IN THE MAORI LAND COURT OF NEW ZEALAND WAIARIKI … · The subject application stems from a...

2013 Chief Judge's MB 82

IN THE MAORI LAND COURT OF NEW ZEALAND WAIARIKI DISTRICT

A20110012322 CJ 2011/44

UNDER Section 45, Te Ture Whenua Maori Act 1993

IN THE MATTER OF Lot 1 Deposited Plan 8212 formerly pati of Potikirua Incorporation

BETWEEN The Proprietors of Potikirua Block Incorporation Applicant

AND Parekura Te Kani (now deceased) Respondent

Hearing: 16 December 2011,45 Waiariki MB 47-48 9 March 2012,2012 Chief Judge's MB 87 10 July 2012,23 Tairawhiti MB 214-235 (Heard at Gisborne)

Appearances: J Koning, counsel for the applicant R Barber, counsel for the respondent

Judgment: 30 January 2013

DECISION OF DEPUTY CHIEF JUDGE C L FOX

Solicitors: Koning Webster Lawyers, PO Box 13309, Tauranga 3141 Attention: John Koning Email: [email protected] Wilson Barber & Co Lawyers, PO Box 109, Gisbome 4040 Attention: Ron Barber Email: [email protected]

2013 Chief Judge's MS 83

Introduction

[1] On 2 December 2011, an application under s 45 ofTe Ture Whenua Maori Act 1993

(the Act) was filed by Koning Webster Lawyers on behalf of the Proprietors of Potikirua

Block Incorporation. The application seeks to cancel a memorandum of transfer endorsed

by an Deputy Registrar of the Waiariki district on 3 February 1993 on the grounds that the

endorsement on the memorandum of transfer by the Deputy Registrar was erroneous in law

or in fact because of a mistake or omission on the part of the Registrar or in the

presentation of the facts of the case to the Registrar.

[2] An application for an injunction, under s 19 of the Act was also filed, to prevent the

current proprietor dealing with the land until the s 45 application was determined. An

interim injunction was granted on 16 December 2011. 1

[3] The matter was set down to be heard in April 2012, however on 14 February 2012

submissions from counsel for the respondent, Mr Barber, were received with respect to

jurisdictional concerns. Mr Barber was concerned that the Courts jurisdiction per s 45 of

the Act did not extend to the cancellation of an endorsement by a Deputy Registrar as

sought by the applicants.

[4] A teleconference was held on 9 March 2012 to discuss this issue. Directions were

made vacating the April hearing to allow Counsel for the applicant to respond to the

jurisdictional issues raised by Mr Barber.2

[5] The matter then came before the COUli in Gisborne on 10 July 20123. At that

hearing the issue of jurisdiction was the sole issue discussed. Legal submissions were

received from counsel for both parties.

45 Waiariki MB 42-48 (45 WAR 42-48). 2012 Chief Judge's MB 87 (2012 CJ 87). 23 Tairawhiti MB 214-235 (23 TRW 214-235).


Registrar's Reports

[6] Under r 8.3 of the Milori Land Court Rules 2011, the Registrar must prepare a

preliminary report on the application. Under r 8.4 a preliminary report must contain the

following:

(a) a concise history of the order or certificate sought to be con-ected:

(b) details of the mistake or omission alleged by the applicant:

(c) details of any evidence or findings by the Court in which the mistake or en-or is alleged to have occun-ed:

(d) details of any other evidence or findings by the Court that might be material to the application:

(e) details of subsequent orders of the Court affecting land to which the application relates:

(f) details of any payments made as a result of the order or certificate sought to be corrected, whether by the Maori Trustee or by any other person:

(g) particulars of any moneys currently held in trust that might be affected by an order made as a result of the application:

(h) consideration as to whether the matter should go to a full hearing or whether the mistake or omission alleged is clearly apparent from the Court's own record:

(i) a recommendation as to the course of action to be taken, including whether an injunction should be issued to protect moneys currently held in trust.

[7] The preliminary report for this application produced by Ms Rowe, for the Registrar,

provides the essential background to this application and is detailed in full below.

Introduction

I. This application ("subject application") filed by John Koning of Koning Webster Lawyers on behalf of The Proprietors of Potikirua Block Incorporation ("the Applicant"), pursuant to section 45 of Te Ture Whenua Maori Act 1993 ("the Act"), seeks to cancel a memorandum of transfer endorsed by a Deputy Registrar of the Waiariki district on 3 February 1993.

2. The land concerned is the former Maori freehold land known as Wharekahika A 15 which was amalgamated in 1967 with other lands under the style of "Potikirua" and which is now general land known as Lot 1 Deposited Plan 8212 comprising 29.7440 hectares more or less and described in the certificate of title as GS5CI1337 ("the block").

3. The Applicant believes that the endorsement on the memorandum of transfer by the Deputy Registrar was en-oneous in law or in fact because of a mistake or omission on the part of the Registrar or in the presentation of the facts of the case to the Registrar because:

The Deputy Registrar omitted to ensure the following before endorsing the memorandum of transfer pursuant to s 233 of the Maori Affairs Act 1953:

(i) The terms of the oral agreement; (ii) Whether the consideration of $26,000 had been paid to

the Applicant;


(iii) That the memorandum had been executed in accordance with s 42 of the Maori Affairs Amendment Act 1967; and

(iv) A resolution at a general meeting of the shareholders of the Applicant had been passed pursuant to s 48 of the Maori Affairs Amendment Act 1967.

The Deputy Registrar erred in law by endorsing the memorandum which allowed the block to be partitioned from the Potikima Block and transferred from the Applicant to Wamoana Te Kani contrary to Pmt 16 of the Maori Affairs Amendment Act 1967 [sic].

4. The Applicant further submits that there was an error in fact because:

(bb) Wamoana Te Kani, or her agent, wrongly presented the facts to the Registrar by filing the memorandum for an endorsement which had not been authorised pursuant to s 48 of the Maori Affairs Amendment Act 1967.

(cc) Acting on the false presentation of fact, the Deputy Registrar endorsed the memorandum pursuant to s 233 of the Maori Affairs Act 1953 which allowed the block to be partitioned from the Potikima Block and transferred from the applicant to Wamoana Te Kani contrary to Part 16 of the Maori Affairs Amendment Act 1967.

5. The applicant has been adversely affected by the endorsement because:

(a) The block was partitioned and transferred without the consent of the Applicant or its shareholders.

(b) The Applicant is no longer the registered proprietor of the block.

(c) The shareholders of the Applicant have had their relationship with the block severed.

(d) The transfer of the block from the Applicant to Wamoana Te Kani was not for value.

(e) The transfer of the block from the Applicant to Wamoana Te Kani was not in good faith.

(t) The block is now general land and is not subject to the restrictions on the alienation of the Maori freehold land within Te Ture Whenua Maori Act 1993.

6. The Applicant seeks "to have the endorsement cancelled and further seeks an amendment to the register of the title to the block pursuant to section 47(4) of the Act cancelling:

(a) The transmission of the block from Wamoana Te Kani to Parekura Te Kani; and

(b) The transfer of the block from the incorporation to Wamoana Te Kani.


7. An injunction application pursuant to section 19 of the Act was also filed with this application and was granted on 16 December 2011 at 45 Waiariki MB 47-48. The terms of the Injunction Order prohibit the registered proprietor (Parekura Te Kani as executor), from dealing with the land. The Injunction is to remain extant before the Maori Land Court until the subject application has been determined.

8. The subject application stems from a previous application filed by Waiter Rika on 1 November 2010 consisting of the same subject matter and claim, but which sought a Judicial Conference pursuant to section 67 of the Act (A20 1 000 12111).

9. On 24 January 2011, Deputy Chief Judge Fox directed, in relation to the section 67 application, the following:

Do not set down for hearing at Opotiki/Te Kaka Court; and

As this is General land, it would be preferable for Mr Rika to obtain legal advice and to proceed on that basis rather than to request a conference. I note that there is no evidence that 10% of the shareholding SUppOlt an investigation by the Maori Land COUlt, so even that threshold is not met. May also be an s 45/93.

10. It is likely that Mr Rika's application is to be adjoumed until the subject application has been determined.

Concise history of the land at issue and the instrument sought to be cancelled

11. On 20 December 1967 at 43 Opotiki MB 86-88 the Maori freehold land known as Whangaparaoa No 2D, 2E and 2Bl, Wharekahika A3, A6 and A15 blocks were amalgamated pursuant to section 435 of the Maori Affairs Act 1953 by Order of the Court and described under the style of "Potikirua" or the "Potikirua Block". The block was then vested in the Proprietors of the Potikirua Incorporation.

