Napa v Lynch [1997] CKCA 2; CA 1 of 1996 (30 September 1997)

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IN THE MATTER of an appeal against a decision of the High Court dated 30 January 1996

PAUL LYNCH, TAUEI NAPA, TAUEI SOLOMON, and
MENE KOTEKA all of Rarotonga.
Respondents

Counsel: Mr G B Chapman and Mrs T P Browne for the Appellant
Mr M C Mitchell and Mr P E Lynch for the Respondents

Solicitors:
For the Appellant: Clarkes, Rarotonga
For the Respondents: Miller, Howard and Lynch, Rarotonga

The history of land and family disputes over Tuoro Section 87A1B2 as presented to the Court below during the hearing from which this appeal emanates was most complex and made it difficult for that Court, and indeed this Court also, to elicit the real issues. As we shall see shortly the lower Court became confused over the location of an existing occupation right. This is not surprising as extensive evidence and submissions were placed before the Court as counsel for each party traversed the history from the originating title Tuoro 87A and its subsequent partitions and produced extracts from numerous Court hearings and family meetings from 1906 through to 1994. The record of proceedings filed in this appeal is contained in three volumes.

The lower Court proceedings commenced by application on 14 September 1994 but it was preceded by earlier hearings before the Court involving the same parties from 1990 to early 1994. The current proceedings commenced with a statutory meeting of assembled owners on 14 October 1994, followed by a contested hearing on 6 December 1994, the subsequent issue of directions from the Court and an interim judgment of the Court on 13 April 1995. This judgment led to further directions from the Court and a decision on an interlocutory access application in December 1995. The final judgment of the Court and the main source of this appeal was delivered on 30 January 1996.

Because of the protracted time span in this inter-family dispute as well as the confusing title and actual occupation position we have thought it helpful to preface this appeal with an explanatory statement of mainly undisputed facts. We have also appended a schedule of the beneficial ownership and several plans that assist in following the principal argument of both parties.

There are three volumes recording proceedings and the respective volume and folio thereof will be abbreviated and shown in brackets e.g (1/114), (3/76) etc.

The land which is the focus of attention in this appeal is Tuoro Section 87A1B2. This land has a total area of 1.9249 hectares and is physically divided into three separate parts. The first portion, comprising an area of 6200m², lies between the main road and the sea. It will herein be described as "the beach front section". The second portion, with an area of 8428m², is situated between the main road and the Ara Metua road and will herein be referred to as "the inland section". The third portion of 4621m² lies beyond the Ara Metua road and is at the rear of Tuoro 87AlA which fronts the Ara Metua Road and another intervening section Tuoro 87AlB1. This residual and steep area will be referred to as "the rear section". It has access out to the Ara Metua road by a strip 4 metres wide. This rear section takes no prominence in this appeal. As will be seen shortly it is the beach front section which is the subject matter in issue in this appeal. Schedule B shows the three respective divisions of Tuoro 87AlB2.

Title to this land was vested in sixteen persons by a partition order of the Court dated 15 December 1976. There were nine separate family groups represented in the ownership. As a result of the demise of certain of these owners and subsequent succession orders, the beneficial ownership grew in numbers from 16 in 1976 to 57 on 24 October 1994 - this being the date of the assembled owners meeting relevant in the present proceedings. The record of proceedings sets out the names of these 57 owners (1/65-66) and (1/130-131) but as neither of these lists shows the relative shares of each owner we have extrapolated from the Court's title record of Tuoro 87AIB2 the respective shares of the 57 owners and expressed those interests in fractions and also decimals. That more detailed list is appended as Schedule "A". We have also identified on Schedule "A" the parties involved in this appeal.

There is no Court ordered right of occupation, whether by way of confirmed lease or section 50/1946 occupation order, in respect of this section. There is an old but "substantial" house on this land built about 1929 and occupied by Tetevano, the adoptive father of the appellant, from about 1929-1956. The house was then occupied by Tetevano's divorced wife for a period and then rented out until 1968 when the appellant resumed occupation. It is presently occupied by the appellant's daughter, Rito. Reference to the plan on Schedule "D" appended hereto shows the location of the house which will be referred to herein as "the Tetevano house". Schedule "D" also shows a shack on the beach-front section which was built by one of the respondents, Tauei Solomon.

(a) an area of 1138m², awarded to the appellant, Harry Napa, for a house site on 25 August 1965. The appellant has a house on this site (2/91).]

(b) an area of 1012m², awarded to Orieta Williams or Pera (sister of respondent Mene Koteka) for a house site on 1 March 1973 and

(c) an area of 995m² awarded to Oakirangi Adam (Grandmother of respondent Paul Lynch) for a house site on 14 June 1976. This section is presently occupied by Luina Lynch, mother of Paul Lynch. There is a house on this section.

