

in the matter before me dealing firstly with the mortgages, I am firmly of theview that this Court does not have the jurisdiction to override the clear directivein S 233/53; to intervene and recognise by giving legal effect to an instrumentParliament has said has 'no force and effect' as well as being extrajurisdictional would appear to be unconstitutional. I am well aware of theeffect of the indefeasibility rules and the judicial gymnastics the Courts haveIndulged in over the years in support thereof however I am here dealing notwith the land Transfer Act but with the very legislation that inter alia createsand empowers me to consider this question.'

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and further:

'Reduced to its essential, we have a situation where the legislature hasprovided a remedy (i.e. S 81 Land Transfer Act) and this Court is being askedto ignore the statutory protection provided for in the Maori land legislationbecause the applicants believe that the District Land Registrar havingwrongfully registered interests will not exercise his powers and rectify theposition. In the circumstances and for the reasons set out above I believecannot recognise the applicants as the owners of this land until Maori LandCourt records so provide.°

The foregoing statements highlight the dilemma faced by a Judge of the Maori LandCourt in cases such as these. Maori were guaranteed title to their lands under theTreaty of Waitangi (Article II). Over the years the Maori Land Court title system hasevolved as a system to record and protect title to Maori land. There has been noemphasis or requirement on land transfer registration. When a Maori wishes toenquire about his title to land his first approach is to the Maori Land Court, not theLand Transfer Office. The Maori Land Court records the ownership of title andthrough noting of alienations the Integrity of the record is preserved. In providingthat alienations are of no force or effect until noted the legislation is seeking topreserve the integrity of the record. Why then should the Court be required torecognise alienations which are under its empowering legislation said to be 'of noforce and effect'?

The failure to have a document noted by the Registrar under Section 233/53 wasconsidered by the High Court in Housing Corporation of New Zealand v MaoriTrustee [1988] 2 NZLR 662. There the High Court was required to consider thevalidity of a mortgage in favour of the Housing Corporation which had beenregistered under the Land Transfer Act 1952, but had not been noted in accordancewith the provisions of Section 233 of the Maori Affairs Act 1953. The Court foundthat notwithstanding the provisions of Section 233 of the Maori Affairs Act 1953 themortgagee, by the act of registration, acquired indefeasible title in respect of itsmortgage.

in his decision Mr Justice McGechan reviewed comprehensively the history of thelegislation and judicial precedent on indefeasibility of the Land Transfer Title. Atpage 672 on the conflict between sections 233 of the Maori Affairs Act 1953 and theLand Transfer Act 1952 he said:-

'Approaching the matter solely under Land Transfer principles, there could beno doubt the Housing Corporation mortgage attained indefeasible validitythrough registration, subject only to the question of the Registrar's powersunder Ss 80 and 81. However, is that immediate indefeasibility destroyed or

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rendered vulnerable through non-compliance with S 233 of the Maori AffairsAct 1953? Which of the two statutes is to prevail? There is no authoritydirectly in poi it. The question is one of statutory interpretation.'

46. Mr Justice McGeehan then considered the function of the Registrar of the MaoriLand Court as a purely recording or administrative function. This finding followedthe decision of Mr Justice Sisson in Pihema v Pehikino [1984] 1 NZLR 625 that theRegistrar of the Maori Land Court had no power or duty under Section 233 todetermine the validity of the instrument concerned; that his function was purelyadministrative; and that the object of Section 233 was to ensure that the MaoriLand Court had an immediate and complete record available to it.

47. In his decision in the Housing Corporation case, at page 674, Mr Justice McGeehanobserved:--

'If I may be permitted perhaps a small and respectful quibble more as toemphasis than anything else, I rather think the sanction depriving instrumentsnot endorsed of force and effect reflects a promotion of administrativeconvenience rather than deep legal or social importance. Certainly it must behighly convenient for the purposes of Maori land administration for thoseinvolved to be able to operate on an assumption that 'if we haven't noted it wecan ignore it', but that is not vital. There is very little land indeed now which isnot under the Land Transfer Act. It Is always possible to carry out a titlesearch. Indeed, in some cases it could be foolish not to do so at least as across check upon internal Maori Land Court records. There is no obvioussocial or legal imperative that alienations otherwise than by transfer beproduced to the Registrar of the Maori Land Court, and I do not thinkSection 233 should be viewed in an exaggerated light'

The learned Judge, then after considering various principles of Interpretationincluding general as against specific legislation and earlier statutes as against latterstatutes preferred and adopted the approach regarding S 233/53 as being subjectto the Immediate Indefeasibility effects of the Land Transfer Act 1953.

48. The document in the Housing Corporation case was a mortgage. The questionthe case stated refers to the failure to note a 'transfer'. Generally transfers arerequired to be confirmed under S 225/53 but the case stated arose out of a transferby a mortgagee under the powers contained in his mortgage. That did not requireto be confirmed and so required to be noted under S 233. All documents whichrequired only noting under S 233 were capable of being entered into without theconsent of the Court and so long as confirmation was not required we can see noreason as to differentiate as between the type of document involved, i.e. between amortgage, as in the Housing Corporation case and a transfer, as in the present

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instance. There was no legal restriction on the party alienating other than notingunder S 233 and both documents were capable of being given full force and effectmerely by noting.

