The Koro Pue Whanau Trust v Tapatu

[2019] NZHC 3034

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2019-443-42

[2019] NZHC 3034

UNDER

the High Court Rules 2016

IN THE MATTER

of Okawa A1 B Block

BETWEEN

THE KORO PUE WHĀNAU TRUST

through its trustees SHARON PUE, LEONSE PUE AND WARREN PUE

Entitled Party

AND

RAYMOND TAPATU, CHRISTINE TAPATU AND IRENE TAPATU AKA IRENE GODKIN

Liable Parties

Teleconference:	11 November 2019
Appearances:	L J Douglas for Entitled Parties I Godkin for Liable Parties
Judgment:	20 November 2019

JUDGMENT OF THOMAS J

[1]    By Injunction Order made on 1 July 2011, the Māori Land Court made orders1 relating to Māori freehold land known as Okawa A1 B at Everett Road, New Plymouth (the Property). The Liable Parties were ordered to remove themselves, their possessions, chattels, materials, buildings and structures from the Property and were prohibited from entering onto the Property or dealing with it, except for the purposes of removing those items. Eight years later, and despite having been served with the

1      Pursuant to Te Ture Whenua Māori Act 2003, s 19.

KORO PUE WHĀNAU TRUST v TAPATU, CHRISTINE TAPATU [2019] NZHC 3034 [20 November 2019]

Injunction Order, the Liable Parties have refused to vacate the Property and comply with the Injunction Order.

[2]    By order of the Chief Judge of the Māori Land Court dated 13 June 2019, the Injunction Order was transmitted to this Court for enforcement.2

[3]    As more than six years have elapsed since the date of the Injunction Order, leave is required from this Court before an enforcement process can be pursued.3

[4]    The Entitled Party has applied for leave. One of the Liable Parties, Raymond Tapatu, opposes the order and has sought to file a counterclaim.

Background

[5]    This section is taken from the Entitled Party’s affidavit and was the basis on which the Injunction Order  was made.  As will  become  evident  when I  address Mr Tapatu’s opposition, he disputes these facts.

[6]    The Property originally formed part of the Okawa A1 Block, being land located at Everett Road, Huirangi and was historically owned by Renata Te Pue.

[7]    In or about 1955, Renata Te Pue gifted a part of his share in the Okawa A1 Block to his daughter, Peggy Tapatu, and her husband, Raymond Tapatu. Raymond Tapatu and his children are the Liable Parties. The gifted share was partitioned from the original Okawa A1 Block and became known as Okawa A1 A Block (the remaining land became known as the Okawa A1 B Block – the Property).

[8]    Renata Te Pue remained the majority shareholder in the Property and, in or about 1966, sold his shares to his son, Koro Pue.

[9]    On 1 April 2004, the Koro Pue Whānau Trust (the Trust) was created to provide for the benefit of Koro Pue and his descendants. The Trust was formally established by the Māori Land Court on 15 July 2004. On establishment of the Trust, Koro Pue’s

2      Te Ture Whenua Māori Act 1993, s 85.

3      High Court Rules 2016, r 17.9(2)(b).

shares in the Property were transferred to the Trust, which remains the largest shareholder of the Property, with a 92 per cent shareholding.

The dispute

[10]   The Trust (the Entitled Party) is therefore the majority shareholder and partial occupier of the Property. The Liable Parties are the majority shareholders and occupiers of the Okawa A1 A Block.

[11]   There has been longstanding disagreement between the parties as to the location of the precise boundary line between the Property and Okawa A1 A. The Liable Parties have over time trespassed on the Property and erected structures over the boundary line, encroaching onto the Property. They have erected a fence around what they claim to be the boundary of Okawa A1 A, which includes the encroached areas of the Property. The Entitled Party says the fence encroaches on and cuts off access to approximately an acre of the Property.

[12]   The Liable Parties have re-routed the water supply from a well on the Property to supply water to Okawa A1 A without the Entitled Party’s consent. They have erected several buildings, including a small residential building, parked a caravan and erected a septic tank across the boundary.

[13]   The Entitled Party has granted a lease over the majority of the Property for farming purposes but cannot lease all the intended area because of the trespasses and encroachment.

[14]   The Injunction application was heard on 15 April and 1 July 2011.4 The Liable Parties did not attend, despite the Court having issued a summons for Irene Godkin. Notwithstanding that, Judge Harvey considered submissions sent to the Court by   Ms Godkin setting out the Liable Parties’ position. She claimed to represent Raymond Tapatu pursuant to an enduring power of attorney. She relied on a claim of adverse possession and what she described to me as Raymond Tapatu’s “legal position as an owner under common law”.

4      Pue v Tapatu – Okawa A1B (2011) 268 Aotea MB 93 (268 AOT 93).

[15]   Judge Harvey concluded that the Liable Parties’ structures and trees were indeed encroaching on the Property which he described as the Entitled Party’s land.5 He pointed out there was a specific statutory exception to adverse possession.6 He concluded that the Liable Parties had no defence to the claim.

[16]   The Injunction Order was served on Raymond Tapatu and Irene Tapatu  on  13 April 2012. Due to difficulties in locating Christine Tapatu, she was not served until 23 October 2018.

Application for leave to issue enforcement order

[17]   Despite being served with the Injunction Order, the Liable Parties have failed or refused to vacate the Property. They have continued to build both a new shed and an extension to an existing shed on the Property, as well as placing an additional caravan there.

