Place:

Present:

Date:

Wellington

C.M. Wainwright, Judge

Tricia DuBern, Clerk of the Court

26 May 2003

Minute Book: 171 NA 184

Section 86/93 Order of Amendment made at 174 NA 120-121,11.12.2003.

Deputy Registrar

Application Nos: A20030001827 and A20030001828

Subject:

Section:

Applicant:

Introduction

Part Kairakau 2C5B

289/93 and 135/93

Waiariki Davis for partition (289/93) and change of status (135/93)

DECISION OF THE COURT

On 16 April 2003, at Hastings, I heard Ms Davis and her whanau in support of an application for partition and change of status of 3,400m2 of the block known as Part Kairakau 2C5B.

Also appearing were Mr and Mrs Brown, former owners of a majority shareholding in the block. Mr and Mrs Brown had themselves earlier sought to partition their interest in the block for sale. They were consistently unable to win the support of their fellow owners for this course of action, which proved an ongoing obstacle to their succeeding in an application to partition. Mr and Mrs Brown spoke to the Court at length, pointing out reasons why in their view it was not appropriate that these applications be granted. Then their solicitor, Mr Poole, forwarded a memorandum to the Court on the Brown's behalf (dated 13 May 2002). Although the memorandum was received after I reserved my decision, I have taken the unusual step of considering its contents. I thank Mr Poole for his submissions, but must say that I do not agree with his characterisation of the applications now before the Court. I do not believe that the applicants are deceitful, nor that they are seeking personal enrichment in the actions they are taking. They are simply endeavouring to secure to their wider whanau as much as possible of the land in Part Kairakau 2C5B left to them by their tupuna. I consider this to be an objective supported by Te Ture Whenua Maori Act, as I hope the balance of this judgment will make clear.

In 2002, Ms Davis and her siblings Hawea Tomoana and Waiora Rogers purchased the Browns' shares: Hawea Tomoana and Waiora Rogers now each own 361.0335 shares in Part Kairakau 2C5B, and Waiariki Davis owns 722.067 shares. The Browns, who are not descendants of the traditional owners, no longer own any shares in Part Kairakau 2C5B.

In order to effect this share purchase from the Browns, and return the whole of Part Kairakau 2C5B to the ownership of its traditional Maori owners, Ms Davis and her siblings needed to borrow money. They borrowed $41,350.00 from Mr and Mrs Pearse, who own land adjoining Part Kairakau 2C5B. They entered into an agreement under which they have undertaken to endeavour to obtain the consent of the Court to the partition and change of status of the 3,400m2

block in question, and the sale of this block to the Pearses for $82,700.00. If

Minute Book: 171 NA 185

the transfer to the Pearses cannot be effected - if, say, the Court declined to order the partition - Ms Davis and her siblings would need to repay the Pearses the $41,350.00 advanced thus far.

At the hearing before me, I intimated to the parties that although it seemed to me that the requirements of section 289/93 (partitions) might well have been met, rather more doubt attached to the application for a change of status of the block to be partitioned. The parties agreed to turn their minds to whether a change of status was indeed required in order for the Pearses to obtain the benefit they sought from the agreement with Ms Davis and her siblings, and from the subsequent transfer to them of the block.

I am now in receipt of a memorandum under the hand of Waiariki Davis dated 22 April 2003, in which she states that "Both parties now understand the criteria pertaining to Maori Freehold Land Title and the Pearses are happy for this partitioned area to remain status quo." I take it from this that the Pearses wish to proceed with the agreement on the basis that the block to be partitioned will be transferred to them as Maori freehold land.

This leaves for determination the question of the partition, the proposed roadway, and the alienation of the partitioned block to the Pearses.

Partition

The most stringent provisions of the partitions regime in Te Ture Whenua Maori Act concern the need for applicants to show the support of their co­owners for the course of action proposed. This was the requirement that proved an insuperable obstacle to the Browns. However, it is not an obstacle to the success of the application now before the court. That is because the co-owners of the Tomoana whanau understand the context from which this application arises. They were involved, to varying degrees, in the long saga concerning the Browns and their applications with respect to the land. They know that Ms Davis and her siblings have entered into their agreement with the Pearses in order to finance the retention in the hands of the traditional owners of the balance of the block. There is unanimous support for this objective . Accordingly, all but one of the owners have consented to the partition of the block, and sale to the Pearses of the partitioned area. The whereabouts of that one outstanding owner is unknown, so he cannot be contacted to seek his consent.

