IN THE MĀORI LAND COURT OF NEW ZEALAND ......2016 Chief Judge’s MB 184 xxvii. Extract from Māori...

2016 Chief Judge’s MB 178

IN THE MĀORI LAND COURT OF NEW ZEALAND

TAITOKERAU DISTRICT

A20130010573

CJ 2013/32

UNDER

Section 45, Te Ture Whenua Māori Act 1993

IN THE MATTER OF

Huhana Subritzky, deceased

MARIA MAY BENISTON

Applicant

ROSALEEN ALISON SUBRITZKY

DONNA ROCHELLE GREER-SUBRITZKY

Respondents

WESTPAC NEW ZEALAND LIMITED

Affected Party

Hearing:

Appearances:

5 November 2015 at 2015 Chief Judge's MB 845-874

(Heard at Whangarei)

W Coutts, counsel for the Respondent

S Gallagher, counsel for the Affected Party

Judgment:

1 April 2016

RESERVED JUDGMENT OF DEPUTY CHIEF JUDGE C L FOX

Counsel: Thomson Wilson, PO Box 1042, Whangarei 0140 Attention: Wayne Coutts Email: [email protected] Westpac New Zealand, PO Box 934, Auckland1010 Attention: Stuart Gallagher Email: [email protected]

mailto:[email protected]

mailto:[email protected]


Introduction

[1] This application filed by Maria May Beniston (nee Subritzky and “the applicant”),

pursuant to s 45 of Te Ture Whenua Māori Act 1993 (the Act), seeks to amend a succession

order made on 23 January 1979,1 in respect of Huhana Subritzky. The applicant filed the

application as a trustee for the Rauna Reweti Subritzky and Huhana Subritzky Whānau

Trust.

[2] In the original application it was alleged that there was a mistake, error or omission

in the presentation of facts of the case to the Court, in that documents presented to the

Court were false. The specific documents referred to are those claiming to show a family

arrangement, by consent, to the vesting of interests in Maimaru A2A1 in Robert Subritzky,

solely.

[3] The applicant claims that she is adversely affected by the orders complained of as:

(a) when her brother Robert Subritzky approached her in 1979 to sign her

support, the support she gave was only for him to build on the Maimaru

A2A block, not to transfer her shares in it to him;

(b) she only signed a blank page and now she is very surprised that the

document filed has additional writing on it, which was contrary to the actual

purpose of her brother’s visit;

(c) her brother David also only supported Robert Subritzky building on the

land; and

(d) ownership in Maimaru A2A1, she stated, “has now been stripped from us”

and is “now in favour of a European”.

1 11 Kaitaia MB 101-102 (11 KT 101).


Background

[4] The Case Manager’s Report and Recommendation dated 24 February 2015 sets out

the background to the application. The report is produced in full as follows:

REPORT AND RECOMMENDATION

Introduction

1. This application filed by Maria May Beniston (nee Subritzky) (the applicant)

pursuant to section 45 of Te Ture Whenua Māori Act 1993 (the Act), seeks to

amend a succession order dated 23 January 1979 at 11 Kaitaia MB 101-102,

relating to the Estate of Huhana Subritzky also known as Huhana Hoera (the

deceased).

2. The applicant is the deceased’s daughter and a person beneficially entitled to

the land interests succeeded to in the order complained of.

3. The applicant claims the said order is incorrect because of a mistake, error or

omission in the presentation of the facts of the case to the Court, in that

documents presented to the Court were false.

4. The specific documents referred to are those claiming to show a family

arrangement, by consent, to the interests in Maimaru A2A1 being vested in her

brother, Robert Subritzky, solely.

5. The applicant claims that she has been adversely affected by the order

complained of as stated in her application that:

a) When her brother Robert approached her in 1979 to sign her support, it

was only for him to build, not to transfer the block Maimaru A2A1 to

him; and

b) She only signed a blank page and now she is very surprised that the

document filed has additional writing on it, which was contrary to the

actual purpose of her brother’s visit.

Concise history of Order sought to be amended

6. On 23 January 1979 Robert Subritzky applied to Te Taitokerau district Māori

Land Court, pursuant to section 78A of the Māori Affairs Amendment Act

1967, to succeed to the Estate of Huhana Hoera or Huhana Subritzky.

7. That same day the matter was heard by the Court at Kaitaia (11 Kaitaia MB

101-102) and the evidence transpired as follows:

Robert Subritzky applicant sworn: Deceased my mother. Died 22 June

1971 at Kaitaia Hospital – I attended burial. No will. No estate except

shares in land. No action taken for administration. Married once only

and to Rauna Subritzky m.d. No adoptions. Issue:

1. Marsh Subritzky m.a. Gisborne

2. Billy Subritzky m.a. Gills Road, Awanui

3. Arthur Subritzky m.d. Issue (5)

4. Charles Subritzky m.a. Christchurch


5. Rodney Nelson Subritzky m.a. 74 North Road, Kaitaia

6. Robert Subritzky m.a. Kumi Road, Awanui

7. David Subritzky m.a. Napier

8. Katie Ranga f.a. 33 Stanmore Road, Grey Lynn, Akd 2

9. Henrietta Isabel Sayers f.a. Box 101, Kaitaia

10. Maria May Morey f.a. Sir Wm Hale Avenue, Moerewa

11. Florence Subritzky f.a. Christchurch

Arthur Subritzky (widow remarried) Issue

12. Ken John Subritzky m.a. Awanui

13. Frank Subritzky m.a. Auckland

14. June Cherrington f.a. Moerewa

15. Helen Kovich f.a. Kaitaia

16. Melva Mathews f.a. Kaitaia

Mother brought up her brothers four children – brother was Johnny

Marepo Thompson. They are owners in Maimaru A2A – How?

The family are agreeable to the interests in Maimaru A2A going to me. It

was believed that it had been given to me some years ago. I produce

consents from Katie, Maria, Henrietta, Bill, Rodney, Charles and David.

Florence has agreed but her written consent has not yet arrived. Marsh is

in hospital at Gisborne. He says he is not interested and is not married. I

have not been in touch with Arthur’s children.

Persons entitled 1 to 11 with substitute issue.

Order 78A/67 by family arrangement.

Maimaru A2A - $395.00 - Robert Subritzky solely.

Oturu B1 - $40.00 )

Oturu B2 - $9.00 ) Nos. 12, 13, 14, 15 & 16.

