Nia v Love [2010] CKCA 3; CA 5.2009 (18 June 2010)

IN THE COURT OF APPEAL OF THE COOK ISLANDS

CA 5/2009

IN THE MATTER of Section 54 of the Judicature Act and Article 62(c) and (e) Of the Constitution

AND

IN THE MATTER of a decision by Justice Hingston dated 13th March 2009 Partitioning the land Vaitamanga 88F and 88F2A, Arorangi

BETWEEN

ERUERA TE WHITI NIA artist and THOMAS LOWRY accountant Both of Rarotonga
Appellants

AND

MYRA AROHA MEMORY LOVE Landowner
Respondent

Before: Barker P
Smellie JA
Fisher JA

Counsel: Mr Nia and Mr Lowry (first and second-named appellants) in person
Mr T Manarangi for respondent

Date of Hearing: 16 June 2010
Date of Judgment: 18 June 2010

JUDGMENT OF THE COURT

Introduction

1. The appellants appeal against a decision of Hingston J given in the Land Division of the High Court on 13 March 2009. They bring the appeal on behalf of other family members who share with the respondent ownership of two parcels of land known as Vaitamanga 88F and 88F2A, adjoining the sea at Arorangi.

2. No order was sealed following Hingston J's decision but its effect was to partition part of 88F (which part we will refer to as 88F3) and the whole of 88F2A. The partition divided the land between the respondent, on the one hand, and the other co-owners, on the other. The appellants complain that partition was inappropriate in substance and that procedurally they were given no opportunity to hold a family meeting before the decision was given.

Background

3. The land in 88F2A and 88F3 was held by four sisters, Mokoroa, Inanui, Veia and the respondent Myra Love in equal shares. When the first three died, their interest passed to their issue. The appellants represent all or most of the issue of the first three sisters in the current appeal. The respondent has continued as the owner of the fourth share down to the present day.

4. In varying combinations the parties are also the owners of other land adjacent to 88F2A. Along with that land, the owners leased 88F2A to South Pacific Resorts Ltd trading as Crown Beach Resorts ("Crown Beach"). The lease has another 22 years to run. Crown Beach Resort erected various buildings including ten fully detached accommodation units on 88F2A.

5. The land in 88F3 is a strip of sand between 88F2A and the sea. It is not presently the subject of any lease nor is it built upon. It represents potential access from the Crown Beach resort to the main beach and the sea.

6. Over the last 13 years there has been an unresolved dispute between the lessee of 88F2A (now Crown Beach) and the landowners concerning access from the leased land to the beach. The land in 88F3 lies between the two. The question is whether the lessee can use 88F3 for that access. The parties currently await the outcome of the landowners' application for a permanent injunction against Crown Beach and its guests. There was a defended hearing of that matter in October 2009. For some reason the decision has not yet been released.

7. In addition to the dispute with Crown Beach there is a second dispute. This dispute lies between the landowners themselves. It concerns the future use of the land. Most of the landowners contend that Crown Beach should be refused a lease over 88F2A after its expiry and that in the meantime they should fight on in their quest for a permanent injunction against Crown Beach's use of 88F3. That course will include, if necessary, the prosecution of, or resistance to, any appeals which might follow the current proceedings against Crown Beach.

8. The respondent, on the other hand, has had enough of the dispute with Crown Beach. She contends that it should be settled on a commercial basis now. She contemplates the negotiation of a lease over her portion of 88F3, and a new lease of her portion of 88F2A to follow the existing lease. She is 75 and would like to see an end to the whole matter.

9. When the respondent's dispute with her fellow-owners could not be resolved she arranged for the preparation of a scheme plan for partition of 88F2A and 88F3. Under the scheme plan the portion she would receive comprises one quarter of the total land now in dispute. Partition of the quarter to her would enable her to independently finalise matters with Crown Beach.

High Court proceedings

10. The respondent initiated proceedings for partition before the High Court sitting in its Land jurisdiction. She produced the scheme plan proposing partition of 88F2A and 88F3. Under the plan the respondent would take a strip of land on the southern boundary of both lots forming approximately one quarter of the whole in area. Access to the one quarter strip would be gained by a 4m access strip across the eastern end of the balance to be retained by the remaining owners.

11. In the partition proceedings two affidavits were filed by the respondent's son, Seth Love, and one by each of the above-named appellants. There was then a hearing at which each of the principal parties gave oral evidence.

12. After hearing the evidence Hingston J concluded that the dissention within the family made any chance of a consensus remote. He noted the general jurisdiction to make a partition order under s 429 of the Cook Islands Act 1915. He could see no purpose in prolonging the dispute between the owners. It was not expedient to leave them fighting in one group. The respondent was 75 years of age and needed finality. Consequently he made the partition order sought.

The appeal

13. Section 429(1) of the Cook Islands Act 1915 gives the High Court jurisdiction to partition land of this kind. Section 429(2) goes on to provide:

Such jurisdiction shall be discretionary, and the Court may refuse to exercise the same in any case in which it is of opinion that partition would be inexpedient in the public interest or in the interests of the owners or other persons interested in the land.

14. The only other express statutory criterion of relevance to the present appeal is that pursuant to s 433 the Court is

... to avoid, so far as practicable, subdivision into areas which because of their smallness or their configuration or for any other reason are unsuitable for separate ownership or occupation.

