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Urlich v Attorney-General

Urlich v Attorney-General

Case [2019] NZHC 2783 30 October 2019

Adverse Possession

Easements & Covenants

Native Title

Succession Law

Property Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001667

[2019] NZHC 2783

UNDER the Senior Courts Act 2016 and the Land Transfer Act 2017

IN THE MATTER OF

Caveat No 11492712.1, South Auckland

Land Registration District, Part Parakerake Block, Identifier 850139

BETWEEN

ROBERT MATTHEW URLICH

Applicant

AND

ATTORNEY-GENERAL

Respondent

Hearing: 8 October 2019

Appearances:

P Hoskins for Applicant

N Anderson and N Julian for Respondent

Judgment:

30 October 2019

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

URLICH v ATTORNEY-GENERAL [2019] NZHC 2783 [30 October 2019]

Introduction

[1] The applicant, Robert Urlich, is of Ngāti Kahu descent. He seeks an order pursuant to s 143(4) of the Land Transfer Act 2017 (LTA) sustaining a caveat over ancestral whenua (land) on the Karikari Peninsula. The land is currently in Crown ownership. He says that he is beneficially entitled to the land because he is a successor of one of the original owners of the land under s 40(2) of the Public Works Act 1981 (PWA) and was entitled to have the land offered back to him under that legislation.

[2] The land at issue was originally owned by Robert’s father, Simon Urlich, and his uncle, Richard Urlich. It was gifted to the Crown for a Māori school but is now surplus. It has been offered back to Zahn Urlich, the grandson of Richard. The Crown says it could not offer the land back to Robert because he only had a contingent right to his father’s residual estate at the time of Simon’s death. He is thus not a successor (unlike Zahn) under s 40(5) of the PWA.

[3] The critical issue I must determine is whether Robert has established a reasonably arguable case in support of a caveatable interest. That is, is it reasonably arguable that Robert is a successor under s 40(5) of the PWA, or am I bound to follow the Court of Appeal decision in Williams v Auckland Council and conclude that it is not reasonably arguable that he has any rights under the public works legislation?1

Background facts

[4] On 6 June 1952, Richard and Simon purchased Parakerake No 576N block (the Parakerake block).

[5] On 18 March 1953, part of this block was gifted to the Crown to be used for educational purposes (the property). The property was held for a public work pursuant to the Public Works Act. The remainder of the Parakerake block was sold to a development company on 26 March 1954.

[6] Simon died on 14 November 2002 and his wife, Robert’s mother, Olivia Urlich, died on 16 December 2010. The property was not expressly mentioned in Simon’s

1 Williams v Auckland Council [2015] NZCA 479 at [65].

will and would therefore have formed part of his residual estate. Had it been in his ownership at the time of his death, then, under the will, the residual estate would have been bequeathed to his wife, Olivia.

[7] Richard died in about August 2010.…

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 [2019] NZHC 2783
Case: [2019] NZHC 2783
Decision Date: 30 October 2019

CaseChat Overview and Summary

The applicant, Robert Urlich, sought an order sustaining a caveat over ancestral land on the Karikari Peninsula. The land was originally owned by Robert's father, Simon Urlich, and his uncle, Richard Urlich, and gifted to the Crown for a Māori school. The property was now surplus and the Crown offered it back to Zahn Urlich, Richard's grandson. Robert argued that he was beneficially entitled to the land as a successor under the Public Works Act 1981. The Court had to determine whether Robert had established a reasonably arguable case in support of a caveatable interest. The Court found that Robert's claim was based on a contingent interest identical to that of Mrs Spencer-Wood in the Court of Appeal's decision in Williams v Auckland Council, which the Court had to follow. Robert's case was thus not reasonably arguable. However, the Court granted an adjournment of the proceedings to enable Robert to appeal against the decision and obtain interim orders from the Court of Appeal and/or Supreme Court to protect his interests. The caveat would remain in place during the adjournment.

The Court held that the definition of "successor" under the Public Works Act 1981 was to be narrowly interpreted, as confirmed by the Court of Appeal's decision in Williams v Auckland Council. Robert's arguments that personal, familial and cultural ties to the land should support a wider interpretation of the definition were not accepted, as the Court was bound by the Court of Appeal's decision. The Court also found that Robert's proposed judicial review proceedings challenging the Crown's decision to offer the land back to Zahn alone were unlikely to assist him in establishing a caveatable interest. The Court concluded that the adjournment of the proceedings was appropriate to protect Robert's legitimate interests and to allow him to test the issue of the interpretation of "successor" in s 40(5) of the Public Works Act 1981 before it was too late to do so.

Orders