12. The COUlt records show that a Memorandum of Transfer was made on the Gisbome Land Registry Office form between the Proprietors of Potikirua Block Incorporated ("the Transferor"), and Wamoana Te Kani of Gisbome ("the Transferee").

13. The land concerned is described as being a block in fee simple of29.744 hectares and described as Lot 1 on Deposited Plan 8212. The terms of the transfer were pursuant to an oral agreement and in consideration of the sum of$26,000 paid to the Transferor by the Transferee. The memorandum was dated 19 May 1992 but crossed out and redated 6 July 1992 and signed by Edward Matchitt (Chairman of the Proprietors of Potikirua Block Incorporated), and H Satchell (Secretary of the Proprietors of Potikirua Block Incorporated). The words "The common seal of the Proprietors of Potikirua Block Incorporated was hereto affixed in the presence of the majority of members of the Committee of Management", are found on the document, along with the Proprietors ofPotikirua Block Incorporated stamp.

14. The signature of the solicitor for the Transferee is on the document verifying the transfer to be correct for the purposes of the Land Transfer Act.

15. The transfer document also bears a stamp verifying that the particulars of the transfer were entered in the register at the Gisborne Land Registry Office on 17 August 1992 (reference: 5CIl337).

16. On 3 February 1993 the transfer was then endorsed by a Deputy Registrar of the Maori Land Court, Waiariki District, pursuant to section 233 of the Maori Affairs Act 1953.


17. There is also a Statutory Declaration form for the transfer included in the records, made by Wamoana Te Kani, declared at Gisborne, dated 13 July 1992 and signed by Ms Te Kani and her solicitor.

18. The Memorial Schedule for the Potikirua Block (CT 4C/224) lists the following details:

Nature of Order or Date Checked Reference Instrument Memorandum of Lot 1 DPS (signature) TN 1994 Transfer between: 8212 1. Props of Potikirua (29.744 ha) Block 2. Wamoana Te Kani 03.02.93 In consideration of $26,000 dated 06.07.90 Endorsed 233/53

Identification of evidence that may be of assistance in remedying the mistal{e or omission

19. The Applicant has provided the following documents III support of the subject application:

(a) Submissions in support of the application, dated 30 November 2011;

(b) An application for Interim Injunction dated 30 November 2011;

(c) An Affidavit of Edward Matchitt sworn 30 November 2011, in SUppOlt of the Injunction Application;

(d) A Memorandum of Counsel dated 30 November 2011.

20. Unlike most section 45 applications to the Chief Judge which involve an Order of the Court, which is complained of, this application does not and is rather an endorsement for a memorandum of transfer approved by a Deputy Registrar pursuant to section 233 Maori Affairs Act 1953, which is noted on the records of the Comt. It therefore lacks the documentation and records which a general section 45 application has and which will generally shed light on how the transaction proceeded at the time.

21. The lower Court records of the transfer therefore only contain the following documents:

(a) A copy of the Memorial Schedule where the transaction is noted;

(b) A copy of the Memorandum of Transfer, signed by both Transferor, Transferee and solicitor for the Transferee; and

(c) A copy of the Statutory Declaration form signed by the Transferee and solicitor for the Transferee.

22. The lower Court application filed by Mr Rika (A20 1 000 12111), has provided some further evidence in support of the subject application:

(a) Submissions by Mr Rika dated 1 November 2010, state that:

1. The basis of this application stems from Committee of Management of the Potikirua Inc only recently finding out that the ... land has been transferred ... ;


ii. The Management Committee members whose signatures appear upon the Transfer documentation are still current Committee members of the Incorporation and they believe and contend that they have never been a party to the transaction as there has never been any authority by an AGM resolution to approve such transfer;

iii. There has never been any payment received by the Incorporation;

iv. None of the Committee had any idea that the land had been transferred as the documentation shows until the matter was brought to their notice and attention by Parekura Te Kani the current registered owner in the said title at the beginning of this year [2010] - some 18 years after the transfer had been done;

(b) The Potikirua Incorporation Annual General Meeting 29-12-90, an extract of which is reproduced:

Resolution

F or partition of Wharekahika A 15 Potikirua to Wamoana Te Kani, from state highway 35 Potaka to Oweka river approx area of 70 acres.

Chairman

As this matter has been with the Incorporation since 1983 ...

The resolution was moved at our last committee meeting that Wamoana partition be moved at the A G M for the shareholders to decide, which does not include the house and an area of land around the house and acces [sic] way from the main high way as that area and house already belongs to Wamoanaa and her family.

Discussion on the Resolution

1...

5 Would other shareholders want to partition.

The Resolution was defeated by 19 votes against resolution 10 votes for the resolution Chairman closed the meeting before ballot was declared.

(c) An email dated 16 August 2010 from Waiter Rika to Tuihana Pook which states Mr Rika had:

... asked Harry on Friday last to check his inc minute book for the 1991 AGM minutes and also to double check the accounts for the 1991 and 1992 Inc accounts to see whether or not the $26K as stated in the Transfer document as the consideration for the purchase of the land, was rec'd by the Inc. From all the information given the whole transaction has never been approved by a Shareholders meeting.


Details of su bseq uent Orders affecting lands to which application relates

23. As the land is now General Land, there are no subsequent Orders affecting the lands in which the application relates.

Reference to areas of difficulty

24. Because of the nature of the document in question, it being a memorandum of transfer and not an Order of the Court, there is limited information or documentation of the actual transaction and details of the transfer in the Court record.

25. The minutes of the Potikirua Incorporation Annual General Meeting on 29 December 1990 are unclear as to whether a resolution was passed or not. The minutes state the Chairman closed the meeting before the ballot was declared.

26. The time period in between the transaction at issue and legal action taking place is peculiar in that the transaction was noted on the Court records in 1993 but has only surfaced as a cause for concern in 2010, some 17 years later.

27. The Affidavit of Edward Matchitt in support of the Injunction states that Mr Matchitt has no recollection, and the Incorporation has no record, of the transaction and its terms. Mr Matchitt also submits that he has no recollection of signing the memorandum of transfer. This poses a problem of burden of proof, especially where the endorsement was made in the presence of a solicitor and Deputy Registrar.

28. Where the Applicant alleges a mistake or omission in the Court record, the burden of proof is on the Applicant to establish the existence of this alleged mistake or omission and the Chief Judge, or the Deputy Chief Judge acting on delegation, will apply the civil standard of proof on the balance of probabilities when exercising jurisdiction. In Ashwell- Rawinia or Lavina Ashwell (nee Russell) [2009] Chief Judge's MB 209-225 (2009 CJ 209), it was stated that firstly the Chief Judge must be satisfied that an error has been made reviewing the evidence given at the original hearing and then weighing it against the evidence provided by the Applicant and any evidence in opposition.

Jurisdiction

29. There may be questions as to whether the Chief Judge (or the Deputy Chief Judge acting on delegation), has the jurisdiction to consider this application under section 45 of the Act because of the type of instrument at issue (a memorandum versus an Order). This has also been raised by the Respondent's Counsel in submissions filed with the Court on l3 February 2012.

30. The Respondent relies on case law and submits that the Chief Judge does not have jurisdiction to proceed on the present application because pursuant to section 44(1) of the Act, the jurisdiction is limited to:

(a) An Order made by the Court

(b) An Order made by the Registrar

(c) A Certificate of Confirmation issued by a Registrar under section 160/93

31. The Respondent further submits that:

The endorsement made pursuant to s 233/53 is a memorial only. It dealt with alienations which did not require to be confirmed by the Court. Such an instrument had to be produced to the Registrar for the Registrar to endorse a


memorial, noting that the instrument had been produced and noted in the records of the Maori Land Comt.

32. When applying the 1993 Act to this application, the type of instrument at issue is neither an 'Order made by the Comt' nor a 'Certificate of Confirmation issued by a Registrar under section 160 of the Act'. It is a memorandum of transfer which was endorsed by a Deputy Registrar and noted on the Court record. Therefore prima facie section 44 of the Act does not apply to a memorandum of transfer and a noting.

