Staite v Kusabs

[2017] NZHC 416

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2009-463-888 [2017] NZHC 416

BETWEEN

PETER DANIEL STAITE, JEAN

TAIRAU-CARSTON, DEBORAH PAKAU, LEONIE REI NICOLLS AND BRUCE ANDERSON BAMBER AS TRUSTEES OF THE WHAOA NO 1

LANDS TRUST Plaintiffs and Ors

AND

ANDREW MARUTUEHU KUSABS, DONALD MAIRANGI BENNETT, JULIAN KUMEROA KEEPA AND WIREMU WAKA AS TRUSTEES OF THE TUMUNUI LANDS TRUST Defendants and Ors

Hearing:	25, 26, 27, 28, 29 July, 1, 2, 3, 4, 8 and 9 August 2016
Counsel:	D G Chesterman and J P Koning for Plaintiffs M S McKechnie and D Prasad for Defendants
Judgment:	13 March 2017

JUDGMENT OF HEATH J

This judgment was delivered by me on 13 March 2017 at 2.30pm pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Koning Webster, Tauranga Tim Kinder, Putaruru Counsel:

D Chesterman, Auckland

M McKechnie, Rotorua

STAITE v KUSABS [2017] NZHC 416 [13 March 2017]

CONTENTS

The nature of the claims  [1] The issues  [6] The No 8 Block: an historical perspective

(a)      Questions of mana whenua  [11]

(b)      Creation of the Whaoa Trust  [22] (c)      Creation of the Reservation Trust  [26] (d)      Creation of the Tumunui Trust  [31] The Mills lease – 1964–1989  [41] Negotiations to acquire the Mills lease  [44] The Tumunui lease – 1989–1994

(a)      The “proposed assignment” phase  [65]

(b)       The “new lease” negotiations  [75] (c)  The subdivision process  [83] The easement           [110] The competing contentions  [119] Analysis: The Tumunui lease claims

(a)      The “self dealing rule”: introduction  [127]

(b)      Fenwick v Naera  [132] (c)      Limited beneficial interest exception  [147] (d)      Did Mr Moke breach his duty of loyalty?  [158] (e)      Relief against Mr Moke  [171] (f)       Relief against Tumunui Trust

(i)       Knowledge  [177] (ii)      Limitation and laches  [181] (iii)     Nature of remedy  [194]

Analysis: the Reserve claims

(a)      The boundary and easement claims  [216]

(b)      The nature and purpose of a Māori reservation  [223] (c)      Roadway orders  [237] (d)      The boundary issue  [240] (e)      The easement certificate  [251] (f)       Should a remedy be granted?  [257] Result  [262]

The nature of the claims

[1]      Mr Edward Moke died in 2003.  At material times, he was a trustee of the

Whaoa No 1 Lands Trust (the Whaoa Trust),1 the Tumunui Lands Trust (the Tumunui

Trust)2  and the Ngāti Whaoa Māori Reservation (the Reservation Trust).3     The

1      The Whaoa Trust was constituted by an order of the Māori Land Court made on 5 March 1982 under s 438 of the Māori Affairs Act 1953.  It continues as an ahu whenua trust by operation of s 354 of Te Ture Whenua Māori Act 1993.

2      The Tumunui Trust was constituted by an order of the Māori Land Court, made on 8 December

1986, under s 438 of the Māori Affairs Act 1953.   It continues as an ahu whenua trust by operation of s 354 of Te Ture Whenua Māori Act 1993.

Whaoa Trust and the Tumunui Trust are presently constituted as ahu whenua trusts, under Te Ture Whenua Māori Act 1993 (the 1993 Act).  The Reservation Trust was created when the Māori Land Court made a recommendation that part of the Whaoa Trust’s land be set aside as a Māori reservation (the Reserve).4

[2]      The Whaoa Trust and the Reservation Trust allege that, during the period of his trusteeships, Mr Moke breached duties that he owed as a trustee of each, by involving himself in a transaction that benefitted the Tumunui Trust, to the detriment of both the Whaoa Trust and the Reservation Trust.  Mr Moke’s conduct arises out of negotiations that resulted in a lease into which Whaoa Trust (as lessor) entered with the Tumunui Trust (as lessee) in 1994 (the Tumunui lease).

[3]      The Tumunui lease was over land known as Rotomahana Parekarangi No 8

Block (the No 8 Block).  That land is located on State Highway 5, near Reporoa, in the Central North Island.  The Tumunui Trust has been in possession of the No 8

Block since 1 June 1989.5    While executed in 1994, the Tumunui lease recognised

that it had been operative from 1 July 1992.

[4]      The Reserve is part of the larger No 8 Block.  On the face of the documents that led to its creation, the Reserve consists of 174.0183 hectares, out a total land mass of 529.2973 hectares.

[5]      The Reserve was formally established through a Gazette Notice published on

27 February 1986.6    No partition order was ever made by the Māori Land Court to define the boundary between the Reserve and the remainder of the No 8 Block.  The absence of such an order has led to a number of difficulties in the description of the area contained within the Reserve and a lack of definition about the way in which

beneficial owners of the No 8 Block can access the Reserve.

3      The Reservation Trust is also known as the Rotomahana Parekarangi 8 Reservation Trust.  The Reservation Trust was created by Gazette Notice following a reconsideration by the Māori Land Court, under s 439(1) of the Māori Affairs Act 1953: see Re Rotomahana Parekarangi 8 (1985)

215 Rotorua MB 62.

4      Re Part Rotomahana Parekarangi 8 Block (1985) Rotorua MB 62.  See the Māori Land Court’s order of 31 October 1985, set out at para [27] below.  The recommendation was made pursuant to s 439(1) of the Māori Affairs Act 1953.

5      See para [58] below.

6      The relevant terms of the Gazette Notice are set out at para [28] below.   See also para [28]

below.

The issues

[6]      The Whaoa Trust’s primary allegation is that Mr Moke’s involvement in the negotiations that led to the Tumunui lease constituted a breach of his fiduciary duty of loyalty.7    The Whaoa Trust asserts that the Tumunui lease, in the form finally executed, provided a material benefit to Tumunui Trust, and corresponding material detriment to the Whaoa Trust. The Whaoa Trust seeks, as against the Tumunui Trust, rescission of the Tumunui lease or damages and, as against the personal representatives  of  Mr  Moke,  declarations  as  to  the  effect  of  his  conduct.    No monetary relief is sought against Mr Moke, whose personal representatives abide the

decision of the Court.

[7]      Two separate issues involve the Reservation Trust:

(a)      The first concerns the location of the boundary between the Reserve and the No 8 Block.   When the No 8 Block was surveyed for the purpose of the proposed Tumunui lease, the Reserve was found to contain 15.8 hectares less land than was set apart as a result of the Māori Land Court’s recommendation.   The Reservation Trust seeks orders to rectify that position, by aligning the area of the Reserve to that contemplated by the order recommending its creation.

(b)The second concerns an easement, by which those entitled to enter the Reserve may pass over the farm land leased by the Tumunui Trust. The Reservation Trust asserts that the Tumunui Trust is deliberately impeding  rights  of  use  of  those  lawfully  entitled  to  access  the

Reserve.8

[8]      For  convenience,  I  characterise  the  discrete  claims  under  two  discrete headings:

(a)       The Tumunui lease claims; and

7      Reliance is placed on Fenwick v Naera [2015] NZSC 68, [2016] 1 NZLR 354. That decision is discussed fully at paras [132]–[145] below.

8      This includes an allegation that the access way is not capable of being used because (in its present state of repair) it is not possible to pass other than by use of a four wheel drive vehicle.

(b)      The Reserve claims.

[9]      The Tumunui Trust and Mr Moke’s personal representatives each deny any liability to the Whaoa Trust, or to the Reservation Trust.  Although the proceeding was not issued until 17 December 2009,9 most of the material events occurred in the period  between  1988  and  1994.    As  a  result,  by  way  of  affirmative  defences, questions of limitation arise, both under the Limitation Act 1950 and the equitable doctrine of laches.10

[10]     The Māori Affairs Act 1953 (the 1953 Act) applied when most of the events in issue occurred.  It was repealed and replaced by Te Ture Whenua Māori Act 1993 (the 1993 Act) with effect from 1 July 1993.  The 1993 Act will apply in respect of any applications to the Māori Land Court that may be required to resolve outstanding issues that this Court has no jurisdiction to determine.

The No 8 Block: an historical perspective

(a)      Questions of mana whenua

[11]     Mr Peter Staite was appointed as a trustee of Whaoa Trust on 2 August 2005, and of the Reservation Trust on 3 November 2009.  He is currently chairman of the Whaoa Trust.  Although he is the prime mover behind the litigation, he has no first- hand knowledge of any of the material events in issue.  To a large extent, the Whaoa Trust’s claims must be determined on the basis of contemporary documents.

[12]     Mr  Staite  is  of  Ngāti  Whaoa  descent.    Since  about  1990,  he  has  been researching the history of Ngāti Whaoa and its land interests.  He read extensively in order to prepare evidence for various Waitangi Tribunal inquiries into Central North Island claims.  For example, Mr Staite was a claimant and gave historical evidence of Ngāti Whaoa grievances during the period of the Tribunal’s “Ngāti Whaoa Rohe

Claim” inquiry, from 2001 to 2005.

9      The  claims  as  originally  framed  were  struck  out  in  their  entirety  by  Associate  Judge

Christiansen, on 25 July 2013: Staite v Kusabs [2013] NZHC 1851. Subsequently, on 30 May

2014, Ellis J reinstated some of the causes of action: Staite v Kusabs [2014] NZHC 1183 at paras [89] and [90]. The time taken to complete those interlocutory steps provides some explanation for the delay in bringing the proceeding to hearing in July 2016.

10     As to laches, see Eastern Services Ltd v No 68 Ltd [2006] NZSC 42, [2006] 3 NZLR 335.

[13]     Mr Staite also gave evidence on two other Waitangi Tribunal inquiries, on behalf of Ngāti Hurunga te Rangi, Ngāti Te Kahu, Ngāti Taeotu and Ngāti Whakaue. Those claims were known as the “Whakarewarewa Lands Claim” and the “Whakarewarewa Geothermal Lands Claim”.

[14]     Mr Staite deposed that  all members of Ngāti Whaoa descend  from their eponymous ancestor, Whaoa, who arrived in New Zealand, with his grandfather, Maaka, and approximately 40 others, on board the waka Te Arawa, around 1300.  Mr Staite recited his whakapapa in evidence, and distinguished his Ngāti Whaoa lineage from that of hapū who make up the beneficial owners of the Tumunui Trust.  There was no serious contest to Mr Staite’s evidence of whakapapa and tribal rohe.  For the purpose of this proceeding, I accept his evidence on that topic.

[15]     The rohe of Ngāti Whaoa extends from Huka Falls in the south, to Pareheru, near Lake Rotomahana, in the north; and from Te Niho o Te Kiore on the Waikato River in the west, to the Rangataiki River in the east.  The rohe includes the Paeroa Ranges.  Mr Staite referred to a decision of the Native Land Court in the “late 19th Century” that originally determined that individuals from Ngāti Whaoa were the customary   owners   of   the   Rotomahana   Parekarangi   3   Block,   comprising approximately 18,000 acres.  As a result of successive partitions this became (what I am calling) the No 8 Block.11

[16]     Mr Staite referred to the degree of connection, in genealogical terms, between Ngāti Whaoa and Ngāti Tumatawera, the hapū he says is most closely linked to Mr Moke.  Mr Staite’s evidence was that Mr Moke was regarded as a rangatira of both Ngāti Whaoa and Ngāti Tumatawera.

[17]     Mr Staite and the late Mr Moke were first cousins.  Mr Staite deposed that Mr Moke’s tangihanga was held at Ngāpuna, on Tumatawera Marae.  That is where Mr Moke is buried.   Mr Moke’s headstone carries the name “Eria Paurini Moke,” and the date of his death, 28 October 2003.  His tribal affiliations are identified on his headstone.  It refers to “Tumunui” as his mountain.  There are no references to

any Ngāti Whaoa connections.

11     See paras [22]–[25] below.

[18]     Mr Staite expanded on that evidence.   While he accepted that both Ngāti Whaoa and Ngāti Tumatawera could whakapapa to a common ancestor, Atua Matua, Mr Staite said that Ngāti Whaoa is four generations removed from Atua Matua, while Ngāti Tumatawera is eleven generations removed.   Mr Staite told me that Ngāti Whaoa and Ngāti Tumatawera descend through different lines, through two half brothers of Atua Matua.  Mr Staite said that the

… mana [of each] is quite separate, their identity’s quite separate, even their origins, they’re quite separate.

