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Urlich v Attorney-General

Urlich v Attorney-General

Case [2022] NZCA 38 4 March 2022

Indigenous Peoples & Native Title Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA292/2020
[2022] NZCA 38

BETWEEN	ROBERT MATTHEW URLICH Appellant
AND	ATTORNEY-GENERAL Respondent

Hearing:	1 June and 20 August 2021
Court:	Kós P, Miller, Cooper, Clifford and Gilbert JJ
Counsel:	P M Hoskins and J K Harper-Hinton for Appellant N C Anderson and N G Julian for Respondent M J Sharp for Zhan Urlich
Judgment:	4 March 2022 at 3 pm

JUDGMENT OF THE COURT

ALeave is granted to the respondent to adduce further evidence.
BLeave is granted to Zhan Urlich to adduce further evidence.

CThe appeal is dismissed.
DThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

Table of Contents

Para No

Background
Statutory framework

History of s 40(5) of the PWA
Other relevant PWA provisions
Section 134 of TTWMA

Judgment appealed

Is Robert his father’s “successor” under s 40 of the PWA?

Submissions
Discussion
Conclusion

What effect does s 134 of TTWMA have?

History of s 134
Submissions
Discussion

What happens now?
Result

[7]
[16]
[18]
[25]
[30]
[32]
[37]
[46]
[52]
[66]
[67]
[68]
[70]
[73]
[79]
[82]

Robert and Zhan Urlich are descendants of two brothers, Simon and Richard Urlich, who in 1953 gifted land on the Karikari Peninsula, Northland, to the Crown for use as a Māori school. The school closed in 2016 and the land is being offered back to former owners or successors under the Public Works Act 1981.[1] Simon and Richard have died. Robert, Simon’s son, was not offered the land because he was not the residuary beneficiary under his father’s will. Zhan, Richard’s grandson and Robert’s first cousin once removed, is the residuary beneficiary under Richard’s will. The land was offered to him alone.
[1]The PWA herein.
Robert protests. He says he too is the successor of a person from whom the land was acquired under s 40(5) of the PWA. He lodged a caveat over the land. Application was made to the Registrar that the caveat lapse. Robert then applied for an order that his caveat not lapse, under s 143(4) of the Land Transfer Act 2017.
Associate Judge Andrew held it was not reasonably arguable that Robert is a “successor” given the terms of s 40(5) and prior case law.[2] Accordingly, the caveat would lapse, but the Judge made interim orders sustaining the caveat pending appeal.[3]
[2]Urlich v Attorney-General [2019] NZHC 2783 [High Court judgment] at [55].
[3]At [56] and [58].
Robert now appeals. An attempt to leapfrog this Court by appealing directly to the Supreme Court was refused by that Court.[4]
[4]Urlich v Attorney-General [2020] NZSC 11.
At the hearing on 1 June 2021 we raised with counsel the potential, alternative application of s 134 of Te Ture Whenua Māori Act 1993.[5] We also suggested the need for Zhan to be represented.
[5]TTWMA herein.
At the resumed hearing on 20 August 2021, Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Urlich v Attorney-General

Details

AGLC: Urlich v Attorney-General [2022] NZCA 38
Case: [2022] NZCA 38
Decision Date: 4 March 2022 at 3 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal brought by Robert Matthew Urlich, who contested the Crown's offer of land to his cousin Zhan Urlich, the successor to the residual estate of the other original owner, Richard Urlich, under section 40 of the Public Works Act 1981. Robert argued he was a successor under section 40(5) of the PWA, as he would have been entitled to the land under his father's will had the land not been taken by the Crown. The Court of Appeal found that Robert was not a successor under section 40(5) of the PWA, as he would not have been entitled to the land on his father's death. The Court also found that section 134 of the Te Ture Whenua Māori Act 1993 was an alternative statutory pathway to the section 40 disposal procedures that the Crown should have considered in this case. However, as Robert did not hold a caveatable interest in the land, the appeal was dismissed.

Orders