These three Court awarded areas are shown on a plan produced to this Court by counsel for the appellant as RO 249, RO 450 and RO 809 respectively. They are also shown in the record at 3/18. A copy of that extracted plan is hereto appended as Schedule "B". There is also an area of informally occupied land on the inland section which was said by the respondent Paul Lynch in the Court below as being capable of producing five sections, each 1012m² in area, as building sites (1/134).

15 October 1990:	Three of the four respondents together with Luina Adam (Lynch), mother of the fourth respondent, and a fifth applicant, Ada John, applied to the Court for partition and occupation rights over the beach front section. A plan showing the proposed division of the beach front section into six lots is appended hereto and marked "Schedule C". This plan was presented to the Court and showed the boundary line between Lot 3 (sought by Ada John) and Lot 2 (to be retained by the appellants family) actually passing through the Tetevano house. Ada John subsequently withdrew her application. The applications were opposed by the appellant who also had an application before the Court for confirmation of a resolution of owners to lease the whole of the beach front section to him.

16 August 1991:	The Court (Dillon J) refused to make any orders and directed the applicants to go back to the owners and try to reach a resolution. (3/20-24).

30 July 1992:	A meeting of owners was held (the appellant was absent) and approved a new plan of allocation (3.32). A copy of that plan is appended hereto as Schedule "D". It amended the boundary line previously intersecting the Tetevano house so that the house was located wholly on its own section (Lot 1) with an area of 1160m². Four sites each of 805m² were proposed for the four original applicants (Lots 2-5) and two additional areas were set aside for family recreation and beach reserve.

29 September 1993:	A further more widely representative family meeting was held and approved the allocation of the four sites. The appellant was invited to the meeting but did not attend. His nephew, Alexander Napa, representing Alex Napa Senior (brother of the appellant) and the Tetevano line, is recorded as being present and agreeing to the proposal (3/38-42). Owners present were agreed that Lot 1 (the Tetevano house site) be awarded to the Tetevano family.

13 December 1993:	The four occupation rights applications were before the Court. The appellant was represented by counsel and opposed (3/69-85). Decision of the Court was reserved to allow counsel for the applicants to lodge submissions.

28 March 1994:	The Court (Dillon J) issued judgment and dismissed three of the four applications on grounds they had not satisfied the Court they each intended to build homes and reside there. The fourth application (Luina Adam Lynch) was adjourned.

14 September 1994:	Applications to summon a meeting of assembled owners of Tuoro 87A1B2 were lodged by the four respondents (Luina Adams being excluded and substituted by her son Paul Lynch). They respectively sought a lease of the four Lots 2-5 (Schedule "D") of the sea front section. Attached to each lease was a draft of the proposed 60 year lease.

4 October 1994:	Following a direction given by the Court a meeting was scheduled for Friday 21 October 1994 but at the request of counsel for the applicants was rescheduled to Monday 24 October 1994.

24 October 1994:	Meeting of Assembled Owners was held in the Court room at Avarua and presided over by Mr Terepai Noo as chairman. Mr Noo is a senior officer of the High Court (Land Division) with many years experience in land matters and meeting procedures. The chairman explained the purpose of the meeting. The proposed allocation of the lease sites was presented in the plan shown at (3/32) and annexed hereto as Schedule "D". The plan was the same one presented to the Court on the earlier occupation right applications in 1993-94. Letters objecting to the proposed leases and seeking adjournment were read to the meeting. Those present decided they wished the meeting to proceed. The four lease applications were, by agreement, dealt with together. Following discussion the following resolution was certified by the chairman/ recording officer as being passed. (1/36) "That separate leases is (sic) granted to (a) Tauei Solomon (Lot 2) (b) Mene Koteka (Pera) (Lot 3) (c) Paul Lynch (Lot 4) (d) Tauei George Napa (Lot 5) in respect of the said land for a term of 60 years, subject to the normal terms and conditions for leases to landowners and their children as contained in the draft leases filed on the application"

7 November 1994:	Approval of the lease terms sought by counsel from the Lease Approvals Committee (2/93).

16 November 1994:	Applications for confirmation of resolutions filed in Court (1/9-16) including a plan of the beach front section. (1/22)

November 1994:	Some time soon after the filing of affidavits dated 22 November 1994 (1/65-70) the recording officer as chairman filed an undated amended minute of the 24 October 1994 meeting (1/71). This had the effect of changing the votes for and against the resolutions.