Oturu B3 - $4.00 )

Okakewai B2B2A - $83.00 Nos. 1, 4, 7, 8, 11, 9, 10

Okahu 4C1 - $15.00 Nos. 2, 5

Order 32/53 Ben Card 6137 & 26854 ($18.66)

$5.00 to Registrar, fee on application

Balance to applicant

Copy minutes to applicant

Copy minutes to Sec. Te Hapua 42

8. The Court minute only records Robert Subritzky as being present at the hearing.

9. The orders so made vested the deceased’s land interests as follows:

Te Taitokerau District

Blocks Value

Maimaru A2A $395

Successor/Beneficiary

Name Sex Proportion

1. Robert Subritzky M Solely



Blocks Value

Oturu B1

Oturu B2

Oturu B3

$40

$9

$4

Successors/Beneficiaries

Name Sex Proportion

1. Ken John Subritzky M

2. Frank Subritzky M

3. June Cherrington F

4. Helen Kovich F

5. Melva Mathews F Equally


Blocks Value

Okakewai B2B2A $83


Name Sex Proportion

1. Marsh Subritzky M

2. Charles Subritzky M

3. David Subritzky M

4. Katie Ranga F

5. Florence Subritzky F

6. Henrietta Isabel Sayers F

7. Maria May Morey F Equally


Blocks Value

Okahu 4C1 $15


Name Sex Proportion

1. Billy Subritzky M

2. Rodney Nelson Subritzky M Equally

Identification of evidence that may be of assistance in remedying the mistake or

omission

10. The applicant has provided the following documents in support of the

application:


a) A list of the deceased’s children and grandchildren, with contact

addresses where known; and

b) A folder of “Land Papers” (60 pages) containing:

i. Covering letter dated 25 November 2013 Page 1

ii. Document detailing Robert Subritzky’s evidence Pages 2 - 12

over the years, and applicant’s response.

(Includes photos of family home on Maimaru A2A)

iii. Letter of support from Phillip and Eva Subritzky Page 13

dated 24 November 2013

iv. Annotated copy of the consent form allegedly from Page 14

Charles Subritzky, Bill Subritzky and Rodney

Subritzky dated 10 January 1979

v. Letter of support from Theresa Subritzky (Wife of Page 15

Bill Subritzky) dated 19 November 2013

vi. Letter of support from Mabel Subritzky (Ex-Wife of Page 16

Rodney Subritzky)

vii. Letter of support from Harry James Waea (Son of Page 17

Isabel Sayers) dated 12 November 2013

viii. Annotated copy of the consent form allegedly from Page 18

Katie Ranga, Maria May Morey and Henrietta Isabel

Sayers dated 4 January 1979

ix. Sworn statement in support from Horace James Pages 19 - 25

Beniston (Husband of the applicant) dated 24

November 2013

x. Documentation re the 1979 signed consent of David Pages 26 - 27

(Rewhiti) Subritzky to Robert erecting a house on

Maimaru A2A

xi. Letter from David Rewiti Subritzky dated 15 Page 28

November 2013

xii. Letter of support from Florence Subritzky dated 22 Page 29

November 2013

xiii. Letter of support from Bruce Holland (Son of Bruce Page 30

and Jane Holland) dated 26 November 2013

xiv. Annotated copy of 11 Kaitaia MB 101-102 dated 23 Pages 31 - 32

January 1979

xv. Typed & annotated copy of 11 Kaitaia MB 101-102 Page 34

dated 23 January 1979

xvi. MLC letter re the estate of Huhana Subritzky dated Pages 33, 35 - 36

14 December 1978 and search material

xvii. Annotated typed copy of 19 Kaitaia MB 223-224 Pages 37 - 38

dated 8 July 1996

xviii. Annotated copy of application for transmission re Page 39

Huhana Hoera in Te Hapua 42 incorporation dated

27 April 1978

xix. Muriwhenua Incorporation search of interests for Page 40

Robert (Shadow) Subritzky (Annotated)

xx. Copy of 19 Kaitaia MB 223-224 dated 8 July 1996 Pages 41 - 42

xxi. Copy of order vesting a site for a dwelling made at Page 43

19 Kaitaia MB 223-224 dated 8 July 1996

xxii. Reynolds Rasmussen account dated 2 April 1982 Page 44

xxiii. Copy of 58 Whangarei MB 54-57 dated 11 August Pages 45 - 47

1981

xxiv. Annotated copy of 12 Taitokerau MB 170 dated 11 Page 48

November 2010

xxv. Annotated Memorial Schedule Report for Maimaru Page 49

A2A1

xxvi. Order determining ownership (s 18(1)(a)/93) made Page 50

at 12 Taitokerau MB 170 dated 11 November 2010


xxvii. Extract from Māori Land Court national Panui Page 51

xxviii. Lists of current owners reports for Maimaru A2A1 Pages 52 - 54

xxix. Empty Plastic Cover Pages 55 - 56

xxx. Letter of support from Marella Favel (nee Subritzky) Pages 57 - 59

dated 23 November 2013

xxxi. Letter of support from Gordon Subritzky dated 25 Page 60

November 2013

11. These documents provide evidence to support the applicant’s claims that:

a) Maimaru A2A was a special piece of land to be left for all of the

deceased’s children and grandchildren to use;

b) That only Charles Subritzky and Katie Ranga gave Robert Subritzky

consent to have their shares in Maimaru A2A; and

c) That the rest of the whanau only ever gave their consent for Robert

Subritzky to build a home on the block, not to have their shares in the

land.

12. The documentation provided also indicates that the only interests that are

subject to this application are those vested in Robert Subritzky solely, they

being:

Maimaru A2A; and

Te Hapua 42 (Now part of the Muriwhenua Incorporation).

Accordingly research of the Māori Land Court and Incorporation records has

focussed on these two interests only.

13. Court research shows that:

Maimaru A2A

a) At the hearing on 23 January 1979 (11 Kaitaia MB 101-102), Robert

Subritzky claimed to have written consent from the following persons, to

vest their entitlement in Maimaru A2A in him:

i. Katie Ranga;

ii. Maria May Morey;

iii. Henrietta Isabel Sayers;

iv. Bill Subritzky;

v. Rodney Nelson Subritzky;

vi. Charles Subritzky; and

vii. David Subritzky.

As well as claiming verbal consent from Florence Subritzky, and that

Marsh Subritzky was not interested in his entitlement.

b) Documents provided to the Court, in support of such, are as follows:

i. Written consent of David (Rewhiti) Subritzky dated 16 January

1979;

ii. Written consent of Charles Subritzky dated 10 January 1979; and


iii. Written consents of Katie Ranga, Maria May Money, Henrietta

Isabel Sayers, Bill Subritzky and Rodney Nelson Subritzky dated 4

January 1979.

c) In respect of the consents filed, I note the following:

i. The first consent states:

I, David (Rewhiti) Subritzky do hereby consent to my brother

Robert Subritzky erecting a dwellinghouse for his own

occupation on the property in which I have an interest,

namely Maimaru A2A block.