The total area of Part Kairakau 2C5B is 5.8558 hectares. The partition and sale of 3,400m2 of this land reflects a small reduction in area. While the preference of the owners would no doubt be to preserve the whole block intact, they accept that the arrangement entered into by Ms Davis and her siblings was the best that could be done in the circumstances to secure to the whanau as a whole the Browns' shares. The Browns' shareholding equated to a 62% interest in the block, and this - less the 3,400m2 comprised in the partition - has effectively been preserved for the Maori owners and their uri forever as a result of the arrangement entered into .

The cost of securing the Browns' shareholding is that 5.8% of the land comprised in Part Kairakau 2C5B will be partitioned and, if the Court confirms

Minute Book: 171 NA 186

its alienation, will go out of the ownership of the traditional owners. There is to be no change of status of the partitioned block, however. It will remain Maori freehold land, thus preserving the possibility that the traditional owners may regain ownership at some time in the future as a result of their right of first refusal that comes into play whenever the land is sold (section 147 A).

If partitioned and transferred to them, the Pearses intend to use the 3,400m2

of Part Kairakau 2C5B in the first instance to create a road from Mananui Street to their paddock in Kairakau 2B. The owners of Part Kairakau 2C5B will use the first part of the road as an extension of Mananui Street from which they will gain access to their block. The road will afford access to Part Kairakau 2C5B from the direction of the beach, whereas legal access to the block now can be obtained only from Te Apiti Road, which runs along the rear of the block if the beach is taken as its front.

The proposed road comprises a 12-metre strip along two sides of the roughly rectangular block to be partitioned. The roadway is to be formed at the expense of the Pearses, and with the cooperation of the Council. A small section of the road will lie over the balance of Part Kairakau 2C5B, and it has been agreed that the Pearses are to have a right of way over that portion.

I am satisfied that the enhanced access to Part Kairakau 2C5B provided by the new roadway will improve the owners' utilisation of the block. Without the involvement of the Pearses, the owners would find the cost of forming the road beyond their means.

I accept that the partition is necessary as part of an arrangement that allows the applicants to obtain finance to repurchase the balance of the block that had gone out of Maori ownership. The repurchase is for the benefit of the descendants of its traditional owners. The scheme will facilitate the effective development and utilisation of the land by those owners, and advances the objective set out in section 17 of the Act - the retention of Maori land in the hands of its ancestral owners.

I am therefore minded to grant the application to partition 3,400m2 of Part Kairakau 2C5B in accordance with the plan attached to Waiariki Davis's Memorandum of 22 April 2003. Unfortunately, however, there are a number of technical requirements to be fulfilled with respect both to the partition and the roadway, and I deal with those below.

As far as the shares comprised in the partition are concerned, I note that the 3,400m2 comprised in the partition equates to 5.8% of the land area of Part Kairakau 2C5B. This area is to be deducted from the shareholdings of Waiariki Davis, Hawea Tomoana, and Waiora Rogers in Part Kairakau 2C5B on a pro rata basis in proportion to their shareholdings in the block (sections 291 (1 )(b)). They will accordingly be the owners of the partitioned block (Waiariki Davis as to a half, and Hawea Tomoana and Waiora Rogers as to a quarter each), and only their shareholdings in the parent block will diminish as a result of the partition. (section 291 (3)).

As to the technical requirements that must be fulfilled, I note that although in the first instance this is a partition into parcels to be held by owners who are

Minute Book: 171 NA 187

members of the same hapli (section 301 (1 )), the purpose of the partition is to facilitate the transfer of the 3,400m2 to the Pearses, who are not members of the same hapli . Thus, it is not appropriate to treat it as a hapli partition (section 304) .

This means that the partition is one that must comply with the provisions of the Resource Management Act 1991 relating to subdivisions. The owners must apply to the Council for resource consent (sections. 301-302). The Council has already indicated its approval of the general proposal in principle which of course also involves some Council-owned land. Thus I envisage that the Council officers will agree to deal with the resource consent application on a non-notified basis. This will lessen the time entailed in obtaining the resource consent.

I note that for the purpose of applying for the resource consent, the applicants will require a scheme plan. While a survey is not required by the Council, a survey will ultimately be required in order for the partition to be completed, and also in order for the Pearses to obtain a fully registrable title from the District Land Registry. I imagine that this will be one of their objectives from the agreement they have entered into.