2 December 1994:	The Lease Approval Committee issued its approval of the lease terms (1/28).

6 December 1994:	A preliminary Court hearing of the four applications took place. Evidence was recorded and counsel for each of the parties was directed to file written submissions. (2/44-84)

1 March 1995:	Counsel for objector Harry Napa (the appellant) filed lengthy written submissions. (1/81-120)

9 March 1995:	Counsel for applicants (the respondents herein) filed written submissions.

13 March 1995:	The Court (Dillon J) issued an interim judgment, reviewed the evidence and required supplementary submissions and affidavits from counsel for the applicants. Applications were adjourned.

24 April 1995:	Counsel for applicants filed written submissions. (1//149-151)

22 December 1995:	The Court (Dillon J) issued an interlocutory decision granting the applicants use of the beach frontage and beach reserve "during the Christmas, festive and summer season" but prohibited encroachment upon the Tetevano house and surrounding area. (1/152)

30 January 1996:	The Court (Dillon J) gave its final judgment, confirmed the four resolutions and dismissed the earlier adjourned occupation right application of Luina Adam (Lynch). (1/154)

This appeal is against the order of the lower Court dated 30 January 1996 confirming the 4 resolutions in favour of each of the respondents granting them 60 year leases over Lots 2, 3, 4 and 5 on plan of beach front section - Schedule "D". By way of remedy the appellant seeks reversal of the judgment and thereby the disallowance of the four resolutions.

(2) Failure of the learned Judge to accord proper weight to family arrangements; and

(3) Deficiencies in the procedure of calling and conduct of the meeting of owners held on 24 October 1994.

The appellant's principal argument on this ground is that the learned Judge in the Court below misunderstood the actual location of the occupation right order granted to the appellant in 1965. This occupation right was in respect of an area of 1138m2, being part of the inland section - described as RO 249 on the relevant survey Office plan and also shown on the plan appended hereto - Schedule "B". The appellant claims that the hearing Judge mistakenly located RO 249 on that portion of the beach front section which included the Tetevano house and immediately surrounding land. The appellant asserts that this mistake which the Judge carried in his mind throughout the whole of the lower Court proceedings coloured his whole approach and was a material and fundamental error. Counsel for the appellant submitted that the learned Judge clearly considered the appellant's rights were only to the house and adjacent area and did not extend to the whole of the beach front section because of the limited area of the 1965 occupation order.

Counsel further submitted that the hearing Judge in writing his initial and principal judgment of 13 April 1995 (1/140-8) had not received or seen the extensive written submissions of counsel for the appellant, Mrs Browne, of 1 March 1995 (1/81-120). Counsel therefore concluded that this omission and the factual error as to location fatally flawed the final decision of 30 January 1996 (1/154-158) as the learned Judge formed his view on an incorrect basis.

In this ground the appellant claims the lower Court did not pay proper regard to the existence of a family arrangement and custom under which the appellant and his family were entitled to the whole of the beach front section. The appellant asserts that uninterrupted possession by Tetevano and his descendants since 1929 and evidence to the Court in various proceedings and disputes over the beach front section including an exchange arrangement in 1956; an injunction proceeding in 1969; a family meeting in 1972; partition applications in 1975 and 1976 and section 50/1946 occupation right hearings in 1990 and 1992-94, clearly establish the existence and acknowledgment of the Tetevano and his successor's rights to the beach front section by way of family arrangement.

The appellant in this third ground claims that the meeting was called and held without adequate notice at a time when the appellant was in hospital in New Zealand and despite attempts made on his behalf for adjournment of the meeting. As a result the appellant, a person vitally interested in the beach front section was denied the right to be present and to be heard. Counsel submitted that the lower Court Judge, on this ground alone, should have hesitated to confirm the lease resolutions. As a further ground the appellant claims that his presence at the meeting and as a senior family member would have influenced the voting result.

The respondent's submissions were directed to supporting the lower Court's finding that there was no family arrangement binding the beneficial owners of Tuoro 87A1B2 to recognise the Tetevano family as the persons entitled to the whole of the beach front section. The respondents claimed that there had been a long history of dispute over this land and the lower Court, having been involved in hearings from 1989, had a clear understanding of the issues, even if there appeared to be some misunderstanding over Harry Napa's occupation right.

The respondents say that the arrangement claimed by the appellant, as a result of numerous Court hearings and family meeting was a product of evolution but not an expression of common consent by all the owners. Further, that the majority view of these owners was against the Tetevano claim to exclusive rights to the beach front section although they recognised the Tetevano claim to the house and immediate land around it shown as Lot 1 on the plan. The respondents supported the lower Court's finding that, despite numerous opportunities over a long period, the appellant had done nothing to activate such an arrangement.