This indicates that the consent was only for building purposes, and

that David considered he had an interest in the land.

ii. The consent of Charles Subritzky states that he wishes to relinquish

his share in Maimaru A2A to his brother Robert.

iii. The first part of the third consent document is from Katie Ranga

agreeing to let Robert Subritzky have her shares concerning

Maimaru A2A.

The rest of the document contains the names and addresses of the

other four parties, but with no accompanying statements as to their

intention.

By close inspection of the documents filed with the Court, I note that

they appear to be on the original paper they were written on, and that

each name and address has been written with a different pen

(Appendix 1).

d) These documents indicate that written consents to vest their interests

solely into Robert Subritzky were only received from two, out of the 11

children entitled to succeed to the deceased’s shares in Maimaru A2A.

e) The Land Information New Zealand (LINZ) title affected (CT

NA51B/1024) is currently registered in the name of Rosaleen Alison

Subritzky as sole owner. Also registered against the title is a mortgage to

Westpac New Zealand Limited (Dealing No 9573533.2).

f) Also of note is that on 16 April 1996 (3 Whangarei Succession MB 214-

215) and 18 December 2000 (5 Whangarei Succession MB 31-32), all the

descendants of the deceased vested their other Māori land interests into

the Rauna Reweti (Subritzky) and Huhana Subritzky Whānau Trust.

Te Hapua 42

g) By order of the Court dated 4 March 1965 (3 Kaitaia MB 30) this block

was incorporated, and it is now part of the Muriwhenua Incorporation.

h) The interests of the deceased were vested in Robert Subritzky solely, by

way of a transmission made by the Muriwhenua Incorporation on 27

April 1978, pursuant to section 39 of The Māori Affairs Amendment Act

1967.


i) At that time, section 39 of the Māori Affairs Amendment Act 1967 stated

that:

39

Vesting shares of deceased shareholder without requiring

probate or letters of administration

(1) Where any shareholder in an incorporation has died, after the

commencement of this Act, and the total value of his shares does

not exceed one thousand dollars, as assessed by the share valuer

appointed under section 60 of this Act and in the manner provided

by that section, the committee of management may in its

discretion, and without requiring the production of probate or

letters of administration, resolve that any person be registered as

the holder of the shares who proves to the satisfaction of the

committee -

(a) That he is entitled thereto under the will or on the

intestacy of the deceased shareholder; or

(b) That he is entitled to obtain probate of the will of the

deceased shareholder, or letters of administration of his

estate; and

(c) That in neither case has any grant of any such probate or

letters of administration been made in New Zealand or

resealed in New Zealand; and

(d) That the Commissioner of Inland Revenue has been

notified of the proposed resolution and is satisfied either that

the value of the shares does not exceed one thousand dollars

or that no death duty will be payable in New Zealand in the

estate of the deceased shareholder.

(2) After the passing of any resolution as aforesaid, the

incorporation shall register the person referred to in the resolution

as the holder of the shares, and thereupon that person shall become

entitled thereto, subject to all outstanding interests or equities

affecting the same.

j) A search of the Muriwhenua Incorporation register as at 15 March 2014

showed that Robert (Shadow) Subritzky was the owner of 20.369 shares,

as Share Register No (SRN) 2243.

k) Current ownership information was requested from the Muriwhenua

Incorporation on 30 January 2015, but no response has been received yet.

Details of subsequent Orders affecting lands to which this application relates

14. Subsequent orders affected by this application are as follows:

Maimaru A2A

a) Court orders made:

i. Partition Orders dated 11 August 1981 (58 Whangarei MB 54-57),

creating the new titles “Maimaru A2A1”, “Maimaru A2A2” and

“Maimaru A2A3”.

ii. Order vesting a site for a dwelling (s 296/93) dated 8 July 1996 (19

Kaitaia MB 223-224) in favour of Rapata or Robert Subritzky and

Rosalie Subritzky as joint tenants.


iii. Certificate of Confirmation by the Registrar dated 23 October 2010

(15 Taitokerau MB 43), confirming the mortgage instrument to PSIS

Limited.

iv. Order determining ownership (s 18(1)(a)/93) dated 11 November

2010 (12 Taitokerau MB 170) determining the joint tenancy in

favour of Rosalie Subritzky also known as Rosaleen Alison

Subritzky.

v. Certificate of Confirmation by the Registrar dated 11 November

2013 (68 Taitokerau MB 254), confirming the mortgage instrument

to Westpac New Zealand Limited.

vi. 15 TNTOK 768 dated 20 November 2013 noting by the Registrar of

the discharge of mortgage to PSIS Limited.

Te Hapua 42 (Muriwhenua Incorporation)

b) No subsequent orders appear to be affected, in respect of the deceased’s

interest in this block.

c) Any subsequent transfer of the shares affected is likely to have been

made by the incorporation itself.

d) In terms of section 44 of the Act, any such transfers made by the

Incorporation are beyond the scope of the Chief Judge’s jurisdiction, as

he can only amend orders of the Court, or Registrar, or a certificate of

confirmation issued by a Registrar.

Details of payments made as a result of the Order

15. There is no management structure over Maimaru A2A1 in the Court’s records

(MLIS), and the memorial schedules for the block do not indicate that it is a

revenue producing one.

16. Accordingly it is concluded that no payments have been made in respect of this

block/interest.

17. A response from the Muriwhenua Incorporation, as to any monies paid out, is

still pending.

Reference to areas of difficulty

18. The main area of difficulty is in terms of the claim that evidence given to the

Court in 1979 was falsified, as:

a) The applicant states she only signed a blank document, yet her name

appears on the consent form of Katie Ranga;

b) Having viewed the original documents presented to the Court in 1979, it

confirms that all signatures are on the original paper they were written on,

but in what order names were written on such papers (i.e. who wrote on

them first) cannot be ascertained;


c) However, the consent form of Katie Ranga (dated 4 January 1979)

specifically states “I Katie Ranga (nee Subritzky) I agree to let Robert

Subritzky have my shares concerning Maimaru A2A Block”;

d) As noted at paragraph 13(c) above, the rest of the document contains the

names and addresses of the applicant and three other parties, but with no

accompanying statements as to their intention

19. The fact that some of the parties directly affected by this application are no

longer alive is also an issue. However, numerous documents in support of the

claims made have been produced, including letters of support from members of

the whānau.

20. It is also noted that the mortgage granted in favour of Westpac New Zealand

Limited is over “all” of the land contained in CT NA51B/1024, being Maimaru

A2A1. The sole owner is currently Rosaleen Alison Subritzky, so if any change

is made to the ownership of this land, it will have an effect on the banks

mortgage security.

