Kidd v Registrar-General of Land

[2021] NZHC 1747

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001427

[2021] NZHC 1747

IN THE MATTER OF

The Declaratory Judgments Act 1908 and the Land Transfer Act 2017

BETWEEN

RICHARD JULIAN KIDD and DIANNE

JANET KIDD, trustees of the Whenuanui Trust

Plaintiffs

AND

REGISTRAR-GENERAL OF LAND

Defendant

Hearing:

On the papers at Auckland

Appearances:

K Davenport QC and A Isaacs for the Plaintiffs N Anderson and D Watson for Defendant

T K Williams and C Linstead-Panoho as Amicus Curiae

Judgment:

13 July 2021

JUDGMENT OF POWELL J

[Stay of proceedings pending determination of application under

s 45 of Te Ture Whenua Māori Act 1993]

This judgment was delivered by me on 13 July 2021 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

KIDD v REGISTRAR-GENERAL OF LAND [2021] NZHC 1747 [13 July 2021]

[1]    These proceedings have been commenced by the plaintiffs, Richard and Dianne Kidd, in an attempt to resolve a longstanding issue over part of their farm property. In particular, part of the title to that property held by Mr and Mrs Kidd includes a block known as Whenuanui 2B. Whenuanui 2B has had a long and complex history, the result of which has been that while the land transfer title showed that Whenuanui 2B had been transferred in its entirety to Mr Kidd’s uncle, and subsequently incorporated into an overall title for Mr and Mrs Kidd’s farm, it continued to have a separate title recorded in the records of the Maori Land Court, with those title documents continuing to show ownership interests in the block other than that of Mr and Mrs Kidd.

[2]    Mr and Mrs Kidd have, therefore, sought declarations pursuant to the Declaratory Judgments Act 1908 that they have an indefeasible title to their farm and that the status of the land is General land and not Māori freehold land for the purposes of Te Ture Whenua Māori Act 1993 (“Te Ture Whenua”). Their objective is to ensure they are able to deal freely with the land as a whole while acknowledging that compensation should be paid to the “former Māori freehold owners” whose 47/160 shares in Whenuanui 2B, which had never been sold, were transferred to Mr Kidd’s uncle.

Previous attempts to resolve issues

[3]    Mr and Mrs Kidd’s proceedings in this Court follows earlier applications in the Māori Land Court brought pursuant to s 18(1)(a) and (h) of Te Ture Whenua (“the s 18 applications”) which were initiated by the Māori Land Court to consider whether Whenuanui 2B is General land or Māori freehold land (“the status question”), and whether Mr and Mrs Kidd have an indefeasible title. In addition, shortly before issuing the High Court proceedings, Mr and Mrs Kidd also applied to the Chief Judge of the Māori Land Court under s 45 of Te Ture Whenua to cancel an order made in the Māori Land Court on 28 February 2007 that determined Whenuanui 2B was Māori freehold land within the meaning of Te Ture Whenua (“the 2007 status order”).

[4]    Following the filing of the s 45 application and the High Court proceedings, Mr and Mrs Kidd applied to the Māori Land Court to stay the s 18 applications. In a

decision dated 18 December 2020,1 Judge M P Armstrong granted a stay of the s 18 applications pending the determination of the s 45 application by the Chief Judge, but declined to stay the s 18 applications pending the determination of the High Court proceedings. His Honour confirmed he would consider this further “once the Chief Judge has made a decision on the s 45 application”.2

Application to stay High Court proceedings

[5]    In the course of considering a range of preliminary matters following the filing of the High Court proceedings it was agreed that it was appropriate for this Court to also consider whether the High Court proceedings should be stayed pending determination of the s 45 application. Both the defendant, the Registrar-General of Land, and Mr Williams, as amicus curiae, supported staying the proceedings pending the outcome of the s 45 application. Mr Anderson, on behalf of the Registrar-General, supported a stay but submitted that service of the High Court proceedings could nonetheless be effected in the meantime, while Mr Williams submitted that not only should the High Court proceedings be stayed to await the outcome of the s 45 application, but that stay should remain in place until after the Māori Land Court had considered the s 18 applications.

[6]    Conversely, Ms Davenport on behalf of Mr and Mrs Kidd, opposed any stay. In Ms Davenport’s submission there are no circumstances to justify a stay of proceedings in terms of r 15.1(3) of the High Court Rules 2016. Ms Davenport submitted that allowing the High Court proceedings to continue is not likely to cause prejudice or delay, is not frivolous of vexatious or an abuse of the Court, and no “rare or compelling circumstances” exist that justify the jurisdiction to exercise a stay.3

Discussion

[7]    The power to stay a proceeding set out in r 15.1(3) of the High Court Rules which provides:

1      Re Whenuanui 2B (2020) 222 Taitokerau MB 236.

2 At [80].

3      With reference to Danone Asia Pacific Holdings Pte Ltd v Fonterra Co-operative Group Ltd

[2014] NZHC 1681 at [55].

Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

[8]    There is no dispute that the exercise of the power set out in r 15.1(3) is to be informed by the considerations in r 15.1(1),4 with those relevant in this case being the possibility of prejudice and/or whether to proceed with the High Court proceedings before the s 45 application is determined would be an abuse of process. Additionally, the Court’s inherent jurisdiction is preserved by r 15.1(4).

[9]    In this case it is clear, for similar reasons to those given by Judge Armstrong,5 that the High Court proceedings should be stayed pending the outcome of the s 45 application.

[10]   First, as noted the s 18 applications and the High Court proceedings involve essentially the same issues: the status issue, and whether Mr and Mrs Kidd’s title is indefeasible. There is no dispute that the answer to the second issue depends to a significant degree on the answer to the first, with the answer to the first having a significant bearing in determining whether it should be the Māori Land Court or the High Court that should appropriately determine indefeasibility.

[11]As Mr Anderson noted on behalf of the Registrar-General:

(a)If [Mr and Mrs Kidd’s] application (and any subsequent appeal to the Maori Appellate Court) is unsuccessful, s 77 of Te Ture Whenua Maori Act 1993 appears to preclude any court from issuing a declaration of land status that is contrary to the 2007 status order, but both courts would be empowered to consider indefeasibility.

(b)If [Mr and Mrs Kidd’s] application is successful and the status order is set aside without replacement, both courts will have jurisdiction to consider the status of the land and arguments regarding indefeasibility.

(c)If [Mr and Mrs Kidd’s] application is successful and the Chief Judge orders that the subject land is general land, only the High Court will have jurisdiction to consider any remaining issues .

(d)While only the High Court has the power to order the payment of compensation under the Land Transfer Act 1952 (which continues to apply), the [Registrar-General of Land] has already acknowledged

4 At [34].

5      Re Whenuanui 2B, above n 1, at [74] – 80].

liability so orders are unlikely to be necessary if the former Maori owners want to pursue this option.

[12]   In response, Ms Davenport has submitted s 77 of Te Ture Whenua (which provides that no order of the Māori Land Court can be annulled or quashed, or declared to be invalid by any court in any proceedings instituted more than 10 years after the date of the order) has no application because the 2007 status order has apparently not been registered pursuant to s 141. This submission, with respect, somewhat oversimplifies the situation. While ss 140 and 142 of Te Ture Whenua clearly require status orders to be registered, s 123(5) provides that pending registration such orders still have equitable effect. Moreover, as s 129(3) provides, even if the 2007 status order was of no effect or is set aside, if Whenuanui 2B was already Māori freehold land as at the date of the order it will “continue to have that particular status unless and until it is changed in accordance with [Te Ture Whenua]”. In such circumstances any subsequent status change would have to be carried out via s 135 of Te Ture Whenua.

[13]   It follows that until the outcome of the s 45 application is known it is difficult to determine the appropriate forum for considering the substantive issues and there is a real potential for duplication of costs and confusion if the High Court proceedings were to proceed in the interim.

[14]   In the circumstances, and noting it was Mr and Mrs Kidd who made the s 45 application and who  applied  for  the  s  18  applications  to  be  stayed,  I  accept  Mr Anderson’s submission that it would be both inefficient and an abuse of process for this proceeding to continue prior to the s 45 application being determined by the Chief Judge. It is, therefore, necessary for this Court to await the outcome of the s 45 application. I also accept Mr Williams’ submission that given the nature of the proceedings, and the multiplicity of applications extant between the Māori Land Court, the Chief Judge and now this Court, that even attempting to complete service of the High Court proceedings in the meantime would be likely to cause unnecessary confusion and/or increase costs for the current Māori owners and/or their descendants with an interest in the matter. As a result, it would be inappropriate to continue with service of the proceedings pending the outcome of the s 45 application.

[15]   On the other hand, like Judge Armstrong in the Māori Land Court6 and for the same reasons that justify a stay, I do not consider that the High Court proceedings should at this point be stayed beyond the determination of the s 45 application, but rather that the position should be reviewed in the light of the s 45 judgment.

[16]   As this judgment was being finalised the Registry passed on advice from counsel that a pānui has been issued listing the s 45 application for hearing on 19 July 2021.7 The fact that the hearing is now imminent simply reinforces that a stay is appropriate pending receipt of that judgment.

Decision

[17]   These proceedings are stayed pending determination of the s 45 application by the Chief Judge of the Māori Land Court.

[18]   Counsel are to provide a copy of the Chief Judge’s decision as soon as it is received and directions calling for further submissions on whether the stay should be removed or extended will then be issued.

[19]Costs on the stay issue are to lie where they fall.

Powell J

6      At [80] – [82].

7      The advice was received by the Registry on 1 July 2021 and provided to me on 12 July 2021.