[19]     Mr Staite explained that was why Ngāti Whaoa held mana whenua in the Paeroa Ranges, the Kaiangaroa forest area, the Kaiangaroa plains and “other” places. There is no doubt, on the evidence that I heard, that Ngāti Whaoa has mana whenua over the land comprised in the No 8 Block and the Reserve.  On the other hand, it is common ground that about 80 per cent of the beneficial owners of the Whaoa Trust

are also beneficiaries of the Tumunui Trust.12

[20]     I asked Mr Staite how, given the different origins of each tribal group, about

80 per cent of the beneficial owners of the Whaoa Trust could also be beneficiaries of the Tumunui Trust.  He answered that there were “a lot” of people by the name “Moke” in the list of beneficial owners of Whaoa Trust.  It is through their ancestry that the number of common beneficial owners developed.  Mr Staite said that he was aware  that  one  of  his  ancestors,  with  a  common  name  “Edie”  had  played  a significant  part  in  creating  the  title  of  the  Tumunui  Block,  and  he  knew  that Mr Moke was proud of that.

[21]     I asked Mr Staite about whether Ngāti Whaoa or Ngāti Tumawera had areas of land in respect of which each held mana whenua.  He answered that to reach land over which Ngāti Tumatawera exercised mana whenua, it was necessary to travel some  three or four  kilometres  from  the summit  of the Paeroa Ranges,  towards

Rotorua.  Ngāti Tumatawera’s rohe is in the area to the north of Reporoa.

12     Specific  information  about  the  extent  of  Mr  Moke’s  interests  in  the  Whaoa  Trust,  the

Reservation Trust and the Tumunui Trust is set out at para [152] below.

(b)      Creation of the Whaoa Trust

[22]     As a result of a series of partition orders made by the Māori Land Court in respect of the original Rotomahana Parekarangi Block, the No 8 Block was formed.

[23]     On  16 April  1956,  the  Māori  Land  Court  partitioned  the  land,  so  as  to

establish (what were called) the Rotomahana Parekarangi 3A3A3B2B2B No 1 (No 1

Block) and Rotomahana Parekarangi 3A3A3B2B2B No 2 (No 2 Block).  The No 1

Block consisted of about 430 acres (174 hectares) of native bush.  The No 2 Block was mostly in pasture, and comprised 879 acres (355 hectares).

[24]     On  12  February  1982,  the  Registrar  of  the  Māori  Land  Court  filed  an application under s 438 of the 1953 Act, by which the Court was asked to vest the No 1 Block in responsible trustees.  An order to that effect was made on 5 March

1982.13   That Trust became known as the Rotomahana Parekarangi 3A3A3B2B2B1

Lands Trust.

[25]     On 19 May 1982, the Whaoa Trust was established under s 438 of the 1953

Act, and trustees were appointed.14    On that date, the Māori Land Court also made

orders cancelling the titles to the No 1 and No 2 Blocks, and amalgamating them.15

The amalgamation order created the No 8 Block.  On the same day, the Māori Land

Court vested the amalgamated No 8 Block in the trustees of the Whaoa Trust.

(c)      Creation of the Reservation Trust

[26]     The term “Māori reservation” is one of art.  A “Māori Reservation” is one established for specific purposes, following a recommendation by the Māori Land Court.16    In 1985, a recommendation could be made under s 439 of the 1953 Act.

Materially, in the form in which it stood as at 31 October 1985, s 439 provided:17

13     Re Rotomahana Parekarangi 3A3A3B2B2B1 (1982) 202 Rotorua MB 192.

14     Re Rotomahana Parekarangi 8 (1982) 203 Rotorua MB 48.

15     Pursuant to s 435(1) of the Māori Affairs Act 1953.

16     The nature and purposes of a Māori reservation are explained more fully at paras [223]–[229]

below.

17     As at 31 October 1985, the term “Secretary” was used in s 439(1)(2) and (5). As from 1 October

1989, the term was changed to “General Manager” (by s 10 of the Māori Affairs Restructuring Act 1989).  A further change was made from 1 January 1992 by s 9(1) of the Ministry of Māori Development Act 1991, where the term was changed to “Chief Executive”.

439    Māori Reservations For Communal Purposes

(1)    The Secretary of Māori Affairs may, by notice in the Gazette issued on the recommendation of the Court, set apart any Māori freehold land or any General land as a Māori reservation for the purposes of a village site, marae, meeting place, recreation ground, spots ground, bathing place, church site, building site, burial ground, landing place, fishing ground, spring, well, catchment area or other source of water supply, timber reserve, or place of historical or scenic interest, or for any other specified purpose whatsoever.

(2)       The Secretary may, by notice in the Gazette issued on the recommendation of the Court, declare any other Māori freehold land or General land to be included in any Māori reservation, and thereupon the land shall form part of that reservation accordingly.

(3)     Except as provided by subsection (12) of this section, every Māori reservation under this section shall be held for the common use or benefit of the owners or of Māoris of the class or classes specified in the notice. For the purposes of this subsection the term “Māoris” includes persons who are descendants of Māoris.

(4)    Land may be so set apart as or included in a Māori reservation although it is vested in an incorporated body of owners or in the Māori Trustee or in any other trustees and notwithstanding any provisions of this Act as to the disposition or administration of that land.

(5)     On the recommendation of the Court the Secretary by notice in the Gazette, may, in respect of any Māori reservation made under this section, do any one or more of the following things:

(a)      He may exclude from the reservation any part of the land therein comprised:

(b)      He may cancel the reservation:

(c)      He may redefine the purposes for which the reservation:

(d)      He may redefine the persons or class of persons for whose use or benefit the reservation is made.

…

(7)      The Court may, by order, vest any Māori reservation in any body corporate or in any 2 or more persons in trust to hold and administer it for the  benefit  of  the  persons  or  class  of  persons  for  whose  benefit  the reservation is constituted, and may from time to time, as and when it thinks fit, appoint a new trustee or new trustees or additional trustees.

…

[27]     On 31 October 1985, the Māori Land Court made a recommendation to set aside  land  out  of  the  No 8  Block,  for  a  Māori  reservation.18      In  granting  the application, Judge Hingston said:19

Court: It appears that this exercise is to the benefit as well the owners the people  of  New  Zealand  perhaps  Her Majesty in  her  wisdom will  make provision for compensation to these owners who have retired this area of land.  The Orders sought appear meet – there is no objection – the owners, the District Council and the Waikato Valley Authority are all apparently in accord therefore –

(i)        orders S 27/53 and S 438(c)/53 on own motion terminating Trust in respect of the bush area comprising some 174.01483 ha (430 acres) shown on plan filed in Court and besting in beneficial owners.

(ii)       S 439(1)/53 recommending that this area of 174.01483 ha (430 ac.) be set apart as a Māori Reservation for the purpose of a Timber Reserve catchment area and place of Historical interest for the common use and benefit of the beneficial owners, their descendants and the Ngati Whaoa.

(iii)      S 439(7)/53 subject to Reservation being gazetted Court will vest in present S 438/53 Trustees.

(iv)      S 149 Rating Act 1967 Recommendation to Governor General that land be exempt from Rates.

(Emphasis added)

[28]     On 31 October 1985, pending the issue of a Gazette Notice, the Māori Land Court made an order vesting the Reserve in the trustees of the Whaoa Trust.  One of those trustees was Mr Moke.20    The order recorded that the Reserve had been set aside “for the purpose of a timber reserve, catchment area and place of historical interest for the common use and benefit of the beneficial owners, their descendants and the Ngati Whaoa”.21     That reflected the terms of the Court’s earlier recommendation.

[29]     Following  the  Court’s  recommendation,  the  Whaoa  Trust  applied  to  the

Secretary of Māori Affairs under s 439 of the 1953 Act,22 to have the native bush

18     The recommendation was made under s 439 of the Māori Affairs Act 1953. The material part of

s 439 is set out at para [26] below.

19     Re Rotomahana Parekarangi 8 (1985) 215 Rotorua MB 62 at 93 (emphasis added).  Orders of the Māori Land Court commonly use the abbreviation of the section and the year of the relevant Act. So, “S27/53” means s 27 of the Māori Affairs Act 1953.

20     See the terms of the order set out at para [27] above.

21     The order was made under s 439(7) of the Māori Affairs Act 1953.

22     Set out at para [26] below.

area set aside as a Reserve.    On 17 February 1986, the Secretary acted on that recommendation.  His decision was published as a Gazette Notice on 27 February

1986, as required by s 439(1) of the 1953 Act. The Gazette Notice stated:

Setting Apart Māori Freehold Land as a Māori Reservation

Pursuant to section 439 of the Māori Affairs Act 1953, the Māori freehold land described in the Schedule hereto is hereby set apart as a Māori reservation for the purpose of a timber reserve, catchment area and place of historical interest for the common use and benefit of the beneficial owners, their descendants and the Ngati Whaoa.

SCHEDULE

SOUTH AUCKLAND LAND DISTRICT

All that piece of land situated in Block X, Paeroa Survey District and described as follows:

Area ha 174.0183 being Part Rotomahana Parekarangi 8 and being part of the land on Order Cancelling Several Titles and Substituting One Title of the Māori Land Court dated 19 May 1982.

Dated at Wellington this 17th day of February 1986.

B S Robinson

Deputy Secretary for Māori Affairs

…

[30]     The critical components of the Secretary’s decision are:

(a)      Land comprising 174.0183 hectares was set aside for the purpose of

“a timber reserve, catchment area and place of historical interest”.

(b)The Reserve was created “for the common use and benefit of the beneficial owners of the No 8 Block and Ngāti Whaoa.

(d)      Creation of the Tumunui Trust

[31]     The present chairman of the Tumunui Trust is Mr Andrew Kusabs.23    He is a chartered accountant, based in Rotorua.                   He has had extensive experience in the

23     Mr Andrew Kusabs’ son, Mr Craig Kusabs, also gave evidence.  However, as I do not need to refer to the son’s evidence, I describe Mr Andrew Kusabs as “Mr Kusabs” in the balance of this judgment.

administration  of  Maori  trusts  and  authorities,  over  the  past  30  years  or  so. Mr Kusabs gave evidence of the establishment of the Tumunui Trust, and Mr Moke’s appointment as a trustee.

[32]     The Tumunui Trust was responsible for the administration of Māori freehold land known as Tumunui, situated in Blocks IX, X, XIII and XIV of the Tarawera Survey District.  On 8 December 1986, Judge Hingston heard an application to the Māori Land Court to vest the land in alternative trustees.24   The Tumunui Trust was in financial difficulties.  The purpose of appointing new trustees was to bring order to its affairs.

[33]     The Trust Order for the Tumunui Trust was made by the Māori Land Court on 8 December 1986.   It records that the new trustees were to “take over and/or assume liability for any asset/s or liabilities of the Trust formerly known as Tumunui Block and terminated by the Māori Land Court on the 8th day of December 1986”.25

[34]     There  was  a  dispute  between  Mr  Kusabs  and  Mr  Staite  about  whether Mr Moke was appointed as a trustee of the Tumunui Trust on 8 December 1986. Mr Staite  believes  that  some  evidence  that,  at  the time the Tumunui Trust  was established,  Mr Moke’s  father,  Eria  Tupuritia  Moke,  was  one  of  the  trustees appointed by the Court.   Mr Staite gave evidence that Mr Moke became a trustee after his father died on 22 October 1987.   Mr Staite cannot give any first-hand knowledge of the appointment of trustees of the Tumunui Trust.  He was not present at the Court hearing.  On the other hand, Mr Kusabs was present.

[35]     The rationale for the establishment of the Tumunui Trust can be gleaned from the reasons given by Judge Hingston on 8 December 1986. The Judge said:26

As to the future of the Trust – the Court indicated that if it was not satisfied with the persons elected by the meeting of owners it would consider appointing persons other than those nominated.   It also indicated that it might be appropriate if there was a Responsible Trustee – Advisory Trustee Trust.

24     Re Tumunui Blocks IX, X, XIII and XIV (1986) 218 Rotorua MB 12–17.

25     Ibid.

26     Ibid, at 16–17.

Having heard each of the Trustees that are here today I am of the view that there should be a Responsible Trustee – Advisory Trustee Trust created here. This is in no way a reflection on the persons I am going to appoint as Advisory Trustees  but  rather  a  recognition  that  they  have  something  to contribute and they can learn from the Trustees who are more experienced in this area and in particular from Mr Kusabs on financial matters.  With this in mind the Court makes firstly an order –

S 438(3)(c)/53 determining the present Trust and vesting the land again in the persons entitled.

The Court recognising that the owners have been given an opportunity of considering who should be Trustee of this block makes an order pursuant to s

438(2)  of  the  Māori  Affairs Act  vesting  Tumunui  in  [five  Responsible

Trustees and four Advisory Trustees].

…

[36]     The trustees whose names were put to the Māori Land Court for approval had been identified following a resolution of assembled owners.  Mr Kusabs deposed that all nominated trustees were present, and were questioned by Judge Hingston before they were appointed. That is confirmed by Judge Hingston’s decision. Although one of the people appointed as a trustee was described as “Mr Eria Moke”, Mr Kusabs identified that person as Mr Moke, not his father.

