BETWEEN	PHYLLIS RANGI NICHOLAS Appellant
AND	ANDREW TE AMO, DOUGLAS REWI, PETER WHITE AND RENEE REWI AS TRUSTEES OF THE TE WHAITI-NUI-A-TOI TRUST Respondents

Hearing:	4 August 2022
Court:	Miller, Courtney and Simon France JJ
Counsel:	M J Sharp for Appellant M S McKechnie for Respondents
Judgment:	16 February 2023 at 10 am

JUDGMENT OF THE COURT

AThe appeal is allowed. The decision of the Māori Appellate Court is set aside.
BThere is a determination under s 18(1)(a) of the Te Ture Whenua Māori Act 1993 that the appellant has a right to possession of the house built by her on the block of land known as Te Tuturi C, which entitles her to occupy the house and its curtilage until 31 May 2066.
CThe matter is remitted to the Māori Land Court for reconsideration of the injunction in light of the findings of this Court and, if necessary, the specific area constituting the curtilage.
D The respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

[1]       This appeal concerns a house on a block of Māori freehold land in the Western Urewera Mountains.[1] The block, known as Te Tuturi C, is part of the larger Te Whaiti‑Nui-A-Toi block, which is owned by the trustees of the Te Whaiti‑Nui‑A‑Toi Trust. The appellant, Phyllis Nicholas (nee Martin), is a beneficiary of the trust.
[1]Although the decisions of the courts below refer to the structure as a shed, given the nature of the improvements we think it more accurate to refer to it as a house.
[2]       Mrs Nicholas made improvements to the house over a period of years in the late 1990s and early 2000s, after moving a shed onto the land in 1989. Initially her whānau held a licence to occupy it. Later, members of her extended whānau took over occupation, against her wishes. They remained in occupation after the licence expired. Later still, Mrs Nicholas regained possession.
[3]       The increasingly acrimonious dispute over who is entitled to occupy the house led the trustees to apply for an injunction prohibiting Mrs Nicholas from occupying the house and requiring her to remove it. Mrs Nicholas cross-applied under s 18(1)(a) of the Te Ture Whenua Māori Act 1993 for a determination that she has “an equitable interest in the land in the nature of ownership rights in a building constructed upon the land” and asserted that these ownership rights include the right to access and occupy the house.
[4]       In the Māori Land Court, Judge Coxhead accepted that the house, which is on a concrete foundation and cannot be moved, was part of the land.[2] Therefore, the house was owned by the trustees, subject to any equitable interest Mrs Nicholas could prove. He found that Mrs Nicholas did have an equitable interest (which he described…

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 Nicholas v Te Amo

Details

AGLC: Nicholas v Te Amo [2023] NZCA 22
Case: [2023] NZCA 22
Decision Date: 16 February 2023 at 10 am

CaseChat Overview and Summary

Phyllis Nicholas appealed against the decision of the Māori Appellate Court that she was not entitled to occupy a house she had built on Māori freehold land. The Court of Appeal allowed the appeal, holding that the trustees of the Te Whaiti-Nui-A-Toi Trust were estopped from denying that Mrs Nicholas had a right to occupy the house until 31 May 2066. The Court set aside the decision of the Māori Appellate Court, and remitted the matter to the Māori Land Court for reconsideration of the injunction in light of the findings of this Court and, if necessary, the specific area constituting the curtilage. The trustees must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.

The Court considered two questions. The first related to the Māori Appellate Court’s decision that Mrs Nicholas could only show an equitable interest in the land by making a contribution to the land apart from the house itself. The second related to the Court’s finding that the trustees had not acted to create a reasonable expectation that Mrs Nicholas would be entitled to occupy the house. The Court concluded that the Court erred on the second question. The trustees were estopped from denying Mrs Nicholas a right to occupy the house until May 2066. It was not necessary to distinguish between the present trustees and their predecessors. The trustees’ position was that they did nothing to engender any expectations in Mrs Nicholas but they accept they are bound if their predecessors did so. Since this outcome would resolve the appeal it was unnecessary to determine the first question. However, the Court made some observations that may be of assistance in future cases.

The Court considered that the trustees had explicitly consented to the Ministry granting a licence to occupy to the Martin family. That consent was made on the terms that the licence to occupy would run until the expiration date of the forestry lease, which was 31 May 2066, regardless of when the forestry lease actually ended, meaning that it was only after that date that the right to occupy the house would depend on the trustees. The Court was satisfied that by the terms of their consent to the licence to occupy, the trustees made a representation that Mrs Nicholas would be entitled to occupy the house until May 2066. The Court was satisfied that Mrs Nicholas incurred expenditure and undertook work on the house and its surrounding grounds in the belief that she would be able to occupy the house until May 2066. In the Court’s view, it would be unconscionable for the trustees to now go back on that representation. The appeal therefore succeeded on this ground.

Orders