Consideration of whether matter needs to go to full hearing

21. In respect of the deceased’s interests in Te Hapua 42 (Now Muriwhenua

Incorporation), as the Chief Judge has no jurisdiction to intervene, that is a

matter the applicant will need to take up further with the Incorporation directly.

22. Based on the information above, there is sufficient evidence to show that an

error was made in the presentation of the facts of the case to the Court.

23. Evidence vesting their entitlements in Maimaru A2A, in Robert Subritzky

solely, were only produced to the Court for two people, Katie Ranga and

Charles Subritzky.

24. Given the nature of the claim, opportunity should be given to the whānau of the

deceased and affected parties to be heard, should they wish to, after submitting

their objections or responses in writing.

25. In the meantime there is no need to go to hearing and the orders could be made

on the papers.

Recommendation of course of action to be taken

26. If the Chief Judge is of a mind to exercise his jurisdiction, then it would be my

recommendation that:

a) A copy of this report be sent to all affected parties to give them an

opportunity to comment or respond, in writing, within 28 days of the

date of this Report;

b) If the parties are of a mind to, and should this application prove to be

successful, the only amendments required to the orders affected would be

in terms of showing a reduced proportion of ownership for Rapata or

Robert Subritzky and Rosalie Subritzky or Rosaleen Alison Subritzky,

then adding further owners in the block.


c) There would then be no need to upset the Partition Orders dated 11

August 1981 (58 Whangarei MB 54-57), creating Maimaru A2A1, as

those owners being put back in could be added to the current title for the

said land.

d) Accordingly, if no objections are received, then an order be made

pursuant to section 44(1) of the Act amending the order complained of, at

11 Kaitaia MB 101-102 dated 23 January 1979, by amending the

successors to the “Maimaru A2A” interest as follows:

i. Changing the proportion of Robert Subritzky from “Solely” to

“3/11”;

ii. Adding the following beneficiaries/successors:

Marsh Subritzky M 1/11

Billy Subritzky M 1/11

Rodney Nelson Subritzky M 1/11

David Subritzky M 1/11

Henrietta Isabel Sayers F 1/11

Maria May Morey F 1/11

Florence Subritzky F 1/11

Ken John Subritzky M 1/55

Frank Subritzky M 1/55

June Cherrington F 1/55

Helen Kovich F 1/55

Melva Mathews F 1/55

e) And a further order be made, pursuant to section 47(4) of the Act, making

all consequential amendments necessary, including the following:

i. Partition Order for Maimaru A2A1 dated 11 August 1981 (58

Whangarei MB 54-57) be amended to show the following persons as

owners:

Name Sex Share

1. Rapata or Robert Subritzky M 0.273

2. Marsh Subritzky M 0.091

3. Billy Subritzky M 0.091

4. Rodney Nelson Subritzky M 0.091

5. David Subritzky M 0.091

6. Henrietta Isabel Sayers F 0.091

7. Maria May Morey F 0.091

8. Florence Subritzky F 0.091

9. Ken John Subritzky M 0.018

10. Frank Subritzky M 0.018

11. June Cherrington F 0.018

12. Helen Kovich F 0.018

13. Melva Mathews F 0.018

Total Shares 1.000


ii. Order vesting a site for a dwelling dated 8 July 1996 (19 Kaitaia MB

223-224) be amended by changing the wording from “being the sole

owner” to “being an owner of 0.273 shares”;

f) An order be made, pursuant to section 220(1) of the Act, vesting the

interests of those persons numbered 2 to 13 (in paragraph 26(e)(i) above)

in the trustees of the Rauna Reweti (Subritzky) and Huhana Subritzky

Whānau Trust;

g) If objections are received then the matter should be referred to the Court

for directions.

[5] On 24 February 2015 the Case Manager’s Report and Recommendation was sent to

all parties, with objections and responses to be filed by 24 March 2015.


Objections

[6] Objections dated 23 March 2015 were received from Rosaleen Subritzky and her

daughter, Donna Greer-Subritzky, as well as from Westpac Bank. The objections raised are

briefly described below and augmented by reference to actual orders raised in the

submissions.

Rosaleen Subritzky and Donna Greer-Subritzky

[7] Rosaleen Subritzky and Donna Greer-Subritzky raised the following objections:

(a) There was an earlier Court hearing to gift shares in the same land to Robert

(Ropata) Subritzky on 28 June 1966,2 but this was subsequently cancelled

on 1 July 1966;3

(b) Robert Subritzky applied for and was granted a partition order for Maimaru

A2A in 1981.4 The two blocks created were Maimaru A2A1 vested in him

solely and the Maimaru A2A2 block vested in the balance owners.5 Title

was issued by Land Information New Zealand (LINZ) in his name

(NA51B/1002). From this time, Robert Subritzky considered that he owned

Maimaru A2A1;

(c) Rosaleen Subritzky and Robert Subritzky married on 26 January 1986. Both

had children from previous relationships. Robert had five children and

Rosaleen had three;

(d) Robert Subritzky later applied to change the status of the land so that

Rosaleen Subritzky would be named as a joint owner. However, at the

hearing the application was varied and, pursuant to s 296(3), the Judge made

an order vesting the land in Robert and Rosaleen as joint tenants, instead.6

That vesting order was not registered with LINZ until 7 March 2007;

2 3 Kaitaia MB 369 (3 KT 369).

3 4 Kaitaia MB 55 (4 KT 55).

4 58 Whangarei MB 54-57 (58 WH 54).

5 At 56.

6 19 Kaitaia MB 223-224 (19 KT 223).


(e) Rosaleen Subritzky spent all the money from the sale of her previous home

on this property. She claims she was the sole income earner for the majority

of her relationship with Robert Subritzky. She is now a pensioner;

(f) Robert Subritzky treated Donna Greer-Subritzky as his daughter, having

raised her from when she was 8 years old. She always lived with Robert and

Rosaleen and continues to live with Rosaleen now;

(g) Robert Subritzky died on 26 August 2009, leaving a will dated 1 September

2008;

(h) Robert Subritzky’s will leaves his estate to his wife, Rosaleen Subritzky.

Had she predeceased him or died within 14 days of his death, the estate was

to go to Phillip Subritzky (his natural son) and Donna Greer-Subritzky

(named as his whāngai in the will) in equal shares;

(i) Transmission to Rosaleen Subritzky by survivorship was registered on 5

November 2009 with LINZ. She is now the sole registered proprietor on the

title NA51B/1024 – Maimaru A2A1.7

(j) Rosaleen and Donna Greer-Subritzky arranged a mortgage with PSIS so that

Donna could build. Rosaleen claimed they thought it was only over the

house but they now understand it to be over the land. Donna has not built a

home as the builder went bankrupt. Attempts to recover the money failed, so

Rosaleen refinanced with Westpac New Zealand.