49. The section of the Maori Affairs Act 1953 which enables the Maori Land Court todetermine conflicts between Maori land title and Land Transfer title isSection 30(1)(a). This section gives the Court jurisdiction:

"To hear and determine any claim, whether at law or equity, to the ownershipor possession of Maori freehold land, or to any right, title, estate, or interest inany such land or in the proceeds of alienation thereof:

It was under-this section that both the Marshall and In Re Estate Mana Hunter MaoriLand Court decisions were given. Te Ture Whenua Maori Act 1993 has inSection 18(1)(a) an almost identical provision to Section 30(1)(a)/53.

50. The above provision requires the Court to determine any claim on the basis of lawand equity. While we have some support for the concerns of the learned Judge inthe Mana Hunter case, the law to be applied is not just the law as expressed in theMaori Affairs Act, but the general law of New Zealand. The Court Is thereforerequired, In coming to a determination to consider the effect on Maori land title ofadverse registration under the Land Transfer Act based on law as established byJudicial precedent.

51. The High Court is regarded as a superior Court. It has power to review decisions ofboth the Maori Land and Maori Appellate Courts. Section 67/53 and Section 72/93contain provisions for both Courts to state cases to the High Court. The chain ofdecisions referred to earlier is that the Housing Corporation case dearly establishesthat notwithstanding failure to note a document under Section 233/53, uponregistration In the Land Transfer Office the registered proprietor obtains indefeasibletitle. That is established law and must be followed by this Court.

52. This Court also refers to Section 36/53 which provides for registration of orders.S 5(3) states:-

'Until registration has been so effected, an order of the Court in respect of landsubject to the Land Transfer Act 1952 shall affect only the equitable titlethereto.'

Consequently there is a recognition that Maori Land Court title, unless registered,constitutes a lesser title than legal title under the Land Transfer Act.

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53. This Court therefore holds that the effect of a failure to note a memorandum oftransfer under Section 233/53 is:-

(1) Until registered against Land Transfer Title the transfer is of no force and effect

(2) Once so registered the transfer confers indefeasible title on the transfereeregardless of the state of the Maori Land Court title.

Additional Comment

54. During the course of this Court's consideration of this part of the case stated it hadcause to consider also some matters on the periphery of the question before it.This Court-therefore makes some observations on those matters, not from the pointof issuing any binding determination on them, but merely to place on record in verybrief form its present views in case any of these matters become subject to Judicialdetermination at a later date.

Amendment of the Land Transfer Register

55. Section 81 of the Land Transfer Act 1952 provides:

'Where it appears to the satisfaction of the Registrar that any certificate of titleor other Instrument has been issued in error, or contains any misdescription ofland or of boundaries, or that any entry or endorsement has been made inerror, or that any grant, certificate, instrument, entry, or endorsement has beenfraudulently or wrongfully obtained, or is fraudulently or wrongfully retained, hemay require the person to whom that grant, certificate or instrument has beenso Issued, or by whom it is retained, to deliver up the same for the purpose ofbeing cancelled or corrected, as the case may require.

56. In the Mane Hunter decision (supra) Judge Hingston referred to the failure of theDistrict Land Registrar to use his powers of correction under Section 81. ThisCourt accepts that there is considerable doubt as to the extent of the District LandRegistrar's powers under Section 81 and this question and the meaning of'wrongfully' in Section 81 is fully discussed by the learned authors of Introduction toLand Law (supra) at pages 106 to 109.

57. Justice McGechan in the Housing Corporation case considered the application ofSection 81 in the circumstances of that case, and, without making a bindingdirection on the District Land Registrar, found that he was not required to take anyaction under Section 81. At page 701 he observed:-

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"(1) The s 81 jurisdiction to correct the register on the basis of registration'wrongfully" obtained is an unwanted anachronism. it is not to beencouraged.

(2) There is a longstanding practice under which Registrars do not take anactive role under s 81. Conveyancing practice and Registryadministration has been regulated accordingly for many years. Thereshould not be an abrupt change without notice.

In so saying he condoned the practice of District Land Registrars to limit the use ofSection 81 to correct slips or minor errors on the record.

58. During the present hearing Judge N F Smith drew to the attention of Counsel theprovisions of Section 126 of Te Ture Whenua Maori Act 1993:-

' 26. No registration without prior confirmation - The District LandRegistrar shall not register any instrument affecting Maori land (otherthan an order of the Court or of the Registrar) unless the instrument hasbeen confirmed by the Court, or the Register of the Court has issued acertificate of confirmation in respect of the instrument, in accordancewith the relevant provisions of Part VIII of this Act. '

He questioned whether this was not more forceful than the provisions of the 1953Act and was there to protect the integrity of the Maori Land Court record; that anyregistration by the District Land Registrar would be dearly 'wrongful' and that in theevent of such registration he should use his powers of correction under Section 81.