[37]     The person whose name was recorded as being “Eria Tupuritia Moke” was questioned by Judge Hingston.  The discussion between the Judge and the nominated trustees was recorded and transcribed. After having been sworn, “Eria Moke” said:27

I am a member of Te Arawa Māori Trust Board – also on other Trusts and Hurunga Marae.  If I disagreed with financial advisers I would seek second opinion.  I am on Ngati Whaoa Farm Trust.

[38]     Mr Kusabs referred to the record of the hearing on 8 December 1986, and to the decision given by Judge Hingston at its conclusion.  Having done so, he deposed:

24.I am positive that the person known to be Eddie Moke who was in the Court was the same man who was appointed by Judge Hingston. This was the same man who was in attendance at meetings from the date of his appointment until he died.  The person who attended the Tumunui trustees meetings was the man who I knew to be a trustee of the Whaoa … Trust.  He had said this at the hearing before Judge Hingston  on  the  8th   December  1986  and  made  reference  to  his Whaoa  trusteeship  from  time  to  time  when  meeting  with  the Tumunui trustees.

27     Ibid, at 15.

[39]     As Mr Moke was appointed as a trustee of the Whaoa Trust on 19 May 1982 and his father was not a trustee of that Trust, I am satisfied that Mr Kusabs is correct when he says that Mr Moke was appointed as a trustee of the Tumunui Trust on 8

December 1986.   Mr Moke was appointed as one of five “Responsible Trustees” under s 438(2)  of the 1953 Act  with  four additional  people being appointed  as Advisory Trustees” under s 438(2A).

[40]     I find that, from 8 December 1986, Mr Moke was a trustee of both the Whaoa Trust and the Tumunui Trust until his death in 2003.  I am satisfied, from the record of the 8 December 1986 hearing, that Mr Moke declared his interest as a trustee of the Whaoa Trust to the Māori Land Court when he was appointed as a responsible trustee of the Tumunui Trust.

The Mills lease – 1964–1989

[41]     At the time of the 1956 partition, the Māori Trustee was responsible for the administration of both the No 1 and No 2 Blocks.   On 21 November 1962, with effect from 13 December 1961, the Māori Trustee leased each block to Mr John Blackler.  By December 1963, Mr Blackler had fallen into arrears of rent and rates. He was also alleged to have breached other covenants of the lease.  The assembled owners resolved to transfer the Blackler leases to H Allen Mills Ltd (the Mills lease), and to vary its rental and term.

[42]     That resolution was confirmed by the Māori Land Court, on 25 March 1964. H Allen Mills Ltd then acquired the lease from Mr Blackler.  The Mills lease was to run until 12 December 2004.  Rent was to be calculated by reference to a formula: five per cent of the capital value of the land, less any improvements made by the lessee.   The lease was transferred, subject to execution of a deed that granted the owners access to the area of native bush in the No 1 Block.  That enabled access across the sheep and beef farm operated on the land, to what is now the Reserve.

[43]     H Allen Mills Ltd farmed the land comprised in the Mills lease until 1989. On 2 February 1989, representatives of the Whaoa Trust had met with Mr Mills, who had indicated a desire to wind up his farming operation due to age.   Around that

time, Mr Mills had begun to engage in discussions about the possible sale of the lease to another party.

Negotiations to acquire the Mills lease

[44]     During 1988, the Tumunui Trust was investigating, through its farm adviser, Mr Hyland, the possibility of acquiring farm land near Reporoa.  The No 8 Block was one of those under consideration.  On 25 October 1988, Mr Hyland attended a meeting of the Tumunui Trust.  He provided a detailed report on Mr Mills’ sheep and beef farm operation.

[45]     Mr Hyland addressed the possibility of the Tumunui Trust acquiring the Mills lease and converting the land into a dairy unit.  In a report dated 18 November 1988 he had advised the Tumunui Trust that an extension of at least 20 years from 1992, making a total term of 43 years, was “essential and reasonable” given the “useful life of a cow shed and fencing”.

[46]     By February 1989, Mr Mills had identified another person from the area, Mr Ian Bell, whom he was considering as a possible transferee.  There is evidence that Mr Bell attended the meeting on 2 February 1989.  A memorandum prepared by Mr Price, then-secretary of the Whaoa Trust,28 suggests that those present on the Whaoa Trust side did not find him “particularly impressive”.   Mr Price recorded that “no basic work had been done [by Mr Bell] on formulating his management proposals”. He added that the Whaoa Trust had been treated “to very enthusiastic ideas with no real substance to back them up”.

[47]     After addressing Mr Bell’s presentation, Mr Price recorded that the Whaoa Trust was aware that the Tumunui Trust was interested in acquiring the Mills lease. He  recorded  that  the  Tumunui  Trust  “had  experienced  delays  in  responding  to [Mr Mills]” who had then “found” Mr Bell.  After having observed that Mr Mills appeared to be “shutting Tumunui out of the lease”, Mr Price referred to a separate meeting, with Tumunui Trust representatives, at which “very impressive proposals

for managing the property” were presented.

28     Mr Price was Mr Staite’s step-father.

[48]     I am satisfied that the proposals made at that meeting were based on Mr

Hyland’s report of 1 February 1989, and were advanced by him at that time.  On 23

February  1989,  Mr  Hyland  prepared  a  monthly  report  on  the  Tumunui  Trust’s

farming activities, for its trustees. Towards the end of his report he said:

DAIRY FARM PROPOSALS

As I am sure you are all aware, we were unsuccessful with our bid for the Allen Mills Māori Lease Block.   This was extremely disappointing as we had done an awful lot of work in this regard and to miss out on the eleventh hour was disappointing.   However, any proposals considered in the future will be a relatively easy exercise with the knowledge and costings now at our finger tips.

[49]     The trustees of the Tumunui Trust met on 24 February 1988.   One of the items on the agenda was the dairy farm proposal.  Mr Moke is recorded as having reported to the meeting “that everything was not finalised with Ian Bell yet.  There was a chance that the agreement might fall through”.

[50]     From a memorandum prepared by Mr Price, dated 16 April 1989, it appears that Mr Hyland’s study was presented to the Whaoa Trust at a meeting on  (or possibly shortly after)  the  date  of  that  meeting.    That  meeting  was  held  (most probably) between 20 March and 2 April 1989.29   Trustees of both Whaoa Trust and Tumunui Trust were in attendance.  An undated minute of the meeting recorded that, in addition to two trustees of the Tumunui Trust and Mr Hyland, “E Moke and three

members of the Whaoa No 1 Trust” were also present.  In 1989, while not recorded as such in the minutes of that meeting, Mr Moke was also a trustee of Tumunui Trust.30

[51]     Two of the trustees of the Whaoa Trust in 1989 gave evidence before me, Mr Edwards and Mr Bamber.  Mr Edwards did not recall attending this meeting.  Given the passage of time, I found Mr Bamber’s memory (understandably) to be poor. Although I think it is possible that Mr Bamber did attend the meeting, his evidence was (through no fault of his own) unreliable.  For that reason, I put his oral evidence

on this topic to one side, and rely on the documentary record.

29     See para [52] below.

30     See para [39] above.

[52]     The meeting was held at Mr Kusabs’ office in Rotorua.  Having been shown the complete minute book of the Tumunui Trust for the relevant period, Mr Kusabs considered  that  the  undated  minute,  which  he  acknowledged  he  had  prepared, referred to a meeting held sometime between 20 March 1989 and 24 April 1989. With one qualification, I accept that evidence.  I consider that the meeting must have taken place before the discussions at Mr Mills’ home on 3 April 1989, as the minutes

refer to the “asking price” for the lease.31   That puts the meeting date as somewhere

between 20 March and 2 April 1989.

[53]     The purpose of this meeting was to consider the possibility that the Tumunui Trust might acquire the Mills lease, on the basis that its term was extended.   The minutes record:

…

Mr Hyland then explained the Tumunui lands Trust’s position so far as it related to land leased by Mr Allen Mills from the Whaoa No.1 Trust which was available for purchase. The asking price was $200,000 and the Tumunui Lands Trust had considered the purchase as a way of entering into the dairy farming arena.   Costings had been done which showed that the leasehold payable to Mr Mills could be recovered over the 23 year term remaining but the goodwill that he would be prepared to offer was $150,000 with a maximum of $180,000.

The purpose of this meeting was discuss with the Whaoa No.1 Trust our intentions and to see if we could get an extension to the lease in the event of our offer being successful.   The Trustees of the Whaoa No.1 Trust were comfortable with Tumunui’s participation and would do everything in their power to assist.  It was felt that Mr Mills was using all his business cunning to get a higher price than he was entitled to.  However, Tumunui Lands Trust felt that it did have a value and our first reaction was $150,000.

[54]     At a meeting of the Tumunui Trust held on 4 April 1989, Mr Hyland reported that the proposed sale of the Mills lease to Mr Bell “had fallen through”.  He added that “the lease was now on the market and [Mr Mills] was offering this” to Tumunui Trust, at $200,000.  Mr Kusabs and Mr Hyland both referred to a meeting that had taken place the night before at which they had spoken to Mr Mills and made a “handshake” agreement to buy the lease at $180,000, subject to trustees’ approval. Mr Mills had accepted the offer on that basis.  The meeting of 4 April 1989 was to

determine whether the trustees were prepared to authorise that transaction.

31     The relevant extract from the minute is set out at para [53] below.

[55]     I am satisfied that Mr Moke participated in these discussions.  The minute of

the Tumunui Trust’s meeting of 4 April 1989 records:

Mr Moke felt that Mr Ian Bell had been a ring-in to push the price of the lease up.  He felt that his tactics in demanding that the covenants be made could result in a much cheaper price to Tumunui.  However, the Secretary was of the opinion that the lease did have a value and it may be that we have to pay $180,000 in order to become dairy farmers.   The costings that had been completed by Ashworths showed that we could recover our money within the period still remaining on the lease and, in addition, we would make a reasonable profit out of the venture.   This was made on the assumption that the butterfat price would be $4.50.

All the Trustees took part in the discussion and it was –

Resolved:        D. BENNETT/H. HATU  CARRIED

That the Tumunui Lands Trust purchase from H. Allen Mills the lease of Whaoa No.1 Trust property for $180,000 subject to the covenants that have not been met being rectified by 1 June 1989.

It was then agreed that the Sale and Purchase Agreement be handed to Mr J. Chadwick for perusal and clarification, if necessary.

(Emphasis added)

[56]     On 24 April 1989, the trustees of the Tumunui Trust met again.   On this occasion, one of the items of business was the possible acquisition of another parcel of  land  (known  as  the  Maitland  Block)  from  Mr  Mills.    That  property  was contiguous to the No 8 Block.   If both blocks were acquired, a dairy conversion project became more viable.   Eventually, the Maitland Block was acquired by the Tumunui Trust.

[57]     No assignment of the Mills lease was ever executed.  Instead, the discussions about assignment morphed into negotiations about the terms on which Tumunui Trust would take a new lease over the land.   It is necessary to explain why that happened.

[58]     It is common ground that the Tumunui Trust went into possession of the farm land on 1 June 1989, and commenced work to convert the dry stock farm to a dairy unit.  In a letter to the Tumunui Trust, dated 22 June 1989, Mr Hyland reported that the time was ripe “to re-approach the Trustees of the Whaoa No 1 Trust to initiate the negotiations for the extension of the lease for a further 20 or 21 years as discussed at

our earlier talks”.  At a meeting on 26 June 1989, the trustees of the Tumunui Trust resolved to forward a letter to Whaoa Trust “seeking discussions with them on an extension of the [lease] past the year 2011”.

[59]     Mr Hyland prepared a discussion paper (dated 15 July 1989) for a meeting of trustees of both the Whaoa Trust and the Tumunui Trust.   While it is not clear whether that meeting was held on or proximate to that date, I am satisfied a meeting dealing with those issues was held.  The discussion paper referred to the fact that the lease had some 22 years to run, expiring on 13 December 2011.

[60]     Mr Hyland proposed a term of 42 years from 1 June 1990, with rent reviews every 7 years.   On that basis, the lease would end on 31 May 2032.   One of the options that Mr Hyland put forward for calculation of rent was “5% of capital GV less improvements (or the previous period’s rental, whichever was the greater), plus” an additional allowance based on likely milk fat returns.

[61]     In his monthly report of 20 July 1989 to the trustees of the Tumunui Trust, Mr Hyland referred to work being undertaken by a farm manager, including fencing on the hill country.   He referred to discussions to be held on 27 July 1989 with Mr Mills, at which the possibility of acquisition of the Maitland Block would be raised.  Mr Hyland referred to the need to resolve any question of lease extensions with   the  Whaoa  Trust   as   that   would   “influence   the   overall   development” contemplated by the Tumunui Trust.