(k) The land is currently used as security for a mortgage from Westpac Bank;

and

(l) Rosaleen Subritzky does not oppose the land going back to the whānau, but

does not know how that can be achieved without affecting her mortgage

security, unless the whānau purchased the house from her (including

compensation for improvements).

7 Previously NA51B/1002. Note that a Māori Land Court order of 11 November 2010 also determined her to

be the sole owner: 12 Taitokerau MB 170 (12 TTK 170).


Westpac Bank

[8] Westpac Bank raised the following objections:

(a) On 13 November 2013, the bank granted Rosaleen Subritzky finance using

57 Kumi Road, RD1, Awanui (being NA51B/1024 Maimaru A2A1 Block)

as security;

(b) That mortgage was registered on 25 November 2013;

(c) At the time the mortgage was granted, Rosaleen Subritzky was the sole

proprietor;

(d) Had the bank been aware of this claim, they would not have lent money to

Rosaleen Subritzky;

(e) Should the Chief Judge’s jurisdiction be exercised, reducing Rosaleen

Subritzky’s interests as per the Registrar’s report, the bank’s security will

effectively be extinguished and the likelihood of Rosaleen repaying her loan

will diminish. Alternatively, if the status quo remains and Rosaleen retains

her tenure, the likelihood of her repaying will remain unaffected; and

(f) Westpac Bank was entitled to rely on the title documents provided at the

time the mortgage was granted.

Further orders referenced by the Subritzkys

[9] In their objection, Rosaleen Subritzky and Donna Greer-Subritzky referred to the

earlier court orders, the texts of which are reproduced below:

3 Kaitaia MB 369 (28 June 1966)

72 Maimaru A2A – 213/53

Gift to Robert Subritzky Jnr.

- Huhana Hoera or Huhana Hoera Subritzky – donee is my son – house on

land in which I live – my son & his wife will live there and so will I – Debt

to Māori housing will be paid by my son.


Order 213/53 Value of interest £36

This order cancelled. See KT 4/55 1/7/66

and

4 Kaitaia MB 55 (1 July 1966)

72 Maimaru A2A – 213/53

Ref: KT 3/369

Huhana Hoera or Huhana Subritzky –

I am the same person. Under name Huhana Hoera 10.000 shares. Under

name Huhana Subritzky 1.667 shares. All I want is to give them enough

shares to enable Robert & his wife to have a house site.

- Mr Cook. D.O. Kaitaia states County Council has refused consent to a

house site there.

- Mrs Subritzky. I do not want my son to have my existing house there. I

was to retain that. It is occupied by ? daughter.

Order 213/53 of 28/6/66 at 3/369 is cancelled

Application stands adjourned for parties to make up their minds

(Note in margin reads)

Huhana Hoera states Henry Subritzky and Joseph Henry Subritzky are the

same person.

[10] The decision on partition dated 11 August 1981 is too long to include as it was a

defended matter,8 but the application for change of status was dealt with on 8 July 1996.

The latter order vested the land in Robert and Rosaleen Subritzky jointly. It is a very

strange use of this provision given the land was already partitioned and explains in part

why His Honour Judge Ambler made an order under s 18(1) in 2010:9

S.135/93 MAIMARU A2A1

Ropata Subritzky –

I partitioned this piece in 1982. I wish to change the status to General land so that if

I pass away my wife will be the owner.

COURT: That can be achieved by s 296(3)/93. Changing the land’s status would

not achieve that to any greater degree, and it would not facilitate the better

utilisation of the land.

8 58 Whangarei MB 54-57 (58 WH 54).

9 19 Kaitaia MB 223-224 (19 KT 223); and see 12 Taitokerau MB 170 (12 TTK 170).


Mr Subritzky: I ask that the application be varied accordingly to put my wife on

the title with a joint interest so that the survivor of us is the sole owner.

COURT: Application varied accordingly to being pursuant to s.296(3)/93. Order

accordingly, vesting the land in the applicant and his wife Rosalie Subritzky jointly

inter se. Copy to the applicant who is also to forward a copy to his eldest child.

Delegation to the Deputy Chief Judge and procedure

[11] On 22 July 2015, the Chief Judge delegated this matter, pursuant to s 48A of the

Act, to the Deputy Chief Judge to exercise the powers, functions and duties of the Chief

Judge under ss 44 to 48 of the Act.10

[12] On 12 October 2015, during a teleconference with the applicant, Stuart Gallagher

(representing Westpac Bank) and Wayne Coutts (representing Rosaleen Subritzky and

Donna Greer-Subritzky) accepted the Registrar’s findings, and indicated they desired a

solution that would meet everyone’s needs.11

[13] The matter was subsequently heard before me at Whangārei on 5 November 2015. I

reserved my decision.12

[14] All parties accepted that on the face of it, the orders made by the Māori Land Court

on 23 January 1979 were erroneous as per the Registrar’s report dated 24 February 2015. It

was also accepted that Phillip Subritzky’s house is situated on the property, along with

Rosaleen Subritzky’s house and the original family homestead. These 3 houses are on land

subject to the mortgage in favour of Westpac.

Submissions for the Applicant

[15] Letters dated 8, 9, and 18 March 2015, 30 April 2015, and 20 May 2015 were

received from the applicant. She also filed submissions in response to those filed by

Rosaleen Subritzky and further annotated documents. She claims that:

(a) Robert Subritzky was not the only child of Huhana Subritzky who was

entitled to Huhana Subritzky’s shares in Maimaru A2A;

10

2015 Chief Judge’s MB 409 (2015 CJ 409). 11

2015 Chief Judge’s MB 690-695 (2015 CJ 690). 12

2015 Chief Judge’s MB 845-874 (2015 CJ 845).


(b) There was no family agreement when the order was made on 23 January

1979 in respect of Huhana Subritzky. The applicant merely signed the

papers Robert Subritzky asked her to sign, believing that she was

authorising him to build a home, not to take her shares. The applicant signed

the paper on her own without the presence of her siblings;

(c) Robert Subritzky misled the Court on more than one occasion;

(d) For the purposes of the whakapapa provisions in Te Ture Whenua Māori Act

1993, Donna Greer-Subritzky was neither a whāngai nor related by blood.