59. For the Registrar-General. Mr Oliver responded that the position of a District LandRegistrar would remain the same. The provisions of Section 81 would be used onthe same basis as before - to correct slips.

We do not believe that the situation is perhaps as simple as Mr Oliver has stated.Various sections of Te lure Whenua Maori Act 1993 seem to be aimed at improvingthe relationship between the Maori Land Court and Land Transfer Title System andat protecting the Maori Land Court record. Section 126 is a dear example of this.Mr Oliver advised this Court that District Land Registrars are proceeding to identifyMaori land titles as such so as to prevent wrongful registration of instruments whereconfirmation or noting is first required.

lithe title is dearly identified as Maori land and someone deals with it in disregard ofthe law pertaining to it, and registration takes place, wrongfully, then there may becircumstances where it would be appropriate for a District Land Registrar to use hispowers of correction under Section 81.

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The legislature has given to the District Land Registrar power of correction anddespite judicial comment that power remains. We do not see it as appropriate thatthe District Land Registrar should, simply as a matter of policy, and regardless ofcircumstances, limit the exercise of that discretion.

61. Having said that, this Court must express approval at the procedures being put inplace by the Land Transfer Office to identify Maori land and to ensure, onregistration, compliance with the provisions of the Maori Land Acts. Weunderstand that there is ongoing discussion and co-operation between the Courtand Land Transfer Office aimed at improving the inter-relationship of both systemsand trust that this process can continue to the betterment of both registries.

Rectification of the Maori Land Court Register

62. The Maori Land Court register is maintained by the Registrar noting and recordingthe effect of Instruments and orders of the Court. While the Registrar has thepower to correct slips and errors In entry he has no general power of amendment ofthe record and accordingly no power to amend his register to accord with LandTransfer Title. Thus, where there is conflict, the appropriate procedure would be foran interested party or the Registrar to bring an action under Section 18(1)(a)/93 todetermine the title and the Registrar would then act on the Court's findings.

Powers of Court under Te Ture Whenua Maori Act 1993

63. Under the 1953 Act the effect of registration of a transfer is to see the land becomegeneral land where it Is not evident on the face of the transfer that the land remainsMaori freehold land. Conversely, under the 1993 Act the status is unaffected andthe land, notwithstanding conveyance to a non-Maori, stays Maori land. Thismeans that the Maori Land Court remains seised of full Jurisdiction over that landand that any interested party who is aggrieved over the wrongful registration of anyinstrument could bring action before the Court under the provisions ofSection 18/93 for the matter to be determined. This could include proceedingsunder the exceptions to the indefeasibility rule. It Is also possible that the widerjurisdiction now available under Section 128/93 could be used to resolvedifferences between the Land Transfer and Maori Land Title systems.

Determination of Status under Section 30(1)()153

64. In his submissions Mr Bell raised the question as to whether in action to determinestatus under Section 30(1)(i) exceptions to the indefeasibility rule could be raised.It Is our view by way of obiter that the Court would be bound by the fact ofregistration in the Land Transfer Office and the indefeasibility and evidentiary

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provisions of the Land Transfer Act. The only challenge to the title that could bebrought would have to be under one of the exceptions to indefeasibility and that byproper proceedings in a Court of competent juristiiction.

Summary

65. The answers to the questions under the case stated are -

Question: 1. Whether the registration of a transfer pursuant to the law prior toand subsequent to the passing of Te lure Whenua Maori Act1993 had the effect of changing the status of land to generalland? The Appellate Court should examine the effect of theInsert of the word 'deemed' In Section 2(2)(f)/53.

Answer: Registration of a transfer pursuant to the law under the MaoriAffairs Act 1953 had the effect of changing the status of the landfrom Maori land to general land except where it Is apparent onthe face of the transfer that the land is to remain Maori land.

(ii) The status of the land is deemed to be that of general land andmust so remain until there is an order under Section 30(1)(1)determining the land to be Maori freehold land or some otherorder of the Court whereby the land becomes or Is deemed tobecome Maori freehold land.

(III) The transferee Is entitled to rely on the provisions ofSection 2(2)(f) deeming the land to be general land and theCourt should not make an order under Section 30(1)(i)determining the land to be Maori land without the consent of theregistered proprietors.

(iv) Under the provisions of Section 130 of Te Ture Whenua MaoriAct 1953 the status of the land is not affected by registration of atransfer executed after the passing of that Act Maori landwould therefore remain Maori land.

Question: 2. What is the effect of any failure to note a memorandum oftransfer in the records of the Court as required underSection 233/53?

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Answer: (i) Until registered against the Land Transfer Title the transfer is of

no force and effect

(ii) Upon registration of a transfer iln the Land Transfer Office with orwithout noting by the Registrar, the transferee acquires anindefeasible title to the land, irrespective of the state of the Maori

Land Court title.

Deputy Chief Judge A G McHugh

(Presiding)

Judge N F Smith

Judge G 0 Carter

APP19.1-23