Hojsgaard v Registrar-General of Land
[2021] NZHC 3233
•29 November 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-2293
[2021] NZHC 3233
UNDER the Land Transfer Act 2017 IN THE MATTER OF
a claim for compensation under section 58
BETWEEN
PETER HOJSGAARD
Plaintiff
AND
THE REGISTRAR-GENERAL OF LAND
Defendant
Hearing: 8 and 9 June 2021 Counsel:
P H Thorp and M Singh for plaintiff
M J Bryant and D J Watson for defendant
Judgment:
29 November 2021
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 29 November 2021 at 4pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Glaister Ennor, Auckland for plaintiff Crown Law, Wellington for defendant
HOJSGAARD v THE REGISTRAR-GENERAL OF LAND [2021] NZHC 3233 [29 November 2021]
Introduction [1]
Some information about the cadastre and the rules for cadastral surveying [6]
Statutory responsibilities [9]
Rules for cadastral survey [10]
The Torrens system of land title – Land Transfer Act 2017 [22]
The land transfer register kept in the Landonline system [26]
The regime under the Land Transfer Act 1952 [30]
The keeping of the cadastre in Landonline [34]
Orders of the Māori Land Court affecting Māori freehold land [42]
Historical background [47]
How the title to the Omapere B block was registered [53]
Mr Hojsgaard’s submissions about the Māori Land Court documents [70] Mr Hojsgaard’s concerns with the survey of the Omapere block in ML 437558 [72] The Brill survey of Omapere B – ML 437558 [75]
Hojsgaard challenge to Brill survey – Thomson survey SO 486668 [77]
The High Court and Court of Appeal decisions [84]
The LINZ reconsideration following the court decisions [87]
Issues [90]
Are the land transfer and cadastral systems separate or an integrated whole? [94]
The submissions for Mr Hojsgaard [95]
Discussion [107]
Has there been a material error or wrongful act or omission by the Registrar? [120]
The views of the surveyor, Mr Thomson [123]
Defendant’s response to allegation of Registrar’s error [130]
Discussion [131]
The pleaded errors [138]
Conclusions – no compensable error [140]
Consideration of causation and quantum not required [144]
Costs [151]
Introduction
[1] Peter Hojsgaard owns bare land in Omapere, Northland that runs west from State Highway 12 to abut the sand dunes at the edge of the Hokianga Harbour. It is comprised in two contiguous parcels with the addresses of 274 and 284 State Highway
12. The parcel closest to the beach and the subject of this proceeding, No 284 (the Hojsgaard property), is Lot 1 DP 146636 held in record of title (RT) NA87B/961. The other parcel is Lot 1 DP 38734 held in RT NA1087/59. Mr Hojsgaard has been recorded as the registered owner on the record of title for the Hojsgaard property since 1998.
[2] In late 2014, Mr Hojsgaard marketed both parcels for sale together as “waterfront property”. Two days prior to the auction, Mr Hojsgaard’s attention was drawn to the title of neighbouring Māori freehold land1 (CIR 524865, now RT 524865)
1 Defined in Te Ture Whenua Māori Act 1993, ss 4 and 129(1)(b) and (2)(b) as “land, the beneficial ownership of which has been determined by the Maori Land Court by freehold order”.
that included a sketch plan showing that land (Omapere B) as running across the north and west beach frontage of the Hojsgaard property between the mean high water mark and the western boundary of the Hojsgaard property. Mr Hojsgaard was advised that it may have been regarded as misleading for him to describe his land as “waterfront property” and he withdrew the property from sale.
[3] Omapere B was a parcel of land that had been created in 1900 by an order of the Māori Land Court.
[4] Acting on the advice of experts that CIR 524865 was founded on an incorrect survey plan, ML 437558, Mr Hojsgaard has spent more than $2.4 million in surveyors’ and consultants’ fees, legal fees, court costs and associated expenses in a quest to restore the Hojsgaard property to the claimed status of “waterfront property”. As I explain below, Mr Hojsgaard’s determination to correct the error has led to an oral order of the Māori Land Court approving a new survey plan, ML 537122, that accurately describes the boundaries of Omapere B and the Hojsgaard property. The delivery of the written order will enable the issue of a new record of title for Omapere B that correctly shows the western boundary of the Hojsgaard property as abutting the dry bed of the former Omapere Stream.
[5] Mr Hojsgaard now claims against the Crown for reimbursement of these costs, which include the cost of a proceeding in this Court and the Court of Appeal, as compensation under s 58 of the Land Transfer Act 2017 (the LTA 2017). To succeed in his claim. Mr Hojsgaard must show that he has suffered loss as a result of:2
(a)an error or wrongful act or omission of the Registrar-General of Land appointed under s 231(1) of the LTA 2017 (the Registrar) or his delegate; or
(b)a failure or malfunction of a system or facility used to keep the register of land under s 9 of the LTA 2017.
2 Land Transfer Act 2017, s 58(1)(a) and (b).
Some information about the cadastre and the rules for cadastral surveying
[6] Understanding the issues in this proceeding requires some understanding of the legislative framework for cadastral survey and its relationship to New Zealand’s land tenure system. In explaining relevant concepts, I draw gratefully on the exposition provided by the Court of Appeal in Mr Hojsgaard‘s proceeding against the Chief Executive of Land Information New Zealand (LINZ) (the Court of Appeal decision) that led to the correction of the survey error at the heart of this case.3
[7] The starting point is the Cadastral Survey Act 2002 (the CSA). “Cadastral survey” means the determination and description of the spatial extent – including boundaries – of interests under land tenure systems.4 The term “cadastre” means all the cadastral survey data held by or for the Crown and Crown agencies.5 Under the New Zealand system of land tenure, the cadastre underpins the issue and guarantee of titles.
[8] The cadastre’s integrity is of paramount importance, therefore, as is reflected in one of the express purposes of the CSA which is to promote and maintain the accuracy of the cadastre.6 Section 3(a) states this is to be achieved by requiring cadastral surveys to be undertaken by licensed cadastral surveyors, who must meet certain standards before being licensed, and by making provision for the setting of standards for cadastral surveys and cadastral survey data. Robin Brill and Denis Thomson, who feature prominently in the background history to this proceeding, are licensed cadastral surveyors.
Statutory responsibilities
[9] The statutory officers having principal responsibility for the administration of the CSA are:
3 Hojsgaard v Chief Executive of Land Information New Zealand [2019] NZCA 84, [2019] 2 NZLR 864 at [7]–[20].
4 Cadastral Survey Act 2002, s 4.
5 Section 4.
6 Section 3(a).
(a)the Surveyor-General, whose relevant functions include:
(i)maintaining a national geodetic system;7
(ii)setting standards to determine how the spatial extent (including boundaries) of interests under a tenure system must be defined and described;8
(iii)setting standards for integrating new cadastral surveys into the cadastre by the Chief Executive of LINZ (the Chief Executive);9
(iv)setting standards for the structure, storage, and provision of cadastral survey data by the Chief Executive;10 and
(v)setting standards for determining when cadastral survey datasets (CSDs) may be used to define interests under tenure systems;11
and
(b)the Chief Executive, whose relevant functions include:12
(i)determining whether CSDs and cadastral surveys comply with standards set by the Surveyor-General;
(ii)providing facilities to receive CSDs;
(iii)setting conditions for the use of such facilities;
(iv)integrating new cadastral surveys into the cadastre; and
7 Cadastral Survey Act 2002, s 7(1)(a).
8 Section 7(1)(c).
9 Section 7(1)(e).
10 Section 7(1)(f).
11 Section 7(1)(g).
12 Section 9(a)–(e).
(v)determining the structure and storage of, and the provision of access to, cadastral survey data.
Rules for cadastral survey
[10] The standards for cadastral survey include provisions about boundaries and water boundaries. A water boundary is a boundary set at the landward margin of a river bed or stream bed; a lake bed; or the common marine and coastal area or other tidal area.13 Water boundaries can be marked against the present or former course or location of a waterway. Land bounded by water boundaries is subject to specific legal and surveying considerations. It is essential that surveys record current and former positions of relevant water body margins correctly, clearly and unambiguously.
[11] Under the CSA, the function of approving a new cadastral survey for integration into the cadastre is reposed in the Chief Executive.14 They must first be satisfied that the survey complies with the CSA and with standards promulgated by the Surveyor-General regulating the conduct of surveys. The standards relevant to this proceeding were contained in the Rules for Cadastral Survey 2010 (the Rules) which have the status of regulations.15
[12] Boundaries, including water boundaries, are governed by r 6. Rule 6.1 stipulated that when a cadastral surveyor is defining a boundary by survey, they must:
(a)gather all evidence relevant to the definition of the boundary and its boundary points;
(b)interpret that evidence in accordance with all relevant enactments and rules of law; and
(c)use that evidence to determine the correct position of the boundary and boundary points in relation to other boundaries and boundary points.