I think it likely that the applicants and the Pearses will find that they will have a smoother path if they obtain the assistance of a surveyor from the outset, particularly as the parties seem to be making their arrangements with a minimum of legal advice. If a surveyor prepares the scheme plan, it will make quite clear what is proposed, and will form the basis for obtaining both the resource consent, and the Council's consent to the roadway. I deal with the consent to the roadway under the next heading.

Roadway

The proposed partition involves laying out a roadway, as I have described (see attached map). The roadway will lie partly on the new partition of Part Kairakau 2C5B, and also, to a lesser extent, on the balance block. In order for this proposed roadway to be properly authorised in terms of the Act, it is necessary for it to be laid out in terms of sections 316 and 317 of the Act.

Section 317(1) provides that the Court shall not layout roadways over Maori freehold land unless satisfied that the owners have had sufficient notice of the application to the Court for an order laying out the roadway, and sufficient opportunity to discuss and consider it. Here, no separate application was made in respect of the roadway; it has been dealt with as an incident of the partition application.

The proposed roadway lies substantially over the block to be partitioned, and over the balance block to a much lesser extent. The owners of the balance block whose consent was sought for the partition understood that the partition was to be sold, and their consent to the partition included a consent for the partition to be vested in the Pearses. For the purposes of section 317(1), I am satisfied that the owners have had an opportunity to consider this roadway proposal as a minor part of the much more significant proposal to partition Part Kairakau 2C5B and sell the partitioned area. The roadway aspect of the

Minute Book 171 NA 188

proposal in fact delivers a benefit to the owners of the balance block, and I think it most unlikely that they would object to the roadway while agreeing to the partition and sale. That would not really make sense.

Accordingly, I am prepared to exercise the Court's jurisdiction in section 316 ('Court may layout roadways') on my own motion. The roadway is for the purpose of providing additional and improved access to both the parent block and the partitioned block. As already discussed, the roadway will also afford the Pearses better access to their farmland behind the new partition, in Kairakau 2B.

Section 317(6) provides that the Court shall not layout roadways connecting with a public road without the consent of the relevant territorial authority. The proposed roadway here connects with Mananui Street . The Council consented to the proposal in principle in their letter dated 17 January 2003. However, the Court needs to see a letter expressing the Council's explicit consent to the roadway as set out in the plan.

I therefore order the laying out of a roadway over Part Kairakau 2C5B (parent block and partition) as shown on the plan. The roadway will not be a public roadway. Its use is limited to the owners of the two blocks (the partitioned block and the parent block), and those persons expressly authorised by the owners to use the roadway (section 318(2)). This order will not come into effect until the applicants file a letter of consent from the Council, as explained in the previous paragraph.

Alienation of the parlitioned block

No application was filed in the Court prior to the hearing concerning the proposed alienation of the partitioned block to the Pearses. The Pearses are not members of the preferred class of alienees, so the Court's vesting powers under section 164 are not available .

Following discussion at the hearing, the applicants that day filed an application to confirm the transfer of the partitioned block to the Pearses.

The relevant section is section 151 . The Court is empowered to confirm an alienation of any interest in Maori freehold land made by or on behalf of any party to an instrument of alienation. In this case, the instrument of alienation will be a sale and purchase agreement for the shares comprised in the 3,400m2 partition of Part Kairakau 2C5B for the price of $82,700.00. No such agreement is as yet before the Court. That matter must be remedied (see Rule 11 O(c)(v) of the Maori Land Court Rules 1994).

Section 152 sets out the matters upon which the Court must be satisfied before granting confirmation. The Court must be satisfied, among other things, that the purchase price is adequate. My knowledge of the valuation evidence before the Court in the Browns' partition application leads me to conclude that the price offered here for this block of Maori freehold land is adequate. No special valuation is required (section 158).

Minute Book: 171 NA 189

The Court must also be satisfied that the alienating owners have discharged the obligation in section 147 A. That is the section that requires anyone seeking to alienate Maori freehold land to give the right of first refusal to prospective purchasers who belong to one or more of the preferred classes of alienees, ahead of those who do not belong to any of those classes.

Usually, it would be necessary to schedule a hearing date of the application under section 151 (see Rule 112(1 )). But in this case, I am going to take the unusual step of limiting my directions to the procedures to be taken and notice to be given of the proposed alienation to the preferred class of alienee. My intention is that there will be no further hearing of the matter unless a member of the preferred class comes forward wishing to purchase the partitioned block ahead of the Pearses.

