Gregory v Thames Coromandel District Council - [2017] NZHC 3002

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHE

CIV-2016-419-240 [2017] NZHC 3002

BETWEEN
COLT GREGORY

First Plaintiff

PETER-JAMES MARTIN Second Plaintiff

AND

THAMES COROMANDEL DISTRICT COUNCIL

First Defendant

GLEN LEACH Second Defendant

JOHN HOOK Third Defendant

MINISTER FOR LAND INFORMATION Fourth Defendant

SCHMITT GROUP Fifth Defendant

Hearing: 7 August and 14 November 2017

Counsel:

First Plaintiff in person
Second Plaintiff in person
J Vella and C Timbs for First and Second Defendants
M Pirini and R Polaschek for Third and Fourth Defendants
D Quinn for Fifth Defendant
P Andrews, amicus curiae

Judgment:

5 December 2017

JUDGMENT (NO 2) OF WHATA J

This judgment was delivered by me on 5 December 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar
Date: ………………………….

GREGORY v THAMES COROMANDEL DISTRICT COUNCIL [2017] NZHC 3002 [5 December 2017]

[1] The plaintiffs claim to be the lawful proprietors of land on or around Redbridge Road, Tairua, by whakapapa, tikanga Māori and customary right. They seek a summary proceeding for recovery of land in accordance with Part 13 of the High Court Rules 2016. The defendants seek summary judgment and/or strike out. The claimed area involves the following parcels of land:

(a) Section 20 Block XII Whitianga Survey District (Section 20); (b) Section 1 Survey Office Plan 53116 (Section 1); and
(c) Lots 1 and 2 LT419829 (Lots 1 and 2).

[2] In a judgment dated 25 September 2017 I granted summary judgment to the first, second and fifth defendants in relation to Section 20 and Section 1.1
Indefeasible title to these parcels is held by the first and fifth defendants respectively. I found the claims by the plaintiffs in respect of these parcels could not possibly succeed.

[3] I adjourned the claim in relation to Lots 1 and 2 (both parcels of reclaimed land), however, to enable further submissions to be made on the effect of s 31(3)(a) of the Marine and Coastal Area (Takutai Moana) Act 2011 (Takutai Moana Act). This subsection provides the absolute vesting of the full and beneficial ownership of all existing reclaimed land in the Crown does not affect any lesser interest held, immediately before the commencement of the Takutai Moana Act, by a person other than the Crown in existing reclaimed land.

[4] I was not satisfied by the limited analysis offered by the parties on the effect of this subsection, and whether “lesser interest” includes customary interests. I invited the parties, together with an amicus curiae, to provide further submissions on its effect and whether customary rights were extinguished by the operation of s 31. The parties subsequently sought a further hearing on this issue, which was held on
14 November 2017.

1 Gregory v Thames Coromandel District Council [2017] NZHC 2323.

The defendants’ applications

[5] The Crown and Mr Hook seek strike out of Mr Hook, and strike out and/or summary judgment in respect of the claim to Lots 1 and 2.…

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.

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Details

Case: [2017] NZHC 3002
Decision Date: 5 December 2017

CaseChat Overview and Summary

The plaintiffs, Colt Gregory and Peter-James Martin, brought an action for recovery of land in accordance with Part 13 of the High Court Rules 2016 against the Thames Coromandel District Council and others. The plaintiffs sought to assert ownership of land on or around Redbridge Road, Tairua, by whakapapa, tikanga Māori and customary right. The defendants sought summary judgment and/or strike out. The court was required to determine the legal issues raised by the pleadings, the effect of relevant statutes on the customary rights of the plaintiffs, and whether the claims could proceed. The court found that while the plaintiffs' claims to ownership based on tikanga being supreme law or full exclusive ownership were untenable, a properly pleaded claim based on customary rights was not. The court granted summary judgment in favour of the defendants on the ownership claims, struck out the claims against certain defendants, and adjourned the proceedings to allow the plaintiffs to amend their pleadings to make a claim based on customary rights. The defendants were granted leave to bring an application to strike out again following the filing and service of the amended pleadings if no cause of action was disclosed. The parties were granted leave to file submissions seeking costs, with the court noting that the issue raised by the pleadings was of considerable public interest.

Orders