[18]   The Entitled Party therefore believes it has no option other than to take enforcement action.

Opposition

[19]   Raymond Tapatu has filed a notice of opposition and counterclaim. He seeks an “equitable remedy” from this Court:

…

(d)Granting leave to the Counterclaim Plaintiff to determine rightful succession, together with gains and losses over the land known as Okawa A1B block between the parties as equity, fairness and justice prevail.

(e)Granting leave to the Counterclaim Plaintiff to determine rightful succession of sons and daughters and descendants of Renata Te Pue by transfers of 12.2024 shares in Māori land block Okawa A1B, origin of registered owner Renata Te Pue, to Koro Pue on 24 February 1966 recorded in 75 Taranaki MB 133, as the person who presented to the Court as a Renata Te Pue, was not Renata Te Pue, son of Pue Motunui.

(f)Granting leave to the Counterclaim Plaintiff to determine rightful succession of transfers of 12.2024 shares in Māori land block Okawa

5 At [42].

6 At [44].

A1B, origin of registered owner Renata Te Pue, to Koro Pue on 24 February 1966, has adversely affected and deprived excluded sons and excluded daughters and their descendants of Renata Te Pue, from natural succession by whakapapa to their ancestral lands…

[20]   There are a number of other matters claiming even wider relief, including for example:

(k) Consideration is given to negotiate and administer by Crown deed to recognise Okawa A1A and Okawa A1B and any additional blocks, such lands are never to be sold, confiscated, and or compulsorily acquired for any Government purposes and such Crown deed binds successive Government.

[21]The grounds on which the orders (a)–(r) are sought are:

3.This application is made in reliance on principle an equitable remedy of unjust enrichment of property, held in trust by Koro Pue since the beginning from 24 February 1966, having acquired for the sole purpose of obtaining a full financial benefit, to the detriment of his father and siblings, rather than as a proprietary interest for sons and daughters descendants of Renata Te Pue, by whakapapa, to Māori ancestral lands, such land being Okawa A1B vested interest of 12.2024 shares out of a total of 13.2024 shares.

[22]   Mr Tapatu claims that the Entitled Party will not suffer any material prejudice by his counterclaim being brought more than 53 years after the 1966 transfer of shares to Koro Pue.

[23]   The notice of opposition and memorandum in support are both filed by Irene Godkin pursuant to her enduring power of attorney in relation to property given to her by Mr Tapatu. Notably, both Irene Godkin and Christine Tapatu, in their own rights, sought to withdraw as parties to these proceedings.7 By that I assume they mean to withdraw from the counterclaim. They cannot, of course, withdraw from being Liable Parties.

[24]   The affidavit of service in respect of Christine Tapatu notes that, despite numerous attempts, she has not been served with the application for leave, although the process server located Christine Tapatu, who said that she would not accept service of the papers. In the circumstances, I am satisfied it is appropriate pursuant to

7      Letters dated 4 November 2019 to High Court Registry. At the teleconference on 11 November, Ms Godkin confirmed that she wished to withdraw from the proceeding.

r 6.8(1)(b) of the High Court Rules 2016 to direct that she is to be treated as served on the date of that encounter, 23 October 2019.

Teleconference

[25]   The  matter  was  called  before   me   at   a   teleconference   on   Monday   11 November 2019.

[26]   The Entitled Party was represented by Ms Douglas.  Both Ms Godkin and  Mr Tapatu also attended. Mr Tapatu did not actively participate in the conference and Ms Godkin spoke, purportedly on his behalf.

[27]   I explained to the Liable Parties that the sole question before this Court was whether leave should be granted to the Entitled Party to issue an Enforcement Order for possession of the Property.

[28]   Ms Godkin said it was only at a whānau meeting on 9 March this year that the whānau set up Mana Whenua Okawa A1 A and Okawa A1 B Ohu Ᾱ Whānau (Family Authority Lands) for the purpose of seeking historical and cultural redress. She suggested this amounted to new information that has a bearing on the Injunction Order and Mr Tapatu believes would entitle him to seek redress through the Māori Land Court. She maintained that the information puts a different perspective on the 1966 transfer.

Assessment

[29]   The jurisdiction of this Court is confined solely to considering whether to grant leave to enforce the Injunction Order pursuant to the High Court Rules. This is not a general appeal against the Injunction Order.

[30]   The issue for the Court is whether to grant leave in circumstances where over six years have elapsed since the date of the Injunction Order. None of the other provisions of r 17.9 is relevant.

[31]   The delay in taking enforcement action is adequately explained by the Entitled Party. There was delay in locating Christine Tapatu. Efforts have been made to resolve the problem short of enforcement action. The Entitled Party has attempted to remove the Liable Parties by serving trespass notices, calling the police and seeking an order from the Māori Land Court, all to no avail.

[32]   Although more than six years have elapsed, the Liable Parties continue to encroach on the Property. They have failed to comply with the Injunction Order.

[33]   The Liable Parties have not identified any disadvantage to them if the Injunction Order is enforced more than six years after it was made.

[34]   In the circumstances, enforcing the Injunction Order through a possession order is now the only option available.

Result

[35]   For the reasons given, leave is granted to the Entitled Party to enforce the Injunction Order.

Thomas J

Solicitors:

Treadwell Gordon, Whanganui for Entitled Party