I take this step because of the special circumstances applying to this case:

(a) its long history before this Court which is well known to the Maori community connected with Kairakau;

(b) the close involvement of the whanau connected with the land in all of the hearings before me;

(c) the evidence of the ongoing communication with those whanau, effected by Waiariki Davis and her whanau about what has been going on in relation to the land; and

(d) the fact that advertisements were placed In Hawke's Bay Today on two occasions in March and April 2003 advising of the application for change of the status of the land comprised in the partition, and no members of the preferred class objected.

Accordingly, I direct the applicants to issue a public notice in the form set out in Form 20 under the Rules. Public notice will be effected by placing an advertisement in Hawke's Bay Today on two occasions one week apart.

If no member of the preferred class gives notice to the Court in the terms required by Form 20, I will deal with the confirmation pursuant to section 151 in chambers on the papers. I am satisfied that I have sufficient evidence before me to enable me to do that without further hearing (section 69).

It follows from the foregoing decision that these steps must now be taken:

Directions of tile Court 1. The applicants to file formal withdrawal of change of status application;

2. The applicants to file sale and purchase agreement for the shares comprised in the 3,400m2 partition of Part Kairakau 2C5B for the price of $82,700.00;

3. The applicants to advertise the application for confirmation of the alienation of the partitioned block in the form set out in Form 20. The

Minute Book: 171 NA 190

advertisement is to be placed in Hawke's 8ay Today on two occasions, one week apart.

4. The Hastings office of the Maori Land Court will please ensure that an officer of sufficient seniority now works closely with the applicants so that they can complete the many steps set out in this decision.

Orders of the Court

1. I make these orders in relation to the partition application:

, accordance with the plan attached to Waiariki Davis's Me April 2003 under section 289;

b) The 3,400m2 comprised in the partition e es to 5.8% of the land area of Part Kairakau 2C58. This area is to aeducted from the shareholdings of Waiariki Davis, Hawea Tomo , and Waiora Rogers in Part Kairakau 2C58 on a pro rata ba . . proportion to their shareholdings in the block. They will accord' be the owners of the partitioned block (Waiariki Davis as to a ha d Hawea Tomoana and Waiora Rogers as to a quarter eac , nd only their shareholding in the parent block will diminish as a

c) Pursuant to section 73, the orders in (a) and (b) above are conditional upon the applicants obtaining the relevant resource consents under the Resource Management Act 1991 (section 301 (1) and (2)), and arranging survey of both partitioned areas and the roadway within six months of the date of this minute or such later date as is approved by the court.

2. I order the laying out of a roadway over Part Kairakau 2C58 (parent block and partition) as shown on the plan. The roadway will not be a public roadway. Its use is limited to the owners of the two blocks (the partitioned block and the parent block), and those persons expressly authorised by the owners to use the roadway (section 318(2)). The order is conditional under section 73 upon the applicants filing in the Court an explicit letter of consent from the Council, and upon the partition orders becoming final .

3. The applicants under section 151 are exempted from the requirement under section 158 to furnish a special valuation of the land to be sold. Provided that no members of the preferred class wish to purchase ahead of the Pearses, I will deal with the application under section 151 in Chambers.

4. In making these orders I have made certain assumptions as to the position of the owners and the Pearses. If the orders do not properly capture the intent of those parties, leave is granted to them to make further representations to the court in writing.

C M Wainwright

JUDGE

For amendments see appended pag 171 NA 190A

A20030001827 171 NA 190A

Section 86/93 Orders mad at 174 NA 120-121 on 11 December 2003.

Orders of the Court:

1 (a) I grant the appllcatl n to partition .2200m' of Part Kairakau 2C5B In accordance with t e plan submitted to the court on 3 December ; 2003; and

(b) The 2200m' compris d In the partition equates to 3.76% of the land comprised in Part K Irakau 2C5B. This area is to be deducted from the shareholdings 0 Walarlkl Davis, Hawea Tomoana, and Walora Rogers so that they III be the owners of the partitioned block (Walarlkl Davis as t a half, and Hawea Tomoana and Walora Rogers as to a quarter each, and only their shareholdings In the parent block will diminish s a result of the partition.

2. There Is an applicati n before the court (164/93) to transfer to Walarlkl Davis the s areholdings of Walora Rogers and Hawea Tomoana in the part tion. This application should be fixtured for hearing once the pa tltlon Is completed.