13 Rules for Cadastral Survey 2010, r 2.
14 Cadastral Survey Act 2002, s 9(a) and (d).
15 Section 49. The Rules for Cadastral Survey 2010 were revoked on 30 August 2021 by r 122 of the Cadastral Survey Rules 2021. All relevant survey decisions were made under the 2010 Rules, however, and counsel did not suggest they did not apply for the purposes of this proceeding.
[13] Rule 6.2 listed the types of boundary or boundary points which must be defined by survey. These include not only “a new water boundary or irregular boundary”, but also “an existing irregular boundary that has been converted into one or more right- line boundaries” and a boundary where its extent and location as defined in an approved CSD are insufficient for the determination of its compliance with the applicable accuracy standard.16
[14] A “right-line boundary” is one that follows the shortest distance between two boundary points.17
[15] Rule 6 provided that when the margin of the water body defining a water boundary has moved, but the boundary has not moved, that boundary must be converted to one or more right-line boundaries or may become an irregular boundary if it meets certain specified criteria.18
[16] By r 3.4(a)(i), the position of a water boundary or an irregular boundary, including one defined by adoption, must be determined to a sufficient level of accuracy to take into account the risk of overlap or ambiguity in boundaries including the water boundary on the other side of the water body. A boundary is “defined by adoption” if it is an existing boundary or boundary point that is not defined by survey or accepted.19 That means that a surveyor has defined an existing boundary or boundary point using information from either a prior CSD that has already been integrated into the cadastre or, in the absence of such information, from an estate record held by the tenure system manager. The surveyor must have ensured that the adopted work meets accuracy tolerances and that there is no known evidence of conflict.20
[17] Rule 8.2(a) required a CSD to include a survey report. The report must, among other things, provide details of any conflict between the new survey being submitted for approval and an existing survey in the cadastre, and to provide details of how the surveyor resolves the conflict.21
16 Rules for Cadastral Survey 2010, r 6.2(a)(i), (iii) and (vii).
17 Rule 2.
18 Rule 6.7(a).
19 Rule 2.
20 Hojsgaard v Chief Executive of Land Information New Zealand, above n 3, at [14].
21 Rules for Cadastral Survey 2010, r 8.2(a)(v).
[18] In Chief Executive of Land Information New Zealand v Te Whanau o Rangiwhakaahu Hapū Charitable Trust (Otito Reserve),22 the Court of Appeal held that if there is a conflict between surveys, compelling evidence is required before the decision-maker can conclude the earlier plan is in error and should be replaced, notwithstanding the consequential prejudice that might otherwise be caused to those with interests in the land.23 A very “high standard of satisfaction” as to the existence of error was said to be required.24
[19] In its decision in Mr Hojsgaard’s proceeding against the Chief Executive, the Court of Appeal observed that the statements in Otito Reserve reflected long- established surveying practice and that the expert surveying witnesses agreed that existing survey plans are presumed to be correct once approved as to survey (the presumption of correctness). The experts also agreed that compelling evidence is required to move boundaries established by such survey plans.25
[20] There is a mechanism for correction of the survey once it is integrated into the cadastre. Section 52 of the CSA empowers the Surveyor-General to correct errors in a CSD affecting title. Subsection (1) provides:
52 Correction of errors in survey
(1)If an error is found in a cadastral survey dataset affecting any title under the Land Transfer Act 2017 or any title or tenure under any other Act, the Surveyor-General may, in writing, require the cadastral surveyor responsible for the error to undertake, or arrange to be undertaken, the work necessary to correct the error within a time that the Surveyor-General considers reasonable.
[21] In exercising the power of correction under s 52, the Surveyor-General must adopt the same standard as applies to the Chief Executive when making decisions at the approval stage; namely, they should only find error if there is compelling evidence of it.26
22 Chief Executive of Land Information New Zealand v Te Whanau o Rangiwhakaahu Hapū Charitable Trust (Otito Reserve) [2013] NZCA 33, [2013] NZAR 539.
23 At [91] and [107].
24 At [107].
25 Hojsgaard v Chief Executive of Land Information New Zealand, above n 3, at [17].
26 Otito Reserve, above n 22, at [91], [107] and [127].
The Torrens system of land title – Land Transfer Act 2017
[22] The purpose of the LTA 2017 is to continue and maintain the Torrens system of land title in New Zealand and retain the fundamental principles of that system.27
[23] The LTA 2017 facilitates the provision of a register of land subject to the Act that, among other things:28
(a)provides security of ownership of estates and interests in land;
(b)facilitates the transfer of and dealings with estates and interests in land; and
(c)describes and records the ownership of estates and interests in land.
[24] The statutory officer primarily responsible for the maintenance of the register of titles under the LTA 2017 is the Registrar-General of Land (the Registrar).29 In this judgment, every reference to the Registrar is intended to include, where appropriate, a reference to a District Land Registrar (DLR) or any other person to whom the Registrar delegated any powers or duties in accordance with the statutory power of delegation conferred on the Registrar, whether under the Land Transfer Act 1952 (the LTA 1952) or the LTA 2017.
[25] Section 9(1) of the LTA 2017 requires the Registrar to keep and operate a register of land that is subject to the Act. Section 9(2) and (3) provide:
(2)The register must be kept in a form or manner determined by the Registrar that—
(a)records information; and
(b)permits the recorded information to be readily accessed or reproduced in usable form.
(3)For example, all or part of the register may be kept by means of a computer system or facility that records information electronically.
27 Land Transfer Act 2017, s 3.
28 Section 3.
29 Section 231.
The land transfer register kept in the Landonline system
[26] Landonline is an integrated digital system provided by LINZ to manage New Zealand’s title and survey transactions. It was created in 2000 following the merger of the Land Transfer Office with the Department of Survey and Land Information and the formation of LINZ in 1996.
[27] In the exercise of their powers under s 9(3) of the LTA 2017, the Registrar is satisfied that Landonline is the appropriate platform to support the storage and operation of the land transfer register. The introduction of Landonline as the platform used to keep the land transfer register followed the enactment of the Land Transfer (Automation) Amendment Act 1998 (the LTAAA). That Act empowered the:
(a)use of modern information technology for the purpose of registering and recording land transfer information;
(b)conversion of paper certificates of title to computer freehold registers (CFRs), computer interest registers (CIRs) and other electronic formats of title register; and
(c)first steps towards automation of transactions relating to land and title to land.
[28] Subsequently, the LTAAA was repealed and replaced by the Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002 (the CRELA), which enabled information technology to be used for:
(a)registering instruments, dealings, and other matters under the LTA 1952;
(b)recording and storing particulars of instruments, dealings and other matters relating to land and title to land registered under the LTA 1952; and
(c)preparing and lodging electronic instruments.30
[29] While the CRELA preserved the integrity and underlying purposes and principles of the Torrens system of land tenure and the LTA 1952,31 it made the creation and storage of information about interests in land more efficient and, particularly, enabled transactions to be conducted more efficiently.
The regime under the Land Transfer Act 1952
[30] The events with which this proceeding is concerned occurred principally between 2010 and 2016, during which time the CRELA and the LTA 1952 were in force. The land transfer register during that period comprised information contained in instruments prepared and registered in accordance with predecessor legislation, including information in paper-based instruments and certificates of title.
[31] Under the LTA 1952, the Registrar-General of Land appointed under s 4(1) of that Act was assisted in performing the statutory powers and duties conferred on that position by DLRs appointed to each of the land registration districts created under the relevant legislation.
[32] Under s 33 of the LTA 1952, the Registrar was required to keep a register, whether in the form of a book or otherwise, and bind up or include in it a duplicate of every grant of land and of every certificate of title. Each such duplicate grant or certificate of title constituted a separate folium of the register. The Registrar was required to record in the register the particulars of all instruments, dealings and other matters required to be registered affecting the land to which the grant or certificate of title applied.
[33] Under the CRELA, certificates of title, when stored electronically, became CFRs. Section 50 of the LTA 1952 provided for the provisional registration of dealings, memorials and entries affecting land pending the creation of a folium of the register, which would occur, under s 51, as soon as the register of the land was finally constituted.
30 Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002, s 3(a).
31 Section 3(b)(i).
The keeping of the cadastre in Landonline
[34] As I have noted,32 the cadastre underpins the issue and guarantee of titles under the New Zealand system of land tenure. One of the statutory purposes of the CSA is “to provide, either on an optional or mandatory basis, for the electronic lodging and processing of cadastral surveys”.33
[35] Exercising their statutory function “to determine the structure of, and to store and provide access to, cadastral survey data”,34 the Chief Executive has determined that the Landonline system is the appropriate platform to use for the storage of, and access to, the cadastre.