15. Beyond those provisions the discretion to partition is largely unfettered. Where an appeal is brought against the exercise of a judicial discretion the appellate court does not simply substitute its own view. It will intervene only if at first instance there has been an error of principle, reliance upon irrelevant considerations, disregard of relevant ones or the giving of a decision which is plainly wrong.

16. In this Court the appellants, who were unrepresented, have adopted as their submissions a solicitor's memorandum of 7 September 2009. That memorandum was originally filed in support of the application for leave to bring the present appeal. We have carefully considered the arguments advanced in that memorandum so far as they relate to the appeal. We have also been much assisted by the submissions of Mr Nia and Mr Lowry presented before us in person.

17. From those sources we have identified the following as the significant grounds of appeal.

Failure to pay proper regard to the dispute with Crown Beach

18. A principal argument for the appellants is that the Judge failed to pay proper regard to the long-standing dispute they have with Crown Beach over access to the beach.

19. The appellants argue that they have invested much time, trouble and expense in pursuing the rights of all the landowners against Crown Beach; that it would be unfair for the respondent to desert the cause at this late stage; that for her to come to a separate agreement with Crown Beach would unfairly benefit both Crown Beach and herself, and that such an arrangement would weaken the cause of the remaining landowners in their continuing battle with Crown Beach.

20. These matters were traversed before Hingston J. Although his reasons for decision are cursory in the extreme, he participated in much discussion about the dispute with Crown Beach in the course of the hearing. He could scarcely have failed to take that matter into account.

21. Nor is it apparent to us that in the context of a partition application the Judge was wrong to place greater weight on the dissention between the landowners themselves. It must be remembered that partition is primarily concerned with internal relationships between landowners, not their joint or several external relationships with third parties.

22. Although we expressly invited them to do so, the appellants were unable to articulate any prejudice to them in the way in which they will conduct the existing proceedings with Crown Beach if the existing partition order is left to stand. Nor are they precluded from negotiating with Crown Beach in relation to the remaining 75 per cent of the land if they think fit.

Partition lines bisecting improvements

23. The appellants are concerned that the effect of partition would be to run boundary lines through existing improvements.

24. The actual partition line is yet to be finally surveyed but the scheme plan does not bisect any building. It does encounter the outer edge of the courtyards associated with two of the buildings. However that would seem to be remedied by either a slight change in the boundary as finally surveyed, or physical alterations to the courtyards, should that ultimately prove necessary.

25. The appellants also expressed concern over bisection of buildings if the remaining 75 per cent of the land were to be further partitioned into three 25 per cent lots. However there is no suggestion that the remaining owners wish to subdivide their residual area. Nor is it clear that if they did decide to do so the boundary lines would be in the position they fear.

Partitioned properties impractically small

26. The appellants argue that the partition would produce properties which were impractically small. The respondent's portion of 88F3 would be only 404 m2. However this overlooks the form of the partition ordered by Hingston J. He contemplated a merger between the respondent's portion of 88F3 with her portion of 88F2A. There is to be a similar merger between the residual portions of the land retained by the remaining owners.

27. In the result the respondent would have only one relevant property and the remaining owners another. The resultant two properties would not be impractically small.

Other grounds

28. The appellants relied upon a number of other grounds which we can deal with more shortly.

29. Despite the appellants' remarks to the contrary, we can see little point in denying the state of disharmony between the respondent and the remaining owners. Like Hingston J, we refrain from commenting upon the causes and merits of those family disputes. Nor would we want it to be thought that we accept, or have been influenced by, the respondent's intemperate remarks about Mr Nia and Mr Lowry. Those remarks should not have been made or included among the documents before the Court. But whatever the reasons, it would be idle to deny that there is a deep-seated stated of disharmony between the two groups which is unlikely to be resolved in the immediate future.

30. Allied to the last point, we can see no point in deferring partition to allow the opportunity for a family meeting about partition. Whatever the remaining owners might decide at such a meeting, the history suggests that any agreement with the respondent is no longer a realistic possiblity. In an ideal world such a meeting would have been held before the partition hearing. The overseas residence of most of the parties may have made that difficult. The key decision-makers appear to have been Mr Nia, Mr Lowry and the respondent. The first two did make their views known at the hearing before Hingston J. Clearly the respondent could have accepted the views they expressed, or participated in discussion immediately before, or during the hearing, if she had been open to persuasion. That she did not do so suggests that no amount of discussion in a family meeting would have made any difference.

31. The appellants suggest that priority in these matters should be given to the wishes of Cook Island residents compared to the wishes of residents overseas. We can understand that point of view but there is no legislative foundation for it. We note also that among all the many landowners involved here, only Mr Nia and Mr Lowry live locally.

32. Finally, we do not consider that there is any disproportionate value in the quarter interest partitioned to the respondent. It was not suggested that there was any material difference in area. The appellants suggested that the respondent would have an unfair advantage in having the portion closest to other land held by Crown Beach. However if she does implement the plans she presently contemplates, Crown Beach will control the land adjacent to the remaining 75 per cent retained by the remaining owners. They will be similarly free to either retain that land or come to an arrangement with Crown Beach as they think fit.

33. In our view no reason has been advanced for interfering with the way in which Hingston J exercised his discretion to make the partition order.

Result

34. The appeal is dismissed with costs to the respondent in the sum of $2,500 plus disbursements to be fixed by the Registrar.

SIGNED this 18th day of June 2010.

Barker P

Smellie JA

Fisher JA