33. The legislation in force at the time of the transaction was the 1953 Maori Affairs Act, with section 452 being the equivalent section to section 44 in the current Act. Section 452 also states that it must be an Order made by the Court:

(1) The jurisdiction confened on the Chief Judge by this section shall be exercised only on application in writing made on or on behalf of a person who alleges that he has been adversely affected by an order made by the Court or the Appellate Court. (emphasis added)

34. Even if it is found that the Chief Judge has jurisdiction to hear and or cancel/amend the memorandum of transfer, section 48 of the 1993 Act may have an impact on the outcome of the decision:

48 Matters already finalised or pending

(1) No order made by the Chief Judge under section 44, or made by the Appellate Court on appeal from any such order, shall take away or affect any right or interest acquired for value and in good faith under any instrument of alienation registered before the making of any such order.

However as the Applicant has alleged that the consideration of $26,000 was not received for the transfer and that there was no knowledge of signing the document, the alienation may not be considered as being made in good faith or for value if evidence is provided to support this proposition. This issue was considered in Reweti [2011] Chief Judge's Minute Book 337-344, where it was found that although the Chief Judge had jurisdiction in terms of section 44 of the Act to amend an Order of the Comt, by section 48 of the Act, the Applicant needed to prove that the transaction entered into was not entered in good faith or for consideration.4

Consideration of whether matter needs to go to full hearing

35. On the face of the transaction in question, it appears the memorandum of transfer was completed correctly. A dispute to this by the Applicant however, then raises issues of validity, legality and possible fraud, but needs further evidence of which the onus is on the Applicant to SUppOlt the burden of proof.

36. The nature of the matter is something that should be considered by the Chief Judge, or Deputy Chief Judge in this case and therefore should be set down for a hearing.

Recommendation of course of action to be taken

37. If the Deputy Chief Judge is of a mind to exercise her jurisdiction, then it would be my recommendation that:

4 Kukutai & Tuhoro - Opuatia 4 Lot 28CI Block (2002) Chief Judge's MB 75 (2002 CJ 75) and Green -Estate Amos (2002) Chief Judge's MB 54 (2002 CJ 54).


a) The Applicant provide fmiher evidence prior to the hearing, in order to substantiate and provide more weight to any issues of proof;

b) A copy of this Report and Recommendation is sent to all affected parties to give them an opportunity to comment or respond, in writing, within 28 days of the date of this report;

c) The matter is set down for hearing.

Section 40 Report

[8] The preliminary report and recommendation was sent to all parties on 7 March

2012. Detailed comments were received from the parties.

[9] On 4 April 2012, I directed a further report be complied pursuant to s 40 of the Act,

in light of the comments received. Requests were made to counsel for the applicant for

additional information to help complete the report. That material only became available on

28 June 2012.

[10] The s 40 report was sent out to parties on 3 July 2012 and the relevant parts of it are

reproduced below:

COUNSEL FOR THE APPLICANT'S COMMENTS ON THE REPORT AND RECOMMENDATION

6. On 2 April 2012 the Court received a letter from Counsel for the Applicant, dated 29 March 2012, with comments on the Report and Recommendation. A copy of the Applicant's letter is reproduced in full below:

CJ 2011/44 - LOT 1 DP 8212 - PROPRIETORS OF POTIKIRUA INCORPORATION

I refer to your letter dated 7 March 2012. I comment on the Report and Recommendation ("the report") as follows

1. The report does not consider the effect of ss 42 and 48 of the Maori Affairs Amendment Act 1967;

2. The report does not inquire into the subdivision of Lot 1 DP 8212 from the Potikirua Block without a partition order from the Maori land Court under s 173 of the Maori Affairs Act 1953;

3. The report at paragraph 21 states that the Maori Land Court only holds copies of the memorial schedule, memorandum of transfer and statutory declaration. This suggests that the Deputy Registrar made no inquiries into the terms of the oral agreement, the payment of the purchase price, the execution of the memorandum of transfer and any resolution to sell passed by the shareholders. This failure on the part of the Deputy


Registrar to undertake these inquiries is the basis of the application;

4. The report appears to suggest that the Deputy Registrar simply endorsed the memorandum of transfer without first determining whether it complied with the Maori Affairs Act 1953 and the Maori Affairs Amendment Act 1967. This cannot be correct as a matter of law or conveyancing practice;

5. The report at paragraph 25 refers to the AGM minutes dated 29 December 1990. These minutes make it clear that the shareholders did not pass a resolution authorising the committee of management to transfer Lot 1 DP8212 to Wamoana Te Kani;

6. In terms of paragraph 26, there is no limitation period under s 45 ofTure Whenua Maori Act 1993;

7. In paragraph 27 the report states that "the endorsement was made in the presence of a solicitor and Deputy Registrar". The memorandum of transfer was signed correct by the solicitor for the transferee but he should not have been present when the Deputy Registrar endorsed the instrument;

8. The report covers jurisdiction at paragraph 29 to 34. will not comment on this matter because her Honour has directed that submissions on jurisdiction be filed by the applicant by 1 0 April 2012.

7. On 17 April the Case Manager replied to the above letter. A copy of the letter is reproduced below:

l. Your first comment states that the RepOlt does not consider the effect of sections 42 and 48 of the Maori Affairs Amendment Act 1967 ("the 1967 Act"). This is correct; the Report does not consider the 1967 Act. The Report does however mention these two sections in paragraph 3 as being part of the error that you have alleged in your Application, but does not consider them. When drafting a Report and Recommendation pursuant to Rules 8.3 and 8.4 of the Maori Land Court Rules 2011, r 8.4 states that the preliminary report must contain the following:

(a) a concise history of the order or certificate sought to be corrected:

(b) details of the mistake or omission alleged by the applicant:

(c) details of any evidence or findings by the Court in which the mistake or error is alleged to have occurred:

(d) details of any other evidence or findings by the Court that might be material to the application:


(e) details of subsequent orders of the COUlt affecting land to which the application relates:

(t) details of any payments made as a result of the order or certificate sought to be corrected, whether by the Maori Trustee or by any other person:

(g) particulars of any moneys currently held in trust that might be affected by an order made as a result of the application:

(h) consideration as to whether the matter should go to a full hearing or whether the mistake or omission alleged is clearly apparent from the Court's own record:

(i) a recommendation as to the course of action to be taken, including whether an injunction should be issued to protect moneys currently held in trust.

I omitted to include a consideration of the sections 42 and 48 of the 1967 Act because the scope of the RepOlt did not allow this type of discussion.

2. Your second comment states that the RepOlt does not inquire into the subdivision of Lot 1 DP 8212 from the Potikirua Block without a partition order from the Maori Land Court under section 173 of the Maori Affairs Act 1953. Again, this is correct, the RepOlt does not inquire into this matter. The block was not pattitioned it was transferred, therefore inquiries into a partition or subdivision for this matter would have been unnecessary. These are separate types of transactions. Where the 'partition' may have been defeated by resolution at the AGM, a memorandum of transfer for the fee simple of the block still took place for value. There is nothing on the Court record which shows a subdivision or partition of the block.

3. Your third comment states that paragraph 21 of the Report suggests that the Deputy Registrar made no inquiries into the terms of the oral agreement, the payment of the purchase price, the execution of the memorandum of transfer and any resolution to sell passed by the shareholders and that this failure on the patt of the Deputy Registrar to undeltake these inquiries is the basis of the application. It is agreed that there may have been a possible failure on the part of the Deputy Registrar to make these inquiries but more evidence would be needed to substantiate this. As set out in paragraph 24 of the Report: "Because of the nature of the document in question, it being a memorandum of transfer and not an Order of the Court, there is limited information or documentation of the actual transaction and details of the transfer in the Court record." The Report did not intend to suggest that the Deputy Registrar made no inquiries about the validity of


the transaction, it merely outlines that there was very little information available on the Court record. The request was sent to the records preservation officer in Waiariki who searched the Court records and sent through the relevant documents. Unfortunately this is all we have to go on and it is an area of difficulty as outlined in the Report.

4. Your fourth comment states that the Report appears to suggest that the Deputy Registrar simply endorsed the memorandum of transfer without first determining whether it complied with the Maori Affairs Act 1953 and the Maori Affairs Amendment Act 1967 and that this cannot be correct as a matter of law or conveyancing practice. As stated above, because there is a lack of documentation to substantiate what went on at the time the Deputy Registrar made the endorsement, this does not mean the memorandum of transfer was endorsed without first determining whether it complied with the relevant legislation. The Report does not suggest the Deputy Registrar did not act without due diligence, but attempts to illustrate that the nature of the transaction means that there is not a lot of information on the records available. The RepOlt is not suggesting the endorsement was just 'rubber stamped' as Maori Land Court processes would ensure that the correct procedure was followed.