[36] The Landonline spatial view is a graphical description of the cadastral survey data available from the LINZ data service and third-party resellers. From the mid- 1980s, an index survey system for survey spatial data had been created by the digitisation of the hard copy cadastral record maps and block sheets kept manually to form the Digital Cadastral Database (DCDB). After the introduction of Landonline, the spatial data from the DCDB was added progressively. Because of the inaccuracy limitations of the cadastral record maps and block sheets, attempts were made to improve the accuracy of the Landonline spatial view as part of a project known as the Survey Conversion Project. Although around 70 per cent of parcels were targeted in the project, mainly in urban and intensive rural areas, some 30 per cent remained unchanged from the original cadastral record maps. It is accepted that the Landonline spatial view, therefore, does not contain an authoritative determination of the location and configuration of boundaries.
[37] Prior to the digitisation and computerisation of the cadastre and the land transfer register, cadastral survey data and the information available in registered titles to land were kept in hard copy and stored separately. Although the production of titles to land is dependent on access to cadastral survey data, it is not necessary for the information to be stored together.
32 At [7] above.
33 Cadastral Survey Act 2002, s 3(b).
34 Section 9(e).
[38] The fact that the land transfer register and the cadastre are both stored digitally in Landonline, however, has enabled some efficiencies in the recording of information in the land transfer register. As incumbent Registrar Robert Muir explains, the storage of the separate data on the land transfer register and the cadastre in one electronic computer system:
(a)facilitates the prompt importation of digital data and images of plans that have been approved as to survey by the Chief Executive under the CSA to the land transfer register when those plans are accepted for deposit and recorded in the register by the Registrar under the LTA 2017; and
(b)enables the spatial view in Landonline to be automatically updated when an approved survey plan is accepted by the Registrar for deposit under the LTA 2017 and the title is issued for the relevant estate or interest in land.
[39] The evidence establishes to my satisfaction that, although both the land transfer register and the cadastre are supported by the Landonline platform, each is a separate system or facility kept and operated by the Registrar and the Chief Executive respectively, in accordance with their independent statutory roles. The use of the Landonline platform to support both the land transfer register and cadastre does not mean that one system comprises the other or vice versa.
[40] As Mr Muir explains, the following data are held in the cadastre but are not part of, or associated with, the land transfer register:
(a)CSDs that have been submitted in Landonline for assessment by the Chief Executive under the CSA and not approved;
(b)survey plans that are part of CSDs that have been approved as to survey but have not been submitted to, and accepted by, the Registrar for deposit under the LTA 2017; and
(c)plans that are not related to registered instruments or records of title.
[41] Mr Muir emphasises the distinction between survey plans and cadastral information which form part of the land transfer register and those which do not. He explains the paramountcy of registered title under the Torrens system and says confidence in the system more broadly would be undermined if property boundary information that does not fall within the remit of the Registrar were to be treated as if it were part of the register. Mr Muir also notes that the spatial view in Landonline, which provides a graphical depiction of the boundaries of properties, does not form part of the land transfer register. It is derived from the cadastre and is administered and authorised by the Chief Executive, not by the Registrar.
Orders of the Māori Land Court affecting Māori freehold land
[42] Section 50 of the LTA 1952 provided for the provisional registration of orders of the Māori Land Court declaring land to be held in freehold tenure.35
[43] At the time that is relevant to this proceeding, namely May 2010, a computer interest register would be created for provisional registration under s 50 of the LTA 1952 if it was land to which s 124 of the Te Ture Whenua Māori Act 1993 (the TTWMA) applied; that is, where an order had been made by the Māori Land Court affecting title to Māori freehold land. Sections 123 and 124 of the TTWMA, as they read in 2010, are key provisions in this proceeding. The relevant provisions read:
123Orders affecting title to Maori freehold land to be registered
(1) Subject to subsection (7A) of this section, every order to which this Part of this Act applies shall, in accordance with the succeeding provisions of this Part of this Act, be registered against the title to that land under the Land Transfer Act 1952 …
(2) For the purposes of registration, the order shall be transmitted by the Registrar of the Court to the District Land Registrar … and the District Land Registrar … shall, except as otherwise provided in this Act, register the same accordingly.
…
(7A) Where an order to which this Part of this Act applies has not been registered in accordance with subsection (1) of this section, the registration of
35 Land Transfer Act 1952, s 50(a) and (c).
that order against the title to the land may, if its effect has been incorporated into a consolidated order, be effected by registering the consolidated order against the title to the land; and subsections (2) to (4) of this section shall, with all necessary modifications, apply in relation to the registration of the consolidated order.
124Special provisions where insufficient survey plan
(1) Where any order to which this Part of this Act applies is presented for registration under the Land Transfer Act 1952, the District Land Registrar shall, if the order is not supported by a plan defining the land affected by the order and sufficient for the purposes of the registration of that order under that Act, embody the order in the provisional register as a separate folium, and, subject to subsection (2) of this section, all the provisions of that Act relating to provisional registration shall thereupon apply accordingly.
(2) Where any order to which this Part of this Act applies is, in accordance with subsection (1) of this section, embodied in the provisional register as a separate folium, any person in whom the beneficial ownership of land or any interest in land is vested by that order may, in accordance with section 167(5) of the Land Transfer Act 1952, and in accordance with the regulations in force in that behalf, deposit a plan in relation to the land or interest in land to which the order relates, which plan shall define the pieces of land affected.
[44]The combined effect of the sections was that:
(a)the Registrar of the Māori Land Court was required to transmit all orders affecting or relating to the title in any Māori freehold land made by the Māori Land Court to the Registrar and the Registrar was required to register those orders under the LTA 1952; and
(b)if the order presented for registration was not supported by a plan that:
(i)defined the land affected by the order; and
(ii)was sufficient for the purposes of the registration of that order under the LTA 1952,
the Registrar was required to register the order provisionally by placing it in a separate folium in the provisional register.36
36 Te Ture Whenua Māori Act 1993, s 124(1).
[45] The document stored electronically on the provisional register would be held as a computer interest register.37
[46] When it became possible to finally constitute the register of that land in terms of the LTA 1952, the provisional registration would be closed and a CFR would replace the CIR.
Historical background
[47] In describing the relevant historical background regarding preparation of plans, conveyances and titles to the Hojsgaard property and Omapere B, I rely on the agreed statement of facts dated 28 April 2021 prepared by counsel for the hearing and counsel’s helpful submissions. I am grateful to them for their assistance, given that the facts I can describe as relevant to this proceeding are the product of much evidence, submission and findings in the High Court proceedings between Mr Hojsgaard and the Chief Executive.38 It is necessary to set out the facts in some detail.
[48] Omapere Block 243N, having an area of 0.8726 hectares, was land situated to the north and west of Mr Hojsgaard’s land at 274 and 284 State Highway 12. Historic plans, Crown Grants and conveyances prepared between 1859 and 1867, notably ML 223, show a creek or stream (the Omapere Stream or the Stream) between the Omapere Block and what became the Hojsgaard property (formerly described as “Martin’s Land” after the original owner by Crown Grant in 1861) as shown in the close-up image taken from ML 223 and reproduced below:39
37 Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002, s 9.
38 Hojsgaard v Chief Executive of Land Information New Zealand [2018] NZHC 750, [2018] 3 NZLR 99.
39 Omapere is misspelt “Omapera” on the plan but not in the Partition order.
[49] The right bank of the Omapere Stream, when viewed facing downstream to the Hokianga Harbour, is depicted as forming the southern and eastern boundary of the southern part of the Omapere Block. The left bank of the Stream is depicted as forming the northern and western boundary of the Hojsgaard property, extending down to the harbour.
[50] On 27 January 1900, the Omapere Block was partitioned by the Native Land Court into Omapere A and Omapere B, but no new titles were issued at that time.
[51] The Omapere Stream changed course suddenly in 1907 following heavy rains in the hills behind Omapere.40 As a result, it now flows into the Hokianga Harbour some 100 metres north of the former mouth of the Stream. It is common
40 I use the names “Omapere Stream” and “Stream” to refer also to the dried bed of the Stream following the sudden change of course in 1907.
ground that, in law, this avulsion41 did not alter the boundaries of Omapere B and Martin’s Land/the Hojsgaard property.
[52] In 1964, the cadastral record maps and block sheets for Omapere B and the Hojsgaard property showed the Omapere Stream extending down to the Hokianga Harbour and separating Mr Hojsgaard’s property from Omapere B, as depicted in ML 223. By 2007, however, the Stream was no longer shown separating the Hojsgaard property from Omapere B in the Landonline spatial view. Instead, the two properties were shown directly abutting each other, with the south-eastern boundary of Omapere B running right across the seaward boundary of the Hojsgaard property.
How the title to the Omapere B block was registered
[53] The Māori Land Court presented a photocopy of the Native Land Court’s 1900 Partition order for Omapere B to the Registrar for registration in May 2010, along with a Consolidated order recording the names of the three proprietors of the block and a Status order declaring the land to be Māori freehold land. Those orders were presented with the standard LINZ lodgement form used to present paper instruments for registration at that time, listing the three orders. Also presented with the orders was a memorandum of the Court dated 21 May 2012, requesting the issue of a CIR to register the Partition order and the other orders affecting the block.