[62]     The possibility of seeking an extension of the term of the Mills lease was considered by the Tumunui Trust at its meeting on 24 July 1989.   Those minutes record:

GENERAL BUSINESS:         Whaoa No.1 Trust

The Trustees felt that it was time that we met with the Whaoa No.1 Trust and discussed with the members a possible extension to the current lease.  It was felt that the development of the block could be different if an extension to the lease was granted.   It was arranged with Mr Moke, Chairman of the Whaoa No.1 Trust, that a meeting of the two Trusts be held on Tuesday 15

August at 2.30 p.m. – this being the same day that we meet with the Lincoln

College students who will be touring the farm.

[63]     The trustees of the Whaoa Trust and the Tumunui Trust met on 15 August

1989 to discuss a proposed extension.   In a letter sent by Mr Price, on 16 August

1989, to the Whaoa Trust’s solicitor, Mr Ross Burton of Davys Burton & Henderson, solicitors, Rotorua, (to whom I shall refer to as Mr Burton), Mr Price stated that the Whaoa trustees were “agreeable to an extension of the lease for a period of 20 years”.  The agreement was premised on a rental to be based on land values.  The letter was vague as to the precise basis on which rent would be calculated and whether there would be any option to extend.  Although the timing of rental reviews was not spelt out clearly, it appears that three-yearly rent reviews were contemplated.

[64]     Although documents were not prepared at that time to give effect to the extension of the Mills lease, Tumunui Trust continued to occupy the farm land and began to expend considerable money to progress the dairy conversion.  In a report of

23 February 1990 to the Tumunui Trust, Mr Hyland stated that the dairy conversion

was “now in full swing”.

The Tumunui lease – 1989–1994

(a)      The “proposed assignment” phase

[65]     Initially, the Tumunui Trust intended to take an assignment of the Mills lease, on terms reflecting an extension of the lease.32     Later, the basis for negotiations changed and led to a new lease of the farm land being entered into.  I explain, at this stage, what occurred in the “proposed assignment” phase.

[66]     One of the difficulties with which the Tumunui Trust was faced was the need to obtain finance from its bankers, Bank of New Zealand (BNZ).   This problem became evident following a meeting between the Tumunui Trust and BNZ to which reference was made at Tumunui Trust’s meeting on 26 March 1990.   Without alterations being made to the title arrangements, BNZ could not take a mortgage

over the lease.

32     See para [63] above.

[67]     The problem arose out of the creation of the Reserve.  No separate title had ever been issued  for that land.   Mr Mills’ company had continued to farm the property without encroaching into the area believed to comprise the Reserve. However, anyone acquiring the Mills lease (or entering into a new lease) who was raising finance to do so would need a Torrens title over which its leasehold interest in the property could be registered, and against which a mortgage could be registered.

[68]     This difficulty was discussed further at a meeting of the trustees of Tumunui Trust on 25 June 1990.   The minutes record consideration being given to a letter from Tumunui Trust’s solicitor Mr Chadwick, of Messrs Chadwick Bidois, solicitors, Rotorua (to whom I shall refer simply as Mr Chadwick) dated 12 June 1990.  The minutes state:

Chadwick Bidois –  12/6/90 – Whaoa No.1 Trust

It had been raised with the Secretary by the Bank of New Zealand that the lease with Whaoa was not one that could be registered because of difficulties in the title, namely the [Reserve] having been cut [out of the No 8 Block]. This would need to be corrected so that that the bank could take a registered mortgage over the lessee’s interest in the lease.  In the meantime, however, the bank had advanced the $200,000.00 and would hope to make a further advance  of  $300,000.00  in  line  with  the  budget  presented  to  it.    The Secretary had told Mr Chadwick to go ahead and negotiate with Davys Burton Henderson as regarding obtaining a registered title and to see if we could share any costs involved with Whaoa.   In reply, Mr Chadwick had contacted Davys Burton Henderson who could see advantages for Whaoa trustees and they had asked that we obtain our surveyor to arrange the necessary surveys.

Resolved:

That the Secretary obtain the services of a competent surveyor who was able to carry out the work promptly and the following names had been supplied:

G Couldrey

R Phipps

L Martin

Resolved:        R. KEEPA/H.HATU                CARRIED

That the Secretary arrange a suitable surveyor to handle the Whaoa job and that John Chadwick be advised accordingly.

(Emphasis in italics added)

[69]     The resolution passed by the trustees of the Tumunui Trust on 25 June 1990 makes it clear that one of the named registered surveyors was to be instructed to act for the Tumunui Trust in undertaking the necessary work to regularise the titles, so that BNZ could register a mortgage against the lease as security for its loan to the Tumunui  Trust.     In  accordance  with  the  resolutions,  Mr  Chadwick  retained Mr Graham Couldrey, to undertake an investigation of title.  In a letter of 6 July 1990 to Mr Chadwick, Mr Couldrey stated:

Thank  you  for  your  instructions  to  investigate  the  title  position  on

Rotomahana Parekarangi 8 so far as it affects the proposed lease …

[70]     In that letter, Mr Couldrey set out an estimate of costs for the work required to provide a title against which the lease could be registered over the farm land, and to protect access to the Reserve.  Mr Chadwick wrote to Mr Burton on 9 July 1990, enclosing Mr Couldrey’s letter.  Mr Chadwick pointed to the fact that the quotation seemed high but added that “it expresses the problem of creating and surveying the right of way to the bush block”.  He added:

2.        That the costs could be minimised if:

(a)      There was an alternative right of access to the bush block or

(b)      The gazetting and surrender of the bush block could be “unwound” in such a way that the lease could then express by way of covenant a right of ingress and egress to the bush block.    I do  not  know  why  the  bush  block  reserve  was created whether it be for preservation of the bush or to take future advantage of cutting rights or to allow the owners use and enjoyment thereof.

[71]     In a letter to the Whaoa Trust of 13 July 1990, Mr Burton explained the reasons for the separate titles and why it was necessary for the lease to be registered. He said:

The original lease in 1985 was for the whole of the original area of land and subsequently there was some sort of surrender releasing the bush reserve from the farming lease.   The writer has suspected for some time that that surrender was not blessed with a sub-divisional plan dividing the original area into two and approved by the Rotorua District Council. Accordingly the surrender and variation of lease at the time is probably not valid and can only be validated by a valid sub-division.  In any event a properly completed title survey and sub-division would give the trustees proper Certificates of Title.

The  Tumunui  Lands  Trust  however  have  indicated  to  us  through  their solicitor that they are keen to be able to have the lease registered but this can only be carried out by having a completed sub-divisional plan done and consent to by the Council.  Accordingly it has been indicated to us that the Tumunui Lands Trust would very likely be prepared to contribute towards survey costs.   Because of the mutual benefit to the two trusts of having properly surveyed titles, we would suggest, with your approval, that we write to the Tumunui trust’s solicitors by suggesting a fifty per cent contribution from that particular trust, in the event that you are agreeable at all to the survey. Please let us know your trusts instructions in due course.

(Emphasis added)

[72]     The possibility of sharing costs on an equal basis was considered at a meeting of the Whaoa Trust  on  22  July 1990.   The trustees  resolved,  after reading the solicitors’ correspondence, that costs should be shared with the Tumunui Trust on an equal basis.

[73]     The trustees of the Tumunui Trust considered their position at a meeting on

30 July 1990.  The trustees were referred to Mr Chadwick’s letter of 9 July 1990. While the Tumunui Trust  was  concerned  about  the cost,  I am  satisfied  that  its trustees recognised the likelihood that the Bank would need to register a mortgage. The minutes of that meeting record:

Chadwick Bidois –  9/7/90 – Whaoa No.1

Mr G Couldrey had reported on the titles and scheme plans required to provide proper titles to the bush area and to Whaoa No. 1. The main concern was that of access to the bush block and to actually surveying the new boundaries.  The total cost of this work amounted to $11,970 which Whaoa were prepared to subsidise to the amount of 50%.   When the matter was discussed, it was felt that an approach should be made to the bank of see if they did require a proper registered title or whether they were able to take other securities for their advances.   Mr Hyland was going to be in conversation with Mr Cooke and would mention it to him.

[74]     The minutes of a subsequent meeting of the Tumunui Trust, held on 27

August 1990, record that it was necessary to “undertake the sub-division properly”.

(b)      The “new lease” negotiations

[75]     On 30 November 1990, Mr Burton wrote to the Whaoa Trust explaining that he and Mr Chadwick had had concerns for some time that the Mills lease may not be binding and valid.  This appears to be the first suggestion that a legal impediment

might exist to the orthodox assignment of the Mills lease to the Tumunui Trust.  The solicitors’ concerns rested on the absence of any notation by the Māori Land Court under s 233 of the 1953 Act, or validation on application to the Land Valuation Tribunal.  As a result, the lawyers proposed that, after the creation of new titles, a new lease should be prepared.  Mr Burton wrote:

Mr Chadwick and the writer are in agreement that from all points it would be desirable to scrap the present lease and the variation once the new title boundary survey plan has been completed, then complete a new lease which can be registered (the present one cannot be registered as it is not in a registerable form) and at the same time then have the lease noted under Section 233 and an application made to the Land Valuation Tribunal for consent.

In other words it would be a waste of our respective clients’ time and money to validate the present lease (which is out of time for validation anyway) and one might as well do the job properly when the new title plan has been completed.

[76]     I  shall  deal  shortly  with  the  subdivision  process  on  which  the  parties embarked.  For reasons I shall develop, the process was flawed and is the primary reason why difficulties have arisen in relation to the boundary between the Reserve and the balance of the No 8 Block, over which the Tumunui Trust was negotiating its lease.   For present purposes, I outline some of the relevant correspondence that throws light on the terms actually agreed between the Tumunui Trust and the Whaoa Trust for the new lease.

[77]     In a letter dated 16 November 1992, Mr Burton recorded that the “respective trustees” of the Whaoa Trust and the Tumunui Trust had agreed the following terms:

1.The  initial  term  will  be  for  10  years  from  13  December  1992 expiring on 12/12/2002.

2.The initial rental which is yet to be set will be on the formula terms set out on the current lease namely at 5% of the capital value of the land according to a special Government valuation to be obtained (at Tumunui expense) but excluding any capital improvements effected by the lessee.

3.        In  addition  to  the  new  term  of  10  years  commencing  on  13

December next, there will be 3 rights of renewal of 10 years each.

4.        The renewal terms of 10 years each from 13 December 2012 and

2022 respectively will each contain provision enabling the lessors to review the rental on the above terms every 3 years.  This also means

that the two 10 year terms from 13 December 1992 and from 13

December 2002 will not contain any interim rent review provisions except on the renewal dates themselves.

5.Two months prior to each renewal or review date Tumunui is to supply you with Management Plans for the land.  This means at the present moment that Tumunui should be providing you with a Management Plan at this particular time.

6.Two  weeks  prior  to  Tumunui’s  each  annual  general  meeting, Tumunui is to supply Whaoa No 1 with specified agreed sections of its Annual Report.

(Emphasis added)

[78]     Having set out those conditions, Mr Burton asked Mr Moke to “advise us if your trustees confirm the above terms”.  Relevantly, Mr Burton concluded his letter by reference to terms of the existing lease.  He wrote:

The current lease is for a term of 21 years from 13 December 1992 with rental for the first 10 years at $22,000.00 per annum and with a rent review due now and effective from 13 December 1992.

That reviewed rental is to be calculated at 5% of a special Government valuation obtained by your trustees at Tumunui’s expense but excluding any improvements effected by the lessee.   When the current lease ends on 12

December 2003 there is a right of renewal for 8 years.

[79]     A meeting of the trustees of the Whaoa Trust was held at Mr Moke’s home at Ngapuna on 3 December 1992.  The minutes of that meeting record that Mr Moke distributed copies of Mr Burton’s letter to fellow trustees.  The minutes record that confirmation of the terms:

… was implemented without dissent,  by way of each and every trustee endorsing a spare copy of the letter, to be returned by him to E Moke, as requested.

[80]     The terms on which rent was to be calculated are set out in the following extract from the Tumunui lease:

… at a yearly rental calculated on the basis of five dollars per centum of the capital value of the said land according to a special valuation carried out by Valuation New Zealand for the purpose at the expense of the lessee but such rental shall not in any case be less than that payable by the lessee during the expiring term provided always that for the purposes of such valuation there shall be deducted from the said capital value the value of all improvements made on or to the said land by the lessee or its predecessor since the 13th day

of December 1961 and during the terms hereof by the lessee and subsisting at the date of valuation …

(Emphasis added)

[81]     There is an important difference between the way in which Mr Burton’s letter of 16 November 1992 was expressed and the wording used in the lease to specify a formula for the calculation of rent.  While Mr Burton’s letter refers to the need for capital improvements by the lessee to be taken into account, it does so in the context

of what he described as a “new lease”.33   On the other hand, the lease document itself

refers to improvements to the land since 13 December 1961, when Mr Blackler first entered into a leasing arrangement with the Māori Trustees.34    In the context of a “new” lease,  the Tumunui Trust  plainly obtained  a significant  advantage  in  the calculation of its rent through the deduction of improvements for which previous lessees had paid, and which had been undertaken from the time that the land was in its virgin state.

