Kameta v Nicholas - [2012] NZCA 350

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA595/2010

[2012] NZCA 350

BETWEEN LEN RIKIRANGI KAMETA, DUKE POIHIPI AND ROBINA THOMPSON
Appellants

AND PHYLLIS RANGI NICHOLAS, JANE TIWHA, ANDRE NICHOLAS, CHARMAINE NICHOLAS, MARSHALL NICHOLAS, BRUCE NICHOLAS AND THE CHILDREN OF NESSIE ANGELINA NICHOLAS
Respondents

Hearing: 4 April 2012

Court: Harrison, Wild and White JJ

Counsel: M P Armstrong for Appellants
L H Watson for Respondents

Judgment: 3 August 2012 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellants must pay the respondents costs for a standard appeal on a band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Table of Contents

Para No

Introduction  [1]
Facts  [5]
This Court’s jurisdiction  [7]
Issue 1: Are the Nicholas children related by blood to the testator?                 [11]

Background [11]

Māori Land Court [13]

Māori Appellate Court [17]

Decision  [21]
(a)      Statutory construction  [21]
(b)     Breach of tikanga  [33]

Issue 2: Did the parties agree to reserve the will interpretation issue for
separate proceedings before the High Court? [36]

Competing arguments [36]
Decision [42]

Result [46]

Introduction

The late Whakaahua Walker Kameta was the sole owner of two blocks of land in Te Puke. By his last will he granted his de facto partner, Phyllis Nicholas, a life interest in one or both blocks. On her death the remainder was to be divided between her adult children (the Nicholas children).
However, both blocks of land are Māori freehold land and are therefore subject to Te Ture Whenua Maori Act 1993 (the Act). Under s 108(2) of that statute, a beneficial interest in Māori freehold land can only be passed to certain specified classes of people. One such class is those persons who are both “related by blood” to the testator and a member of the hapū[1] associated with the land.
[1] A section of a tribe or secondary tribe. See further at [31] below.
In upholding a challenge by Mr Kameta’s siblings (the appellants in this Court), the Māori Land Court found that the Nicholas children were not entitled to an interest in the land.[2] That was because they could not show they were related by blood to Mr Kameta or members of a hapū associated with the land. On appeal, the Māori Appellate Court reversed these findings, and made an order vesting the land in the Nicholas children.[3]
[2]Kameta v Nicholas – Te Puke 2A2A3B1 and 2A2A3B2 (2009) 348 Rotorua MB 282 (348 ROT 282) [Māori Land Court judgment].
[3]Nicholas v Kameta – Te Puke 2A2A3B1 and 2A2A3B2 (2011) Māori Appellate Court MB 500 (2011 APPEAL 500).
Two issues arise on this appeal by Mr Kameta’s siblings. The first is whether the Māori Appellate Court was correct in holding that the Nicholas children are related by blood to Mr Kameta. The second is whether the parties agreed to reserve an issue about the interpretation of Mr Kameta’s will for…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Kameta v Nicholas

Details

AGLC: Kameta v Nicholas [2012] NZCA 350
Case: [2012] NZCA 350
Decision Date: 3 August 2012

CaseChat Overview and Summary

The appeal was brought by Mr Kameta’s siblings against the children of his de facto partner Phyllis Nicholas to challenge their entitlement to an interest in two blocks of land in Te Puke. The Māori Land Court had found that the Nicholas children were not entitled to an interest in the land because they could not show they were related by blood to Mr Kameta or members of a hapū associated with the land. On appeal, the Māori Appellate Court reversed these findings, and made an order vesting the land in the Nicholas children. Two issues arise on this appeal by Mr Kameta’s siblings. The first is whether the Māori Appellate Court was correct in holding that the Nicholas children are related by blood to Mr Kameta. The second is whether the parties agreed to reserve an issue about the interpretation of Mr Kameta’s will for determination in separate proceedings before the High Court. The Court held that the Māori Appellate Court was correct in holding that the Nicholas children are related by blood to Mr Kameta. The Court also held that the parties did not agree to reserve an issue about the interpretation of Mr Kameta’s will for separate proceedings before the High Court. Accordingly, the appeal is dismissed. The appellants must pay the respondents costs for a standard appeal on a band A basis with usual disbursements.

Orders