[54] The photocopy of the Partition order presented to the Registrar for registration has a stamped note on the first page:
Duplicate issued pursuant to Rule 67 of the Maori Land Court Rules 1994 for registration purposes. Certified a correct copy.
[55] Placed partly over this note is a stamped seal of the Court. A signature is drawn on this stamp and the words “Deputy Registrar” are printed over the lower portion of the stamp.
[56] The Partition order for Omapere B has a handwritten note incorrectly converting the Imperial measurement of the area of the parcel – one acre two roods
41 Avulsion is the sudden separation of land from one property and its attachment to another, especially by flooding or a change in the course of a river.
and 18¾ perches – to 0.8726 hectares more or less. The metric figure noted on the order is the equivalent of the area of the whole Omapere Block; the correct metric equivalent for the area of Omapere B is 0.6543 hectares.
[57] The same note and stamp appear on the first page of the duplicate Consolidated order and the duplicate Status order received by the Registrar. The stamp is not on the Māori Land Court memorandum, nor on the LINZ lodgement form.
[58] A Māori Land Court stamp (or part thereof) also appears on the second and third pages of the Partition order (but without the note or a signature), as well as the second page of the Consolidated order. The certified copy of the Partition order refers to the part (Omapere B) as being “particularly delineated in the plan indorsed herein”.
[59]A sketch plan was also provided to the Registrar by the Court:
[60] In the sketch plan, the Hojsgaard property is immediately to the right (that is, the east) of the finger extension of Omapere B and part of the boundary with the other Hojsgaard land (Lot 1 DP 38734) is shown to the right or east of that.
[61]The key features of the sketch plan are:
(a)The parcel of land depicted in the sketch plan is marked “Omapere B”.
(b)The form of the plan and the words printed on the sketch plan:
Omapere B
Sketch Plan Only.
0.8726 heactares [sic] more or less
indicate that the plan is not derived from the cadastre, that it is not an approved survey plan defining the land affected by the Partition order and that it is insufficient for the purposes of the registration of that order as a computer freehold interest under the LTA 1952.
(c)The sketch plan is incorrect in that it depicts as Omapere B the whole of the Omapere Block prior to the Partition order.
[62] I accept Mr Thorp’s submission that the reference in the Omapere B Partition order to the part “particularly delineated in the plan indorsed herein” is a reference to plan ML 223, reproduced at [48] above. The plan contains a handwritten endorsement42 that reads:
Produced before the Native Land Court at Rawene on Partition this 27th day of January 1900.
D Bramwell Judge
[63]It is not firmly established:
(a)when the sketch plan was prepared or by whom, although it may be assumed the maker was an official of the Māori Land Court; or
42 Not reproduced in the close-up image at [48].
(b)what source information was used in the making of the sketch plan.
[64] It is clear that the maker of the sketch plan did not have regard to ML 223 which was stored in hard copy in the LINZ archives with relevant earlier plans and the cadastral record maps and block sheets for Omapere B and the Hojsgaard property that existed in 1964.43 I infer from the affidavit of Mr S J Schwarz dated 14 November 2017,44 however, that the person who prepared the plan probably referred to the 2007 spatial plans in Landonline. Inexplicably, the 2007 version of the spatial plans did not show the water body separating the Omapere Block from OLC 127, which was the forerunner to the creation of Lot 1 on DP146636, the Hojsgaard property.
[65] The lodgement form, the Māori Land Court memorandum and the three orders were received by the Registrar on 4 June 2010. The Registrar’s delegate who dealt with the Māori Land Court documents identified that the obligation under the TTWMA to register the Court’s orders presented to him should be given effect by issuing a provisional CIR under the LTA 1952 and the CRELA.
[66]In relation to the Partition order, the Registrar’s delegate:
(a)produced a copy or image of the paper copy of the order provided;
(b)accepted the copy or image for the purposes of registering the Partition order; and
(c)entered a unique identifier for the instrument (PO 8513011.1) in the relevant computer register: CIR 524865 (now RT 524865).
[67] This process was completed, along with registration of the other two orders relating to Omapere B, on 10 June 2010. In accordance with the deeming provision in s 47(4) of the LTA 1952 (which provided that instruments presented by post are deemed to have been presented for registration on the business day after the day on which they were received), what is now RT 524865 records on its face that it was
43 See [123] below.
44 Filed in the High Court proceeding on behalf of Mr Hojsgaard, although not all of the exhibits produced in that case have been replicated in this proceeding.
created on 8 June 2010 at 9.00 am, and that the title is “Qualified” (that is, the equivalent of a CIR in the provisional register under the LTA 1952).
[68]Under the heading “Interests”, RT 524865 records that:
The within order has been embodied in the register pursuant to Section 124(1) Te Ture Whenua Maori Act 1993. It will not be finally constituted a folium of the register until a plan has been deposited pursuant to Section 167(5) Land Transfer Act 1952.
[69] The stamped sketch plan provided to the Registrar by the Māori Land Court with the certified copy of the Partition order is appended to RT 524865 as its title diagram.
Mr Hojsgaard’s submissions about the Māori Land Court documents
[70] On behalf of Mr Hojsgaard, Mr Thorp argues that the errors in the documents sent to the Registrar by the Māori Land Court should have been obvious to the Registrar’s delegate who received them. Counsel submits that:
(a)it should have been clear to whoever received the documents that the handwritten note beside the Imperial measurement for the area of Omapere B was incorrect;
(b)the sketch plan provided with the documents could not have been the “plan endorsed herein” referred to in the duplicate Partition order because of the typed note showing a metric area; and
(c)although the sketch plan appears to have part of a stamped seal of the Māori Land Court affixed, the sketch plan is not referred to in the Court’s memorandum in the box reserved for “SUPPORTING ORDERS/PLANS” or in the LINZ lodgement form.
[71]I discuss Mr Thorp’s observations at [130] to [141] below.
Mr Hojsgaard’s concerns with the survey of the Omapere block in ML 437558
[72] In 1990, the former owners of the Hojsgaard property had commissioned Mr M R Wright to survey the property because of their belief that the seaward boundary of their land extended out at least to the foot of the Stream bank, if not as far as the mean high-water mark. Subsequently, Mr Wright prepared a plan by reference to an old plan (OLC 127); the Crown Grant 283C to the original owners of the Omapere Block that showed what became the Hojsgaard property as having a water boundary; on-site observations and anecdotal evidence. He concluded that the western boundary of the Hojsgaard property should be depicted as a right-line boundary representing the former location of the left bank of the Stream. Mr Wright’s reports do not refer to ML 223. The Wright survey was approved as to survey on 30 July 1991 and the Hojsgaard property became Lot 1 on Deposited Plan 146636; title was not issued until 7 September 1998.
[73] An image appended to both the High Court and Court of Appeal judgments shows the boundaries of the properties involved in the proceeding (as depicted in the respective titles), superimposed on an aerial photograph of the area. The western boundary to the Hojsgaard property is shown running along the bank immediately above the beach, consistently with the Wright survey.
[74] Mr Hojsgaard, however, was unaware of the steps that had been taken in 2010 leading to the registration of a qualified title to Omapere B.
The Brill survey of Omapere B – ML 437558
[75] A survey of the land in Omapere B, requisitioned in 2007, was lodged with the Chief Executive in 2008. That survey was not approved and, following a number of requisitions by the Chief Executive, it had been withdrawn on 8 January 2010.
[76] In March 2010, acting under delegation from the Surveyor-General, the Chief Registrar of the Māori Land Court authorised Mr Robin Brill to complete a survey of Omapere B. The survey of the block was prepared by Mr Brill and the plan – ML 437558 dated 17 November 2010 – was approved as to survey by the Chief Executive in December 2010. This was a forerunner to the depositing of the plan
under s 167(5) of the LTA 1952, and removal of CIR 524865 from the provisional register to become a folium of the register, but those steps were never taken.
Hojsgaard challenge to Brill survey – Thomson survey SO 486668
[77] After becoming aware of the Brill survey, Mr Hojsgaard took issue with the depiction of Omapere B on ML 437558 and contended that the survey plan was incorrect because it:
(a)did not depict the former course of the Omapere Stream between the southern and eastern boundary of Omapere B and the northern and western boundary of Mr Hojsgaard’s land; and
(b)also included Omapere A within Omapere B.
[78] Mr Hojsgaard commenced what Ms Watson correctly described as a lengthy and multifaceted process to challenge ML 437558, seeking to have it removed from the cadastre and replaced with a survey which depicted the former course of the Omapere Stream as forming part of the boundary to the Hojsgaard property.
[79] Mr Hojsgaard sought advice from Mr Denis Thomson of Thomson Survey Limited of Kerikeri, lawyers and the land status expert, Mr S J Schwarz of Schwarz Consultancy Limited.
