Johnson v Johnson

[2021] NZHC 624

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2518

[2021] NZHC 624

BETWEEN

DONNA MARIE JOHNSON

as executor of the Estate of REGINALD CHARLES JOHNSON
Plaintiff

AND

BONNIE JOHNSON

First Defendant

JERVAUGHN McDONALD
Second Defendant

BILLY WOODS

Third Defendant

Hearing:

25 March 2021

Appearances:

Kate Davenport QC and A E Isaacs for the Plaintiff Bonnie Johnson, First Defendant, in person

(with Mr Peter Martin, McKenzie Friend) No appearance for Second and Third Defendants

Judgment:

25 March 2021

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:

Sellars & Co (Bruce Wyber), Helensville, for the Plaintiff

Copy for:

Kate Davenport QC/A E Isaacs, Bankside Chambers, Auckland, for the Plaintiff Bonnie Johnson

DONNA MARIE JOHNSON v BONNIE JOHNSON [2021] NZHC 624 [25 March 2021]

[1]    This case concerns the estate of the late Reginald Charles Johnson. He died in September 2003 and probate of his will was granted in January 2004. Donna Marie Johnson, the plaintiff, is the remaining executor of his estate. The estate has been mainly wound up and distributed, but Donna says that there is one remaining asset which has not been realised — a property at 21 Stewart Street, Helensville. Donna wants to sell up that property and distribute the net proceeds of sale to the residuary beneficiaries, after the estate’s costs have been met including reimbursing Donna for expenses she has incurred personally. Her sister, Bonnie (the first defendant) is occupying the property and refuses to leave.

[2]    Stewart Street is on the northern outskirts of Helensville. No. 21 is nearly at the end of the street. Part of the property is bounded by the Awaroa Creek. Ms Bonnie Johnson says that the property is subject to flooding from time to time. The property is described in record of title NA773/194. According to the record of title, the legal description is Lot 15–16 Deeds Plan 18. The area is said to be 1,442 square metres, more or less. The title, however, is limited as to parcels. The land is flat and in grass, and has a rating valuation of $210,000. Donna is paying the rates on the property from her own funds and her means are modest. Bonnie has put two transportable dwellings on the site and two shipping containers. There is also a stallion and a ram grazing there. Donna’s evidence is that Bonnie has barricaded the end of the street to prevent vehicles accessing the property.

[3]    The three defendants are sued as occupiers of the property Donna understands that Bonnie does not actually live on the property, but Bonnie today has spoken of living on the property and refers to the buildings on the property as her “whare”. Bonnie says that her grandson Jervaughn McDonald (the second defendant), has visited the property but does not live there. He lives nearby.

[4]    The third defendant, Billy Woods, is currently in prison where he was served. So far as Billy Woods is concerned, the documents were sent to him by post to the prison manager at Mt Eden Prison. That was done under r 2.7 of the Criminal Procedure Rules 2012. Those rules do not apply to service of documents in civil proceedings but I am satisfied that in the circumstances that was the only effective

way of serving the proceedings on Mr Woods. I make a retrospective order under r 6.8 of the High Court Rules 2016 that service on him on 23 February 2021 was effective. Mr Woods has taken no steps in the proceeding.

The estate and its administration

[5]    The late Mr Johnson had eight children: Beverley, Noel, Barry, Bonnie, Warren, Leigh, Donna and Christopher. Beverley died very young. Barry and Leigh died before their father. Leigh is survived by children. Warren has since died, and Christopher is in a dementia ward. That leaves Noel, Bonnie and Donna. In his will the late Mr Johnson left various bequests to his sons of outboard motors, fibreglass boats and proceeds of a launch. He left Donna and Leigh his property at 13 Stewart Street, Helensville, and he gave the family equal rights to occupy and to use the property which is under lease to Māori Affairs at Waimahana. He left the residue equally to Warren, Christopher, Leigh and Donna. He left nothing for Bonnie and for Noel, as he considered that he had made adequate provision for them while they were alive.