Counsel for the respondents produced a schedule which analysed the ownership and entitlement rights to Tuoro 87A1B2. Counsel submitted that taking into account the occupation right held by the appellant and the further agreed grant to the Tetevano family of Lot 1, the entitlement of the Tetevano family would be more than satisfied on an area basis. The schedule presented to this Court divided the ownership into 8 family groups as against the original 9 groups in the 1976 order. The 1/9th share omitted was in respect of the share of Tiamarama who died without issue as her interest would pass proportionately to the other 8 family groups. There is no disagreement between the parties as to the exclusion of Tiamarama's 1/9th interest.

Counsel for the respondents agreed that actual occupation of land may be a factor to be taken into account on allocation and location of land but it could not be relied upon to substantiate acquisition of a greater area of land than was justified by the amount of shares actually held.

The respondents supported the finding of the lower Court that the meeting of assembled owners was properly called and conducted and that the voting thereat was substantially in favour of the resolutions.

5.1 The first appeal ground challenges two factual errors or omissions on the part of the lower Court Judge. Counsel for the appellant has forcefully argued that the effect of these two errors created a mind-set in the hearing Judge which led him to the view that Harry Napa had no special or prior interest over the balance of the beach front land. It is certainly true that the lower Court misinterpreted the location of the occupation right, RO 249. There are numerous statements and references in the two judgments and the interim memorandum confirming this erroneous view - see (1/141-142, 1/145, 1/147, 1/157). There is not the same clear error in respect of the appellant's second claim that the hearing Judge had not seen the detailed written submissions of Mrs Tina Browne dated 1 March 1995 (1/81-120) prior to the issue of his first judgment on 13 April 1995. Certainly the statement made by the Judge in his interim memorandum of 22 December 1995 that "I have not seen the submissions of Mrs Browne until now" tends to corroborate that view. Against this however, there are other earlier statements by the Court that indicate counsel's submissions were before and seen by the hearing Judge before his judgment of 13 April 1995. In the first paragraph of the 13 April 1995 judgment (1/140) the Court said:

"Both counsel have now filed their submissions. They are extensive as to the historical background to the land in dispute, and they are detailed in the presentation of divergent and opposing views to the question of who is entitled to the land".

Again in the third paragraph of the judgment the Court referred to counsel's submissions:

"Mrs Browne, in her submissions provided detailed historical data concerning Tuoro 87A2 to 87A6 blocks inclusive and the effect on those titles as to various Court hearings".

The data referred to in this passage was set out in Mrs Browne's written submission of 1 March 1995. (see 1/83 et seq).

Despite the hearing Judge's later statement in the December memorandum (supra) which may well have been due to the 8 month gap and the Court dealing with the issue from New Zealand, it seems quite clear that the lower Court had both counsels' written submissions before it when the first judgment issued.

We therefore do not accept the appellant's submission on that alleged important omission of the Court. In any event the Court did have before it all relevant submissions and evidence prior to its final judgment on 30 January 1996.

The chronology set out in paragraph 1.4 (supra) shows that the present proceedings by the four respondents, representing four of the actual eight family title groups, commenced in 1990. From the outset the application was opposed by the appellant who sought to retain occupation of the beach front section. The record of proceedings, although it does not include full details of the appellant's application to lease the beach front section, nevertheless does disclose that the appellant wanted the land for a motel site (see 1/138 which refers to 15/91 lease application for Motel Purposes). In the decision of the Court on those earlier applications for occupation rights and a lease, it is apparent the Court was troubled by the competing claims and endeavoured to get the family groups to reach a compromise. The Court was also concerned that the appellant Harry Napa was claiming the whole of the beach front section. In his judgment of 28 March 1994 (3/103) Dillon J referred to Mr Napa's claim "to exclusive occupation of all the land between the road and beach" and went on to say:

"that is a very substantial claim given the area of land involved and its location and high valuation - and even more so when related to Mr Napa's interest in the block when compared with the other fifteen owners in the original title".

This concern of the Judge that one segment of the ownership have occupation entitlement to all of the beach front section was also manifest in both the first and final judgment now appealed. It would therefore in one sense have been a relief to the hearing Judge to believe (mistakenly) that in fact the appellant held an occupation right to an area of 1138m² on the beach front section as that fitted more suitably into the Court's overall desire to provide land for all the family title groups. The appellants argues that this wrong perception dimmed, if not extinguished, the more important claim that the appellant had a strong right based on long occupation and family arrangement to the whole beach front area totalling 6200m². We do not accept that view and will shortly see that the lower Court carefully examined the alternative claim based on arrangement. All the applications before the Court from 1990 onwards were directed to occupation of the beach front section and there was little emphasis on occupation rights over either the "inland section" or the "rear section". The judgments subject to this appeal do not refer to or deal with occupation of the inland section where in fact the appellant had his occupation order.