5. Your fifth comment states that the AGM minutes dated 29 December 1990 and referred to at paragraph 25 of the Report make it clear that the shareholders did not pass a resolution authorising the committee of management to transfer Lot 1 DP8212 to Wamoana Te Kani. This is correct, the Committee of Management did not authorise a transfer at this AGM, as they only discussed a partition. What took place at the AGM is considered an area of difficulty. The AGM clearly considers the issue of 'partition' but the application clearly hinges on a 'transfer'. Whether the ambiguities or term confusion are substantial here is not for the Report to decided but for the Chief Judge or the Deputy Chief Judge acting on delegation to determine when it goes to hearing. The uncertain wording of the last line -"Chairman closed the meeting before ballot was declared" presents an ambiguity and could even point to the fact that there were more votes for or against the resolution that were never included in the count.

6. Your sixth comment is correct. There is no limitation period under section 45 of the Act which and I am aware of this, nor does the doctrine of laches apply. Paragraph 26 was included in the Report under 'areas of difficulty' to underscore that the time period is peculiar. The time it has taken the Applicant's to bring the validity of the transaction to the Court's attention is quite lengthy in the 17 years between the signing of the instrument in 1992 and to when the first application regarding this subject was lodged in 2008, it went unnoticed that the block no longer belonged to the Incorporation or that the transfer had even occurred. This was not to suggest that it was subject to any legal limitation under the Act.


7. Your seventh comment about paragraph 27 is correct. The memorandum of transfer was not signed by the Deputy Registrar in the presence of the solicitor for the transferee. This paragraph was written in error.

8. Lastly in relation to jurisdiction, we have now received your submissions and will be in contact once Deputy Chief Judge Fox has issued directions regarding these.

COUNSEL FOR THE RESPONDENT'S SHORT RESPONSE TO THE APPLICANT'S COMMENTS ON THE REPORT AND RECOMMENDATION

9. On 18 April the Court received a letter from Counsel for the Respondent's containing a "short response" to the Applicant's comment. A copy of this is reproduced below:

This is a shOlt response to the Applicant's comments on the Report and recommendation contained in the latter dated 29 March 2012.

1. Re: Section 42 - The Seal, section 48 - Incorporation Powers.

These matters are covered by the indoor management provisions contained in section 48(2)/67 and section 52/67.5

2. Re: No Partition Order under section 173. There was no Partition of the land and the owners. Lot 1 DP 8212 was land in severance (as was Lot 2 which was retained by the Incorporation).

A compiled plan issued in the name of the Incorporation and the Incorporation sold Lot 1 on that plan to Wamoana Te Kani.

The legal and beneficial interests in the land vested in the Incorporation. The Incorporation had power to sell its land and did not require confirmation by the COUlt. See sections 31 (2) and section 31 (3A) of the Maori Affairs Amendment Act 1967.

3. Re: "The Deputy Registrar made no enquiries into the terms etc". This is an interesting proposition. No statutory authority is quoted. There is no such statutory authority.

4. Re: Registrar's endorsement.

Again, no authority quoted. There is no statutory requirement that the Registrar do anything more than he is required to under section 233/53.

5. Re: The Annual General Meeting minutes of29 December 1990.

This is evidence that the proposals were put before the Annual General meeting in 1990 and were defeated at that specific meeting. The Committee however later did complete the sale and transfer of Lot 1 DP 8212 as recorded in the papers filed in support of the present Application.

5 Later cOlTected by Counsel for the Respondent as meaning Section 57(2)/67.


6. Re: "No time limitation on section 45". Section 77 specifically refers to Orders of the Court only. Section 44 extends to Registrar's Orders and Registrar's Certificates of Confirmation (section 60).

All these are judicial or quasi judicial matters.

The memorial under s 233/53 is an administrative action.

COUNSEL FOR THE APPLICANT'S RESPONSE TO THE RESPONDENT'S COMMENTS DATED 12 APRIL 2012 CONCERNING THE REPORT AND RECOMMENDATION

10. On 24 April 2012 further comments were received from Counsel for the Applicant regarding the Respondent's comments dated 12 April 2012. A copy of the response is set out below:

Response to comments

'Indoor management provisions'

3. These provisions, ss 48(2) and 526 of the Maori Affairs Amendment Act 1967 ("the 1967 Act"), are not relevant: Section 48(2) of the 1967 Act concerned the District Land Registrar ("the DLR") and not the Registrar of the Maori Land Court.

3.1 That provision enabled the DLR to rely with confidence on the Registrar's memorial under s 233 ofthe Maori Affairs Act 1953 ("the 1953 Act") that had been compliance with the 1953 Act and the 1967 Act;

3.2 Section 52 of the 1967 Act concerned the appointment of the members of committee of management. We are unable to appreciate how this section is relevant to the present issue.

Partition

4. Again, in the absence of any explanation, it is difficult to see what affect ss 31(2) and 31(3A) of the 1967 Act have on this application.

Registrar S inquiries

5. The proposition for this is contained within the legislation itself. The incorporation was bound by rules and legislation which the Registrar, in fulfilling their function, should have ensured were complied with prior to endorsing an instrument of alienation.

Registrar S endorsement

6. The Registrar had a statutory obligation to ensure the provisions of the relevant legislation had been satisfied prior to endorsing the memorandum of transfer. Without such an obligation, any form or instrument put before the Registrar for endorsement under s 233 of the 1953 Act would have received a memorial.

AGM

7. There is no evidence of a resolution of a general meeting of

6 Later corrected by Counsel for the Respondent as meaning Section 57(2)/67.


shareholders authorising the applicant to sell the block. There is evidence, however, that the shareholders would not have supported the transfer as they declined to support a resolution for partition.

Time limitation

8. It is difficult to determine whether the respondent is saying that there is a limitation on the applicant's claim. If so, this is not accepted. Section 44(3) of Te Ture Whenua Maori Act 1993 ("the Act") expressly excludes the application of s 77 of the Act. An order by a Registrar is amenable to cancellation or amendment under s 44 of the Act.

EVIDENCE AND INFORMATION GATHERED

11. When the Court first received the Application, the records for the land amalgamation and when the block was vested in the Incorporation were obtained along with all the information on record for the where the transaction in question took place. UnfOltunately, the online records the Maori Land Court hold for the Potikirua Incorporation are incomplete and not up to date so all the hard copy records the Court holds for the Potikirua Incorporation were requested and sent from the district. It has since been found on analysis of the paper records that they are also incomplete and not up to date (Le. missing AGM minutes, financial statements and share registers).

12. On 2 May 2012 a request was made to the Applicant to provide the following documents for the Potikirua Incorporation:

a) AGM Minutes for years 1991 and 1992;

b) Share register from 1991 onwards;

c) Committee of Management meeting minutes for years 1980-1994 (these are not required to be filed with the Court, but could contain relevant important information).

13. On fUlther analysis of the records, an additional request for more information was made to the Applicant on 11 May 2012, with a direction from Deputy Chief Judge Fox that Counsel for the Applicant provide both requests of information within 28 days of the second request (due to be filed on 8 June 2012):

a) The names of those who were members of the Committee of Management for the Potikirua Incorporation as at 6 July 1992;

b) The name of the lease, the lease document, and any patticulars of the lease to which the transfer was subject to in 1992;

c) The name and contact details of the current lease of the block; and

d) Details of the Compensation Certificate to which the transfer was subject to in July 1992.

14. The following documents were received by the Court on 2 July 2012, after prior notification from Counsel for the Applicant that there had been difficulties locating the requested documents:

a) Share register dated 11 April 1990;


b) Memorandum of lease between Potikirua Incorporation and Caxton Paper Mills Limited;

c) Memorandum of variation of lease between Potikirua Incorporation and Potikirua Forests Limited;

d) Various meeting minutes for the period January 1980 to 12 April 1991;

e) A record of the members of the management committee as at 20 March 1993;

t) Documents related to Wharekahika A 15 - letter from Potts & Hodgson dated 3 December 1990; letter dated 7 November 1990; minute from meeting on 12 September 1991; and

g) Compensation certificate 198005.2.

15. Counsel for the Applicant also indicated that the current lessee is Potikirua Forests (N02) Limited.

16. Additionally for the purpose of this Report, case law has been gathered along with a Henry Colbert's 1983 Registrar's procedure and guideline document for making endorsements pursuant to s 233 of the Maori Affairs Act 1953 ("the 1953 Act").

