127 Whangarei MB 1

IN THE MAORI LAND COURT OF NEW ZEALAND T AITOKERAU DISTRICT

Hearing:

Judgment:

A20050011359

UNDER Section 289, Te Ture Whenua Maori Act 1993

IN THE MATTER OF Te Konoti B4A3B2

12 June 2007 (Heard at Whangarei)

2 September 2008

ROSE DUDLEY Applicant

RESERVED INTERIM JUDGMENT OF JUDGE D J AMBLER

IntI'olluctioll

[1] Rose Dudley (nee Rangi) has applied to the Comt to paltition her interests in

Te Konoti B4A3B2 (''the land"). This is a preliminary determination following a

preliminalY hearing in terms ofntle 143 of the Maori Land Comt Rules 1994.

Bacl<gI'OIDld

[2] The land is Maori freehold land. It was created by paltition order of the

Comt dated 8 May 1998 when Te Konoti B4A3B (created by a paltition order dated

11 November 1957) was paItitioned into Konoti B4A3Bl comprising 7.6000

hectares in favour of Wharerau Dudley and Konoti B4 A3 B2 comprising 13 .1690

hectares in favour of Pungarehu Dudley. (The Court record variously refers to both

"Konoti" and Te Konoti". I adopt the Ilame "Te Konoti" as it appears to be the

proper name.)

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127 Whangarei MB 2

[3] Rose Dudley is one of five children of the late Pungarehu Dudley. On 26

January 2000 the COUli dealt with succession to Pungarehu Dudley's interests in the

land. As I understand the COUli minutes, Pungarehu Dudley had tlU'ee natural

children, being Taukiri Dudley, Matthew Dudley and Rose Dudley, and two whangai

children, being HelU'y Samuels and Bella Samuels. He left a will whereby he vested

the existing house and sUlTounds comprising approximately one acre in Rose Dudley

solely; a quatter acre in each of Taukiri Dudley, Matthew Dudley, Henry Samuels

and Bella Samuels; and the remainder of the land absolutely in Taukiri Dudley,

Matthew Dudley and Rose Dudley.

[4] At the COUlt sitting consideration was given to vesting all interests in a

whanau trust. Ultimately that did not proceed as Rose did not consent. Accordingly,

the Court gave effect to Pungarehu Dudley's will whereby the one share in the land

is now held as follows:

Taukiri Dudley 0.320 shares Matthew Dudley 0.320 shares Rose Dudley 0.344 shares HelllY Samuels 0.008 shares Bella Samuels 0.008 shares

[5] The COUli also made an order pursuant to section 18(1)(a) detennining that

Rose Dudley is the sole owner of the house on the land. At the sitting the Court was

also advised that Rose Dudley's long term plan was to pattition her interests. The

COUlt explained at the time that paltition was difficult to achieve.

[6] The COUlt has since also granted an occupation order in favour of Taukiri

Dudley on 21 Februaty 2005 for an area of one acre. Taukiri Dudley has yet to

build. The exact location of the occupation order is a matter that I will need to retum

to in this judgment.

[7] HelllY Samuels has since passed away and his children have expressed their

views via his eldest daughter, Flo-Ellen Samuels.

[8] Rose Dudley lives in the house on the land with her children. In recent years

Rose was able to undeltake repairs to the house with the assistance of Housing

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127 Whangarei MB 3

Corporation 's Rural Housing Programme. However, there is now no funding

available to assist Rose. She also no longer meets Housing Corporation's other

criteria whereby a tri-paliite alTangement could be put in place. She seeks a paliition

in order to be able to mmigage the land to obtain a loan fi-om a bank to complete a

third bedroom and other upgrading of the house.

[9] At the time of the paliition order in 1998 there was an existing access

problem for the land. The late Pungarehu Dudley obtained access by "grace and

favour" of his neighbour, Thompson, to Fairbu111 Road. Rose Dudley explained that

she still obtained access over the neighbouring block, which seems to now be owned

by GalY May. If access carmot be secured across the neighbour's land then access

will need to be built across the balance of the land to Fairburn Road, which involves

some expense.

[10] Rose Dudley is suppmied in her application for partition by her brother

Matthew Dudley and sister Bella Samuels. In total those suppmiing the partition

hold 0.672 shares out of a total of one share in the land.

[11] Taukiri Dudley opposes the paliition. She considers that it goes against the

wishes of their father and grandfather and their late brother, Henry Samuels. She

opposes using the land as collateral on principle. She also sees the paliition as

fragmenting the land and therefore fragmenting the whanau. She suppmis her

sister's wish to improve her circumstances for herself and for her children, but was

not able to offer a solution to her need to obtain finance to improve the house.

[12] During the hearing I questioned Taukiri as to whether the fact that her father

specifically left the house and one acre to Rose and qualier acre interests to the other

four children suggested that he contemplated that they would end up with sepal'ate

titles. Taukiri answered honestly and said that she had not looked at it like that but

that "could've been his intention". Rose added her understanding of her father 's

intention as follows:

HI mean Dad knew he was ill so he flew to visit the rest of my brothers and sisters. He was really trying to get an idea of who to leave the hOllse and the land to and because at the lime, I never had a partner and I \Vas a single Mllm and I \Vas living in Kaitaia. Bllt he did visit my brother and my sister and he came backfrom the visit

127 Whangarei MB 4

with the decision that I'm going to stay here and the others will fol/ow wherever their partners will be and so that's how he made his will out to accommodate myself and my children. And the second parcels of land came into play when they were ready to come home because they indica led that they didn'l know what they were doing so decided 10 leave them separate parcels of land in case they did decide to come home. AI whichever time thai would be. "

[13] Berny Samuels' children also opposed the partition. They did not appear in

person but provided a letter bye-mail to their Aunt, Rose Dudley. They echoed their

late father's view that the land should not be paltitioned and, in palticular, should not

be used as collateral.