[82]     The Tumunui lease was executed by all trustees of each Trust on 16 February

1994.35   It was subsequently approved by the Land Valuation Tribunal, and has been registered against the title to the Tumunui farm land.  After the Tumunui lease was executed, the Tumunui Trust continued to operate a dairy farm on the No 8 Block.36

(c)      The subdivision process

[83]     A series of steps were taken between 19 July 1991 and 3 December 1993 to subdivide the No 8 Block into two titles, one in respect of the farm land to be leased by the Tumunui Trust and the other for the Reserve.  The need to undertake those steps provides a partial explanation to the delay between the two letters from Mr Burton  to  Mr  Chadwick,  dated  30  November  1990  and  16  November  1992

respectively.37

33 See paras[76]–[78] above.

34     See para [41] above.

35     See para [76] below.

36     An easement has been registered over the No 8 Block to permit access to the Reserve: see para

[110]

37     See paras [75] and [77] above.

[84]     On 19 July 1991, Mr Couldrey made an application to the Māori Land Court, under s 406 of the 1953 Act, to have the Chief Surveyor appoint him to make a survey of the No 8 Block.  The application was made in the name of the Tumunui Trust.38     Mr Couldrey stated that the survey was “necessary or expedient for the completion of order(s) of the [Māori Land] Court dated 31 October 1985”.  He was referring to the orders by which the recommendation to set aside the Reserve was made.39

[85]     Initially, it was a little unclear precisely how Mr Couldrey’s approach to the Māori  Land Court developed.   As a result of a request that  I made during the hearing,40  the Māori Land Court made available its files to this Court.   A further search of their content was undertaken.  On examination, it became clear that, after Mr Couldrey filed the application, he requested an “appointment” to discuss matters with a Judge before completing his survey.  A memorandum prepared by a Deputy

Registrar indicates that, at the time the application was filed, Judge Hingston was in

Court.

[86]     The Deputy Registrar obtained verbal directions from the Judge which she then recorded in a letter sent to Mr Couldrey in response to his application.  That letter, dated 13 August 1991, stated:41

Rotomhana Parekarangi No 8

The Judge having seen your request for an appointment re the above survey asked for the material. He has directed:

(a)       That he will accept an application for a Roadway Order (for the proposed R.O.W.) signed by both groups of Trustees.

(b)       That there is very little difference in the area for the reservation and he is happy with the variance (an application for a corrigendum to the Gazette Notice can be made upon completion of survey).

38     See also, para [101] below.

39     See para [27] above.

40     This was done with the consent of the parties.

41     The letter refers to a “Roadway Order”.  The Māori Land Court has exclusive jurisdiction to make a roadway order.  Such orders are made by the Māori Land Court to enable access to land within its jurisdiction.  In 1991, the power to make such an order was conferred by ss 415–420 of the Māori Affairs Act 1953.  The Court’s power to make such an order now springs from ss 315–326 of Te Ture Whenua Māori Act 1993. Further, see paras [237]–[239] below.

(c)       That the reservation does constitute a partition and the plan should show reservation and balance area or similar designation.

Enclosed for your assistance are application forms.

[87]     On 15 August 1991, the Deputy Registrar annotated the cover of the Māori Land Court file “RP Survey Vol 2” to say “Roto-Pare 8 Requisition to be held until Court application filed”.  On 5 December 1991, the Deputy Registrar again wrote to Mr Couldrey.  She referred Mr Couldrey to her earlier correspondence, and added:

The  survey  requisition  is  still  on  hold.   Please  advise  whether  it  is  to proceed.

[88]     Mr Couldrey does not appear to have replied to that letter.  While the reason is unclear, it is distinctly possible that a deliberate decision was made not to proceed with a roadway application because “there would be no guarantee what sort of order would issue”42 from the Māori Land Court.  The trustees of the Whaoa Trust appear to have regarded the issue of an easement certificate as preferable.   Mr Moke, as chairman of the Whaoa Trust, indicated that the Tumunui Trust shared the concern

that “the right-of-way must not be one for general public use, but access should be

restricted to beneficial owners and their descendants”.43

[89]     Instead, the process on which Mr Couldrey embarked involved an application for subdivision under the Local Government Act 1974.  The decision to go down that path led to a number of unforeseen consequences involving boundaries and rights of access with  which  I need  to  grapple  later.   The problems  emerged  from  many difficult  issues  that  arise  when  there  is  conflict  between  laws  dealing  with  the Torrens system of land registration and Māori land law respectively.

[90]     The decision to embark upon the subdivision process was made following a letter from Mr Burton to Mr Couldrey dated 6 September 1991.  After referring to discussions with Mr Moke and the then secretary of Whaoa Trust, Mr Nichols,

Mr Burton said:

42     This reason was noted by Mr Burton in a letter to Mr Couldrey on 6 September 1991. See para

[90] below.

43     Both sets of quoted words appear in the highlighted portion of minutes of a meeting of the trustees of the Whaoa Trust held on 1 December 1991, set out at para [92] below.

WHAOA NO. 1 TRUST – ROTOMAHANA

PAREKARANGI NO. 8 BLOCK & TUMUNUI

Thank you for your letter of 27 August, we refer to our earlier discussions. We have since spoken to Mr Eddie Moke and Mr Nichols and it is agreed that the proper course of the Trustees is for them to proceed with a subdivisional plan in the normal way providing for two lots and the right of way.  We can then prepare and register an Easement Certificate in the normal way setting out the Trustees terms and conditions whereas if we were to apply to the Court for a roadway order, there is no guarantee what sort of order would issue.  Furthermore, if there are any breaches of the terms of the right of way then it is in the hands of the Trustees themselves to enforce the terms of the right of way.   This procedure is on the assumption that the Council will not require any land for a reserve or cash in lieu of.   This method also has the advantage in that we can action the matter more quickly and get the right of way registered before any lease is registered. …

[91]     Mr  Couldrey  signed  the  Land  Transfer  plan  on  4  October  1991.    On

26 November 1991, Mr Burton advised the Whaoa Trust that he had received the Land Transfer plan from Mr Couldrey “for execution by all of the trustees”.  Eight copies were enclosed for circulation among the trustees. The letter continued:

… As you will see Lot 1 is intended to be a separate lot for the Reservation. The area on the plan is 158.16 hectares [later established to be 15.8 hectares] which is short by some four to five hectares of the area shown on the sketched plan relating to the original reserve order in the Māori Land Court. This is brought about by the following:

1.        More accurate surveys.

2.        Land contour factors.

3.        Survey requirements.

It would be appropriate to have the Māori Land Court order eventually registered against the new title to Lot 1 but to do this we will need to go back to the Court, for the Court to amend the original order or to rescind the original order and to issue a new one relating to the defined area Lot 1 on the plan.

[92]     Mr Burton’s advice was considered by the Whaoa Trust at a meeting of trustees held on 1 December 1991.   While it appears that the trustees were not particularly concerned about the area of the Reserve, they certainly believed that proper arrangements should be made to enable the beneficial owners of the No 8

Block and their descendants to access it.  The relevant part of the minutes of that meeting state:

2.        Title Survey of Rotomahana-Parekarangi 8

The secretary referred to correspondence on this subject.  The chairman and he discussed the matter with Mr R Burton, lawyer, during August.  Following this, the lawyer instructed Couldrey Surveys to proceed with a subdivisional plan providing for two lots, one being the reserve, and the right of way.  Mr Burton also stated that on completion of the plan he could then prepare and register an Easement Certificate in the normal way setting out the trustees’ terms and conditions, whereas if he were to apply to the Court for a roadway order there would be no guarantee what sort of order would issue.

The chairman stated that Tumunui Lands Trust shared this trust’s concern that the right of way must not be one for general public use, but access should be restricted to beneficial owners and their descendants.

J Price moved, G Edwards seconded:

“That the easement be registered through the Māori land Court with the clear requirement that it permit right of way solely to the beneficial owners of Rotomahana-Parekarangi 8 and their descendants”.

The motion was carried. The secretary then distributed copies of the completed subdivisional plan,
recently received from Mr R Burton, who in a covering letter pointed out that more accurate methods since former surveying had slightly reduced the ascertained area of the reserve and that it would be advisable to seek a new Land Court order relating to the newly defined area.
Mr Burton also informed that each and every trustee is required to call at his office to sign the master copy of the plan, which will then be submitted to the Rotorua District Council.
(Emphasis in italics added)
[93]	Although   the   Deputy   Registrar   of   the   Māori   Land   Court   wrote	to

Mr Couldrey  on  5  December  1991  seeking  advice  about  whether  the  survey requisition was to proceed, Mr Couldrey continued to deal with the issue solely on the basis of the subdivision application to the Council.  In a letter dated 20 December

1991, Mr Couldrey wrote directly to Mr Moke, as chairman of the Whaoa Trust, to explain “any possible confusion over the areas of the two blocks shown on the subdivision plan” which he had previously sent to the trustees for their approval.

[94]     Mr Couldrey advised:

(a)       On the new survey plan, the total area comprised in the two lots was

529.06 hectares, made up as follows:

(i)       The area of the Reserve was 158.16 hectares and

(ii)      The area of the farm block was 370.90 hectares.

(b)      On a previous survey plan held in the Māori Land Court (ML 21738),

the total area was shown as 529.2973 hectares, made up as follows: (i)         The area of the Reserve was 174.02 hectares and

(ii)      The area of the farm block was 355.2733 hectares.

(c)       The areas shown on ML 21738 were taken from aerial photographs.

While they had been “sufficiently accurate” for the Council’s “scheme plan purposes”, the survey conducted by Mr Couldrey identified a difference of almost 16 hectares in the size of the Reserve because:

(i)The scale of the photograph used for ML 21738 was “very small”, which made “accurate determination of [the] area difficult”;

(ii)A large difference in height between the front and rear ends of the No 8 Block “distorted the [photograph], giving rise to area inaccuracies”;

(iii)Due to the length of the No 8 Block, two photographs were joined together to produce the final scheme plan, resulting in some error in calculating the area; and

(iv)The selection  of the  boundary line on  the photograph  was along the apparent “bush edge”.  However, it was now known that  the “fence [was]  some  distance into  the bush  in  most places”.

(d)      The area of the Reservation as shown in the  Gazette Notice, was

174.0183 hectares, or 15.8583 hectares larger than the area surveyed by Mr Couldrey.

[95]     Mr Couldrey completed his advice by stating:

5.The new boundary as surveyed follows a good, and in some places new, stock-proof fence, which is the accepted limits of the farm block, and any other dividing line, for example as shown on the sketch plan or as gazetted, would be quite impractical.   We have previously discussed the situation with Mr Burton, who feels that the gazetted area can be readily changed in line with the new survey.

[96]     Mr  Couldrey may well  have  been  right  in  his  assessment  that  the  most appropriate  boundary  between  the  farm  land  and  the  Reserve  was  one  which followed the stock-proof fence.  But, significantly, he overlooked the importance of the decision to  set  aside  part  of the No 8  Block  as  a Māori  reservation.   The executive decision made by the Secretary for Māori Affairs (and notified by Gazette Notice) set apart 174.0183 hectares for the Reserve.  In my view, it was not lawful to change the area within the Reserve without first obtaining a recommendation from

the Māori Land Court to do so.44    Nevertheless, this was not the view taken at the

time, and correspondence continued on the basis that new titles would be obtained through the subdivision process.

[97]     On 25 February 1992, Mr Burton wrote to Mr Couldrey about the area to be included within the Reserve.  He said:

WHAOA    NO.     1     TRUST    AND     PROPOSED     ROTOMAHANA PAREKARANGI NO. 8 SUBDIVISION

With reference to this matter we advise that some of the trustees called on us shortly after we wrote to the trust on 26 November 1991 to state that in their view the area intended to be included in the reservation was too large by virtue of the boundary being too far to the east.   We understand that the trustees would be seeing you in connection with that and to discuss with you and we would be grateful if you would accordingly bring us up to date with the current position.

44     Any application made before 1 July 1993 would have been made under s 439(5) of the Māori Affairs Act 1953.   That provision is set out at para [26] above.   An application for such a recommendation is now made under s 338(5) of Te Ture Whenua Māori Act 1993.  See also, paras [232] and [233] below.