Furthermore, Donna did not reside on the land while growing up but rather

visited on occasion;

(e) Rosaleen Subritzky has no knowledge of what happened with the

administration and occupancy of the land in the years before her relationship

with Robert Subritzky;

(f) Rosaleen Subritzky was not the sole breadwinner because Robert Subritzky

worked for the forestry, among other jobs, and reared pigs for sale;

(g) Rosaleen Subritzky did not maintain close contact with Robert Subritzky’s

natural children while they were growing up;

(h) Rosaleen Subritzky knew how a mortgage works. Therefore, the applicant

has little sympathy for Rosaleen’s position;

(i) None of the family are in a position to purchase the home and nor should

they have to. They are not asking that Rosaleen Subritzky leave the

property. However, if she does, she must pay back the loan; and

(j) Paying rates is the obligation of occupation.

Submissions for Rosaleen Subritzky and Donna-Greer Subritzky and Westpac Bank

[16] In summary, counsel made the following submissions:


(a) If the Chief Judge’s jurisdiction is exercised, the respondents and Westpac

seek protection of their interests in the land.

(b) The transfer from Robert Subritzky, to himself Rosaleen Subritzky jointly,

was for consideration in the form of a marriage and their respective

contributions to the relationship. That transfer was registered with LINZ on

7 March 2007.

(c) Rosaleen Subritzky was a volunteer who acquired her interests in the block

in good faith and without fraud.

(d) The mortgage to Westpac Bank was registered with LINZ on 25 November

2013.

(e) The affected LINZ title (NA51B/1024) is indefeasible, as per the Māori

Appellate Court decision Muraahi v Phillips.13

(f) The land is subject to a mortgage in favour of Westpac Bank. Section 48(1)

of the Act precludes the Chief Judge from making any order that will affect

Westpac Bank’s interest in the land. An alteration to the ownership of the

property will detrimentally affect the bank’s rights and interests under the

mortgage.

(g) I should decline to exercise my jurisdiction under s 44(5) of the Act.

The Law

[17] The Chief Judge’s jurisdiction to amend or cancel an order of the Māori Land Court

because of a mistake or an omission is set out in s 44(1) of the Act:

(1) On any application made under section 45 of this Act, the Chief Judge may,

if satisfied that an order made by the Court or a Registrar (including an order made

by a Registrar before the commencement of this Act), or a certificate of

confirmation issued by a Registrar under section 160 of this Act, was erroneous in

fact or in law because of any mistake or omission on the part of the Court or the

13

Muraahi v Phillips – Rangitoto Tuhua 55B1B and 55B1A2 (Manu Ariki Marae) [2013] Māori Appellate

Court MB 528 (2013 APPEAL 528).


Registrar or in the presentation of the facts of the case to the Court or the Registrar,

cancel or amend the order or certificate of confirmation or make such other order or

issue such certificate of confirmation as, in the opinion of the Chief Judge, is

necessary in the interests of justice to remedy the mistake or omission.

[18] In Ashwell – Rawinia or Lavinia Ashwell (nee Russell) the Chief Judge summarised

certain principles relating to s 45:14

(a) When considering s 45 applications, the Chief Judge needs to review the

evidence given at the original hearing and weigh it against the evidence

provided by the Applicant (and any evidence in opposition);

(b) Section 45 applications are not to be treated as a rehearing of the original

application;

(c) The principle of Omnia Praesumuntur Rite Esse Acta (everything is

presumed to have been done lawfully unless there is evidence to the

contrary) applies to s 45 applications. Therefore in the absence of a patent

defect in the order, there is a presumption that the order made was correct;

(d) Evidence given at the time the order was made, by persons more closely

related to the subject matter in both time and knowledge, is deemed to have

been correct;

(e) The burden of proof is on the applicant to rebut the two presumptions

above; and

(f) As a matter of public interest, it is necessary for the Chief Judge to uphold

the principles of certainty and finality of decisions. These principles are

reflected in s 77 of the Act, which states that Court orders cannot be

declared invalid, quashed or annulled more than 10 years after the date of

the order. Parties affected by orders made under the Act must be able to rely

on them. For this reason, the Chief Judge’s special powers are used only in

exceptional circumstances.

14

Ashwell – Rawinia or Lavinia Ashwell (nee Russell) [2009] Chief Judge’s MB 209 (2009 CJ 209) at [15].


[19] Thus, where the Court has not made a correct decision due to a flaw in the evidence

presented, or in the interpretation of the law, and it is necessary in the interests of justice to

correct this, I should exercise my jurisdiction. However, I should only do so where an

application is accompanied by proof of the flaw identified, through the production of

evidence not available or not known at the time the order was made or through

submissions on the alleged misinterpretation of the facts or law.

[20] The applicant is responsible for producing such evidence or submissions. In Tau v

Nga Whanau o Morven & Glenavy – Waihao 903 Section IX Block the Māori Appellate

Court ruled that the Chief Judge (or upon delegation, the Deputy Chief Judge) must

exercise his or her jurisdiction by applying the civil standard of proof on the balance of

probabilities having regard to that standard’s inherent flexibility that takes into account the

nature and gravity of the matters at issue.15

Discussion

Has there been a mistake or omission?

[21] I find there has been a mistake or omission made by the Court because it was

wrongly informed that there was family consent to the vesting of Huhana Subritzky

interests in Maimaru A2A in Robert Subritzky solely. The error was made because of

Robert Subritzky’s presentation of the facts of the case to the Court on 23 January 1979.16

[22] However, there is no evidence that he sought to mislead the Court. I note for

example that one sibling, Arthur, was deceased leaving issue. Robert Subritzky explained

to the Court in 1979 that he did not consult with his brother’s children. That is not what

someone acting in bad faith would say. If he intended to mislead the Court about his

siblings granting consent, he would have done the same about his nieces and nephews.

[23] It is also clear from the evidence that he did discuss his occupancy of the block

with his siblings. It appears to me that the siblings talked at cross purposes and did not

understand the full nature of what was agreed between them. Robert Subritzky clearly

15

Tau v Nga Whanau o Morven & Glenavy – Waihao 903 Section IX Block [2010] Maori Appellate Court MB

167 (2010 APPEAL 167) at [61]. 16

11 Kaitaia MB 101-102 (11 KT 101).


believed that he had their agreement to acquire the shares as he advised the Court. The

applicant and those who support her say now (after his death), that he did not.

[24] The applicant has been able to demonstrate on the balance of probabilities that the

order complained of was erroneous as only 3 of 9 siblings provided written consents to the

gifting of shares. The mistake was made by the Court. It should have insisted on obtaining

all the written consents of all the siblings and their issue.

Where does the justice in this case fall?

[25] As noted above, the Court made an error. I must next consider whether, in my

opinion it is necessary in the interests of justice to remedy that mistake.