AREAS OF DIFFICULTY/ISSUES TO NOTE

17. As we noted above, the Court record for the Potikirua Incorporation appears to be incomplete and not up to date. An attempt has been made to gather those documents which are not on the Comt record but which could be of help to this Application.

DISCUSSION

18. From the comments and responses from Counsel as set out above and without assessing the question of jurisdiction at this point, it appears there are three main issues which are in need of fmther investigation:

a) Terminology;

b) The AGM minutes of December 1990, 1991 and 1991 and information from the Potikirua Incorporation for the surrounding years; and

c) Validity ofthe Registrar's endorsement.

Terminology

19. The terms partition, subdivision, and transfer, have all been referred to throughout the Application and submissions, when the transaction in question is a memorandum of transfer (propelty has been passed fi'om one owner to another, for value). The Applicant states in their Application that:

(aa) The Deputy Registrar erred in law by endorsing the memorandum which allowed the block to be partitioned from the Potikirua Block and transferred from the applicant to Wamoana Te Kani ...

(cc) ... the Deputy Registrar endorsed the memorandum pursuant to s 233 of the Maori Affairs Act 1953 which allowed the block to be partitioned from the Potikirua block and transferred from the applicant to Wamoana Te Kani...

(emphasis added)


20. No partition ever occurred however, before the transfer took place, the block would have been subdivided by the Incorporation (hence the Deposited Plan ("DP") reference). This was standard practice.

21. The report did not inquire into the subdivision of Lot 1 DP 8212 from the Potikirua Block without a Partition Order from the Maori Land Court as the block was not pmtitioned so there was no purpose to enquire into something that never happened.

The AGM minutes of December 1990, 1991 alU/1992 and information fro11/ the Potikirua Incorporation for the surrounding years

22. At the meeting of 29 December 1990 only the idea of partition was discussed. No resolution was passed authorising the Committee of Management to transfer Lot 1 DP8212 to Wamoana Te Kani and it appears, although it is ambiguous because the Chairman closed the meeting before the ballot was declared, that no resolution for pmtition was passed either.

23. By s 48(1) of the 1967 Act a resolution of general meeting of shareholders must take place before the Committee of Management can sell land.

24. By s 42(2) of the 1967 Act, an Incorporation is unable to affix its seal on any instrument without the presence of a majority of the members of the committee of management with all the members of the committee present when the seal is affixed signing the instrument. And pursuant to s 42(3) if a resolution has been passed by the committee of management the seal may be affixed to any instrument in the presence of any two members of the committee. In any such case, the two members of the committee shall sign the instrument and there shall be an endorsement on the instrument stipulating the date and substance of the resolution passed by the committee of management.

25. The Potikirua Incorporation stamp was affixed to the memorandum of transfer with Edward Matchitt (Chairman) and Harry Satchell (Secretary) signing the document. A document provided by Counsel for the Applicant, dated 20 March 1993, indicates the Management Committee Members as being:

a) Edward Matchitt;

b) Harry Satchell

c) Matekino Smith

d) Tuihana Pook

e) Petera Maangi

f) Wairemana Waenga

g) Jeffrey Shepherd

Given that there are only two signatures on the instrument and a notation stating that "The common seal of the Proprietors of Potikirua Block Incorporated was hereto affixed in the presence of the majority of members of the Committee of Managemenf', (emphasis added) it is difficult to imagine that the legislation was complied with.

26. The two requested missing AGM Minutes for years 1991 and 1992 were not included in the bundle of 'various meeting minutes for the period January 1980 to 12 April 1991' provided by Counsel for the Applicant. What has been found in the additional provided documents however is that the issue of partition by Wamoana and Parekura Te Kani had been with the Potikirua Incorporation since 1981 (and possibly earlier). There is still nothing in the records regarding a transfer, again however, it is conceivable we may not have a complete record.


27. For the purposes of this Report, and as the correlation of partition and transfer is prominent, the issue of Partition will now be considered.

28. It appears Ms Te Kani (now deceased) was unhappy with the management of the Wharekahika A 15 block (the block name before the amalgamation) and wished to take her sons shares in the block of which she and her family occupied at the time, out of the Incorporation. There was further discussion at the AGM of 8 July 1981 and at a Special Meeting of the Committee of Management on 24 August 1982 it was moved and agreed that that:

... the Incorporation do not object to Wamoana lodging an application for partition of her shares in the area previously known as Wharekahika A 15 and the Incorporation will present its record to assist the Court to come to a decision which is fair to both parties.

29. At a meeting on 17 January 1983 the Chairman indicated that he had called the meeting before the annual general meeting to meet with Wamoana and P Te Kani with their solicitor:

Wamoana Te Kani stated that she still wished A 15 to be handed back for her son, that she required a yes or no answer. The Chairman explained that the Committee had met to discuss the matter and they could not see how they could agree when Taha Wanoa himself had placed the block in the amalgamation and Incorporation. Hikitia TuKaki and W Maangi stated that for the reasons given by the Chairman and all the plans under way for the Incorporation, because the request was for yes or no then they must say no. They also agreed that it was Wamoana's right to ask and to apply to the Comt for a partition. P Te Kani said they recognised the complexities but they did not want a compromise like the ... [document becomes unreadable].

30. The Pmtition is also mentioned again at the AGM of 24 January 1984, at a subsequent AGM (undated, although confirmed on 21 January 1984). Further at a Committee of Management Meeting on 31 May 1985 and then again in substance at the AGM of 28 December 1987, however unfOltunately, the copy of this minute in poor condition and unable to be read (a further and better copy has been requested but not received as at the date of this Report). The next and final time the partition was discussed is at the AGM of29 December 1990 - the subject of the enquiry where it is said the resolution was defeated (see paragraph 22 above).

31. Included in the requested documents from Counsel for the Applicant were various documents relating to Wharekahika A 15.

32. A letter from Potts & Hodgson dated 3 December 1990 requesting that 'the Proprietors of Potikirua agree to the request by Wamoana Te Kani to partition the block known as Wharekahika A15' and that 'it is important that the proposal for partition be fully understood by the owners',

33. On 7 November 1990 a letter was sent from the Secretary to the Proprietors of Potikirua Incorporated stating that "At Potikirua Committee Management Meeting a Resolution was passed that Block known as Wharekahika A15 from Main Highway to Oweka River [sic.]". There were three options:

i) Pmtition;

ii) Failing (i), to lease Wharekahika A 15 to Wamoana Te Kani;

iii) Failing (i) and (ii) Wharekahika is to be returned to Potikirua Incorporation for farming, with the house or area of section remaining with Wamoana Te Kani.


The letter then went on to state that 'notice of intention to partition must be in writing to Potikirua Incorporation will be advertised in Public notices in local newspaper prior to AGM'[sic.]

34. Lastly, a note from a 'Meeting held with the Committee of Management' on 12 September 1991 states that:

After discussion the committee agreed to Wamoana applying for a partition for part of Wharekahika A 15 between State Highway 35 to Oweka River, an area of approximately 25 hectares. This partition to be carried out as soon as possible.

Moved by Harry Satchell

Seconded by Eddie Matchitt

All Committee in favour of the motion

35. This last document indicates quite to the contrary that a resolution was never passed in favour of a partition (this from the AGM of 29 December 1990). We have not been aware of this information up until this point. This document however, is only on behalf of the Committee of Management. We do not have any information on the Court record to see whether this resolution was discussed in any of the Annual General Meetings post 12 September 1991 (even though the request was made to Counsel for the Applicant).

36. The outcome of the discussion as set out above is that there is still issue with the two types of transactions - partition and transfer.

Validity of tile Registrar's Endorsement

37. Pursuant to s 233 of the 1953 Act-

no alienation of Maori fi'eehold land which is not by the Part of this Act required to be confirmed by the COUli shall have any force or effect unless and until the instrument by which the alienation is effected has endorsed thereon a memorial that it has been produced to the Registrar and has been noted in the Records of the Court.

38. There is nothing in this section to indicate how the Registrar should carry out the act of endorsing a memorial and noting it on the Court records.