It would only be conjecture to infer what attitude the Court might have adopted if it had been aware Harry Napa's occupation right was located on the inland section. It is possible, however, to draw from the lower Court judgment that the Court recognised the appellant's claim to the old Tetevano home. In the light of the respondents' willingness also to recognise the appellant's claim to the house and surrounding land, as depicted on the plan as Lot 1 (Schedule "D"), and also the analysis of the respective family groups rights, as presented by counsel for the respondents in this appeal, it would be possible to surmise that the lower Court would still have accepted the appellant's family was entitled to Lot 1 in addition to RO 249. We shall return to consider Lot 1 entitlement later. For the reasons stated we do not accept that the error of fact concerning the mislocated occupation right was sufficiently material to flaw the Court's judgment.

In advancing the second ground, that the lower Court did not place sufficient weight on long standing family arrangements and custom, counsel for the appellant carefully and thoroughly traversed the history of Tuoro Section 87A and its partitioned titles from 1929 onwards, referring by Court minute to the significance of the 68 years of uninterrupted occupation and to statements made in Court during numerous hearings which involved the beach front section. This same analysis had been presented to the lower Court in even more detail by counsel Mrs Browne who also called witnesses in support of her submissions. We shall now examine the principal arguments and factual basis presented by the appellant to support this contention that an arrangement existed. The first ground is that there had been a long period of uninterrupted occupation by Tetevano and his descendants which was indicative of family acceptance of an arrangement to that effect. The respondent's answer was that occupation was certainly a factor which must be taken into account on a question of preferential allocation but could not be relied upon of itself to acquire a greater area of land than entitled by shares held. There are many cases where land is occupied informally for many years. Counsel referred to s.641 of the Cook Island Act which rules out prescriptory rights to Native land.

The lower Court said (1/145) that there was agreement for Tetevano to occupy and build on the section where his house stood but there was no evidence he was to occupy and own the total area. The Court said the appellant even recognised he had only a limited right and it was his

"expressed intention since injunction proceedings in 1975 to exchange out his interests in a large number of other blocks in Rarotonga to consolidate his present very limited interests in this block". (1/146)

We do not agree that the long occupation indicated a definitive family acceptance and arrangement over the whole beach front section. It was certainly a factor to be taken into account as it was by the residual owners and by the Court. If the appellant had in fact moved to consolidate and thereby increase his land shares in Section 87A1B2 then his long occupation would have been a material matter to be taken into account by the Court. We shall comment on the lack of action by the appellant to increase his shareholding and/or to seek Court recognition of a binding arrangement a little later herein.

Te Uira, who was one of the original owners under the 1906 order on investigation of title, was awarded a life interest only. She applied to the Court in 1956 and was awarded a freehold interest in Tuoro 87A2 which adjoins the 87A1B2 block. The appellant asserts that, in return for other family members standing back from also claiming interests in 87A2, Te Uira was "not to disturb the occupation of us, her brothers and sisters on our other lands". (1/85) The appellant claims that Te Uira in effect was to exchange her interest in 87A1 with her brothers and sisters in return for the freehold award in 87A2. The respondents reject this claim that an exchange was agreed and claim that Te Uira's interest in 87A2 came from an interest she held in her own right in 87A. The lower Court in its April 1995 decision (1/144) refused to accept that the statement made by one of the family present at Court in 1956 constituted an exchange.

Perusal of the title record of 87A shows that Te Uira was only 7 years of age when the 1906 Investigation Order was made. The grounds put forward in 1956 for the substitution of a freehold interest for the life interests, were that other infant owners holding similar life interest had been granted absolute interest and Te Uira had been on the land for 50 years.

We accept the respondents' argument that Te Uira's interest in 87A2 was a separate interest in her own right. We also agree with the lower Court's view that the words relied upon in the 1956 proceedings fall well short of establishing a promise or agreement to exchange.

The third fact put forward by the appellant as supporting an arrangement related to injunction proceedings before the Court in 1969. The appellant argued that the issue of the injunction indicated the Court must have then considered there was a family arrangement in force and the lower Court erred in 1995 in disregarding that fact and in seizing upon the use of the word "house" to limit the implication of an arrangement over the whole beach front section.

This Court considers the lower Court's interpretation was a reasonable construction in that the injunction issued stated:

"an injunction to issue restraining all persons from occupying house referred to in application except Harry Napa and Alexander Napa". (1/147)

Counsel for the appellant then moved to a family meeting in 1972 and a subsequent partition application by Maria Cowan in 1975 as further indicators of a family arrangement. Maria Cowan had sought to partition out a portion of the beach front section but ultimately accepted another site, section 87A1A, after opposition from the present appellant. A further partition was sought by Teina Napa (Lily Jonassen) in 1976 and again another vacant site was agreed to be taken by the applicant. Counsel for the appellant submitted that the lower Court attributed little or no significance to this sequence of family meetings and partitions.