[26] The applicant and the majority of her siblings claim that they did not agree to a

family arrangement as announced by Robert Subritzky to the Court in 1979.

[27] I have weighed in the balance the Preamble, ss 2 and 17 of Te Ture Whenua Māori

Act 1993. These provisions favour the applicant (who is associated in accordance with

tikanga Māori to the land) succeeding in this case. Conversely, I note that Rosaleen

Subritzky and her daughter are not associated in accordance with tikanga to this land.

[28] I also note that if I did grant the order sought, the applicant and her whānau have

indicated that they will not seek ownership of the Robert and Rosaleen Subritzkys’

matrimonial home and are happy for Rosaleen to stay on the land.

[29] However, until recently, the applicant and her whānau have done little to follow up

what happened to their interests after succession to Huhana Subritzky. They all knew

where Robert Subritzky lived but they effectively abandoned the Maimaru A2A block to

him for his occupation. He was able to partition the land in 1981 and based upon that order

he and his wife built their home on the land after their marriage in 1985. That is a long

time ago. The family raised no concerns then, or subsequent to that event. The family

appear to have accepted the land was Robert’s and they knew his wife and her family

resided there with him.


[30] There is also the fact that Huhana Subritzky wanted her son, Robert, to be able to

live on the Maimaru A2A block. There was an earlier Court hearing to gift shares in the

same land to Robert (Ropata) Subritzky on 28 June 1966.17

Huhana only sought

cancellation of the order vesting some of her shares in him when he was not able to receive

financial assistance at that time in July 1966.18

[31] I also take into account the length of Robert and Rosaleen Subritzky’s marriage (in

excess of 20 years before his death in 2009), and Rosaleen’s contribution to the marriage.

She contributed to the development of Maimaru A2A1, on the understanding that the

property was solely owned by her and Robert. She has invested in the house on this land

for a long time, even after Robert’s death, on that understanding.

[32] Overall, I consider the justice of this case favours Rosaleen Subritzky.

Do the rules of indefeasibility apply in this case?

[33] Section 48(1) of Te Ture Whenua Māori Act 1993 states that:

No order made by the Chief Judge under section 44 of this Act, or made by the

Appellate Court on appeal from any such order, shall take away or affect any right

or interest acquired for value and in good faith under any instrument of alienation

registered before the making of any such order.

[34] The relevant provisions of the Land Transfer Act 1952 state that:

62 Estate of registered proprietor paramount

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 Act might be held

to be paramount or to have priority, [but subject to the provisions of Part 1 of the

Land Transfer Amendment Act 1963], the registered proprietor 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 such encumbrances, liens, estates, or interests as

may be notified on the folium of the register constituted by the grant or certificate

of title of the land, but absolutely free from all other encumbrances, liens, estates,

or interests whatsoever,—

(a) Except the estate or interest of a proprietor claiming the same land under a

prior certificate of title or under a prior grant registered under the provisions of this

Act; and

17

3 Kaitaia MB 369 (3 KT 369). 18

4 Kaitaia MB 55 (4 KT 55).

http://www.lexisnexis.com/nz/legal/search/enhRunRemoteLink.do?ersKey=23_T23580367051&backKey=20_T23580367056&homeCsi=274497&A=0.3353440857143378&urlEnc=ISO-8859-1&&dpsi=0069&remotekey1=REFPTID&refpt=1993A4S4:ORDER&service=DOC-ID&origdpsi=0069

http://www.lexisnexis.com/nz/legal/search/enhRunRemoteLink.do?ersKey=23_T23580367051&backKey=20_T23580367056&homeCsi=274497&A=0.3353440857143378&urlEnc=ISO-8859-1&&dpsi=0069&remotekey1=REFPTID&refpt=1993A4S4:CHIEF_JUDGE&service=DOC-ID&origdpsi=0069

http://www.lexisnexis.com/nz/legal/search/enhRunRemoteLink.do?ersKey=23_T23580367051&backKey=20_T23580367056&homeCsi=274497&A=0.3353440857143378&urlEnc=ISO-8859-1&&dpsi=0069&remotekey1=REFPTID&refpt=1993A4S44&service=DOC-ID&origdpsi=0069

http://www.lexisnexis.com/nz/legal/search/enhRunRemoteLink.do?ersKey=23_T23580367051&backKey=20_T23580367056&homeCsi=274497&A=0.3353440857143378&urlEnc=ISO-8859-1&&dpsi=0069&remotekey1=REFPTID&refpt=1993A4S4:ALIENATION&service=DOC-ID&origdpsi=0069

http://www.lexisnexis.com/nz/legal/search/enhRunRemoteLink.do?ersKey=23_T23568783916&backKey=20_T23568783921&homeCsi=274497&A=0.7664954298319363&urlEnc=ISO-8859-1&&dpsi=0069&remotekey1=REFPTID&refpt=1952A52S2:ESTATE_OR_INTEREST&service=DOC-ID&origdpsi=0069

http://www.lexisnexis.com/nz/legal/search/enhRunRemoteLink.do?ersKey=23_T23568783916&backKey=20_T23568783921&homeCsi=274497&A=0.7664954298319363&urlEnc=ISO-8859-1&&dpsi=0069&remotekey1=REFPTID&refpt=1952A52:1963A61_PART_1&service=DOC-ID&origdpsi=0069

http://www.lexisnexis.com/nz/legal/search/enhRunRemoteLink.do?ersKey=23_T23568783916&backKey=20_T23568783921&homeCsi=274497&A=0.7664954298319363&urlEnc=ISO-8859-1&&dpsi=0069&remotekey1=REFPTID&refpt=1952A52S2:PROPRIETOR&service=DOC-ID&origdpsi=0069

http://www.lexisnexis.com/nz/legal/search/enhRunRemoteLink.do?ersKey=23_T23568783916&backKey=20_T23568783921&homeCsi=274497&A=0.7664954298319363&urlEnc=ISO-8859-1&&dpsi=0069&remotekey1=REFPTID&refpt=1952A52S2:REGISTER&service=DOC-ID&origdpsi=0069


(b) Except so far as regards the omission or misdescription of any right of way

or other easement created in or existing upon any land; and

(c) Except so far as regards any portion of land that may be erroneously

included in the grant, certificate of title, lease, or other instrument evidencing the

title of the registered proprietor by wrong description of parcels or of boundaries.