[80]Mr Thomson concluded that:
(a)Mr Brill erred in ML 437558 by not depicting either the Stream separating the Hojsgaard property from the Omapere Block or the partitioning of the Omapere Block into Omapere A and Omapere B;
(b)the Wright survey had determined the location of the Stream and, as required by the prevailing regulations, right-lined its left bank as the northern and western boundary of the Hojsgaard property;
(c)the determination of the location of the Stream in the Wright survey had to be respected, as it was to be presumed correct; and
(d)the evidence (including anecdotal accounts by former owners, a geological report obtained by Mr Wright from a Dr Orbell and on-site features such as a low bank and former boat slipway rail) supported that determination.
[81] Mr Thomson prepared a survey plan: SO 486668. It was referred to LINZ and Mr Brill, together with a report from Mr Schwarz. It was accepted that ML 437558 incorrectly included Omapere A in the land depicted as Omapere B and, on 13 July 2015, the Surveyor-General issued a notice requiring the error to be corrected pursuant to s 52 of the CSA. Mr Brill acknowledged that error, but he did not agree that the Stream had run where depicted by the hydro-parcel in SO 486668 and contended that it ran instead through the Hojsgaard property, and properties to the south.
[82] A further request to the Surveyor-General to correct the plan, based on additional information and reports prepared for the court case, did not persuade the Surveyor-General or Mr Brill that the hydro-parcel proposed by Mr Thomson in his survey was correct.
[83] Expert opinions obtained by Mr Hojsgaard for the court proceeding included a report from Mr Bruce Morrison, a former chief surveyor of the North Auckland Land District, who said that ML 437558 had been approved in error because of the absence of the depiction of the Stream along its southern and eastern boundary.
The High Court and Court of Appeal decisions
[84] It is unnecessary to describe the detailed evidence and the arguments of the parties considered by Jagose J in the High Court proceeding brought by Mr Hojsgaard against the Chief Executive. The outcome of the proceeding, in the judgment delivered on 20 April 2018, was a declaration that, in approving the Brill survey in ML 437558, the Chief Executive had failed to have regard to the relevant mandatory
consideration of whether the western boundary of the Hojsgaard property as shown in the Wright survey was depicted by a right-line water boundary.45
[85] The Chief Executive was directed to reconsider whether ML 437558 complied with the Rules for Cadastral Survey, but the Court refused to quash the approval of ML 437558.46 Mr Hojsgaard appealed.
[86] In its decision delivered on 2 April 2019,47 the Court of Appeal quashed the approval of ML 437558 and directed the Chief Executive to reconsider the approval decision in the light of all the available evidence. The Court held that, if ML 437558 was found incorrect on reconsideration, not to quash it would leave the plan protected by the presumption of correctness that applies to an approved survey, even if it should never have been accepted into the cadastre in the first place. The Chief Executive was directed to reconsider the correctness of the Brill survey in light of all the evidence that had become available.
The LINZ reconsideration following the court decisions
[87] A delegate of the Chief Executive, who had not previously been involved in the matter, examined all the available evidence and carried out the reconsideration. The delegate determined that ML 437558 should not be approved as to survey and returned it to Mr Brill on requisition. Mr Brill declined to revise the plan and it was subsequently withdrawn.
[88] Two survey plans were prepared by Mr Thomson. One depicts Omapere A and Omapere B (ML 537122) and the other (SO 549341) separately depicts the hydro- parcel that Mr Hojsgaard says represents the former course of the Stream. They have now been approved as to survey by the Chief Executive.
[89] As Omapere B is Maori freehold land, r 7.7(6) of the Maori Land Court Rules 2011 requires the approval of ML 537122 by a judge of the Māori Land Court before a new title can issue in terms of that survey plan. I was informed by counsel while
45 Hojsgaard v Chief Executive of Land Information New Zealand, above n 38, at [105].
46 At [106]-[110].
47 Hojsgaard v Chief Executive of Land Information New Zealand above n 3.
this judgment was in preparation that an oral order approving the plan has been made and a written order is imminent. Titles will then be issued to both Omapere A and Omapere B, and RT 524865 will be replaced on the land register with a record of title incorporating a plan that depicts the Hojsgaard property bordering onto the hydro- parcel.
Issues
[90] The principal question for decision is what, if any, compensation under s 58 of the LTA 2017 should be awarded to Mr Hojsgaard for the substantial costs he has incurred in seeking the registration of titles containing accurate plans that establish the boundary of his property as abutting the left bank of the former Omapere Stream bed.
[91] It appears that the courts have not previously been called upon to interpret s 58. Applying conventional principles of statutory interpretation, the meaning of the section “must be ascertained from its text, in light of its purpose and context”.48 I have regard also to any consideration of cases decided under s 172 of the LTA 1952, so far as they may be relevant.
[92]It is convenient to set out s 58:
58Compensation for loss or damage resulting from Registrar’s error or from system failure
(1)This section applies to a person who suffers any loss or damage as a result of—
(a)an error or a wrongful act or omission of the Registrar or of a person to whom a power or function is delegated under section 233; or
(b)a failure or malfunction of a system or facility used to keep the register under section 9.
(2)The person may bring a proceeding in the court against the Crown for compensation.
[93]In answering the principal question, these issues fall for determination:
48 Interpretation Act 1999, s 5; Legislation Act 2019, s 10(1).
(a)Has there been a material error or wrongful act or omission by the Registrar?
(b)What is the “system or facility used to keep the register under section 9” of the LTA 2017?
(c)Has there been a material failure or malfunction of that system or facility?
(d)What is the loss or damage suffered by Mr Hojsgaard?
(e)Has a causal link been established between that loss or damage and:
(i)any material error or wrongful act or omission under s 58(1)(a); and/or
(ii)any material system or facility failure or malfunction under s 58(1)(b)?
(f)If so, what compensation should be paid to Mr Hojsgaard by the Crown, if any?
Are the land transfer and cadastral systems separate or an integrated whole?
[94] It is convenient to consider first the issue about the nature of the system or facility used to keep the register under s 9 of the LTA 2017. That issue includes a determination about whether the cadastre is part of that system or facility.
The submissions for Mr Hojsgaard
[95] The starting point for the submissions on behalf of Mr Hojsgaard is the proposition that only the Registrar can place an instrument in the register and that he is, in that sense, the gatekeeper for its accuracy. It is submitted that, although s 58(1)(a) is predicated on an error or a wrongful act or omission of the Registrar, any error in the register, however and by whomever caused, must be a failure or malfunction of the system used to keep the register for the purposes of s 58(1)(b). In
other words, for the Crown to be liable to pay compensation under s 58(1)(b), there is no need to ascribe fault; if the register is wrong, the right to compensation under s 58(2) for consequential loss or damage follows automatically.
[96] In support of that proposition, counsel relies on Registrar-General of Land v Marshall in which the High Court was required to consider a claim for compensation under s 172 of the LTA 1952, the predecessor to s 58 of the LTA 2017.49 Mr Thorp referred to observations of Hammond J in the reported judgment,50 and his conclusion that:51
… as a matter of legal policy, a wide scope for compensation is to be preferred in advancing the general philosophy of the statute.
[97] I do not agree, however, that the High Court’s observations in Registrar- General of Land v Marshall assists Mr Hojsgaard’s position. That case involved an application for damages in the form of losses incurred by Mr Marshall who claimed ownership of former Māori land which he had purchased from a deceased estate and in respect of which he was recorded as the owner on the title in the Land Transfer Office. The records of the Māori Land Court, however, showed the deceased’s five children as the owners: the solicitor acting on behalf of the deceased and the children had failed to register the transmission into his name as administrator of the estate with the Māori Land Court. The DLR had accepted the transmission without the Māori Land Court’s endorsement.
[98] The deceased’s children claimed ownership. Mr Marshall succeeded in his claim to the Māori Land Court for title and then sued the DLR in the District Court to recover as damages the cost of the proceedings in the Māori Land Court. The Registrar resisted the claim on the grounds that the application to the Māori Land Court by Mr Marshall was superfluous because he had title under the LTA 1952.
[99] Upholding the view of the District Court Judge that the DLR was liable, Hammond J concluded that it was not necessary with respect to a claim under s 172(a) of the LTA 1952 for a plaintiff to demonstrate that there had been any deprivation of
49 Registrar-General of Land v Marshall [1995] 2 NZLR 189.
50 At 194–195.
51 At 195.
any estate or interest in land. He referred to “orthodox principles of statutory construction” in holding that “a wide scope for compensation” should be preferred. In that context, Hammond J was referring to the heads of damage that were available for compensation, not to the scope of liability under the section.
[100] Moreover, Mr Thorp’s proposition that every error gives rise to a right to compensation is not supported by the observations in Marshall about the limits on liability under the equivalent to s 58(1)(a). The requirement to establish a causal nexus between the asserted loss or damage and an error or wrongful act or omission of the Registrar is a major limitation on the section:52
The mere fact that something ‘went wrong’ does not trigger a right to compensation. There has to be a relationship between the Registrar’s wrong and the result.