[98]     A meeting of the Whaoa Trust was held on 12 March 1992.  One of the items on the agenda was the “apparent reduced area” of the Reserve.  The minutes of the meeting  record  Mr  Moke  explaining  the  effect  of  Mr  Couldrey’s  letter  of  20

December 1991.  Mr Moke appears to have made it clear that the “actual boundary now recognised is a sound stock-proof fence which actually runs some way inside the bush in places”. A resolution was passed:

That the explanation by Mr Couldrey be accepted and the document now be signed.

[99]     Also on 12 March 1992, Mr Burton wrote to Mr Moke seeking confirmation of the proposed boundary.  It is unclear whether this letter was given to Mr Moke before or after their meeting on the same day.  The letter does set out some more detailed thoughts about the boundary issue. After identifying the need for agreement on how the division was to be made, Mr Burton wrote:

…

With regard to [an area basis] the reservation block according to the Gazette Notice made in 1986 is an area of 174.0183 hectares but based on a sketch rather than a survey plan.  What we are a bit uncertain about is whether the unsurveyed area follows the fence line which runs through bush land or whether it follows a higher line between the cleared area and the bush line. If  the  size  of  the  land  is important  that  is  that the  area  to  go  into  the reservation must be an area of 174.0183 hectares then a new survey plan will be involved which will mean bringing the boundary between the two blocks eastward towards the highway.  That will therefore take in quite a bit of the cleared area.

As to [a physical division basis] if the boundary line is the important aspect rather than the actual areas involved then the question is whether or not the boundary line is to follow the old fence line which is mostly well in to the bush or the new fence line where there is a new fencing mostly along the cleared areas.

We think that in the circumstances it is very desirable that the trustee should meet with Mr Graham Couldrey and discuss the plan of sub-division with him and so that if the plan is acceptable in its present form the trustees could then call at our office to sign the Land Transfer plan held by us or if it is not acceptable the trustees could then discuss with Mr Couldrey exactly where the  boundary  line  should  be  and  so  that  areas  can  be  redrawn  and recalculated in area.

[100]   On 9 September 1992, the Council passed a resolution under s 305 of the Local Government Act 1974 to approve the subdivision plan “conditional upon the granting or reserving of the easements shown in the memorandum endorsed hereon”

and a certificate that the plan met requirements of the operative district scheme.  On

14 September 1992, a Council officer certified, under s 306(1)(f)(i) of the 1974 Act compliance with “all the conditions shown on or referred to on the scheme plan of subdivision”.

[101]   The Tumunui Trust is shown as the applicant in the Council’s scheme plan record.45    On 1 October 1992, Mr Couldrey applied, on its behalf, for a consent to enable a separate title to issue for “the developed grass area” for a lease in excess of

14 years, and to provide an easement in the form of a right of way to link the Reserve to State Highway 5.   In his application, Mr Couldrey referred to the farm land as Rotomahana Parekarangi 8B (comprising 355.2773 hectares) and the Reserve as Rotomahana Parekarangi 8A (comprising 174.02 hectares).

[102]   The Council approved the application and recommended that a number of conditions apply:46

(a)      The right of way be laid out over Rotomahana Parekarangi 8B, in favour  of  Rotomahana  Parekarangi  8A,  as  shown  on  the  plan submitted by Mr Couldrey;

(b)The existing water supply easement adjacent to State Highway 5 in favour of the Council be retained;

(c)      The entrance to the proposed right of way was to be designed, formed, metalled and sealed between the State Highway carriageway and the right of way boundary to the satisfaction of the District Engineer and Transit New Zealand.

[103]   Final approval for the subdivision application was given on 22 November

1992, and ratified on 3 December 1992.   Prior to its approval, Mr Couldrey had

commenced a field survey, without formal reference to the Māori Land Court or the

Chief Surveyor. That partial survey brought the difference in area into sharp relief.

45     This is consistent with the way in which the Tumunui Trust was described in Mr Couldrey’s application to the Māori Land Court of 19 July 1991: see para [83] above.

46     Under s 432 of the Māori Affairs Act 1953.

[104]   On 3 November 1992, the trustees of the Whaoa Trust signed a foil copy of the plan before lodgement of Land Transfer plan 64109, for examination by Land Information New Zealand (LINZ).

[105]   On 15 January 1993, Land Transfer plan 64109 was approved as to survey by LINZ.  On 26 January 1993, LINZ wrote to Mr Burton about approval of the survey plan as to survey. The letter stated:

RE: PLAN S.64109 –  E MOKE & OTHERS – YOUR REFERENCE: CS/76

The above plan has been approved as to survey and will be deposited when:

(1)      The Partition Order and any subsequent Orders of the Māori Land

Court (if any) for [the No 8 Block] is/are registered.

(2)      New Certificates of Title are ordered for Lots 1 and 2.

(3)      A new Certificate of Title is ordered for the balance of [the No 8

Block].

(4)      An Easement Certificate is registered in respect of the easement set out in the Memorandum of Easements.

(5)      A transfer creating the easement in gross set out in the Memorandum of Easements in Gross is registered.

[106]   On 3 March 1993, the Registrar of the Maori Land Court sent to the District Land Registrar copies of four orders of the Court relating to the No 8 Block. However, neither the order made by Judge Hingston on 31 October 1985 that recommended  creation  of  the  Reserve  nor  the  Gazette  Notice  published  on  27

February 1986 was forwarded.

[107]   On 26 March 1993, agents in Hamilton representing Mr Burton ordered a new Certificate of Title for the No 8 Block, comprising 529.2973 hectares.  This was for provisional registration only.   On 28 June 1993, Mr Burton ordered new Certificates  of  Title  for  Lots  1  and  2,  the  Reservation  and  the  farm  block respectively.

[108]   The plan was deposited on 28 June 1993, as DPS 64109.  The following titles were issued on 3 December 1993:

(a)       PR 52C/294.  This provisional title referred to the whole of the No 8

Block and contained memorials for three orders of the Māori Land

Court vesting the land in trustees.

(b)CT 52C/295.  This was the title issued for the farm land.  The area shown is 529.2973 hectares.

(c)      CT  52C/296.    This  comprised  the  land  on  which  the  Reserve  is situated.  The Certificate of Title notes that there is “no frontage to a Public Road”.  The area shown is 158.1600 hectares.  On issue, the title recorded that a right of way was to be created by easement to provide  road  access.   A copy of  the  Computer  Freehold  Register obtained on 9 November 2006 records a right of way specified in Easement Certificate B 147285.7 as having been registered over this title on 3 December 1993, subject to s 309(1)(a) of the Local Government Act 1974.

(d)      CT 52C/297.    This was the final Certificate of Title for the No 1

Block.   A copy of the Computer Freehold Register obtained on 16

April 2007 records a right of way specified in Easement Certificate

B 147285.7 as having been registered over this title on 3 December

1993, subject to s 309(1)(a) of the Local Government Act 1974.  The Tumunui lease is shown as having been registered on 23 June 1994. A mortgage of that lease in favour of the Bank was registered on 27 July

1994.

[109]   At the time the Certificates of Title were issued, there was no reference on any of them to the Reserve.   On 3 April 2007, the Gazette Notice of 1986 was registered.  The memorial reads: “Gazette Notice 1986 page 869 setting apart part of the within land as a Māori reservation for the purpose of a timber reserve, catchment area and place of historical interest for the common use and benefit of the beneficial owners, their descendants and the Ngāti Whaoa”.

The easement47

[110]   Ordinarily, where access to a Māori Reservation is in issue, an order will be made by the Māori Land Court laying out a roadway over which those entitled to enter a reserve may exercise their right to pass and re-pass over other land to do so.48

Instead, an easement certificate was registered over the title to the land leased by the Tumunui Trust.49     This was done as part of the subdivision that resulted in the creation of the two Certificates of Title.50    The easement that has been registered over the No 8 Block to permit access to the Reserve is not marked on the ground.  In previous arbitral proceedings between the parties, it has been acknowledged that the

right of way created by the easement is not on the surveyed line of the intended access route.

[111]   The rights of user conferred by the easement are specified as:

The rights and powers in respect of the right of way are as set out in the Seventh  Schedule to  the Land Transfer Act  1952 save  that the carriage vehicles, motor vehicles and other conveyances therein referred to may be loaded or unloaded.

168 Ibid, at para [84].

recommendation to that effect.  Before the reduction becomes operative, it must be confirmed by (now) the Chief Executive of Te Puni Kokiri and published in a Gazette Notice.   Until 1 July 1993, this process was contained in s 439(5) of the

1953 Act.169 It is now found in s 338(5) of the 1993 Act, which is to the same effect.

[233] I am satisfied, having regard to the statutory scheme and the judicial interpretations of the controlling provisions, that it was impermissible for Mr Couldrey to purport to reduce the area of the Reservation when preparing a survey plan for subdivisional purposes.170   While I acknowledge the practical considerations that led him to approach the survey issue in that way, it did not accord with the law. In reaching that view, I have been influenced by the following factors:

(a)      The process by which the Reserve was created involved a decision being  taken  by  the  Secretary  for  Māori Affairs,  on  behalf  of  the Crown.   It seems clear that the statutory delegation of that decision was for no more than “administrative convenience”.171    For practical purposes, the publication of the Secretary’s decision in the Gazette may be treated in a manner analogous to an Order in Council, the

procedure used before 1968.  Prior implementation of the decision by legislative instrument emphasises that the Court, or any other public official, ought not to go behind the area of land specified in the notice.

(b)The decision of the Māori Land Court to recommend establishment of a Māori reservation should be made only after mature consideration by owners of the land out of which the reservation is to be carved. As Judge Durie pointed out in Re Tauhara Māori Reservation, “considerable weight” should be placed on views expressed by those owners who have been “fully and fairly informed” of the proposal.172

When the Māori Land Court is concerned with an application which

169    Te Ture Whenua Māori Act 1993 came into force on 1 July 1993. As at that date, Certificates of Title for the Reserve and farm land had not been issued: see para [108] above.  Section 439(5) of the 1953 Act is set out at para [26] above.

170   I make it clear that this is a finding that is binding on the parties; cf para [222] above.

171    Generally, see Re Mato (1987) 32 Gisborne ACMB 217, the relevant extract from which is set out at para [229] above.

172   Re Tauhara Māori Reservation (1977) 58 Taupo MB 168, the relevant extract from which is set out at para [227] above.

seeks to redefine the boundaries of a Māori reservation, it “will have regard not only to the views of the trustees and the class [of beneficial owners for whom the Māori reservation is created], but especially to the views of the original owners and their proven successors”.173

(c)      Once  an  area  of  the  Māori  reservation  is  set  aside,  it  becomes inalienable.   The mandatory prohibition on alienation supports the view that the area ought not to be changed without compliance with statutory provisions relating to the reduction in area of a Māori reservation.174

[234]   I compare those legal findings with the directions of Judge Hingston which

were conveyed by the Deputy Registrar of the Māori Land Court to Mr Couldrey on

13 August 1991.175    Assuming the Judge’s directions were accurately conveyed by

the Deputy Registrar, he:

(a)      Took  the  view  that  publication  of  the  Secretary’s  decision  in  the Gazette Notice constituted a partition of the land.  The plan submitted by Mr Couldrey was to “show reservation and balance area or similar designation”.  That approach is consistent with the view expressed in Mato that the decision to set aside part of land for a Māori reservation is a “division” of the land.176

(b)Was prepared to accept an application for a roadway order, for the proposed  right  of  way  “signed  by  both  groups  of  Trustees”.    A roadway order is a common means by which access can be provided across Māori  freehold land to landlocked land,  including a Māori

reservation.177   In context, the Judge appears to have been suggesting

that the application be signed by trustees for both the Reservation

Trust and the Tumunui Trust.

173   Ibid at 186. See also para [232] above.

174   See para [231] above.

175   See para [86] above.

176   Re Mato (1987) 32 Gisborne ACMB 217, the relevant extract from which is set out at para [230]

above.

177   See para [239] below.

(c)       Expressed the view that there was “very little difference in the area for the reservation”.  This is a reference to the reduction of the area from

174.0138 hectares (set out in the Gazette Notice) and the area comprised within the boundaries drawn by Mr Couldrey (158.1600 hectares).178     The Judge indicated that he was “happy with the variance”, advising that “an application for a corrigendum to the Gazette Notice can be made upon completion of survey”.