[6]    Donna has sworn an affidavit giving an account of the administration of the estate up to July 2020. The boats and motor in the bequests could not be found. Donna says that her father left his house at 13 Stewart Street, funds in a bank account, and little else. The house at 13 Stewart Street was sold. Bonnie and Noel brought a proceeding under the Family Protection Act 1955. That was settled in a judicial settlement conference in September 2005. The Court’s minute following that conference records that the estate would make payments to Bonnie and Noel in full and final settlement of their claims against the estate.

[7]    Up until that point, the estate had been administered on the basis that no one knew about the property at 21 Stewart Street. Donna did not find out that her father was the registered proprietor until some years afterwards. She took a transmission and became registered proprietor in 2020. She understands that a survey will be required to establish the actual boundaries of the property.

[8]    Christopher Johnson was one of the original executors but given his incapacity, an application was made to have him removed. Bonnie intervened in that proceeding in November 2019. There was also an application by Edna Copeman (Leigh’s daughter). There was a series of conferences and directions by Whata J. He finally dealt with the matter on 18 August 2020. In his minute he indicated that there was nothing that could be done for Bonnie in the probate and administration jurisdiction. That was in the light of Bonnie’s claim that the land at 21 Stewart Street was Māori land and that she was entitled to occupy it. Whata J indicated that a court sitting in its probate jurisdiction was not the appropriate forum to determine an interest in Māori land and complaints of breach of duty by an executor in respect of Māori land. He indicated that she may have ordinary civil remedies. In that case a court exercising its ordinary civil jurisdiction was the place to sue.

Bonnie Johnson’s opposition to the application for summary judgment

[9]    While neither side referred to it, in an application for summary judgment the plaintiff has the burden of showing that the defendant does not have any defence to the application for summary judgment. The Court of Appeal summarised the principles on a plaintiff’s application for summary judgment in Krukziener v Hanover Finance Ltd.1

[10]   Bonnie did not file a formal notice of opposition but she did file documents in court. One of them was an affirmation before a Justice of the Peace. That attached a further document setting out more facts and argument. She has also spoken well today and given me a clear understanding of the issues in the case. It might help if I could outline those issues by referring to Stewart Street itself. As I said, no. 13 Stewart Street belonged to the late Mr Johnson at his death. Next-door to no. 13 is no. 15. That is Lot 2 on DP82238. That title was created in 1979. In October 1979 Mr Johnson, the owner of that property, sold the property to Bonnie. The records show that the transfer was to a “Bonnie Steadman”. “Steadman” is Bonnie’s married name, but she has now reverted to her maiden name of “Johnson”. Lot 2 is some 2,695 square metres in area. No. 21 Stewart Street is the property immediately adjoining Lot 2,

1      Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307.

which has its own record of title. There is further land beyond no.21. That is in record of title NA548/99 and has an area of some 2,808 square metres.

[11]   Bonnie’s case is that the land which was within the area of the land in NA773/114 (the subject of this case) is in fact Māori land. She contends that the land belongs to a local hapū, Te Taoū. Her documents say that she and her father knew that the land was owned by local Māori because their lawyer advised them of that in 1976. At that time she and her father approached the local Māori, who gave them owner-occupier status. Her position is that she is the sole caretaker of the property. She was given that status by a Mr Mohi Manukau of 12 Stewart Street, and also by the late Lou Paul, a kaumatua of Te Taoū.

[12]   In her memorandum attached to her affidavit she says the land was all part of the Otamateanui block of the Te Taoū people of the Kaipara area. She says some of the land was taken under the Public Works Act but the work was never carried out and it should therefore revert to the local hapū as Māori land. She also claims rights of occupation. She has used the word “usucaption” which I understand to mean that she claims the property by adverse possession. She contends that the council and Donna collaborated to change the status of the land in 2009. Her document emphasises the need to check the status of land carefully. I understand her case to be that the land at 21 Stewart Street is Māori land, that Te Taoū, the local hapū, has control of that land, and it has given her the right to occupy the land.