The Law

[14] Partition is govemed by Part 14 of the Act. The key principles applicable to

paltition were succinctly summarised by the Maori Appellate COUlt in Hammond­

Whangawehi IB3Hl (2007) 34 Gisbome Appellate MB 185 - 195 as follows:

"[14] The leading decision on partition is that of the High Court in Brown v Maori Appellate Court [2001]1 NZLR 87. We refer also to the decisions of this Court in Re Pori Levy - Wade Werela Osborne, Re Kaiwailau I (2005) 34 APGS 168 and Re Matakana lA 7A Ngatai v Duvall & Ors (2007) 21 Waikato Maniapoto Appellate MB 147.

(15] The Court has exclusive jwisdiction to grant partition orders in relation to Maori freehold land in accordance with Part 14 of the Act. That jurisdiction is discretionaJY. The Act directs the Court to exercise its discretion in three steps.

[16] First, the statutory prerequisites must be satisfied. The Court is expressly prohibited from granting partition if these prerequisites are not satisfied. There are, in essence, three (we do not look at the situation where the land is vested in an Incorporation):

Section 288(2)(a): The Court must be satisfied that the owners have had "sufficient notice of the application and sufficient opportunity to discuss and consider it."

Section 288(2)(b): The Court must be satisfied that there is a "sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter."

Section 288(4)(a) and (b): The Court must be satisfied that the partition is "necessary to facilitate the effective operation, development, and utilisation of the land," or, "effects an alienation of land, by gift, to a member of the donor's whanau, being a member who is within the preferred classes of alienees."

[17] In Brown v Maori Appellate Court the High Court clarified (para 51) that "necessary" in section 288(4)(a) is properly to be construed as "reasonably

127 Whangarei MB 5

necessary" and that it is "closer to that which is essential than that which is simply desirable or expedient."

[18] Second, if the statutory prerequisites are satisfied, the Court must then address the mandatory considerations in section 288(1). That section requires the Court to have regard to the opinion of the owners as a whole, the effect of the proposal on the interests of the owners, and the best overall use and development of the land.

[19] Third, the Court is to exercise its general discretion mindful that it may refuse to exercise that discretion if it would not achieve the principal purpose of Part 14 of the Act: section 287(2). The principal purpose is expressed in section 286(1) to be "to facilitate the use and occupation by the owners of land owned by Maori by rationalising particular landholdings and providing access or additional or improved access to the land."

[20] At all times the Court must have regard to the principles set out in the preamble to the Act, section 2 and section 17: Brown v Maori Appellate COllrt (para 66).

Discussion

[15] I approach the application 111 the manner suggested 111 Hammond -

Whangawehi lB3Hl.

[16] First, there are the statutory prerequisites. Section 288(2)(a) is satisfied. As

far as whether there is a sufficient degree of SUppOlt for the paltition, I conclude that

there is, with owners holding over two thirds of the interests suppOlting the paItition.

There is then the question of whether either section 288(4)(a) or (b) are satisfied.

This is often where applicants fail as they calmot satisfY the Court that the paItition

is neceSSaIY to facilitate the effective operation, development and utilisation of the

land. In the circumstances I am satisfied that partition is necessaly. Rose Dudley

needs to obtain finance fi'om a bank to do up the house to make it more liveable. She

needs to use the land as security. While it is theoretically possible for an Aim

Whenua TlUst to be established, for that tl1lst to grant a mOltgage over the land and

for either the tlUSt or Rose Dudley personally to take out a loan, it appears that that is

unlikely to succeed as one third of the owners object to the land being used as

security. In the circumstances the owners cmiliot agree and, in order for Rose

Dudley to undeltake what is a modest and reasonable development of the land, she

needs to have her own separate title by way of pal tit ion.

127 Whangarei MB 6

[17] I also have regard to section 288(4)(b). This is an unusual prOVlSlon,

introduced by the 2002 Amendment to the Act, whereby the COUlt can pattition if

the pattition would effect an alienation of land by gift to a member of the donor's

whanau. It is arguable that the present circumstances whereby the late Pllngarehu

Dudley specifically left the house and one acre to Rose Dudley satisfies the

subsection.

[18] Second, there are the mandatory considerations as set out in section 288(1).

These present some difficulties. Without viewing the land in person I cannot assess

what the overall affect of the proposal on the interests of the owners might be and I

call1lOt determine what is the best overall use and development of the land. As I

have indicated earlier, there is an access issue. It is not clear whether the existing

occupation order will be affected. It is not clear to me whether the partition can be

achieved without compromising the interests of the other owners. It is also not clear

whether the other owners might also seek to paltition their quatter acre sections at

the same time. These are all matters which require fut1her discussion on the land

before I can make a final determination.

[19] Similarly, I cannot address the exercise ofthe Court's general discretion until

I have inspected the land.

Conclusion

[20] Accordingly, Rose Dudley has gone a substantial way to satisfying me that a

pattition is appropriate. However, the fmal decision will depend upon an inspection

of the land. Accordingly, I direct the Case Manager to liase with the applicant and

the owners of the land to convene an inspection of the land at a time and on a date

that is suitable to them and to me. If no such date can be arranged then I will set the

application down for hearing at the conclusion of the nex1 COUlt sitting in Kaitaia

(which is November this year) for the Court to then conduct its inspection of the

land.

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127 Whangarei MB 7

at -mm'pm

day of ~fH?008.