[101] That brings into focus the significance of the addition of s 58(1)(b) to the grounds for compensation that were available under s 172 of the LTA 1952.
[102] Mr Thorp submits that the absence of any reference to the Registrar or his delegate in s 58(1)(b) indicates a much broader approach to the Crown’s liability to pay compensation under the section. He argues that:
(a)both the CSA and the LTA 2017 are administered by LINZ;
(b)the Landonline system has an integrated nature with both the cadastre and the titles register being accessible within the one computer system; and
(c)because the Registrar relies on the survey approval system for the accuracy of the register, the survey approval system must, therefore, be used to keep the land register.
52 Registrar-General of Land v Marshall, above n 49, at 197.
[103] Referring to s 11 of the LTA 2017, Mr Thorp notes that the Registrar is required to record in the register the plan deposited under the LTA 2017.53 He notes also that, under s 11(2)(b), the Registrar may record:
… any other information that the Registrar considers necessary or desirable to ensure that the register is complete and accurate.
[104] On that basis, he argues, the survey plans and the cadastre underpin the issue and guarantee of titles and that their integrity or accuracy is of the same paramount importance as the integrity of the land register. Thus, the register and the cadastre are interdependent because the land register cannot exist without the cadastre.
[105] Mr Thorp also argues that the legislative history of s 58(1)(b) supports an argument that the words “system or facility” in s 58(1)(b) have a wider meaning than merely “computer system or facility”. He notes that, in the draft Land Transfer Bill prepared by the Law Commission for the purposes of its 2010 report,54 the forerunner to s 58(1)(b) reads:55
… a failure or malfunction of a computer system or facility kept under [what became s 9].
[106] He argues that the omission of the qualification “computer” in the legislation as finally enacted supports the contention that the word “system” has a wider meaning than the tangible way in which the register is kept.
Discussion
[107] While I accept that a record of title depends for its integrity on the accuracy of plans deposited in the register, it does not follow, in my view, that the cadastre and the register are interdependent or integrated.
[108] First, I have regard to the discrete statutory responsibilities of the Surveyor- General and the Chief Executive for the provision of a system for the electronic lodging and processing of cadastral surveys,56 the provision of a national geodetic
53 Land Transfer Act 2017, s 11(1)(g).
54 New Zealand Law Commission A New Land Transfer Act (NZLC, R116, Wellington, 2010).
55 At 218 (emphasis added).
56 Cadastral Survey Act 2002, s 3(b).
system,57 and the statutory obligations of the Registrar to continue and maintain the Torrens system of land title in New Zealand, including providing a register of land that describes and records the ownership of estates and interests in land.58
[109]Section 4 of the CSA defines “geodetic system” as meaning:
… a system that enables positions on the surface of the Earth to be determined by a reference to a mathematical model that describes the size and shape of the Earth.
[110] Put simply, the CSA is concerned with the measurement and recording of blocks of land; the LTA 2017 is concerned with the kind of right or title by which land is held under a tenure system that provides for the creation and transfer of interests in land. While the cadastral survey data contained in plans forming the cadastre informs the tenure system that creates interests in the land, the determination and description of the spatial extent of interests under a tenure system is not dependent on the nature or maintenance of the tenure system.59
[111] Second, the storage of separate data on the land transfer register and the cadastre in one electronic computer system is discussed above at [26] to [41]. I accept on the evidence of the Registrar and the Surveyor-General that there is no necessity for CSDs and the register of titles to be stored within the same computer system. The joint use of the Landonline system by the Surveyor-General and the Chief Executive on the one hand and the Registrar on the other is an administrative convenience rather than a necessary component of the keeping of the register.
[112] Third, the relationship between the cadastre and the register of titles to land has not altered since the Torrens system was introduced into New Zealand in 1870,60 when plans and titles were hand-drawn and stored separately in large bound folios. That “the system or facility” in s 58(1)(b) refers to the means by which the register is kept, rather than created, is emphasised by the plain wording of the paragraph. The expression “a system or facility used to keep the register under section 9” refers to the
57 Cadastral Survey Act 2002, s 3(c).
58 Land Transfer Act 2017, s 3(a) and (b)(iv).
59 See the definition of cadastral survey in Cadastral Survey Act 2002, s 4.
60 Land Transfer Act 1870.
obligation under s 9(2) to keep the register in a form or manner that records information and permits the recorded information to be readily accessed or reproduced in usable form. As s 9(3) makes clear, all or part of the register “may be kept by means of a computer system or facility that records information electronically”, but that is not necessary to maintain the integrity of the Torrens system.
[113] Fourth, addressing the argument that s 58(1)(b) is not limited or qualified by reference to a “computer” system, I acknowledge that “system” is a word that is apt to describe both an organised or connected group of things forming a unified whole and a scheme or method by which something is done.61 But, in suggesting reform of the compensation provisions, the Law Commission intended that what became s 58(1)(b) would extend the Crown’s liability to the failure or malfunction of a computer system or facility; that is, the mechanism by which records of title are stored and from which they are accessible. I am not persuaded that the removal of the qualification “computer” in the legislative provision as finally enacted indicates any more than that, as Ms Watson suggested on behalf of the Registrar, the wording of ss 9 and 58 “future- proofs” the maintenance and operation of the register. The provisions apply to any means of storing and enabling access to records of title that might be used currently as well as those that might be devised in the future. Section 3(c) of the LTA 2017 explains that one of the purposes of the Act is to replace the LTA 1952:
… with a modern Act that … reflects the fact that the land transfer register is kept and operated electronically and that most dealings in land are carried out electronically….
[114] Fifth, the heading to s 58 gives an indication as to Parliament’s intention about what may give rise to the right to compensation: an error by the Registrar or “system failure”. An example of a system failure that is not attributable to an act or omission of the Registrar may include, as suggested by Ms Watson, a technological failure within the Landonline system, including an error in auto-registration. Section 58(1)(b) would also cover a failure in the system used to keep paper-based instruments that form part of the register under s 9, such as might occur if a paper certificate of title could not be located in hard copy storage facilities, such as archives.
61 Oxford English Dictionary (online, 3rd ed, September 2021).
[115] Sixth, I consider also that the use of the word “facility” as an alternative to “system”, and the use of the word “malfunction” as an alternative to “failure”, support the view that s 58(1)(b) refers to the physical means or the equipment required for keeping the register.
[116] Seventh, the explanatory note to the Land Transfer Bill 2016 as introduced into the House of Representatives described the draft compensation provisions in the Bill as making compensation “available for loss through Registrar’s error [and] the operation of the land registration system” in a manner that is “broadly consistent with the current legislation”.62 As the narrow view of the Registrar’s liability taken by Hammond J in Marshall indicates, the LTA 1952 was concerned exclusively with errors, omissions, mistakes or misfeasance of the Registrar in relation to the register.63 If Parliament had intended to broaden the scope of the Crown’s liability for compensation under s 58 to include errors or wrongful acts or omissions in the production of plans or other CSDs for the cadastre, and to errors or failures within the Māori Land Court, the new legislation would have said so expressly.
[117] A purpose of the land transfer system is to provide a register from which persons who propose to deal with land can ascertain all the facts relating to the title. These facts include, for instance, the name of the registered owner; the nature of the estate which the registered owner holds; and all the mortgages and encumbrances, etc, to which the land is subject.64 I agree with Ms Watson that there is nothing in the text, legislative history or policy underlying the LTA 2017 to establish that s 58(1)(b) was intended to extend the Crown’s liability beyond paying compensation for losses incurred as a result of a failure or malfunction in the means by which the Registrar has decided to store the records in the land transfer register.
[118] I find that, to succeed, Mr Hojsgaard’s claim for compensation must be founded on s 58(1)(a) or on a failure or malfunction in that part of the Landonline computer system used to keep the register.
62 Land Transfer Bill 2016 (118-1), Explanatory note at 2.
63 Land Transfer Act 1952, s 172.
64 Land Transfer Act 2017, s 3(b)(iv); D W McMorland and others Hinde McMorland & Sim Land Law in New Zealand (online ed, LexisNexis) at [8.004] “Main objects of the Land Transfer System”.
[119] I consider next the surveying and other errors identified by Mr Thorp as establishing Mr Hojsgaard’s right to compensation for the costs he incurred in correcting them. They do not include any allegation of a computer failure or malfunction, so the attention must be on s 58(1)(a).
Has there been a material error or wrongful act or omission by the Registrar?
[120] The amended statement of claim filed by consent at the start of the hearing sets out the particulars of the errors on which Mr Hojsgaard relies. They are founded primarily on the views of Mr Thomson, the surveyor who has assisted Mr Hojsgaard since he cancelled the auction of his property in 2014. I will return to the pleadings in giving my views on which, if any, of the allegations are made out as grounds for compensation.