[13]   Donna’s response is that the land is general land. She acknowledges that the family are part-Māori, although I note that Bonnie explained that her father was pākehā, not Māori, and their mother was Māori. Donna explains that the family’s interests in Māori land is in Northland, not in Helensville.

[14]   The historical certificate of title shows transactions recorded under the Land Transfer legislation. The property was bought under the Land Transfer Act in April 1943. The historical title refers to the Land Transfer (Compulsory Registration of Titles) Act 1924. It is consistent with its compulsory registration that the land is limited as to parcels. The land is also shown as being the land on a deed lodged in the Deeds Registry as a portion of the Otamateanui Block. The fact that the land was

recorded in the deeds register, and that a certificate of title was later issued under the Land Transfer Act, shows that the land has been the subject of a Crown grant. The effect of the Crown grant is to extinguish any earlier indigenous title. That means that it can no longer be Māori customary land — although it must have been once, back in earlier history.

[15]   The next question is whether the land could be Māori freehold land. There is nothing in the description of the land or the entries on the certificate of title to suggest that this property is Māori freehold land, or that it has been the subject of orders of the Māori Land Court since it was brought under the Land Transfer Act. The original registered proprietor was Willie Johnson. Bonnie Johnson told me that he is their grandfather. The property was transferred to Rhoda Johnson in January 1963. Bonnie says that Rhoda is her aunt. In June 1970 there was a transmission to an Auckland solicitor, presumably as executor of Rhoda’s estate. In July 1970, the property was transferred to the late Mr Johnson, the parties’ father. The title also shows that there was a mortgage over the property in 1973. That mortgage was to the ANZ Banking Group. That mortgage has been discharged. There is a departmental dealing, showing that the land was converted into title on Landonline in 2009. There was a transmission to Donna, as executor, on 24 September 2020.

[16]   For present purposes, the sale by Willie Johnson to his daughter Rhoda in 1963 and the sale by Rhoda’s executor to the late Mr Johnson in 1970 are important. That is because of s 2(2)(f) of the Māori Affairs Act 1963, which was inserted into the Māori Affairs Act by s 3 of the Māori Purposes Act 1960:

2.        Interpretation

…

(2)Unless expressly provided in this or any other Act with respect to any specified or defined area, and notwithstanding anything in the foregoing definition of the term “land” or in any of the subsidiary definitions included therein,—

…

(f)Māori freehold land the legal fee simple in which has been transferred otherwise than by an order of the Court or of a Registrar shall, except where it appears on the face of the

instrument of transfer that the land has remained Māori freehold land, be deemed to be General land until either—

(i)An order is made by the Court under paragraph (i) of subsection (1) of section 30 of this Act determining that the land is Māori freehold land; or

(ii)Any other order is made by the Court as a consequence of which the land becomes or is deemed to have become Māori freehold land.

[17]   If this land had ever been Māori freehold land, the transfers to Rhoda and then to her brother (the parties’ father) would have converted the land from Māori freehold land to general title. Moreover, the mortgage to the ANZ Bank is a good pointer that the land is not Māori freehold land, given the difficulties of exercising a mortgagee’s remedies over Māori freehold land because of the restraints on alienation. No. 21 Stewart Street must be general land.

[18]   That means that, as the title records, Donna is now the registered proprietor of the land. She can exercise all the normal rights of an owner of the land including the right to occupy the property and to grant rights of entry to others and also to exclude from the property those without her permission to be there. As registered proprietor, she is entitled to recover possession of the property and to require those on the property without permission to leave. That includes her sister, Bonnie. Bonnie’s claim that she can live on the property because of the consent of Te Taoū is not effective because Te Taoū does not have an interest in the land recognised at law. And it does not have any right to say who can occupy the property or not. Te Taoū are not the registered proprietors of the property. In short, this land is general land, and Donna is the registered proprietor. She can exercise the normal rights of a registered proprietor.