In submissions to the lower Court on 9 March 1995 (1/135) counsel for the then applicants (now respondents) emphasised the point that at most meetings of landowners various and often opposing claims to land are made and recorded but this does not mean they have the full support of the owners. We consider this a fair observation. Indeed there will be instances where applicants will readily accept an alternative site to that originally sought so as to avoid family disputes. The partition applications just referred to go some distance in protecting Harry Napa's rights to the Lot 1 house site but fall short of establishing an arrangement agreed to by all or even the majority of the families involved.

As to the final factual reference relied upon by the appellant, we turn to consider the more recent applications from 1990-1994 which are recorded in the chronology (supra) and which were the forerunners of the present proceedings. Counsel for the appellant properly concedes that they are only of significance in the implied recognition by the respondents that without a formalised Court order they had no rights to occupy the beach front section.

The case for the appellant on the second major ground of alleged arrangement is therefore based on the accumulated evidence resulting from the series of matters we have just examined.

We do not consider that the matters placed before the lower Court and this Court substantiate the existence of an arrangement capable of being spelt out in terms which entitled the appellant to claim ownership entitlement to the entire beach front section or that there exists a customary right establishing that right.

The lower Court was clearly concerned that the appellant had never pursued Court action to consolidate land interests to support claim to larger entitlement nor had sought to lodge applications to test the validity or adequacy of any arrangement.

"At least 20 years have passed since the objector first indicated his intentions, which intentions were used to block owners in this very block from acquiring separate interests in the same way as the objector has". (1/157-158)

A similar view had previously been put to the lower Court by counsel for the respondents, Mr Lynch, who stated in referring to the 1956 exchange:

"It is pertinent to note that this purported exchange has not been mentioned or been the subject of an application in the nearly 40 years since the one sentence comment was made". (1/135)

There have been ample opportunities for the appellant to have put the matter to formal test in the Courts. As put to us by counsel for the appellant it would have been appropriate in the 1975 partition of 87A1 for this issue to be pursued. It would also have been proper to challenge Te Uira's rights a year later, on 15 December 1976, when 87A1 was partitioned into A1B1 and A1B2.

We also consider that an opportunity presented itself when Te Uira was succeeded to in 87A1B2 on 8 February 1978.

Obviously the failure of the appellant to bring an application to the Court was very much a factor in the lower Court's exercise of its discretion when it commented that Harry Napa's counsel during a Court hearing on 10 June 1975 asked the Court to note his client's intention to consolidate and partition his share. Justice Dillon concluded:

"However since 19 June 1975 twenty years have passed and no consolidation or partition has been effected by the objector". (1/142)

As indicated earlier the appellant has failed to satisfy us that an arrangement existed binding all the owners of section 87A1B2.

We now consider the third ground that there were deficiencies in the meeting of owners held on 24 October 1994.

The calling of meetings of the beneficial owners of Native freehold land and the procedure thereat are governed by Part II of the Land (Facilitation of Dealings) Act 1970 (herein referred to as "the said Act"). We do not propose to set out in detail all of the provisions but will refer to the important and relevant parts as we summarise the events that took place in respect of the land subject to this appeal. We shall also refer to an amendment in 1970 which recognised the rights of a senior family member to vote for any absent family member. The amendment also provided that the decision of the chairman as to whether any owner had authority to vote on behalf of another owner/s was final. We shall refer to this amendment which inserted a new clause 45A into the said Act as "the 1970 amendment".

The principal grounds of objection of the appellant relate to inadequate notice; the denial of a request for an adjournment to allow the appellant, then hospitalised in New Zealand, to present his objection as a person vitally interested; the minutes of the meeting were defective and there was no majority support for the resolution.

The four applications were lodged in Court on 14 September 1994. A meeting was directed on 4 October 1994 by Mr Tangaroa JP and set down for Friday 21 October 1994 but at request of counsel for the respondents was adjourned to Monday 24 October 1994.

Meetings of owners are summoned by the Registrar after direction by the Court and shall be held at such time and place as the Court or Registrar appoints (s.43 of the said Act). There is no minimum time limit fixed under the said Act for the giving of notice. Section 43(7) provides that:

"No meeting duly summoned in the prescribed manner and no resolution passed thereat shall be invalidated or otherwise affected by the circumstance that any owner has not in fact received notice of the holding of that meeting".