[121] It will be seen that the alleged errors or failures relied upon by Mr Hojsgaard occurred between 1998 and 2016. The LTA 2017 did not come into force until 12 November 2018. That means that the alleged errors or failures must be considered against the legislative landscape at the time of the alleged error; namely, the LTA 1952 and the CRELA.
[122] That does not mean, however, that the right to compensation in s 58 on which Mr Hojsgaard relies does not apply. Mr Hojsgaard rightly claims under s 58 of the LTA 2017, but whether a qualifying error or failure has occurred is to be determined by reference to the relevant legislative provisions at the time of the alleged error or failure.
The views of the surveyor, Mr Thomson
[123] The starting point for Mr Thomson’s analysis of the errors is his undisputed conclusion that, up to and including the time Mr Wright surveyed the Hojsgaard property in 1998, the records held in the cadastre were:
(a)the only pre-existing survey of the Omapere Block, ML 223 dated 1866;
(b)the 1964 record maps and block sheets; and
(c)the 1996 DCDB plan accurately depicted the Omapere Block and the Omapere Stream separating it from the Hojsgaard property as surveyed in ML 223.
[124] It is worth repeating that, as is explained above at [36], the DCDB was formed by the digitisation of the hard copy cadastral record maps and block sheets kept manually and the spatial data from the DCDB was added progressively to Landonline after it was introduced. As also explained at [36], because of the accuracy limitations of the cadastral record maps and block sheets, the survey conversion project attempted to improve the accuracy of the Landonline spatial view, but some 30 per cent of parcels in mainly rural areas remained unchanged from the original cadastral record maps. It is accepted by surveyors, and is common ground in this proceeding, that the Landonline spatial view does not contain an authoritative determination of the location and configuration of boundaries, particularly those in rural areas.
[125] From the base of the information available in 1998, therefore, Mr Thomson has identified the following errors:
(a)a failure of the responsible officials in LINZ to realise that the western boundary in the Wright survey of the Hojsgaard property was the right- lined left bank of the former course of the Omapere Stream;
(b)the same mistake made by Mr Brill when he conducted the survey of what should have been only Omapere B (as it was after the 1990 Partition order) of omitting the Omapere Stream from his plan, ML 437558, compounded by;
(c)the approval of ML 437558 by the Surveyor-General, with the result that the Omapere Stream was omitted from the plan in CIR 524865, which purportedly related to the Omapere B block;
(d)the failure of Mr Brill to recognise the partition of the Omapere Block into Omapere A and Omapere B in 1990;
(e)the replication of those errors by the official of the Māori Land Court who drafted the sketch plan provided to the Registrar with the copies of the 1990 Partition order, the Consolidated order and the Status order;
(f)the failure of the Registrar to note what Mr Thomson says were the three obvious errors in the sketch plan and Partition order, in that:
(i)the conversion from the Imperial measures into hectares was obviously wrong;
(ii)a check of ML 223 (which Mr Thomson says has been readily available in the Landonline system since well before 2010) would have revealed the presence of the Omapere Stream and, from handwritten details on ML 223 before it was digitised, the partition of the Omapere Block into Omapere A and Omapere B and their correct areas; and
(g)the failure of the Registrar by issuing and registering CIR 524865 without checking the accuracy of any of the documentation presented by the Māori Land Court, in breach of what Mr Thomson says is the ultimate objective of every surveyor and official involved in the land transfer system of achieving accuracy in the land register.
[126] It can readily be seen from Mr Thomson’s analysis that the only errors he has identified that could arguably come within the category of error referred to in s 58(1)(a) is the decision of the Registrar to register the documents sent by the Māori Land Court without checking them as to their accuracy and issuing CIR 524865, albeit as a provisional register.
[127] Mr Thorp endorses Mr Thomson’s view that it is not a sufficient response to his proposition that that is an error of the Registrar to say that only a provisional title
was issued. That is because, Mr Thomson says, as happened in the case of Mr Hojsgaard’s land, both real estate agents and members of the public rely upon the land register. In his view, they would not expect that any plan permitted onto the land register had not been checked by the officials responsible for the land register, let alone that the plan would contain such “substantial errors” as in CIR 524865.
[128] I have held that s 58(1)(b) does not assist Mr Hojsgaard because it addresses errors or failures related solely to the computer system for the keeping of the register. Because s 58(1)(a) focuses solely upon the errors and wrongful acts or omissions of the Registrar, the errors that occurred before the documents were sent by the Māori Land Court to the Registrar cannot be relied upon by Mr Hojsgaard in themselves. If they were errors, they were the errors of Mr Brill; the Surveyor-General; the Chief Executive; the Māori Land Court officials; or a combination thereof. Mr Hojsgaard’s case under s 58(1)(a), therefore, must depend on proof of a failure by the Registrar to identify that those antecedent errors had been made and to correct them before issuing the provisional title in CIR 524865.
[129] That brings into focus the duties of the Māori Land Court following the making of the orders affecting the title to the Māori freehold land in Omapere B and, most importantly, the duties of the Registrar upon receipt of such documents.
Defendant’s response to allegation of Registrar’s error
[130] The Registrar argues that it cannot be an error for him to have accepted the documents received from the Māori Land Court for registration and then to issue the title for Omapere B. In doing so, it is submitted he was simply complying with his statutory duty to register the Partition order, the Consolidated order and the Status order as required by s 123 of the TTWMA. The Registrar of the Māori Land Court was under a duty to transmit the Court’s order to the Registrar for the purposes of registration and the Registrar had a duty to register the order accordingly.65 Section 123(7A) required the Consolidated order identifying the owners to be registered in the same way.
65 Te Ture Whenua Māori Act 1993, s 123(2).
Discussion
[131] Section 124 of the TTWMA is a key provision in the circumstances that applied in this case. I repeat it:
124 Special provisions where insufficient survey plan
(1) Where any order to which this Part of this Act applies is presented for registration under the Land Transfer Act 1952, the District Land Registrar shall, if the order is not supported by a plan defining the land affected by the order and sufficient for the purposes of the registration of that order under that Act, embody the order in the provisional register as a separate folium, and, subject to subsection (2) of this section, all the provisions of that Act relating to provisional registration shall thereupon apply accordingly.
(2) Where any order to which this Part of this Act applies is, in accordance with subsection (1) of this section, embodied in the provisional register as a separate folium, any person in whom the beneficial ownership of land or any interest in land is vested by that order may, in accordance with section 167(5) of the Land Transfer Act 1952, and in accordance with the regulations in force in that behalf, deposit a plan in relation to the land or interest in land to which the order relates, which plan shall define the pieces of land affected.
[132] As already observed, the Registrar was not generally required under the LTA 1952 to register any instrument unless the land subject to the exercise of the Registrar’s function was adequately defined. It is plain that the sketch plan sent to the Registrar by the Māori Land Court with the orders and other documents did not comply with the CSA and would not be suitable for the creation of a computer freehold register. Section 124(1) recognised the difficulty that would be created for the registration of Māori freehold land titles, in circumstances where no plan exists or the plan is not sufficient for the purposes of registration, by requiring the Registrar to register the Court’s order in the provisional register and issue a computer interest register rather than a computer freehold register.
[133] In my view, there can be no criticism of the way in which the Registrar addressed the need to issue a provisional title for Omapere B. It was plain on the face of the sketch plan that it was not “a plan defining the land affected by the order and sufficient for the purposes of the registration of that order” under the LTA 1952.66 The Registrar was under a duty to embody the order in the provisional register accordingly. It was reasonable for the Registrar to include the sketch plan in the registration of the
66 Te Ture Whenua Māori Act 1993, s 124(1).
order, to provide additional relevant information about the parcel of land affected, even though the plan was not referred to in the memorandum accompanying the copies of the orders. The partial Māori Land Court stamp on the sketch plan authenticates its status as a document emanating from the Court.
[134] There was a clear notation on the Partition order that it “will not be finally constituted a folium of the register until a plan has been deposited pursuant to Section 167(5) Land Transfer Act 1952”. While that status may not have had any particular significance for a lay person or a real estate agent not familiar with the intricacies of the land transfer system, the Registrar cannot be held responsible for the failure of any person inspecting the title to seek the advice of someone who might be expected to understand the implications of a property being subject to a provisional registration.
[135] Section 124(2) contemplates that, following the provisional registration under s 124(1), a plan that accurately defined the land and was sufficient for the purposes of the registration of the order would be prepared and deposited so that a CFR would be issued in place of the CIR which would be removed from the provisional register. By the time CIR 524865 was placed on the provisional register, Mr Brill had been commissioned to prepare a survey of Omapere B.67 There is no evidence why, following the approval of Mr Brill’s plan ML 437558 as to survey, the plan was never deposited so that a CFR could be issued. Nothing may turn on that, however, because the CFR would inevitably have replicated the errors in Mr Brill’s survey plan.