[19]   I appreciate that this finding will come hard to Bonnie. She has made the point that she has occupied and lived on the property, undisturbed, for many years. She is no longer the owner of the property at no. 15 (Lot 2 in DP82238). She sold that to other relatives. She says that there is a closer family association of the Johnsons living in Stewart Street. She has been in settled occupation for some years now.

[20]That affects the relief.  Donna has sought fairly broad relief.

[a]She wants  possession  of the land and  the temporary structures  at  21 Stewart Street.

[b]She wants immediate removal of the livestock.

[c]She wants an order for the sale of the land and sale of the temporary structures.

[d]She wants to retain the proceeds of sale of the temporary structures to offset the costs of the application.

[e]Costs.

[21]   An order for possession of the land can be made but there is obviously a question of timing. The court rarely makes an order for immediate possession, particularly when people on the property have been in settled and peaceable occupation for a long time. Obviously, time is required to give them the opportunity to re-arrange their affairs. In this case, a convenient period for Bonnie to make fresh arrangements is three months. Accordingly, there will be an order for possession of the property with effect from 1 July 2021.

[22]   The structures on the property do not belong to the estate. Donna’s evidence is clear. These are transportable and removable. They are not fixtures and have not become part of the land. They remain the property of Bonnie. Enforcement of the order for possession may allow Donna to remove those transportable buildings from the property, but I do not consider that the law allows me to go further at this stage. Ms Davenport urged me to make orders for the sale of the property but I am not aware of any legal power by which Donna could sell up these buildings left on the property. As the registered proprietor, she is entitled to have those structures removed. At least for summary judgment purposes, it is arguable that the court’s powers do not go beyond that.

[23]   A similar position applies to removal of the ram and the stallion on the property.

[24]   As for the order for sale, Donna does not require an order from the court to sell the property because she already has that power.2 All the court needs to do is to declare that she has that power. Any sale of the property is in her hands.

[25]   The three months I have given for the possession order to take effect also allows the family to see if they can make some alternative arrangements. I understand Bonnie’s wish to live in the area. It may be that she and her children can come to some other arrangement under which they can retain the right to live there by paying out the other beneficiaries of the estate.

Outcome

[26]I make these orders:

[a]Donna is to have vacant possession of the property at 21 Stewart Street, Helensville, with effect from 1 July 2021.

[b]Bonnie and anyone assisting her will have until then to remove her personal property from the property.

[c]In surrendering possession Bonnie will be required to remove from the property the livestock and the temporary structures.

[d]If the livestock and temporary structures remain on the property after 1 July 2021, they may be removed by Donna herself or by people acting on her authority or by any officers of the court enforcing the order for possession.

[e]I declare that as executor Donna may sell the property at 21 Stewart Street, Helensville. As the property is not Māori freehold land, the sale of the property is not subject to the restrictions on alienation under the Te Ture Whenua Māori Act 1993.

2      See the Administration Act 1969, ss 27(3) and 28.

[f]Leave is reserved to apply for further directions as to implementing these orders. The orders may be vacated if the parties are able to make some alternative arrangements. It is my earnest wish that the parties do see if they can work out some better alternative.

Costs

[28]  Bonnie is to pay Donna the costs for this proceeding.  Those are costs under  the District Court scale. That is because under r 14.13 of the High Court Rules this proceeding is within the jurisdiction of the District Court. Under the District Court Act 2016, the District Court has the power to determine proceedings for the recovery of land if the value of the land does not exceed $500,000 and if a person without right, title or licence, is in possession of the land.3 The rating valuation is used for that.4 As the rating valuation here is $210,000, the District Court could have heard this case. Costs will be fixed accordingly.

…………………………………

Associate Judge R M Bell

3      District Court Act 2016, s 79(1)(b) and (2)(c),

4      District Court Act 2016, s 79(3).