The meeting took place on 24 October 1994. There is some slight confusion as to numbers present. Counsel for the objectors in the lower Court hearing (1/87-88) said there were 10 persons present from 7 of the 9 family groups. Allowing for the exclusion of Tiamarama Tauei - deceased without issue - there appears to be only one family not represented, namely Arika Tauei, who was also deceased and unsucceeded at the meeting date. The minutes appear to record 11 persons present and include Mary George Tauei Napa who is not shown in the appellant's list at (1/88). The differing numbers present is not of significance as Mary Napa's vote whether present in person or by proxy was included. Proxies are admissible (s.45(2)).

Section 45(1) requires five individuals entitled to vote and representing at least one-quarter of the total beneficial shares being present to constitute the meeting. A calculation made of the share representation from Schedule "A" and as shown by the chairman's record (1/47) confirms there were 55.9% of total shares represented. Following the lodging of the later amended minute (1/72) by the chairman the quorum increased to 63.6%. At the conclusion of discussion the four resolutions were put to the vote. Again we have done a separate calculation based on schedule "A" using decimal points and this calculation agrees with the chairman's declaration. There were 47.7% of total shares supporting the resolutions and 8.3% against. These figures changed following the amended minute to 54.5% supporting and 9.1% against.

We now consider the submissions for the appellant that the meeting was defective principally because notice was inadequate and an application for adjournment refused by the chairman. The notation by Court staff on the applications to summon a meeting (see 1/3) indicate that initially the meeting was set for 21 October 1994 but there is no endorsement of the date on which notice issued from the Court after Mr Tangaroa JP's direction of 4 October. On 18 October the meeting date was postponed to 24 October. Written notices of the later meeting and accompanying proxy forms were sent out. The record of proceedings confirms this, see 1/52-64 where copies of the notice and proxy forms are shown. One of the proxy forms is dated 18 October (1/57) so the notice for the adjourned meeting date was in the hands of that owner by that date - 6 days prior to the meeting. It appears from the record also (1/23) that the reason for postponing the meeting was to give further time for distribution of notices and in fact notices were distributed over the weekend prior to the meeting (1/123). A daughter of the appellant, Kathleen Napa, apparently received notice on Thursday 20 October and immediately wrote and also arranged for her father's solicitor to write to the Registrar seeking cancellation on the grounds her father was in hospital in New Zealand (1/89 and 1/88). These letters were placed before the meeting but the assembled owners all agreed the meeting proceed. Kathleen Napa attended the meeting as proxy holder for Terito Napa. Alex Napa, brother of the appellant was also present. Counsel for the appellant argued that as a result to the meeting proceeding Harry Napa was unable to put his position to the other owners and was therefore denied justice. He was also denied a vote.

Counsel for the respondents submitted that the objection was "academic" in that all of the beneficial owners in Rarotonga, apart from the appellant, were present at the meeting, that seven out of the eight family groups were represented and the appellant's daughter and brother were there to put their family view.

Certainly it can be said that the notice of the meeting was rather short. However the practice followed in the Cook Islands appears to be that all resident beneficial owners be informed so they can attend or be represented by proxy. There is also the 1970 amendment which as Justice Dillon put it, (1/143) has proved to be a most helpful procedural provision when dealing with meetings of owners. These procedures together with the availability of family telephone discussions can obviate the need of lengthy notice periods. Nevertheless the Registrar has a duty to ensure sufficient time is given so that the owners can be represented and vote. There is a further circumstance which applies in these proceedings. We have already commented in paragraph 5.2 (supra) on the appellant's failure to commence Court proceedings over a long period. There was a further opportunity for the appellant to object and seek adjournment of the confirmation proceedings before the Court on 6 December 1994 but he did not do so. Section 55(1) of the said Act provides as follows:

"(1) The Court may from time to time postpone or adjourn the hearing of any application for confirmation of a resolution for the alienation of any land so as to permit the making of an application or applications for partition."

Surely if the appellant based his claim to the beach front section on a family arrangement he had the ideal opportunity on 6 December 1994 to seek partition and have the confirmation proceedings adjourned.

Taking into account all the above circumstances, namely, the actual and wide representation of family groups at the meeting, the opportunity for Harry Napa's family to present his case, the second opportunity on 6 December 1994 to commence partition and the wide family involvement permitted by the 1970 amendment, we do not consider there has been any miscarriage of justice on the notice and adjournment issues.

The appellant also challenged the voting process including the amended minute. Counsel submitted that the voting results would have differed if the recording officer had not accepted family representation by some of those present; that the descendants of Te Uira should not have had a vote by virtue of the 1956 exchange; and that some family members approached after the meeting now supported the appellant.

