Churton v Attorney-General - [2025] NZHC 2422

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-219

[2025] NZHC 2422

IN THE MATTER OF Unextinguished Customary Title

BETWEEN

DAVID WAYNE CHURTON

Plaintiff

AND

ATTORNEY-GENERAL

Defendant

Hearing: 12 August 2025

Counsel:

G A Paine for Plaintiff

J M Prebble for Defendant

Judgment:

25 August 2025

JUDGMENT OF GENDALL J

Introduction

[1] This proceeding concerns an area of land in the Port Nicholson block which the plaintiff, David Churton, submits is subject to unextinguished customary title. Mr Churton brings this proceeding in his personal capacity and as a trustee of the Ngāti Tama Te Kaeaea Trust.

[2] Before me, the Attorney-General applies for an order that Mr Churton provide further particulars and serve a more explicit amended statement of claim.1 The Attorney-General’s position is that Mr Churton’s second amended statement of claim, dated 7 August 2024, is defective and fails to give fair notice of his cause of action and particulars of the pleadings.2

1 High Court Rules 2016, r 5.21.
2 Rule 5.26.

CHURTON v ATTORNEY-GENERAL [2025] NZHC 2422 [25 August 2025]

Background and procedural history

[3] In brief, Mr Churton in his amended statement of claim outlines the historic position relating to his claim as follows. In or around 1822, Ngāti Tama and Ngāti Mutunga came to occupy the Wellington Harbour and surrounding area, including the land in issue in this proceeding. After 1823, Ngāti Tama and Ngāti Mutunga held mana whenua and customary title with respect to the land. In November 1835, a large group of Ngāti Mutunga and Ngāti Tama left the Wellington region to travel to the Chatham Islands. Both iwi maintain ahi kaa in respect of the land, according to their tikanga. After 1835, Ngāti Tama continued to hold mana whenua and customary title with respect to the land. In 1839, approximately 5,000 acres of land situated at Petone was sold to the New Zealand Company, including the area in dispute in this proceeding. In 1842, Taringa Kuri, on behalf of Ngāti Tama, objected to the land being alienated in the Native Land Commission. Despite this, the Crown purported to make a grant of the land to the New Zealand Company, but Mr Churton submits the Crown had no legal basis to do this. In February 1846, Governor Grey took military action to take the land from Ngāti Tama in Wellington and the Hutt Valley, meaning Ngāti Tama ceased to be able to occupy the land. Much later, in August 2008, Mr Churton notes that the Crown, Ngāti Tama and others were parties to a deed of settlement which he says, however, concerns other historic claims. He maintains that this deed does not in any way settle his present claims concerning the land in question.

[4] Mr Churton filed this proceeding, including an initial statement of claim broadly detailing this position, on 11 May 2023. His initial statement of claim went on to seek a declaration that the land in question is unalienated aboriginal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Churton v Attorney-General

Details

AGLC: Churton v Attorney-General [2025] NZHC 2422
Case: [2025] NZHC 2422
Decision Date: 25 August 2025

CaseChat Overview and Summary

The case of Churton v Attorney-General involves a claim by David Churton, as a trustee of the Ngāti Tama Te Kaeaea Trust, seeking a declaration that the land in question is subject to unextinguished customary title. The Attorney-General, representing the Crown, applies for further particulars and a more explicit amended statement of claim, arguing that Mr Churton’s second amended statement of claim is defective. The High Court of New Zealand, Wellington Registry, is tasked with determining whether the pleadings sufficiently outline Mr Churton’s claims.

The legal issues before the court revolve around the adequacy of Mr Churton’s pleadings in relation to his representative status, the specific allegations of fraud, and the identification of the land parcels subject to the claim. The court must consider whether the pleadings provide sufficient information to inform the Attorney-General of the case to be met and to enable a proper defence, without creating an undue burden on Mr Churton.

The court found that Mr Churton’s pleadings were insufficient in several respects. While the court acknowledged the need for flexibility in claims involving customary authority, it concluded that Mr Churton had not sufficiently established his representative status, particularly if he was bringing the claim as a trustee. The court also found that Mr Churton had not adequately detailed the specific conduct constituting fraud or the relevant agents' knowledge, as required by the stringent pleading requirements for fraud. Furthermore, the court noted the lack of clarity regarding which parcels of land were subject to the claim, emphasizing the need for Mr Churton to identify the relevant parcels by reference to the land registration system.

Consequently, the court granted the Attorney-General’s application for further particulars and ordered Mr Churton to file an amended statement of claim within thirty working days. The amended statement must detail Mr Churton’s representative status, provide a material factual basis for the claim of fraud, and specify the parcels of land to which the claim relates. The court refrained from awarding costs to the Attorney-General, noting that Mr Churton is likely legally aided, but instructed the parties to endeavour to agree on any costs issues.

Orders