Paniora v Arau [1998] CKCA 3; CA 04 of 1997 (6 August 1998)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT AUCKLAND

C.A. 4/97

IN THE MATTER of Section 429 and 430 of the Cook Islands Act 1915
and Rule 348 of the Code of Civil Procedure 1981

AND:

IN THE MATTER of the land known as Pa Ariki Section 37G,
Arutanga, Aitutaki

BETWEEN:

PURUA PANIORA of Aitutaki, retired
Appellant

AND:

METUA ARAU
Respondent

Coram: Sir Maurice Casey
Hon. P.G. Hillyer Q.C.
Hon. J.D. Dillon

Mr M.C. Mitchell for the Appellant
Mrs T.P. Browne for the Respondent

Date of Hearing: 16 July 1998
Date of Judgment: 6 August 1998

JUDGMENT OF THE COURT DELIVERED BY DILLON J.

On 25 February 1997 the Respondent applied to the High Court for an Order pursuant to Section 429 and 430 of the Cook Islands Act 1915, and Rule 348 of the Code of Civil Procedure 1981 to partition out her interests in the land known as Pa Ariki Section 37G, Arutanga, situate on the Island of Aitutaki.

Mr Mitchell, by way of a preliminary application to the Appeal proper sought to amend the Notice of Appeal pursuant to the provisions of Section 63 and 65 of the Judicature Act 1980-1981, and Rules 17 and 18 of the Court of Appeal Rules 1981. This application was necessary because the original appeal was lodged by Teina Bishop of Aitutaki, Company Director. However, while Mr Bishop is entitled to succeed to his deceased father's interests in this land, he has not in fact completed the succession process. Section 451 of the Cook Islands Act 1915 provides as follows:

"451. No action without succession order – no successor shall be capable of instituting in any Court other than the Land Court any action or other proceeding relating to his interest as such successor until and unless a succession order has been made in his favour."

Consequently it was necessary to substitute Teina Bishop's uncle Purua Paniora as the Appellant for the appeal to proceed. Mr Paniora is an owner in this land. Mrs Browne had no objection to this application and an Order was made accordingly.

Mr Mtchell had a further preliminary application pursuant to the provisions of Section 57 of the Judicature Act 1981 and Rule 22 of the Court of Appeal Rules 1981 in order to introduce by way of affidavit the evidence of Purua Paniora. Mrs Browne, while not making a similar application, had nevertheless attached to her detailed and helpful submissions an affidavit by the Respondent. We agreed that both these affidavits should be admitted in order to provide us with all the evidence to fully appreciate and understand the somewhat confusing set of circumstances disclosed by the respective Counsel's submissions.

The Respondent's application came before the Land Division of the High Court at Aitutaki on 13 May 1997, when the following Orders were made:

"There are no objections. Order of Partition Section 430 dividing Pa Ariki Section 37G into two parcels. Firstly 400 sq. m. being that portion of 37G shown on the plan submitted to be vested in Metua Arau f.a. solely to be called 37G1, and secondly the rest and residue of 37G after excluding the land firstly above described to be vested in the present owners of 37G save that Metua Arau shall no longer be an owner and the total shares shall reduce to 1 7/8th shares and the block be called 37G2. Applicant to pay all survey costs to create the two titles together with advtg and order fees. AG McHugh (J), 13/5/97."

It is against that Order that the Appellant now appeals.

Prior to the 1997 Court hearing referred to above, the Respondent had called a meeting of the land owners. This was held on 21 March 1995. The purpose of the meeting was recorded as follows:

"To receive and discuss upon a request by Metua Arau of the abovementioned land Pa Ariki Section 37G, Arutanga, the section which Paremo Ioane my brother occupied. So I ask your consent to grant me this portion for me and my children and the feeding children of my brother Paremo Ioane, namely Mica, Tetapu, Tutai."

The area sought by the Respondent was occupied by Paremo Ioane who had his house on that portion marked "773 sq. m." on the plan of the area included in the record on appeal. The owners at this meeting rejected the Respondent's application for her to partition out this part of the 37G block.

Following that meeting Mr Teina Bishop, on 4 May 1995, called a similar meeting of the owners:

"To receive and discuss upon a request by Teina Bishop for the abovementioned land which was leased to A. B. Donald Ltd, division of CITC, dated 28.5.17. The purpose was to ask the land owners to grant this land to him through lease for a term of 30 years after expiration of the A.B. Donald's lease term."

The owners present, who included the Appellant but not the Respondent, decided as follows:

"The land owners unanimously agreed to Teina Bishop's request, with the following terms:

(a) Term 20 years.

(b) Annual rental - $1,000.