…

183 No liability on bona fide purchaser or mortgagee

(1) Nothing in this Act or the Land Transfer (Computer Registers and Electronic

Lodgement) Amendment Act 2002 shall be so interpreted as to render subject to

action for recovery of damages, or for possession, or to deprivation of the estate or

interest in respect of which he is registered as proprietor, any purchaser or

mortgagee bona fide for valuable consideration of land under the provisions of this

Act or the Land Transfer (Computer Registers and Electronic Lodgement)

Amendment Act 2002 on the ground that his vendor or mortgagor may have been

registered as proprietor through fraud or error, or under any void or voidable

instrument, or may have derived from or through a person registered as proprietor

through fraud or error, or under any void or voidable instrument, and this whether

the fraud or error consists in wrong description of the boundaries or of the parcels

of any land, or otherwise howsoever.

(2) This section shall be read subject to the provisions of sections 77 and 79.

[35] Section 75(1) of the Land Transfer Act 1952 clearly establishes the standing of the

Land Transfer Title from an evidentiary point of view. It provides:

Every certificate of title duly authenticated under the hand and seal of the Registrar

shall be received in all Courts of law and equity as evidence of the particulars

therein set forth or endorsed thereon, and of their being entered in the Register, and

shall, unless the contrary is proved by production of the Register or a certified copy

thereof, be conclusive evidence that the person named in that Certificate of Title, or

in any entry thereon, as seized of or as taking estate or interest in the land therein

described is seized or possessed of that land for the estate or interest therein

specified as from the date of the Certificate 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.

[36] All these provisions in the Land Transfer Act 1952 make it very difficult to attack

someone’s interests in land once registered with LINZ. The High Court decisions in Warin

v Registrar-General of Land,19

Housing Corporation of New Zealand v Māori Trustee,20

and Registrar-General of Land v Marshall21

are authorities for the proposition that

registration of interests with LINZ give rise to an indefeasible title, mortgage or other

19

Warin v Registrar-General of Land (2008) 10 NZCPR 73 (HC). 20

Housing Corporation of New Zealand v Māori Trustee [1988] 2 NZLR 662 (HC). 21

Registrar-General of Land v Marshall [1995] 2 NZLR 189 (HC).

http://www.lexisnexis.com/nz/legal/search/enhRunRemoteLink.do?ersKey=23_T23568783916&backKey=20_T23568783921&homeCsi=274497&A=0.7664954298319363&urlEnc=ISO-8859-1&&dpsi=0069&remotekey1=REFPTID&refpt=1952A52S2:INSTRUMENT&service=DOC-ID&origdpsi=0069


interest, even where the provisions of Te Ture Whenua Māori Act 1993 are not complied

with. The Māori Appellate Court followed these decisions in Muraahi v Phillips.22

[37] In addition, s 48 of Te Ture Whenua Māori Act 1993 makes it clear that I cannot

cancel or vary an order where it will take away or affect any right or interest acquired for

value and in good faith under any instrument of alienation registered before the making of

any such order.

[38] In this case there can be no dispute that Westpac Bank has an indefeasible mortgage

and that it was acquired for value and in good faith. Thus s 48 and the provisions of the

Land Transfer Act 1952 cited above, prevent me from making any order that would

diminish that interest.

What is the Nature of Rosaleen Subritzky’s Title

[39] However, the real issue concerns Rosaleen Subritzky’s title. Does s 48 of Te Ture

Whenua Māori Act 1993 mean I cannot cancel or vary any order upon which her legal title

depends, beginning with the succession order made in 1979?

[40] There is no doubt that granting this application under s 44 will for the purposes of s

48, take away her sole proprietorship and affect all her rights that form part of that title,

including the right to mortgage the property.

[41] I also consider that Rosaleen Subritzky did acquire her title in accordance with the

requirement in s 48. Namely, that she acquired it for value as she did pay for her interest in

this land by her financial contributions to the marriage. Even if I am wrong that she did not

acquire her title for value in accordance with the manner in which that term is usually

defined in law, I consider that she could be described in legal terms as a “volunteer” and

such people can still acquire indefeasible title to the land, although I acknowledge that the

case law on this topic is relatively sparse.23

Finally in terms of s 48, there can be no doubt

that she acted in good faith at all times before she was registered as the sole owner.

22

Muraahi v Phillips, above n 13. 23

At [90]-[94].


[42] Then there is the issue of the orders made in 1981 for partition24

and in 1996 under

s 296(3) vesting the land in her and Robert Subritzky for the purposes of a dwelling site.

The latter order effectively vested title in them as joint tenants.25

[43] Thus she holds the legal title to Maimaru A2A1 and given that she has been

registered as the sole owner, she now holds an indefeasible title in fee simple to that land.

[44] Even if s 48 does not prevent me from granting the application, and given the

circumstances of this case, I would still not grant the application as it would be unjust to do

so as I explain further below.

If this application is granted, what effect will changing the succession order made on 23

January 1979 have on Rosaleen Subritzky’s title?26

[45] The order made in 1996 vesting the land in her and Robert Subritzky as joint

tenants would have to be cancelled.

[46] Rosaleen Subritzky’s title to Maimaru A2A1 will become subject to the equitable

title of Robert Subritzky’s siblings (substituted by their issue where deceased). That is

because s 123(5) of Te Ture Whenua Māori Act 1993 provides that an order, until

registered, only affects the equitable title of the land. Once such an order was registered in

LINZ, all of the siblings (substituted by their issue where deceased) would be registered as

tenants in common with Rosaleen Subritzky, who would remain one of a number of

owners. That would result in all of the owners holding a title subject to the Westpac Bank’s

indefeasible mortgage. That would defeat the purpose of the Bank’s interest as they could

only pursue their security from Rosaleen Subritzky personally.

[47] I am not prepared to make orders that will result in such outcomes in a case where

the justice of the matter is so clearly weighted in favour of Rosaleen Subritzky. For these

reasons I am going to dismiss the application.

24

58 Whangarei MB 54-57 (58 WH 54). 25

19 Kaitaia MB 223-224 (19 KT 223). 26

11 Kaitaia MB 101-102 (11 KT 101).


[48] The applicant and her whānau should take some solace from the fact that the land

will remain Māori freehold land and as such, should Rosaleen Subritzky ever wish to sell

the property, they will have to be offered the first option to purchase in accordance with the

1993 Act.

Orders

[49] The application made under s 45 of Te Ture Whenua Māori Act 1993 is dismissed:

[50] The Case Manager is to distribute a copy of this decision to all parties.

Dated at Gisborne this 1st day of April 2016.

C L Fox

DEPUTY CHIEF JUDGE

IN THE MĀORI LAND COURT OF NEW ZEALAND ......2016 Chief Judge’s MB 184 xxvii. Extract from Māori...

Documents

Transcript of IN THE MĀORI LAND COURT OF NEW ZEALAND ......2016 Chief Judge’s MB 184 xxvii. Extract from Māori...