39. The Report and Recommendation explained that the nature of the transaction meant that there is very little documentation available on the Court record for the transaction. Counsel for the Applicant was of the view that this statement suggested that:

.. , the Deputy Registrar made no inquiries into the terms of the oral agreement, the payment of the purchase price, the execution of the memorandum of transfer and any resolution to sell passed by the shareholders.

and that:

... the Deputy Registrar simply endorsed the memorandum of transfer without first determining whether it complied with the Maori Affairs Act 1953 and the Maori Affairs Amendment Act 1967. This cannot be correct as a matter of law or conveyancing practice. (see letter dated 29 March 2012)

40. The Case Manager's response to these two statements was that the Report did not


intend to suggest that the Deputy Registrar made no inquiries about the validity of the transaction, it merely outlined that there was very little information available on the COUli record. It was also agreed that there may have been a possible failure on the part of the Deputy Registrar to make these inquiries but more evidence would be needed to substantiate this:

Because there is a lack of documentation to substantiate what went on at the time the Deputy Registrar made the endorsement, this does not mean the memorandum of transfer was endorsed without first determining whether it complied with the relevant legislation. The Report does not suggest the Deputy Registrar did not act without due diligence, but attempts to illustrate that the nature of the transaction means that there is not a lot of information on the records available. The Report is not suggesting the endorsement was just 'rubber stamped' as Maori Land Court processes would ensure that the correct procedure was followed.

41. Counsel for the Respondent submitted that there is no statutory authority for the Registrar to make enquiries into the terms of the transaction or to enquire as to whether the relevant legislation had been complied with.

42 Counsel for the Applicant asselis that the legislation contains something to the effect that the Registrar is to make enquiries and ensure that relevant legislation has been satisfied.

43. On fUliher research about a Registrar's role, the following resources were found:

a) 'A guideline for endorsements' document written by WH Colbert (Registrar) in 1983 (a copy of which is attached and marked "A");

b) A position/action sheet for endorsements (a copy of which is attached and marked "B");

c) An application (Hahau A20B2BN Block) involving a Registrar's endorsement for lease documents where the Registrar made an assessment that there were some matters that may work to invalidate the instrument. These comments were made in light of the below High Court decision (a copy of which is attached and marked "C");

d) A High Court decision on the point of Registrar's endorsements: Pihema v Pihema v Pehikano & Ors [1983] 1 NZLR 625 (HC)7 (a copy of which is attached and marked "D") and

e) HOllsing Corporation of New Zealand v Maori Trustee [1988] 2 NZLR 662 (HC)8 which applies Pihell1a v Pehikano & Or9s, a copy of which is attached and marked "E"

A Guideline for Endorsements: Attachment "A" dated 21 July 1983 by WH Colbeli, Registrar.

44. An extract of the guidelines is reproduced:

l. Section 233 of the Maori Affairs Act 1953 requires the instrument by which an alienation of Maori Freehold land is effected, which is not required to be confirmed, to be endorsed with a memorial that it has been produced to the

7 Pihell1a v Pihema v Pehikano [1983] 1 NZLR 625 (HC). 8 Housing Corporation of New Zealand v Miiori Trustee [1988] 2 NZLR 662 (HC) at 18. 9 Ibid at 3.


registrar and has been noted in the records of the COUlt. Furthermore, a copy of the instrument must also be lodged for transmission by the Registrar to the Maori Trustee for the purpose of recovelY, pursuant to s 231, of the proceeds of alienation.

5. Just as much care in making this type of notation against our title records needs to be exercised as with other notations which affect the legal or equitable fee simple. They have their parallel in the Land Transfer Office i.e. registration and as such "time is of the essence". Endorsements must therefore receive a certain priority.

6. The first step is to scrutinise the instrument. By this I mean -

(i) Check that the document is properly executed and witnessed

(ii) Check that the document is dated

(iii) Check that the legal description is correct

(iv) Check that the person who executed the document as owner of the particular estate passing is in fact the owner of that estate

Non compliance with anyone of these four instances renders the instrument incapable of endorsement.

7. The next step is to bring down a concise form of notation for entry onto the Memorial Schedule ...

Position/Action Sheet for Endorsements: Attachment "B"

45. This is a checklist of II actions required for endorsements made under s 233 of the 1953 Act. The list is as follows:

1. Receive Instrument for noting (original plus 2 copies)

2. Enter in Register

3. Complete Position Sheet

4. Scrutinise Instrument

5. Endorse Instrument

6. Submit to Registrar (Registrar to initial "Details" above)

7. Enter "Details" on memorial schedule

8. Have entry checked

9. Memorialise copy of instrument

10. Retum instrument

11. Transmit copy of instrument to Maori Trustee

Hahau A20B2BN Blocl{ Application- Endorsement of Lease Documents: Attachment "c" dated 26 November 1984


46. In a letter dated 26 November 1984 from the Alienations Officer of the Maori Land Court (Tairawhiti District), to solicitors acting for a lease transaction, it was written that "the Registrar has asked that the following matters be brought to your attention: He comments that in view of the recent High Court decision re Pihema v Pehikino & Ors Hamilton A216-81: 2/5/1983, the instrument is endorsed." He was however of the opinion that the following matters may well work to invalidate this instrument:

(i) Alterations and additions thereto have not been initialled;

(ii) There is no documentation to support the Partnership; and

(iii) The provisions regarding payment of proceeds contained in s 231 of the Maori Affairs Act are mandatory.

Pillema v Pillema v Pellikano & Ors [1983J 1 NZLR 625 (HC): Annex "D"

47. In this case the Registrar refused to endorse the lease, asserting that it contravened the Trust Order. On P's application for judicial review, Bisson J held that:

As an officer of the Maori Land Court the Registrar must be satisfied that the instrument produced to him was, on the face of it, an "alienation" of Maori freehold land which was not required under Part XIX of the Maori Affairs Act to be confirmed by the Court. Once satisfied of that, it was then his duty under s 233(1) to note the instrument in the records of the Court and to endorse the required memorial on it. The Act imposed no duty on the Registrar beyond the words of the section to note and endorse such an instrument. There was no requirement on the Registrar to consider the validity or legal efficacy of an alienation." to

49. Bisson J 'could not accept the second defendant's position that s 233 was intended to give the Registrar a jurisdiction somewhat a kin to but to some lesser degree than the jurisdiction of the Court to confirm alienations by way of transfer' . It was the Judge's view that:

.. .if the Registrar were to exercise any judicial function, or quasijudicial function, and to do more than simply note in the records of the Court the alienation and then endorse thereon a memorial, the Act would have stated the matters on which he must be satisfied just as the Act sets out in s 227 the matters in respect of which the Court must be satisfied before confirming an alienation by way of transfer ...

Fmther, Bisson J stated that he:

... could not read into s 233 any requirement for the Registrar to consider the validity or legal efficacy of such alienations ... it is the clear intention of the legislature in s 233 (1) to provide in the Court a place of record for such alienations as do not come before the Court for confirmation ... to require the Registrar to do more would create the difficulty of where to draw the line. It is not for this Court to impose any greater function on the Registrar than the administrative function of the section itself.

50. Accordingly, the Registrar's decision was set aside and the Registrar ordered to note the instrument by way of lease in the records of the Maori Land Court and endorse it.

Housing Corporation of New Zealand v MOori Trustee [1988J 2 NZLR 662 (HC): Attachment "E"

to Pihema v Pihema v Pehikano [1983] 1 NZLR 625 (HC) at 629.


50. In this case Housing Corporation of New Zealand ("HCNZ") had a mortgage registered incorrectly and not produced to the Maori Land Court for endorsement under s 233 of the 1953 Act. It was then registered by the District Land Registrar despite the correct procedure not being followed. When HCNZ became aware of this oversight it requested a copy of the mortgage be endorsed by the Maori Land Court. It was stamped and prepared for the Registrar's signature. HCNZ asked the District Land Registrar to produce his copy of the mortgage to the COUlt for endorsement but he declined to do so. HZNC applied for review of the Court's refusal to sign the endorsement and the District Land Registrar's refusal to produce his copy. The Court was entitled to refuse to endorse the mortgage because the correct copy of the mortgage was not produced and such an endorsement would have been illegal.

51. Here Judge McGechan also cited Pihema v Pehikino ll and determined the function of the Registrar under s 233 to be 'purely administrative' and 'purely a recording function', with no power to determine the validity of the instrument concerned. 12

52. It appears from further investigation and from the precedents that the Registrar's sole obligation was to make sure the instrument was an alienation and to make sure he endorsed it noting it on the Court record. He was not required to enquire into the validity or legal efficacy of the memorandum, and certainly not required to go as far as Counsel for the Applicant submitted in enquiring into the terms of the oral agreement, whether the consideration had been paid, whether the memorandum had been executed in accordance with ss 42 and 48 of the 1967 Amendment Act, and whether the shareholders of the incorporation had passed the necessary resolution for the partition and sale of the block.

