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Nicholls v Nicholls

Nicholls v Nicholls

Case [2020] NZCA 346 13 August 2020

Native Title

Unjust Enrichment

Equitable Estoppel

Admissibility of Evidence

Expert Evidence

Specific Performance

Indigenous Peoples & Native Title Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA23/2019
[2020] NZCA 346

BETWEEN	GEORGE TAMA NICHOLLS Appellant
AND	MARK STEVEN NICHOLLS, AIRINI PIRIHIRIA TUKERANGI, DELACE WILLIAM JAMES, KAHUTOROA MATAIA TUKERANGI, VIV TAMA NICHOLLS, ANITA MARI NORMAN AND SARAH JANE NICHOLLS AS TRUSTEES OF THE AHU WHENUA TRUST KNOWN AS THE W T NICHOLLS TRUST Respondents

Hearing:	5 May 2020
Court:	Brown, Clifford and Gilbert JJ
Counsel:	J P Kahukiwa for Appellant D E Wackrow and C M T Linstead-Panoho for Respondents
Judgment:	13 August 2020 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

B There is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

The appellant (Mr Nicholls) and his brother were co-owners (among others) of Māori freehold land at Oamaru Bay until 15 August 2011 when that land was vested in an ahu whenua trust, the W T Nicholls Trust (the Trust). The respondents are the trustees of the Trust (the Trustees). Having obtained an injunction restraining Mr Nicholls and others from occupying the land, the Trustees sought an order for recovery of rental income received by Mr Nicholls and his brother and an order that they pay mesne profits for their unlawful occupation.
On 21 December 2017 the Māori Land Court made orders pursuant to ss 215 and 220 of Te Ture Whenua Māori Act 1993 (the Act) requiring:[1]
(a)for the period prior to the constitution of the Trust, Mr Nicholls and his brother to account to the Trustees for the amount of $442,593.00, less their share (as co-owners) calculated on a pro rata basis (liability order 1); and
(b)for the period following the constitution of the Trust, Mr Nicholls to pay to the Trustees the amount of $391,824.00 (liability order 2);

in both instances with interest at the rate of five per cent.

[1]Nicholls v Nicholls – Koromatua 3A (2017) 154 Waikato Maniapoto MB 128 (154 WMN 128) [Māori Land Court judgment].

Mr Nicholls’ appeal to the Māori Appellate Court was dismissed in a judgment delivered on 7 December 2018.[2]
[2]Nicholls v Nicholls – Koromatua 3A [2018] Māori Appellate Court MB 604 (2018 APPEAL 604) [Māori Appellate Court judgment].
Mr Nicholls now appeals under s 58A of the Act challenging the jurisdiction of the Māori Land Court and the Māori Appellate Court to make liability order 1 and the manner of assessment of both liability orders.

Factual background

The genesis of this protracted litigation was noted by the Māori Appellate Court in an earlier judgment in the dispute in this way:[3]
[7] This unfortunate case arises from longstanding division within an extended whānau fortunate enough to receive a substantial land inheritance from their grandparents generation. That inheritance included land and dwellings, a farm at Paeroa, a farm at Coromandel, land at Koputuaki Bay, Pohukua Island and other Māori freehold land. The lands that are subject of these proceedings are beachfront and hilltop land at Oamaru Bay and an adjacent…

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 Nicholls v Nicholls

Details

AGLC: Nicholls v Nicholls [2020] NZCA 346
Case: [2020] NZCA 346
Decision Date: 13 August 2020 at 2.30 pm

CaseChat Overview and Summary

This case is an appeal against a decision of the Māori Appellate Court in relation to a dispute between co-owners of Māori freehold land. The parties were co-owners of Māori freehold land at Oamaru Bay until 15 August 2011 when the land was vested in an ahu whenua trust. The trustees of the trust sought an order for recovery of rental income received by the appellant and his brother and an order that they pay mesne profits for their unlawful occupation. The Māori Land Court made orders requiring the appellant to account to the trustees for rental income received prior to the constitution of the trust and for the appellant to account for rental income received after the constitution of the trust. The Māori Appellate Court upheld the orders made by the Māori Land Court. The appellant appealed to the Court of Appeal. The appeal was dismissed. The court found that the Māori Land Court had jurisdiction to make the orders and that the process adopted by the Māori Land Court was fair. The court also found that the Māori Appellate Court was correct in its interpretation of the relevant legislation and that the trustees had a right of election in respect of the mode of assessment of damages in liability order 2.

Orders