Gregory v Thames Coromandel District Council - [2017] NZHC 2323

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHE

CIV-2016-419-240 [2017] NZHC 2323

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 Defendants

Hearing: 7 August 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 Defendants

Judgment:

25 September 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 25 September 2017 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar
Date: ………………………….

COLT GREGORY v THAMES COROMANDEL DISTRICT COUNCIL [2017] NZHC 2323 [25 September
2017]

[1] The plaintiffs claim to be the lawful proprietors of land on or around Redbridge Road, Tairua, on the basis of 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. It is common ground that 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] The land identified as Lots 1 and 2 is reclaimed land. It was reclaimed from the Tairua Harbour between 1970 and 1999. Sections 1 and 20 border Lots 1 and 2 to the South.

[3] The Thames Coromandel District Council (TCDC), the first defendant, asserts it is the registered proprietor of Section 20 and a lawful occupier of Lot 2. The second defendant, Glenn Leach, the former Mayor of the TCDC, has no interest in the proceedings, having never owned or occupied the land subject to the proceedings.

[4] The third and fourth defendants, John Hook and the Minister of Land Information (the Minister), assert title to the reclaimed lands (Lots 1 and 2) vest in the Crown by operation of statute. Mr Hook is the Group Manager of Crown property at Land Information New Zealand (LINZ).

[5] The fifth defendants, the trustees of a family trust, assert they are registered proprietors of 17 Redbridge Road, Tairua, being Section 1.

Scope of this judgment

[6] During the course of the hearing it became evident that the issues concerning reclaimed land had much wider public significance. In particular, an issue arose as to the effect of s 31(3)(a) of the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA), which states:

31 New status of existing reclaimed land

…

(3) However, this section does not affect—

(a) any lesser interest held, immediately before the commencement of this Act, by a person other than the Crown in existing reclaimed land; or

[7] I was not satisfied with the limited analysis offered by…

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 2323
Decision Date: 25 September 2017

CaseChat Overview and Summary

The plaintiffs, Colt Gregory and Peter-James Martin, sought to establish their lawful proprietary interest in land located on or around Redbridge Road, Tairua, based on whakapapa, tikanga Māori and customary rights. They filed a claim against the Thames Coromandel District Council and others, seeking recovery of the land, an order for trespass and damages and costs on an indemnity basis. The defendants sought summary judgment and/or a strike out. The court had to determine whether the plaintiffs had established a prospect of success in their claims. The court found that the plaintiffs' claims regarding Sections 1 and 20 had no prospect of success. The plaintiffs failed to present any credible evidence which would establish a prima facie case of fraud, or that the defendants knew or suspected that the Crown acted fraudulently in acquiring the land. The court noted that the plaintiffs' general pleadings of historic fraud and the alleged fraudulent creation of title by Land Information New Zealand were not of sufficient particularity or cogency to go to trial. The court also found that customary title had likely been extinguished with finality. Therefore, the court granted summary judgment in favour of the defendants and struck out the plaintiffs' claims. Costs were reserved pending the outcome of the second judgment regarding the reclaimed land.

Orders