53. It would seem then that the idea of the Registrar's endorsement pursuant to s 233 of the 1953 Act was somewhere along the lines of a 'rubber stamp'. The only scrutiny the instrument went through (as set out above at paragraph 29(6)) was for the Registrar to check that the document was properly executed and witnessed, check that the document was dated, check that the legal description was correct, and to check that the person who executed the document was an owner of the particular estate passing is in fact the owner of that estate. Registrars were not obligated to do anything more.

CONCLUSIONS

54. The nature of the transaction in question is the stalting point for this application. This is the sole reason the Report did not inquire into a Partition Order as the instrument named in the application is not a paltition, but a transfer of land.

55. This Report endorses the Report and Recommendation that there is possible ambiguity over whether a resolution for a paItition was ever passed, due to the chairman closing the meeting before the ballot was declared. However with the latest information as requested and provided from Counsel for the Applicant, it appears at a Committee Meeting dated 12 September 1991 that a resolution for the partition was discussed and passed. There are no further AGM minutes to confirm this however.

56. Even with the subsequent information provided by Counsel for the Applicant, it still appears that the Records for the Potikirua Incorporation are incomplete. At this time, it would be unreasonable to conclude that the paltition and transfer are one and the same transaction within the Potikirua Incorporation's dealings with Wamoana Te Kani and the Wharekahika A15 block.

57. As seen from the above discussion and research under the 1953 Act, the Deputy Registrar need not have gone so far as to make inquiries into the terms of the oral agreement, the payment of the purchase price, the execution of the memorandum of transfer and any resolution to sell passed by the shareholders as Counsel for the Applicant's allege. He need not even have checked to see if the instrument complied with the relevant law.

11 Pihema v Pihema v Pehikano [1983] 1 NZLR 625 (HC). 12 HOllsing Corporation of New Zealand v Moori Trllstee [1988] 2 NZLR 662 (HC) at 18.


58. Standard practice required the Registrar to check that the document was properly executed and witnessed; check that the document was dated; check that the legal description was correct; and check that the person who executed the document as owner of the particular estate passing is in fact the owner of that estate. The endorsing of memorials as illustrated by the research above is purely administrative and for record keeping purposes.

59. Finally, it is not for this Court to decide on the validity, good faith or value of the transaction itself. The terms of the transaction and whether they were carried out or met are purely contractual matters of which business is between the parties and their solicitors to rectify the matter within the appropriate jurisdiction.

Submissions of the Parties

[11] At the hearing held on 10 July 2012, Mr Koning for the applicant accepted that Part

IV of the Maori Affairs Amendment Act 1967 applied at the relevant time the transfer was

registered on 5 March 1993. Section 31 (3A) of the 1967 Amendment Act provided that" ...

no dealing by the incorporation with any of the land shall require confirmation by the

Comi." He also accepted that s 233 of the Maori Affairs Act 1953, as amended by the

Maori Affairs Amendment Act 1967, applied to the facts of this case.

[12] Mr Koning noted that the memorandum of transfer used in this case to effect the

transfer of the land from the Incorporation, did not require confirmation by the Maori Land

Court. However, it was his submission that the Deputy Registrar was obliged to make a

determination or decision prior to endorsing the memorandum of transfer. In effect, he

argued that, the process used by the Deputy Registrar required that he be satisfied of a

number of matters before endorsing the memorandum and thus his actions amounted to

more than a mere administrative act. He went on to attempt to distinguish those jUdgments

referred to in the Chief Registrar's s 40 report13. He contended that the Deputy Registrar

did have a quasi-judicial function and that he erred in law by endorsing the memorandum,

without satisfying himself of the statutory requirements.

[13] Those statutory requirements included matters contained in Part IV of the Maori

Affairs Amendment Act 1967.

[14] Mr Koning further submitted that the definition of an "order" of the Maori Land

Court as defined in ss 4 and 44 of Te Ture Whenua Maori Act 1993 was broad enough to

include a Deputy Registrar's memorial of endorsement on a memorandum of transfer.

13 23 Tairawhiti MB 214 (23 TRW 214).


[15] This submission was relevant to whether or not the jurisdiction to correct an order

of the Maori Land Court made by a mistake or omission under s 45 of Te Ture Whenua

Maori Act 1993 extends to the instrument used in this case, namely a Deputy Registrar's

memorial endorsing a memorandum of transfer.

[16] Mr Koning submitted that I should interpret ss 44 and 45 in a manner that gives

effect to the Preamble, ss 2 and 17 of Te Ture Whenua Maori Act 1993. In doing so, I

should find that the memorial endorsing the memorandum of transfer made by the Deputy

Registrar was in effect an order of the Court. If I find that this is the correct interpretation

to be given to the definition of the word "order" in the 1993 Act, then I can consider

whether there has been a mistake or omission on the part of the Deputy Registrar. Mr

Koning asserted that if I am persuaded by his client's case, then I have jurisdiction to grant

an order under s 44.

[17] In response to these submissions, Mr Barber contended that the Chief Judge's

jurisdiction under ss 44 and 45 must be strictly construed. There is no mention; he pointed

out, of memorials or endorsements under s 233 of the Maori Affairs Amendment Act 1967

in ss 4 and 44 ofTe Ture Whenua Maori Act 1993. That was because, he argued, the act of

endorsement was not an order of the Court or the Registrar.

[18] It was, he submitted, merely an administrative act requiring no exercise of any

quasi judicial reasoning. Furthermore, the definition of an order under s 4 of Te Ture

Whenua Maori Act 1993 (or indeed under the Maori Affairs Act 1953) does not confirm

that a Deputy Registrar's memorial endorsing a memorandum of transfer is an order.

[19] Mr Barber also did not accept that the precedents from the High Court referred to in

the s 40 report could be distinguished, submitting that the cases referred to did apply to this

situation. Thus, he argued, I have no lawful authority to exercise the jurisdiction conferred

upon the Chief Judge under s 44 of the Act.

[20] In reply, Mr Koning reiterated his submissions that the decision by the Deputy

Registrar to endorse the memorandum of transfer was a "decision" and as such it was

amenable to the exercise of jurisdiction under s 44 of the Act.


Discussion

[21] Under s 44 of the 1993 Act, where satisfied that an order made by the Court or the

Registrar (including an order made by a Registrar before the commencement of the 1993

Act), or a certificate of confirmation issued by a Registrar under s 160 of the 1993 Act, is

erroneous in fact or law because of any mistake or omission, the Chief Judge or Deputy

Chief Judge acting pursuant to delegated authority, may cancel or amend such orders or

certificates.

[22] In order to answer the question of whether I have jurisdiction, I turn to consider the

relevant statutory provisions in effect at the time of this transfer. I do so to ascertain

whether the Deputy Registrar's memorial of endorsement was an order of the Court. These

enactments were s 233 of the Maori Affairs Act 1953 and ss 42 and 48 of the Maori Affairs

Amendment Act 1967.

[23] Section 42 of the Maori Affairs Amendment Act 1967 provided that:

(1) The seal of every Maori incorporation under this Part of this Act shall be in the

prescribed form, and the custody thereof shall be determined by regulations under

this Act.

(2) Subject to the provisions of subsection (3) of this section, the seal may be affixed to

any instrument in the presence of a majority of the members of the committee of

management and all the members of the committee present when the seal is affixed

shall sign the instrument.

(3) Pursuant to a resolution passed by the committee of management in that behalf,

given either in specific or general terms, the seal may be affixed to any instrument in

the presence of any 2 members of the committee. In any such case, the 2 members

of the committee shall sign the instrument and there shall be an endorsement on the

instrument stipulating the date and substance of the resolution passed by the

committee of management as aforesaid.

(4) Except as provided by this section, the seal shall not be affixed to any instrument.

[24] Mr Koning submitted that s 42 of the 1967 Act required that the Deputy Registrar

determine that the memorandum of transfer had been correctly executed.


[25] The other relevant provision from the 1967 Act was s 48 which provided that:

(1) Whether or not any such power is specifically included in its objects of

incorporation, a Maori incorporation shall, acting by and through its committee of

management, have power to alienate, mortgage, charge, or otherwise dispose of or

deal with the assets from time to time vested in it in the same manner as if it were a

private person of full capacity:

Provided that the incorporation shall not sell any land except pursuant to a

resolution of a general meeting of shareholders.

