In the Matter of Ruaro & Vaipa section 89D [1988] CKHC 5; APPLICATION No 204.1983 (12 May 1988)

IN THE HIGH COURT OF COOK ISLANDS
HELD AT RAROTONGA
(LAND DIVISION)
APPLICATION NO. 204/83

IN THE MATTER
of Section 429 of the Cook Islands Act 1915

AND

IN THE MATTER
of RUAROA & VAIPAPA SECTION 89D

JUDGMENT

Mrs Browne has acted in this matter in support of those owners applying for a partition of the land in which they are co-owners with the remaining owners represented by Mr Tylor. Mrs Browne's clients comprise four out of the seven families holding in shares a total of nine out of a total of twelve, while Mr Tylor acts for three families entitled to three shares out of that total. Mrs Browne therefore acts for a majority of families and three-quarters of the total shareholding. The original application was lodged by Mrs Browne on 27 May 1983 and was supported by details of the shareholding and ownership plus a comprehensive plan (Exhibit A) which proposed an allocation and partition of the whole block based on the criteria, so it was suggested, of:

1. legal occupation,

2. actual but not legal occupation,

3. permanent crops, for example citrus,

4. seasonal crops,

5. balance of the land.

Based on those five criteria the partition proposed an allocation and distribution among the various families of the beach front area; the area between the main road and the Ara Metua; and the area between the Ara Metua and the mountain.

Based on that criteria referred to, and based on the attempt at an equitable distribution of land and resources, there is no doubt in my mind that the plan presented in support of the application for partition appears on the face of the plan to be both fair and reasonable. I say fair in that it would appear to not transgress or interfere with residential occupation, for want of a better term, and reasonable in that it appears to relate equitably to the respective shares of ownership in the block.

This brings me to the two fundamental principles which the Court believes should be observed in dealing with Partition Applications.

1. The Court has stated on numerous occasions that Partition Orders should be made by consent. In other words it is not for this Court to impose its views of how land should be apportioned or divided up between common owners of common ownership land. That responsibility of partition must be for the owners themselves to agree upon and to decide. However this Court believes that an exception must be made where any group of owners, especially a minority group, adopts an attitude that can properly be regarded as unreasonable; unfair; inequitable; or unconscionable. In this context it would come within the classification of those terms for a minority group or any group for that matter to so occupy or claim occupancy to common ownership land and so deprive other common owners of their fair share of occupancy or usage of their own inheritance.

2. The second principle is the necessity and desirability of this Court to recognise, and as far as possible preserve, those areas traditionally or presently occupied by some of the owners as distinct from owners who, while owners themselves, nevertheless do not or have not in the past resided on or occupied the land. In this context occupation can, I believe, be divided into residential and/or agricultural occupation and usage.

Applying those principles to the present case, I believe that firstly owners who have built houses and are living on this land are entitled to a priority consideration to ensure as far as possible that part of their family's interest be partitioned out around that residential area or areas. Secondly, the land should be considered in its totality to ensure that as far as possible the various family units share equitably and as fairly as possible beach front areas; main road frontage areas; areas between the main road and the Ara Metua; cultivatable areas between the Ara Metua and the foot of the mountains; and the areas on the side of the mountains.

As I mentioned previously the Court should not become involved in partitions, except to approve partition plans consented to and approved by the owners themselves. It is the owners' land and they should themselves make decisions as to its sub-division between the owners or the families that make up the owners. It should not be for the Court to impose its views in such circumstances. However, if the Court believes that some owners act unreasonably, and especially if a minority of owners act prejudicially to the interests of the majority of their fellow owners then this Court believes that a request for intervention as in this case should be considered and that the Court should intervene to ensure that justice is done and an injustice is not permitted. In order to consider whether this is one of those cases where the court should intervene, it is necessary to consider the background of this case; the facts leading up to the application; and the efforts so far made to try and reach a compromise and secure the desirability of a Consent Order for the partition of this land.

In this context it should be noted that there were family meetings on 29 June 1981, and again on 3 October 1981; the application was filed in the Court on 27 May 1983. It came before the Court on numerous occasions in 1984; a Section 390A was lodged by the minority group and the Chief Justice's ruling disallowed the claim made in those proceedings. That was in 1986. The Partition Application coming before the Court in 1985 and again part way through 1986; on numerous occasions had to be adjourned pending the Chief Justice's decision. Following that decision the matter was continuously before the Court whenever it sat in 1986 and 1987.

Throughout all these protracted hearings two minor concessions were made by the minority group represented by Mr Tylor. He had presented a plan which is Exhibit B and which sets out an allocation that would retain for his client not only their residential occupation rights but also their existing agricultural and cropping areas. The net result of that claim is clearly shown in the plan Exhibit B which highlights the unfair and unreasonable attitude adopted by the three families represented by Mr Tylor. The area claimed on plan Exhibit B is marked in red and comprises half approximately of the beach front area and the whole of the land between the main road and the Ara Metua. At one of the final Court hearings it was conceded by Mr Tylor's clients that the area marked "Y" at the foot of the mountain would be surrendered, this it was alleged being an area cultivated by his clients, and a small area marked "X" fronting onto the Ara Metua. Those were the only concessions which Mr Tylor's clients were prepared to make in what they claimed was their entitlement because of occupation.