(c) Review of Rental – 5 years"

It is necessary at this stage to identify the land which is referred to as having been leased to A.B. Donald Ltd. Pa Arikia 37G comprises 2135 sq. m. approximately and is divided into three sections. The area with Paremo Ioane's house already referred to comprises 773 sq. m. The section marked 'Crown Land' comprises 475 sq. m. Compensation for the taking of this section has previously been settled with the owners. The balance is the area marked 888 sq. m., part of which is hatched on the plan and is the area of 400 sq. m., the subject of this appeal. The balance of 488 sq. m, is hereafter referred to as the "unhatched area". The whole of the 888 sq. m. was subject to the A.B. Donald Ltd lease which was due to expire on 27 May 1997. That lessee had initially used the section for retailing petrol and associated products, and subsequent sublessees carried out similar operations.

The sublessees terminated their occupancy in or about July 1985 and the Head Lessee arranged for Mr Teina Bishop to take over the petrol retail operations. The later constructed a concrete pad on the hatched area of 400 sq. m. from which the petrol retailing business is now operating.

The present state of affairs may therefore be summarised as follows;

l. There is a partition order over the hatched area of 400 sq. m. in favour of the Respondent which is the subject of this appeal.

2. Mr Teina Bishop has built and is operating a petrol retailing outlet on the same hatched area even though:

(a) He has not succeeded to his interests of his recently deceased father and is not therefore as yet an owner;

(b) He has not made the appropriate application for a lease under the Land (Facilitation of Dealings) Act 1970-71;

(c) Any rights he may have had under the arrangements with the previous Head Lessee were extinguished when that lease expired on 27 May 1997.

The Court records disclose that the application for partition of 13 May 1997 was supported by:

1. The minutes of the meeting held on 21/3/95 when the Respondent's application was rejected.

2. A submission by Mrs Brown that the area applied for was the "... portion between a house that belongs to a family member and a petrol bowser ..." and that "the portion she is seeking is 400 sq. m. which at the moment has just a concrete foundation on it.

The Respondent was not called to give evidence in support of her application. The Appellant who had attended the Court hearing to object to the application was, for the reason detailed in his affidavit, absent when the application was finally dealt with. As a result the minutes record that "there are no objections" and an Order of Partition was granted in favour of the Respondent.

However it now transpires that the following information was not before the Court when the partition was made, namely:

1. The lease to A.B. Donald Ltd on the day of the Court hearing was still current - it did not expire until 27 May 1997.

2. There was no evidence of the family arrangement dated 4 May 1995 agreeing to a 20 year lease of the 888 sq. m. (which included the hatched area of 400 sq. m.) in favour of Teina Bishop.

3. There was no explanation of the "concrete foundation" referred to in the Court minutes which had been built by Teina Bishop and have subsequently been developed as a new petrol distribution point.

4. At the Court hearing on 13 May 1997 Mrs Browne submitted that the Respondent "... is entitled to 1/3 of this land - it is 2/9ths of one share." That equates to 184 sq. m. The Respondent, in her affidavit, believes she is entitled to 338 sq. m. by anticipating a future shareholding to which she has not yet succeeded. On the other hand the Court referred to the Respondent's interest as being '... 1/4 of one share which is 525 sq. m. approximately". That calculation assumed one share when in fact the title provides for two shares. It also wrongly includes the Crown Land area of 475 sq. m. for which the owners have already been compensated.

On 3 February 1950 the Court made an order "declaring that as among the several owners their relative interests herein (are) defined as follows", namely one share for the first seven owners, thus each taking a 1/7th share; and one share for the remaining six owners, thus each taking a 1/6th share. The Respondent was awarded 1/6th of one share; and has succeeded as to a half of 1/6th, thus entitling her to 1/4 of one share. Mr Mitchell has, therefore, correctly calculated the Respondent's present entitlement to be 207 sq. m. Consequently the award of 400 sq, m. is substantially in excess of her entitlement.

Mrs Browne, for the Respondent, "... submitted that the appropriate order is to affirm the judgment of the lower Court, but reduce the area of the section to 350 sq. m." That area is in anticipation of future successions to which the Respondent believes she is entitled. Her present ownership, however, is limited to 207 sq. m.

Mr Mitchell for the Appellant "...submitted that the appropriate Order for this Court to make is to vacate the Order made and refer the matter back to the High Court to be called at the next sitting of the land division when the objections can be heard and the entitlement calculated."

The disparity between the area of 400 sq. m. awarded and the area of 207 sq. m. to which the Respondent is entitled; and the emergence of the conflicting petrol retail operations are both issues which require determination, firstly by the owners of this land and if that should not be successful then by the Land Division of the High Court. Mr Mitchell referred to the current negotiations by the owners to repurchase the area of Crown Land comprising 475 sq. m. If those negotiations were successful that would provide additional land to satisfy both the Owners' entitlements as well as their expectations.

For those reasons the appeal is allowed. The Partition Order dated 13 May 1997 is vacated. The application for partition is referred back to the Land Division of the High Court for determination.

Because of the special circumstances we make no order as to costs.

By the Court
Dillon J.