The lower Court relied on the statutory power of the chairman to make the decision and said there had been no suggestion the chairman had acted otherwise than fairly or properly on voting by representation.

We agree with these findings and also accept the submission of counsel for the respondents that post meeting activity by the appellant leading to changed views of some owners must be disregarded.

Turning to the voting results it should be noted that the chairman in assessing Alex Napa's share did not include the 1/117th share Alex Napa acquired from his natural father. This would have added .85% to the vote against the resolutions in both the original and amended minute results. As will be readily seen from the voting figures set out earlier there was a very substantial majority in support. It is also noted that the appellant due to his absence did not record a vote. If he had been present and voted we calculate the position to be as follows (the calculations also include the additional 1/117th share of Alex).

Although the chairman took a slightly unusual step in issuing the amended minute he did so in good faith and in an obvious desire to ensure the correctness of the record. One amendment made was to include an additional vote against the resolution. In any event the changes made had no effect on the voting result.

We find that the appellant has failed to satisfy us that the meeting should be declared invalid.

As was correctly put to us by counsel for the appellant section 54(1) of the said Act gives the Court a discretion as to whether it should confirm or disallow confirmation of a resolution. We do not propose to review the principles governing the exercise of judicial discretion except to say that unless a Court of Appeal reaches a clear conclusion that there was a wrongful exercise by the lower Court of the discretion conferred on it, in that no weight, or insufficient weight, was given to relevant consideration, then it is not at liberty to substitute its own exercise of discretion for that exercised in the Court below.

The history of Tuoro 87A1B2 since 1990, when the learned lower Court Judge first had before him applications for occupation rights and a lease resolution confirmation, show that the Court was very much aware of the need of dialogue between the owners and a compromise between the factions. On two occasions in 1991 and early 1994 the Court refused occupation orders to the respondents but at the same time cautioned the appellant against claiming the whole beach front section. When the present proceedings came before the Court in 1994-1995 it must have become evident to the Court there was a need to intervene particularly as the will of the owners was apparent in the resolutions passed by a large majority vote at an officially conducted meeting by an independent and experienced Court officer. Coupled with this was the continued neglect of the appellant to complete consolidation of shares so as to support a partition in his favour of the beach front section. The lower Court saw the appellant as continuing to block the other shareholders to the point that shareholders were entitled to ask how much longer they would be forced to wait. The Court may well have taken into account the acknowledgment by the respondents that they were prepared to recognise the continuing right to the house and 1160m² of Lot 1 as being vested in the Tetevano descendants.

We consider the lower Court Judge saw the result flowing from the assembled owners' meeting as a fair and just one and for the reasons we have set out in the review, paragraph 5 (supra), we also agree that the lower Court has reached a fair and just determination of the real matters in issue.

On an appeal the burden of proof is upon an appellant to rebut the presumption that the decision appealed against is right. This has not been done nor has the appellant persuaded us that there has been a wrongful exercise of judicial discretion by the lower Court.

Although the issue relating to the future occupation rights in respect of Lot 1 is one for the lower Court on application to it, we consider it may be helpful for this Court to express a view. There is agreement from the respondents that the Tetevano house on Lot 1 be awarded to the Tetevano descendants.

Because of the difficult stance adopted by the appellant there may well be residual discontent and bad feelings between the appellant and the residual owners which might result in the appellant failing to get majority support for an occupation order or for a lease of Lot 1. That would be unfortunate especially as the lower Court has said the Tetevano family is entitled to retain the house.

We also support this view from our study of the huge volume of material detailed in the record of proceedings. It is of course a matter for the Tetevano family to decide further action but it appears to us that if there is difficulty in obtaining family consent than the provision of section 409(a) of the Cook Islands Act 1915 might be invoked. This section gives a very wide jurisdiction to the Court to resolve matters between owners but is not often used.

We also finally observe there are still 5 possible house sites - see Schedule "B" - in the inland section for possible allocation among the family.

The respondents have been put to considerable expense in seeking confirmation of their leases. There is an award of $5,000 costs against the appellant in favour of the respondents.

There is a direction to the Registrar that the sum of $3,500 held by the Registrar as security be paid to the respondents in partial satisfaction of this order; such sum to be paid to the respondents' solicitors Miller, Howard and Lynch, whose receipt shall be a sufficient discharge to the Registrar.

This decision is delivered by the undersigned on behalf of the Court hearing this appeal.

Original Minute	For	47.73%
	Against	14.73%

Amended Minute	For	54.50$
	Against	15.58%

Court of Appeal of the Cook Islands

Napa v Lynch [1997] CKCA 2; CA 1 of 1996 (30 September 1997)