In this context the Court records that Mr Tylor submitted that partitions must relate to that part of the land where people have been living on or occupying by way of cultivation. In other words if, as in this case, the three families Mr Tylor represents had in the past lived on and cultivated the whole 12.7 hectares then the other nine families, who are also owners, would not have any entitlement for the next 100 or 200 years. In other words they would be completely disenfranchised. Mr Tylor explained that the three families he acted for have in the past occupied half the area from the beach to the main road; the whole of the area from the main road to the Ara Metua; and a substantial part of the land from the Ara Metua to the foot of the mountains. He submitted that as a result of that occupation those three families he represented had a priority claim to that land. He was, however, prepared to make a concession by way of surrender of the otherwise entitled interests designated "X" and "Y" on plan Exhibit B. He claimed that this concession was of some significance and should be recognized as such by the Court.

What this submission means can be thrown into prominence by the site report prepared for Mr Tylor by the surveyor Mr Brill. A summary of that report shows that from the Ara Metua to the top of the mountain includes some steep bush and fern country at the eastern extremity. This area comprises 3.1 hectares out of the total area of 12.7 hectares. In other words a quarter of the total area to where Mr Tylor's families suggest that Mrs Browne's families should be relegated. Mr Brill has prepared a useful classification and areas at the conclusion of his report, and this is now set out for the purpose of highlighting what is proposed and suggested by Mr Tylor.

Classification	Area	Use/Value
1. Beach and stream reserve	0.5 ha	Conservation/recreation - little value
2. Beach side good land	1.0 ha	Commercial/tourist/residential - high value
3. Inland adjacent main road	0.6 ha	Commercial/residential - high value
4. Lower central area	1.0 ha	Agriculture - moderate to low value
5. Lower area to Ara Metua	1.2 ha	Residential/agricultural - moderate value
6. Ara Metua to Hils	5.5 ha	Residential/agricultural - moderate value
7. Steep land	3.1 ha	Conservation/forestry - low value

In other words Mr Tylor's clients are demanding the high and moderate value land for their three shares and expecting the remaining owners with nine shares to accept the moderate to low value areas. That suggestion, in the view of the Court, is quite unreasonable; is unfair to the other joint owners; takes no account of the use and occupation of this land over a number of years when that occupation is greater than entitlement; and takes no account of the majority of the owners whose patience has been exemplary and whose rights are being completely ignored. In those circumstances this Court believes that a serious injustice would be allowed to continue if this Application for Partition Order does not proceed.

Having made that decision it is now necessary to determine a Partition Order which will allow for and preserve, as far as possible, present residential occupation - and as to the balance of the land a Partition Order which will recognize the shareholdings of the seven families; the classification of the various areas as detailed by Mr Brill; and the consequential fair and equitable allocation of the land among those seven families.

Mr Tylor's clients have submitted Exhibit B as the suggested basis for partition. It is quite unacceptable and is a clear indication of the unreasonable attitude of those three families that he represents.

Mrs Browne has submitted a plan "Exhibit A". This takes into account the existing current leases and occupation rights. It then provides for a distribution of ownership throughout the area's classifications; and it provides an area entitlement in accordance with the shares already defined on the title.

The Court proposes the following course of action:

1. Plan Exhibit A shall be the basis of the partition proposed by this Court.

2. A Final Order shall be deferred to the next sitting of the Court expected some time in July.

3. If any of the three families represented by Mr Tylor believe that a residential occupation as distinct from an agricultural application is affected in some way by this proposed Order, then a formal Affidavit by that person or family claiming to be affected must be filed in the Court prior to 12 June 1988 and a copy served on Mrs Browne.

4. Insofar as agricultural occupation is concerned, any person or family claiming to be affected must file an affidavit giving details and the compensation entitlement claimed, including the basis of such claim. This affidavit is to be filed in the Court prior to 12 June 1988 and similarly a copy served on Mrs Browne.

5. In the event of affidavits being filed pursuant to either paragraph 3 or 4 above, or in the event that the Registrar believes the hearing of the Final Partition Application will require the consideration of further submissions, then a special hearing day is to be allocated at the July or following Court sitting. The Registrar is to discuss this aspect with Mrs Browne and Mr Tylor. This will be a special fixture to ensure that final orders are completed at that Court hearing. If either Counsel for some reason are not available for that Court hearing then other Counsel must be engaged as Final Orders cannot be delayed any further.

6. The question of costs are reserved.

DILLON J

12/5/88