[235]   With respect to the last of those points, notwithstanding the Judge’s view about the area in issue, and indications that the trustees of the Tumunui Trust and the Whaoa Trust agreed there was little practical significance in reducing the area, it would have been necessary for the Māori Land Court to hear an application under s 439(5) of the 1953 Act (or, if made after 1 July 1993, under s 338(5) of the 1993

Act) before the area set aside for the Māori reservation could be changed.  Such an application would require beneficial owners of the Reserve to be notified and to be given the opportunity to be heard on the application.179

[236]   In my view, it was wrong in law for Mr Couldrey to prepare a survey plan which contained less land in the Reserve than had been set aside by the decision of the Secretary, as published in the Gazette Notice.  In my view, the reason why the Certificates of Title were issued in error was because the Registrar of the Māori Land Court failed to send to the District Land Registrar a copy of the recommendation order made by Judge Hingston on 31 October 1985, or the Gazette Notice published on 27 February 1986.   Had that information been forwarded to the District Land Registrar, I have serious doubts whether the two Certificates of Title would have been issued on the basis of Mr Couldrey’s survey, which was approved as Land

Transfer Plan 64109 on 15 January 1993.180

178   Compare para [30] and [108] above.

179   See para [228] above.

180   See para [108] above.

(c)      Roadway orders

[237]  Under Part 14, roadway orders may also be made to provide access to landlocked land.181   The purpose of Part 14 is “to facilitate the use and occupation by the owners of land owned by Māori by rationalising particular land holdings and providing access or additional or improved access to the land”.182   To achieve those goals, s 287(1) of the 1993 Act confers exclusive jurisdiction on the Māori Land Court:

287      Jurisdiction of courts

(1) … to make partition orders, amalgamation orders, aggregation orders, and exchange orders in respect of Maori land, and to grant easements and lay out roadways over Maori land.

....

(Emphasis added)

[238]   The Māori Land Court’s specific jurisdiction to create easements and to lay

out roadways is conferred by ss 315–326 of the 1993 Act.  Sections 315, 316 and

317 provide:

315      Court may create easements

(1) The court may—

(a)       create easements over any land to which this Part applies for the purpose of being annexed to or used or enjoyed with any other land; or

(b)       create easements over any General land for the purpose of being annexed to or used or enjoyed with any land to which this Part applies; or

(c)       create easements in gross over any land to which this Part applies.

(2) The grant of an easement under this section may be made subject to a condition for the payment of compensation in respect of the grant, or to any other conditions that the court may impose.

(3) Where an easement is granted under this section for the purpose of providing access to any other land, the grant of the easement shall be made in accordance with the succeeding provisions of this Part.

181   See para [239] below.

182   Te Ture Whenua Māori Act 1993, s 286(1).

316      Court may lay out roadways

(1) For the purpose of providing access, or additional or improved access, the court may, by order, lay out roadways in accordance with the succeeding provisions of this section and of this Part.

(2) For the purpose of providing access, or additional or improved access, to any land to which this Part applies, the court may lay out roadways over any other land.

(3) For the purpose of providing access, or additional or improved access, to any land other than land to which this Part applies, the court may lay out roadways over any land to which this Part applies.

(4) Any order laying out roadways may be a separate order, or may be incorporated in a partition order or other appropriate order of the court.

317      Required consents

(1) The court shall not lay out roadways over any Maori freehold land unless it is satisfied that the owners have had sufficient notice of the application to the court for an order laying out roadways and sufficient opportunity to discuss and consider it, and that there is a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter.

(2) The court shall not lay out roadways over any customary land without the consent of an agent appointed by the court pursuant to Part 10 to represent the interests of those persons who may be entitled to apply for a freehold order in respect of the application for an order laying out roadways.

(3) The court shall not lay out roadways over any General land without the consent of each owner.

(4) The court shall not lay out roadways over any Crown land without the consent of the Commissioner of Crown Lands.

(5) The court shall not lay out roadways connecting with any State highway without the consent of the New Zealand Transport Agency and the territorial authority for the district in which the connection would be effected.

(6) The court shall not lay out roadways connecting with any public road without the consent of the territorial authority for the district in which the connection would be effected.

(7) Notwithstanding anything in subsections (5) and (6), where a roadway is laid off as part of a partition to which section 301 applies, a separate consent to the laying out of the roadway shall not be required from the territorial authority for the district in which the land to be partitioned is situated.

[239]   The power to grant easements and to lay out roadways over Māori land is not

dependent upon a prior partition order.  A roadway may be laid out to enable access

to land set aside as a Māori Reservation.183     The purpose of such an order is to provide access to landlocked land.  While there are separate provisions of Te Ture Whenua Māori Act 1993 dealing with “landlocked land,”184 it appears that access to a Māori reservation is usually effected through the means of a roadway order.  The protection  for  the  owners  lies  in  the  need  for  consultation  and  consent  before roadway orders can be made.185   In Trustees of the Tauwhao Te Ngare Trust v Shaw – Tauwhao Te Ngare, Deputy Judge Fox and Judge Doogan adopted a passage taken from  previous  decision  of  the Appellate  Court  which  accurately summarise  the relevant principle.  In that decision, the Court said:186

The principle of the Māori Affairs Act is that Māori land should not be left land-locked following the division of land titles by the Māori Land Court. The Act has preserved to Māori owners the statutory right to obtain access even although, following a division, adjoining titles may cease to be Māori land.   Accordingly the purchasers of such lands acquire not a special advantage but a special disability in that the land could be made the subject of  a  roadway  order  even  without  the  purchaser’s  consent,  if  it  in  fact provides the most suitable access.

(d)      The boundary issue

[240]   Sections 80 and 81 of the Land Transfer Act provide:

80       Errors in register may be corrected

(1) The Registrar may, upon such evidence as appears to him sufficient, subject to any regulations under this Act, correct errors and supply omissions in certificates of title or in the register, or in any entry therein, and may call in any outstanding instrument of title for that purpose.

183    This reflects the “division” of land that results from the decision to accept the Māori Land Court’s recommendation and to notify that by way of Gazette Notice: see para [230] above. Indeed, in Trustees of Tauwhao Te Ngare Trust v Shaw – Tauwhao Te Ngare (2014) Māori Appellate Court MB 394 (2014 APPEAL 394), a majority of the Māori Appellate Court (Deputy Chief Judge Fox and Judge Doogan) went further, and held that there was jurisdiction to lay out a roadway over a Māori reservation: at paras [76] and [77].  The third member of the Court, Judge Harvey, held that the Māori Land Court could not “legitimately exercise the discretion to issue a roadway order over a Māori reservation without the consent of the beneficiaries and trustees of that land” (at para [85]).  As the Reserve was set aside out of Māori freehold land owned by the Whaoa Trust, it continues to hold that status, there being no special status afforded to a Māori reservation: see s 129 of the 1993 Act.

184   Te Ture Whenua Māori Act 1993, ss 326A–326D.

185   Ibid, s 317, set out at para [238] above.

186   Trustees of the Tauwhao Te Ngare Trust v Shaw – Tauwhao Te Ngare (2014) Māori Appellate Court MB 394 (2014 APPEAL 394) at para [65]. The origin of this quote is said to be from Von Dadelszen v Goldsbury – Pukeiti 4A Block (1982) 16 Waikato Maniapoto Appellate Court MB

328. It appears that it has been wrongly attributed to that case. Its origin is unknown.

(2) The Registrar may cancel or correct any computer register and, if appropriate, create a new computer register in order to correct any error or supply any omission in any computer register.

81       Surrender of instrument obtained through fraud, etc

(1) Where it appears to the satisfaction of the Registrar that any certificate of title or other instrument has been issued in error, or contains any misdescription of land or of boundaries, or that any entry or endorsement has been made in error, or that any grant, certificate, instrument, entry, or endorsement has been fraudulently or wrongfully obtained, or is fraudulently or wrongfully retained, he may require the person to whom that grant, certificate, or instrument has been so issued, or by whom it is retained, to deliver up the same for the purpose of being cancelled or corrected, as the case may require.

(2) If the Registrar is satisfied as to any matter referred to in this section and there is a computer register involved, the Registrar may cancel or correct any computer register and, if appropriate, create a new computer register.

(3) The Registrar must not take action under subsection (2) without first giving notice to any person appearing to be affected and giving a reasonable period for any response.

[241]   Section 80 confers a power on the District Land Registrar to correct errors in a Certificate of Title.   It does not empower this Court to direct the District Land Registrar to do so.  In Frazer v Walker, the Privy Council described s 80 as “little more than a ‘slip’ section and not of substantive importance”.187    On any view, the claim for correction of the boundary of the Reserve could not be characterised as due to “a slip”. A claim under s 80 must fail.

[242]   The position is different with regard to s 81.   Its heading (“Surrender of instrument obtained through fraud, etc”) does not capture its essence.  The District Land Registrar is empowered to correct any “entry or endorsement” that has been made “in error”, or “fraudulently or wrongfully obtained”.188   Section 81(1) enables the District Land Registrar to require a person to whom a relevant instrument has been  issued  to  deliver  up  that  document  to  him  or  her  for  cancellation  or

correction.189

187   Frazer v Walker [1967] NZLR 1069 (PC) at 1076.

188   Land Transfer Act 1952, s 81(1), set out at para [240] above.

189   Generally, see David Grinlinton “The Registrar’s Powers of Correction” in David Grinlinton,

(ed) Torrens in the Twenty-first Century (LexisNexis, Wellington, 2003) at 217.

[243]   The breadth of s 81 was articulated in Frazer v Walker.190     Delivering the advice of the Privy Council, Lord Wilberforce said:191

… The powers of the Registrar under s. 81 are significant and extensive (see Assets Co. case (supra)). They are not coincident with the cases excepted in ss. 62 and 63. As well as in the case of fraud, where any grant, certificate, instrument, entry or endorsement has been wrongfully obtained or is wrongfully retained, the Registrar has power of cancellation and correction. From the argument before their Lordships it appears that there is room for some difference of opinion as to what precisely may be comprehended in the word "wrongfully". It is clear, in any event, that s. 81 must be read with and subject to s. 183 with the consequence that the exercise of the Registrar's powers must be limited to the period before a bona fide purchaser, or mortgagee, acquires a title under the latter section.

As the appellant did not in this case seek relief under s. 81 and, as, if he had, his claim would have been barred by s. 183 (as explained in the next paragraph), any pronouncement on the meaning to be given to the word "wrongfully" would be obiter and their Lordships must leave the interpretation to be placed on that word in this section to be decided in a case in which the question directly arises.

[244]   In Housing Corp of New Zealand v Māori Trustee192 McGechan J considered the scope of s 81, in the context of a mortgage over Māori freehold land that had been registered under the Land Transfer system, but not endorsed by the Registrar of the Māori Land Court under s 233 of the 1953 Act.  One of the questions for decision was whether the District Land Registrar was empowered to cancel registration of the mortgage.

[245]   McGechan J  undertook  a  learned  and  exhaustive  survey of  the  historical origins of s 81 and the authorities that had considered the way in which it and its predecessors ought to be interpreted.193    With some obvious misgivings about the Privy Council’s approach to s 81 in Frazer v Walker, McGechan J concluded:194

… Frazer v Walker was a decision of the Privy Council on appeal from the New Zealand Courts. However much the Courts may disagree with it openly or quietly, it must be followed. Reform of the law has become a matter for the legislature. It was an important factor in the Privy Council's decision that s 81 Registrar's corrective powers were “significant and extensive”. Section

81 therefore is to be interpreted so as to be available in a “significant and extensive” way. The Privy Council did not give the benefit of a definition of

190   Frazer v Walker [1967] NZLR 1069 (PC) at 1076 and 1079.

191   Ibid, at 1079. See also Assets Company Ltd v Mere Roihi [1905] AC 176 (PC).

192   Housing Corp of New Zealand v Māori Trustee [1988] 2 NZLR 662 (HC).

193   Ibid, at 678–700.

194   Ibid, at 699 (emphasis added).

the “wrongful” element very much upon local practice and knowledge. However, their Lordships may well have had in mind cases such as District Land Registrar v Thompson on the one hand and Re Mangatainoka 1 BC No

2 on the other, both cited but not the subject of express comment. Certainly, the key finding that the Registrar’s powers under s 81 exceeded those of

ordinary citizens and the Courts has the ring of District Land Registrar v

Thompson about it. Whether I like it or not (and I do not) I see no escape from giving the Privy Council decision full force and effect. To my mind, it

prevents  a  narrow  approach  restricting  Registrar's  powers  to  those  of

ordinary citizens or the Court, ie, to indefeasibility exceptions under ss 62 and 63, and dictates against any narrow construction of the word “wrongful” back to some notion of intentional wrongdoing not very far from fraud, or at least (like Hinde) some requirement of negligence; I do not think the Privy Council's  approach  allows  that  process.  Rather,  if  anything,  a  liberal approach is dictated. On that basis, it could well be said that “wrongful” is to have its natural meaning of “not rightful” or “contrary to rights”. As such it would extend to cover such commonplace matters as breach of contract, breach of trust, breach of property rights and breach of statutory duties  so  far  as  the  same  confer  corresponding  rights,  and  indeed negligence. “Wrongful” as presaged by Edwards J, on that basis means “not innocent”:  although  I  do  not  think  it  necessary  to  go  so  far  as  simply equating it with “wrong” in the sense of incorrect, or "amoral" as opposed to in breach of legal rights.