(2) On the presentation to him of any memorandum of transfer executed by the

incorporation, the District Land Registrar shall not be concerned to inquire whether

a resolution under subsection (1) of this section has been passed in respect of the

sale. [emp. added]

[26] Mr Koning submitted that s 48(2) conferred on the Deputy Registrar of the Maori

Land Court an obligation to ensure that the applicant had complied with s 48(1) before the

memorandum of transfer was presented to the District Land Registrar.

[27] Mr Koning also submitted that the Deputy Registrar was required to have regard to

s 233 of the Maori Affairs Act 1953 which provided that:

(1) No alienation of Maori freehold land which is not by this Part of this Act required to

be confirmed by the Court shall have any force or effect unless and until the

instrument by which the alienation is effected has endorsed there on a memorial that

it has been produced to the Registrar and has been noted in the Records of the Court.

(2) An additional copy of the instrument of alienation shall at the time of its production

to the Registrar for the purposes of subsection (1) of this section be lodged with the

Registrar for transmission to the Maori Trustee for the purposes of the recovery,

pursuant to section 231 of this Act, of the proceeds derived from the alienation.

[28] In doing so, Mr Koning argued that there was an obligation on the Deputy Registrar

to confirm the terms of the oral agreement between the parties and to ascertain whether the

incorporation received the purchase price through the agency of the Maori Trustee.


[29] Thus, according to Mr Koning, the Deputy Registrar under the enactments above

was exercising more than a mere administrative act in memorialising a memorandum of

transfer. He was making a decision akin to an order.

[30] Such arguments regarding these provisions would be reasonable to pursue if a

memorial of endorsement had been included in the definition of an "order". But the reality

is that Mr Koning's client cannot escape the problem that none of the relevant provisions

assist with the definition of whether the memorial endorsing the memorandum of transfer

made by the Deputy Registrar is an "order" for the purposes of s 44 of Te Ture Whenua

Maori Act 1993.

[31] Even the definitions of the term "order" from the Maori Affairs Act 1953 and Te

Ture Whenua Maori Act 1993 fail to assist his client's position. Under s 2 of the Maori

Affairs Act 1953 the term "order" was defined as an "order, judgment, decision, or

determination of the Maori Land Court or the Maori Appellate COUl1" and it included a

refusal to make an order. Although more expansive, the definition under s 4 of Te Ture

Whenua Maori Act 1994 takes the matter no further. That definition reads that an order in

relation to the Maori Land Court means:

(a) (i) an order, judgment, decision, or determination of the Maori Land Court or the

Maori Appellate Court; and

(ii) an order made by a Registrar in the exercise of a jurisdiction or power pursuant

to section 39(1); and

(iii) an order made by the Chief Judge under section 44; and

(iv) an order or decision made by a Judge, the Chief Judge, or the court under

sections 26B to 26ZB; and

(b) includes a refusal to make an order, judgment, decision, or determination of a kind

referred to in paragraph (a)(i) or paragraph (a)(ii) or paragraph (a)(iii).

[32] In addition, the word "endorsement" from s 233 of the 1953 Act is a problem. It

was defined in s 2 of the Land Transfer Act 1952 as, in addition to its ordinary meaning,

including anything written upon or at the foot of any document for giving effect to any of

the purposes of that Act. This is consistent with other definitions of 'endorsement', those

being: the 'action of endorsing (a document), a signature, memorandum, or remark


endorsed upon a document; writing on the back of a document; the placing of a signature,

sometimes with an additional notation, on the back of a negotiable instrument to transfer or

guarantee the instrument or to acknowledge payment. The application of the signature or

notation itself is the act of endorsement. 14 It is not an act that amounts to a "decision or

determination" .

[33] Section 233 of the Maori Affairs Act 1953 also reqUIres an instrument to be

endorsed with a memorial that it has been produced to the Registrar. The term 'memorial'

in this context refers to the end product of the actions of the Registrar, namely the

document to which his or her signature has been applied.

[34] In the High Court decision of Housing Corporation New Zealand v Maori Trustee 15

that Court was concerned with whether a refusal by a Registrar of the Maori Land COUli to

endorse a copy of a memorandum of mortgage was lawful. McGechan J upon reviewing s

233 stated:

14

15

"The Maori Affairs Amendment Act of 1967 effected substantial change to this system. Parliament

severely reduced the category of transactions requiring the Maori Land Court confirmation from that

of all alienations, including mortgages and charges, down merely to that of transfers (s224[1 D. Other transactions within the definition of "alienations" were subject merely to a new s 233 (in its

present day form). All that was required in relation to such other transactions was production to the

Registrar of the Maori Land Court, noting for the records of the Maori Land COUli, and endorsement

on the instrument concerned. The requirement for such production and endorsement was given teeth

by provision that alienations concerned would not have force and effect unless and until such

endorsement was made.

The duty of the Registrar of the Maori Land Court under s 233 is a purely recording function. It may

be implicit in that function that the Registrar must decide whether the instrument amounts to an

"alienation" so as to come within the section at all, but that in most cases would be resolved in the

twinkling of an eye.

In Pihema v Pehikino [1984] 1 NZLR 625 Bisson J held that beyond that threshold decision the

Registrar had no power or duty under s 233 to determine the validity of the instrument concerned.

See definitions in the Oxford English Dictional)'; Butterworths New Zealand Law Dictional)' (6th ed) (Lexis Nexis Ltd Wellington, 2005); Bryan A Garner Blacks Law DictionalY (9th ed) (Thomson Reuters, United States of America, 2009) Housing Corporation of New Zealand v Maori Trustee [1988] 2 NZLR 662 (HC).


His function is purely administrative. The object of s 233 was to ensure that the Maori Land Court

had an immediate and complete record available to it.

If the Registrar were to exercise any judicial function, or quasi judicial function, and to do more

than simply note in the records of the Court the alienation and then endorse thereon a memorial, the

Act would have stated the matters on which he must be satisfied just as the Act sets out in s 227 the

matters in respect of which the Court must be satisfied before confirming an alienation by way of

transfer."

[35] I am of a similar view and I am not convinced that this is a case that may be

distinguished from the approach taken in Pihema v Pehikano. 16 I consider that the Deputy

Registrar only had to be satisfied that the memorandum of transfer produced to him was,

on the face of it, an "alienation" of Maori freehold land which was not required under Part

XIX of the Maori Affairs Act to be confirmed by the Court. As Bisson J noted, once:

" ... satisfied of that, it was then his duty under s 233(1) to note the instrument in the

records of the Court and to endorse the required memorial on it. The Act imposed no

duty on the Registrar beyond the words of the section to note and endorse such an

instrument. There was no requirement on the Registrar to consider the validity or

legal efficacy of an alienation."

[36] I consider that Mr Koning's submissions on the interpretation of s 233 of the Maori

Affairs Act 1953, ss 42 and 48 of the Maori Affairs Amendment Act 1967 and s 44 of Te

Ture Whenua Maori Act 1993 attempt to import too much meaning into those sections

beyond that intended by Parliament. They certainly do not transform the act of the Deputy

Registrar from a memorial of endorsement to an "order" of the Court.

[37] My interpretation of the relevant provisions is strengthened by having regard to s

160 of the 1993 Act which sets out a list of matters that the Registrar must be satisfied of

before issuing a certificate of confirmation. That section clearly requires the Registrar to

exercise a quasi judicial function.

[38] Thus, I can see no justification to extend the Chief Judge's jurisdiction under ss 45

and 44 to correct a memorial of endorsement made by a Deputy Registrar.

16 Pihema v Pihema v Pehikano [1983] 1 NZLR 625 (HC).


[39] Furthermore, the Preamble, ss 2 and 17 ofTe Ture Whenua Maori Act 1993 do not

assist Mr Koning's client given the clear and unambiguous definition of the term "order"

under all relevant enactments.

[40] I therefore decline to exercise jurisdiction under s 44 of Te Ture Whenua Maori Act

1993, on the grounds that to do so in the manner sought would be ultra vires the 1993 Act

and thus unlawful and of no effect.

Dated at Gisborne this 30th day of January 2013.

CLFox DEPUTY CHIEF JUDGE

Date post:	29-Oct-2019
Category:	Documents
Upload:	others
View:	1 times
Download:	0 times