[136] Mr Thorp argues that the errors in the documents sent by the Māori Land Court were so obvious that the Registrar should have noticed immediately that the sketch plan was not suitable for registration as the title diagram for CIR 524865. It is not immediately clear to me why that should be so. Accepting that the plan was only a sketch plan, the Registrar was entitled to heed the provisions of the TTWMA that he was required to issue a provisional title nevertheless because that obligation existed both in respect of an inadequate plan and also in the absence of any plan at all.
[137] Moreover, as Mr Thomson discovered, by the time the Māori Land Court came to consider the matter in 2010, the spatial view in Landonline misstated the boundaries
67 As discussed at [76].
and the area of Omapere B. It is reasonable to infer that the official of the Māori Land Court was misled by an error in the cadastre rather than by having miscalculated the conversion from Imperial measures to metric measures. Simply looking at the documents would not have alerted the Registrar to the failure of the sketch plan to identify that the parcel shown as Omapere B had been partitioned into Omapere A and Omapere B.
The pleaded errors
[138] I set out here Mr Hojsgaard’s pleadings about the errors on which he relies, and give my findings on each. In the amended statement of claim, “the CIR 524865 error” is defined as preparing and registering CIR 524865 in error because it wrongfully omitted the Stream separating the Hojsgaard property from the Omapere Block and the 1900 Partition order, and because the plan “contained the clearly wrong area”. The pleading asserts:
16.The Plaintiff’s loss has been caused by all or any of:
(a)The CIR 524865 error.
(b)The error of the Defendant or his delegate in not checking for and, therefore, discovering the CIR 524865 error.
(c)The error of the Defendant or his delegate in placing an incorrect sketch plan in the land register with RT 524865 without any checking of the accuracy of the sketch plan.
(d)The error of the Defendant or his delegate in considering it necessary to place the unchecked sketch plan with RT 524865 in the land register rather than issuing RT 524865 without the unchecked sketch plan and instead describing the land as depicted in the 1866 survey, ML 223, and depicted and described in the 1867 Crown Grant, 283C, less the portion partitioned off as Omapere A.
(e)The failure of the Landonline system used to keep the land register to require any checking for accuracy of such a sketch plan before placing it into the land register.
(f)The failure of the Landonline system used to keep the land register to prevent all or any of the CIR 524865 error, the ML 437558 error or the spatial plan error by:
(i)Requiring all deposited plans to distinguish on their face right-lined water boundaries from ordinary boundaries;
(ii)Providing a satisfactory system for the identification in surveys of a right-lined water boundary separate from an ordinary boundary;
(iii)Ensuring that the Landonline system included online all the information necessary to enable the discovery online of a right-lined water boundary separate from an ordinary boundary;
(iv)Ensuring that the Landonline system included online copies of the documents that accompanied surveys such as the Wright Survey and enabled the presence of a right-lined water boundary to be detected, which documents, in the case of the Wright Survey, were not copied online until 1 July 2015; and
(v)Ensuring that the Landonline system adequately replaced the manual checking of surveys by the Chief Surveyor for the Land District, with reference to all accompanying documents and the manually kept block sheet record, so as to prevent the occurrence of errors such as the spatial plan error, the CIR 524865 error and the ML 437558 error.
[139] Paragraphs 16(a) to 16(d) found the claim under s 58(1)(a) and are reflected in the submission of Mr Thorp that the Registrar erred in not considering the accuracy and reliability of the Māori Land Court documents, including the sketch plan, and placing the sketch plan on the provisional register with CIR 524865.
Conclusions – no compensable error
[140] I have held that the statutory scheme required the Registrar to act on the orders of the Māori Land Court as provided to him. There is nothing in the legislative scheme, in my view, that creates an obligation, statutory or otherwise, for the Registrar to go behind the documents presented by the Court to check their accuracy or integrity. It may seem to an experienced surveyor such as Mr Thomson, considering the Māori Land Court documents in hindsight and with the benefit of having considered “the 1866 survey, ML 223, and … the 1867 Crown Grant, 283C, less the portion partitioned off as Omapere A”, that errors were obvious, but it was not the function of the Registrar to question the documents provided by the Court and to research the cadastre. The statutory scheme presumes that those enquiries would have been made by or in front of the Māori Land Court before the orders provided to the Registrar were made. Moreover, as I have explained, even if it could be said the sketch plan was
obviously inadequate to define the land sufficiently to enable the issuing of a CFR, the Registrar acted in accordance with the statutory requirement by placing the records on the provisional register and issuing a CIR.
[141] To the extent, therefore, that the allegation that Mr Hojsgaard’s loss is the cost of having to rectify Mr Brill’s survey error and its consequences, I am not persuaded that anything done by the Registrar was in error.
[142] It is clear on the face of the pleadings in paras 16(e) and (f), including sub- paras (f)(i) to (v), that the claim based on those pleadings fail because they rely on what I have held to be a misinterpretation of s 58(1)(b). They allege what might be broadly described as systemic failure in “the Landonline system” that arises from the way in which those responsible for the management of the Landonline system operated it. As I have held, however, the liability to pay compensation on the basis of s 58(1)(b) depends on proof of a failure or malfunction within the Landonline computer system, not errors by those responsible for establishing its content and maintaining it.
[143] I conclude, therefore, that none of the errors identified by Mr Thomson, as well established as they may be, can give rise to a claim for compensation founded on either s 58(1)(a) or s 58(1)(b). While Mr Hojsgaard is entitled to feel aggrieved by the errors made by a registered cadastral surveyor and officials within LINZ, s 58 does not assist him to recover his costs in correcting them.
Consideration of causation and quantum not required
[144] It follows from the reasons for my conclusion that Mr Hojsgaard’s claim fails that it is unnecessary to consider what consequences flowed from the errors in the surveying and management of information in the cadastre that appear to be established. I have concluded also that there would be no point in considering the issue of quantum to assist the parties in the event that my views on liability are considered elsewhere to be wrong. It is common ground that a clear causal nexus needs to be established between errors that are compensable under s 58 and the claimed loss. In the first place, to offer any benefit to the parties, the assessment of quantum in this judgment would have to be based on identifiable error. Whether
liability is properly founded on s 58(1)(a) or s 58(1)(b) will be determinative of the losses which may be recovered.
[145] Moreover, the Court would need the assistance of counsel to answer the question, that is not without difficulty, of the extent to which an error by the Registrar in not enquiring more closely into the integrity of the documents forwarded by the Māori Land Court was an effective cause of the losses claimed.
[146] In that regard, I observe, without comment, that the Court of Appeal expressed some doubts about whether the evidence entitled Mr Hojsgaard to claim riparian rights.68
[147] A broader consideration is what loss, if any, is attributable to Mr Hojsgaard’s claim that the errors of which he complains led to his being unable to market his properties for sale as “waterfront property”. The term may be apt to describe any property which has a frontage to a beach and sea views without having a legal right to access to the water, over land which is the property of another but is covered in sand that does not present any physical barrier. Mr Hojsgaard’s claim that the errors related to the definition of Omapere B, particularly its southern and eastern boundary, does not necessarily lead to the conclusion, on the evidence presented, that the value of Mr Hojsgaard’s property was in any way diminished.
[148] I note also that the Court of Appeal considered that quashing the approval of the Brill survey would not prejudice claims that were then before the Waitangi Tribunal, including claims relating to ownership of the dried stream bed comprising the hydro-parcel identified by Mr Thomson. That is an issue that may require further consideration in the context of assessing the quantum of Mr Hojsgaard’s loss.
[149] In my view, the evidence presented on behalf of Mr Hojsgaard is insufficient to allow the Court to assess, for example, whether all of the nearly $1.9 million in legal costs claimed by him were reasonably and necessarily incurred as a result of either Registrar or systemic error or failure and, if not, how much of them. While I accept Mr Thorp’s submission that identifying the legal costs claimable under s 58 would not
68 Hojsgaard v Chief Executive of Land Information New Zealand, above n 3, at [88]–[93].
be constrained by the matters contained in the costs provisions of the High Court Rules 2016, a much fuller enquiry is required to assess the reasonable necessity of incurring legal costs to correct any errors that have been identified as causing loss.
[150] I note also, again without expressing a view, the observation of the Court of Appeal that Mr Hojsgaard succeeded in that Court, not because of a wealth of technical evidence, but because of the presumption of accuracy confirmed in Otito Reserve.69
Costs
[151] As the successful party, the Registrar is entitled to costs. Costs shall be determined on a category 2B basis.
[152] If costs cannot be agreed, the Registrar shall have until 17 December 2021 to file and serve a memorandum seeking costs. Mr Hojsgaard shall file and serve a memorandum in response by 4 February 2022. The Registrar may file a brief reply memorandum only by leave of the Court. Costs shall be determined on the papers unless the Court directs otherwise.
Toogood J
69 Hojsgaard v Chief Executive of Land Information New Zealand, above n 3, at [132].
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