I see no escape from the conclusion that s 81 is alive and well, however unwelcome, and applies where the person obtaining registration does so in a manner which is “wrongful” in the sense that it infringes the legal rights of another. While immediate indefeasibility may bar the citizen, and indeed even this Court, it will not in such situations bar the Registrar.

(Emphasis added; citations omitted)

[246]   McGechan J went on to express a view on how the District Land Registrar might exercise his or her s 81 power:195

… It is well established in New Zealand that, whatever his powers may be, the Registrar does not act of his own volition under s 81. If a person has been wronged by registration, the invariable practice has been to require that person to take Court proceedings, following which the Registrar will then  as  a  matter  of  discretion  and  practice  implement  the  result.  The Registrar has not, despite Frazer v Walker and the passage of a generation, himself as a matter of general practice invalidated registrations under his own powers, whether arising under indefeasibility exceptions in ss 62 and

63, or going beyond those exceptions. ….

(Emphasis added)

[247]   Some decisions of both the Māori Land Court and this Court have suggested

that Housing Corporation of New Zealand v Māori Trustee  is authority for the

195   Ibid, at 699.

proposition that a more narrow approach, akin to the correction of slips or minor errors on the record, might be taken in respect of s 81.196    Such an approach would be inconsistent with the advice of the Privy Council in Frazer v Walker.197

[248]   It  is  important  to  see  those  decisions  in  context.    They  are  directed  to arguments that seek to impugn the immediate indefeasibility of a Land Transfer Act title “without regard to third-party registered rights”.198    In the present case, third party rights are not in issue.   There is no doubt that the Tumunui Trust (as the applicant in the subdivision process) was well aware of the existence of the Māori reservation, and of the area ascribed to it by the Gazette Notice.  If the District Land

Registrar were to exercise powers under s 81 to correct the error as to boundaries, no third party interests would be affected.  The breadth of the District Land Registrar’s powers, as described in Frazer v Walker,199 supports the proposition that the District Land  Registrar,  if  minded  to  exercise  his  or  her  discretion  to  “correct”,  has jurisdiction to do so.

[249]   I make it clear that, in the circumstances of this case, I consider that the Registrar could exercise power to cancel or correct under s 81 if he or she were satisfied that there had been a “mis-description of land or of boundaries” that had “been made in error”.  The “error” arose out of a mistaken approach by Mr Couldrey in the way in which he undertook his survey.  The boundary between the Reserve and the farm land was fixed by a survey that had proceeded on an incorrect legal premise.  I am sure that the error was honestly made.

[250]   I add one further comment, in order to confront a point that Mr Koning might take to respond to my analysis.  In one sense, it would be open to the District Land Registrar to exercise his or her s 81(1) power without any further order from the Māori Land Court.  But, given that the plan on which the Māori Land Court relied, to

recommend that an area of 174.01438 hectares be set aside as a Māori reservation, is

196    For example, see Re Pakiri R Block (1994) 3 Tai Tokerau Appellate MB 178 (3 APWH 178) at paras [56] and [57] per Deputy Chief Judge McHugh, Judge N F Smith and Judge Carter and Warin v Registrar-General of Land (2008) 10 NZCPR 73 (HC) at paras [99]–[116] per Allan J.

197   Frazer v Walker [1967] NZLR 1069 (PC) at 1076.

198   The point was expressed in that way by Ronald Young J in Edwards v Māori Land Court HC Wellington CP78/01, 11 December 2001; an appeal was allowed against this judgment (Bruce v Edwards [2003] 1 NZLR 515 (CA)) but not on grounds affecting this particular issue.

199   Frazer v Walker [1967] NZLR 1069 (PC) at 1076, set out at para [243] above.

insufficient for Land Transfer Act purposes, boundaries for titles that would incorporate that area into the Reserve could not be fixed without a further survey.  I think it is most unlikely that the District Land Registrar would be prepared to take any steps to “correct” the Register until such time as further orders had been made by the Māori Land Court.

(e)      The easement certificate

[251]   A review of the terms of the easement certificate and the relevant provisions of sch 7 of the Land Transfer Act 1952 reveals:200

(a)      The easement certificate records the Reserve (Lot 1) as the dominant tenement  and  the  farm  land  (Lot  2)  as  the  servient  tenement,  in relation to the right of way.

(b)Clause 1 of the easement certificate adopts the rights and powers conferred in respect of a right of way that are set out in sch 7 to the Land Transfer Act 1952, with the qualification that the vehicles and other conveyances may be either loaded or unloaded.201

(c)      Clause 2(1) put the cost of constructing, repairing and maintaining the right of way on the registered proprietors of the Reservation, as dominant tenement, in the proportion of one equal part to each such tenement.

(d)Clause 2(2) deals expressly with the situation in which “the need for repairs  or  maintenance  is  directly  attributable  to  the  actions  or inactions of one or more of those registered proprietors”.   In that situation, the cost must be borne wholly by that proprietor or, if more

than one, equally between or among them.

200   The relevant terms of the easement certificate and sch 7 of the Land Transfer Act 1952 are set out at paras [111]–[114] above.

201   Clause 1 of the easement certificate is set out at para [111] above.

(e)      Clause 1 of sch 7 provides “full, free, uninterrupted, and unrestricted” rights of access over the land to those entitled to enter the Reserve, for the purpose of doing so.202

[252]   An essential characteristic of an easement in New Zealand is the ownership by one person of a right of passage over the land of another.  The land to which the easement grants access is known as the dominant tenement.  The land over which access is granted is known as the servient tenement.  That explains why the cost of repairing and maintaining a right of way is thrown on the owners of the dominant tenement, who gain the benefit of access over the other person’s land.203

[253]   In those circumstances, I think it is plain that the easement certificate requires the cost of repair and maintenance to be met by the Reservation Trust.204     The qualification  is  that  if  any  particular  registered  proprietor  were  responsible  for damage that required repair, he or she would bear the cost of undertaking that.205

[254]   When I viewed the property in the course of the hearing, (admittedly, in the throes of winter) it was apparent that access could not be obtained over the right of way in other than a four wheel drive; indeed, it was not possible to get close to the summit of the Reserve on that day, even in a four wheel drive motor vehicle.

[255]   The problems that have arisen in this case demonstrate that the obligations cast upon the Tumunui Trust and the Reservation Trust by the easement certificate and sch 7 of the Land Transfer Act will not resolve questions of access.  There are acknowledged problems in relation to the location of the access way, from the plan

prepared by Mr Couldrey and the Certificates of Title issued.206

[256]   There are also allegations that rights of access are being impeded.   If they were, the Tumunui Trust would be in breach of its obligation to provide “full, free,

uninterrupted,  and  unrestricted”  rights  of  access  to  those  entitled  to  use  the

202   Clause 1 of sch 7 is set out at para [114] above.

203   Generally, see Hinde, McMorland & Sim, Land Law in New Zealand, (LexisNexis, looseleaf ed)

at para 16.003.

204   Clause 2(i), of the easement certificate is set out at para [112] above.

205   Clause 2(ii) of the easement certificate is set out at para [112] above.

206   See para [110] above.

Reserve.207    If not, the cost of repairing and maintaining the right of way may well rest with the Reservation.  Whatever may be the rights and wrongs of the situation, the spectre of persons engaged by the Reservation Trust to repair the right of way, attempting to do so while the Tumunui Trust continues its farming operations is not one to savour.

(f)       Should a remedy be granted?

[257]   As I indicated earlier, I am not persuaded that it is appropriate at this stage to grant any relief in respect of the boundary and easement issues.  As I have tried to demonstrate, this Court cannot provide the solution that the parties desire.  I do not consider any form of relief would be useful at this time.  The boundary and access issues are best resolved finally by a combination of decisions from the Māori Land Court and the District Land Registrar.

[258]   The question of access is inextricably linked to those relating to the boundary of the farm block and the Reserve.  There is no doubt that the Tumunui Trust must grant the free, unrestricted and unimpeded access that it promised to the beneficial owners of the Reservation Trust when it entered into the Tumunui lease.   It is not doing so at present.   Equally, as a matter of law, it is for the Reservation Trust to meet the cost of keeping the right of way in a state of good repair.  The practicalities of the Reservation Trust and the Tumunui Trust trying to work in harmony to repair the right of way will likely cause added, and significant, difficulties.

[259]   I  urge  the  parties  to  co-operate  in  making  and  progressing  promptly applications in the Māori Land Court.  I offer some thoughts about the steps that the parties might wish to consider in doing so:

(a) An experienced Māori land surveyor, Mr Rankilor, suggested that an application remains before the Māori Land Court that can be reactivated. While Mr Koning contested that, the use of the application under s 406 of the 1953 Act208 could provide a foundation

to  request  a  conference  under  s 67  of  the  1993 Act.    At  such  a

207   See para [251](e) above.

208   See para [84] above.

conference a Judge of the Māori Land Court may be able to provide assistance on the procedural steps involved, even if that application were regarded as spent.

(b)The parties may wish to consider whether to apply to the Māori Land Court for an order recommending a reduction of the area comprised in the Reserve, based on Mr Couldrey’s survey.  Before a final decision on that issue could be made, it would be necessary for the beneficial owners of both the Whaoa Trust and the Reservation Trust to be given an opportunity to consider the proposal.  If an application were made, the Māori Land Court would consider what weight to be given to those views, in light of whatever application may be made.

(c)      Once the boundaries of the Reserve and the farm land were fixed, by whatever means, application could be made for a roadway order to enable access to the Reserve for those whose benefit it was created. The advantage of such an application is the need to engage beneficial

owners of the Reservation Trust in that process.209  As Mr McKechnie

raised some questions about whether Mr Staite was bringing the present  proceeding  with  the  informed  consent  and  support  of beneficial owners, that type of consultation is likely to reveal the degree to which they approve the steps taken to maintain the area set aside for the Reserve.  Further, any roadway does not need to be in the current location of the right of way created by the easement.  It may be possible for an alternative route to be found which would be sufficient to balance the need for beneficial owners and members of Ngāti Whaoa to cross the farm land to reach the Reserve, and the farming requirements of the Tumunui Trust.

(d)      If  the  Māori  Land  Court  were  to  make  orders  to  regularise  the

boundaries of the Reserve, then there would be jurisdiction for the

District Land Registrar to consider whether to exercise his or her

209   Te Ture Whenua Māori Act 1993, s 317, set out at para [238] above.

discretion to “correct” the Land Transfer Register to conform to the

orders made.

[260]   I continue to reserve judgment on the boundary and easement issues.  I shall make directions to enable this aspect of the case to be brought back before me at a conference in three months’ time. At that time, counsel can advise me whether steps have been taken in the Māori Land Court and, if so, the time estimated to complete the hearings in that jurisdiction.

[261]   If either party wishes me to proceed to final judgment on the remaining causes of action I will do so after hearing from them at that conference.  Each party can make decisions as to how to pursue their respective positions based on the findings I have made about the boundary dispute and the interpretation to be given to the easement certificate.

Result

[262]   On the Tumunui lease claims:

(a)      I make a declaration that Mr Moke breached his fiduciary duty of loyalty to the Whaoa Trust and the Reservation Trust by acting on both sides of the Tumunui lease transaction.

(b)I make an order for rectification of the Tumunui lease to remove the words “or its predecessor since the 13th  day of December 1961 and” from the Tumunui lease.210   The effect of that order is to require rental to be fixed in accordance with the formula in the lease but taking into account only improvements to the land made by the Tumunui Trust

since the lease commenced, on 1 July 1992.  A consequence of this order is that adjustments will need to be made to the rent fixed for earlier periods.

(c)       I reserve leave to any party to apply for further directions.

210   The relevant extract from the Tumunui lease is set out at para [76] above.

[263]   On the Reserve claims:

(a)      Judgment remains reserved on the fourth and fifth causes of action, seeking relief in respect of the boundary and easement issues.

(b)The Registrar shall allocate a telephone conference before me at 9am on the first available date after 23 June 2017, for further directions to be made.   I will hear from counsel as to whether they wish me to proceed to judgment on those remaining issues.

(c)      Counsel shall confer and file and serve memoranda for the conference no less than five working days before the allocated date setting out the directions that each seek.  Ideally, that information could be provided in a joint memorandum.

[264]   Questions of costs are reserved.   Counsel shall address, in the memoranda filed for the next telephone conference, any timetabling directions they require to have questions of costs resolved.   In making decisions about their respective approaches to costs, I ask counsel to consider the extent to which each has been successful or unsuccessful in the claims or defences advanced.

[265]   I advise counsel that I will be on leave from 13 March until 15 May 2017. Accordingly, I will not be able to deal with any applications under leave reserved during that time, unless they are urgent.  In the event that any urgent issues require my attention, counsel should contact the Registrar of the High Court at Rotorua to see if arrangements can be made for an urgent telephone conference with me.

[266]   I thank counsel for their assistance.

P R Heath J

Delivered at 2.30pm on 13 March 2017