Purea v Guinea [2006] CKHC 23; Plt6.2004 (6 July 2006)

IN THE HIGH COURT OF THE COOK ISLANDS

HELD AT RAROTONGA
(CIVIL DIVISION)

PLT NO: 6/2004

BETWEEN:

TAUTARA PUREA of
Mauke, Retired
Plaintiff

AND

KURA GUINEA of Rarotonga,
Occupation Unknown
Defendant

Counsel: Mr Little for Plaintiff
Mr George for Defendant

Date of Hearing: 6 July 2006

JUDGMENT OF NICHOLSON J

1. The Plaintiff Tautara Purea claims $32,428.00 being the estimated cost of replacing items alleged to have been removed from the family home at Mauke by the defendant Kura Guinea and returning that house back to its original state before the removal of those items.

2. The Statement of Claim pleads a factual situation of the Plaintiff and his brother giving to the Defendant who is their niece the right to occupy the family home in 1983 and for her to do renovations to it that she thereafter renovated the family home and lived in it and when she was not occupying it rented it to other people. This being in the period 1986 to October 2003 that alleges that as the result of a meeting of the Purea family in Mauke on the 31st October 2003, the Plaintiffs interest was terminated and she shortly after removed items from the house which is alleged were fixtures and that she had no authority to do this.

3. Hence it is claimed that the cost of making good the removed fixtures and damaged caused by there removal is $32,428.00 and the Plaintiff claims this amount.

4. In his closing submissions Mr Little submitted that although the Defendant had some legal interest in the property along with some other 215 or so people she was not authorized to remove the fittings and damage the building as she did and should pay compensation.

5. He submitted that an appropriate order would be not for the payment of the sum to the Plaintiff but for payment into Court to be applied in the restoration of the family home.

6. In the statement of defence issue was taken with some of the alleged factual aspects and the background of the maintenance of the family home was accepted that as a result of the meeting of the 31st of October Mrs Guinea agreed to return possession but she said that this was on the condition that the Plaintiff compensated her however she states in her statement of defence that the Plaintiff refused to pay compensation.

7. The statement of defence claims that the fixtures removed are the Defendants and all that was removed belonged to her that the Plaintiff had not spent a cent and sweat on the renovations that the land where the family home is situated belongs to the Plaintiffs mother and not the father Tangi Purea, that the Plaintiff did not have Occupational Rights to the undefined house site and that the Plaintiff had no locus standi in this matter to bring this action.

8. I have made a ruling on the locus standi die issue as pleaded and raised by Mr George at the outset of the hearing however he revisited it today and I will make further ruling in light of his further submissions.

9. Just putting that aside to one moment I deal with Mr George's final submissions in which he first submitted that the case was in undated with many floors and defects, the first and he submitted the fundamental floor that the Plaintiff did not establish an Occupation Right or a Succession Right to the property and in particular therefore is prohibited by Section 451 of the Cook Islands Act 1950 from bringing this action.

10. Mr George's second submission was that the action was not supported by the Plaintiffs brothers and sisters who are not parties to the action and that the purported Power of Attorney by four of them is not sufficient.

11. Mr George made reference to the evidence and submitted that the evidence of the defendant's sister Mrs Herman was more reliable than the evidence of the Plaintiff and his wife saying that the Plaintiff and his wife were because of their ages unable to remember significance details and that their evidence was incorrect in many respects.

12. Mr George emphasized Mrs Herman's evidence that her father and family were in occupation of the family home when it was badly damaged by a cyclone in 1967 and they were the ones who restored and repaired it then rather than the Plaintiff and other uncles and aunts.

13. Mr George submitted that the arrangement between the Plaintiff and his brother made in 1983 with the defendant was an informal traditional family arrangement it was not a commercial transaction.

14. He submitted that the transaction did not come within the provisions of the Property Law Act and that the law relating particularly to fixtures does not apply as this was simply a private family matter.

15. He submitted that the only person claiming to be heard by the dismantling of the fixtures is the Plaintiff and submitted that the evidence of Mrs Herman that Mr Purea's real intent in bringing this action was to benefit his daughter Teata.

16. He submitted that Court shouldn't be unfairly asked to intervene in a family squabble.

17. He submitted that there was no evidence as the Plaintiff had made any contribution to the construction or maintenance of the house at any time and that he had not suffered any financial loss or any damage as the result of his niece Mrs Guinea's actions.

18. He requested that the action be dismissed.

19. I now deal with the locus standi challenge; my substantive drawing on this was given at the start of the hearing yesterday.

20. Today Mr George said that the only document produced to support the Plaintiffs contention that he had an interest under a Succession Order which entitled him to bring the action was the copy of the Partition Order produced as Exhibit 2. This Mr George pointed out was a Partition and not a Succession Order.

21. Mr George referred to the different aspects which relates to Partition Orders as distinct from Succession Orders and referred them particular to the pro visions of Sections 432 and 433 of the Cook Islands Act which deal with the mode of Partition and the requirement that land be partitioned into suitable areas.

22. Section 430 of the Cook Islands Act provides quote sub section 1; Native Freehold land may be partitioned by the making of Partition Orders.

Sub section 2; every such Order shall constitute without any conveyance or other instruments of insurance the title to the parcel of land there and included.

23. Therefore the Partition Order dated the 3rd of October 1984 correctly states as headed Partition Order vesting the land in the following persons in their respective shares.

24. Although there is no specific document of evidencing a Succession Order of the Land Court in favour of the Plaintiff, or none has been produced I infer from the evidence and particularly from the Partition Order produced as Exhibit 2 and find proof on the balanced probabilities that the Title of the Plaintiff and his siblings as recorded in the Partition Order was consequent on an earlier Succession Order or Orders.

25. The evidence shows that his number 80 the Plaintiff has the interest in the larger area of land of which the family home is part and also that the four siblings of his who purported to sign the Power of Attorney, Metua Purea, Tungane Purea, Teremoana Purea and Tuaine Purea also have interest.

26. The evidence was that their father had died some many years earlier and clearly a Succession Order was made to his children in favour of his children passing on his share in the land or his interest in the land to them.

27. I therefore find as I therefore repeat as I did earlier that I consider that the Plaintiff has an interest as Successor under a Succession Order made in his favour and this entitles him to bring the present action.

28. At the hearing four witnesses were called and gave evidence, first the Plaintiff Tautara Purea then his wife Tekura Purea and then Mr Keta Williams a builder.

29. The Defendant called only the evidence of the Defendants sister Tungane Herman she being a niece of the Plaintiff.

30. It is unfortunate that the Court has not heard evidence from the Defendant when the case was called yesterday the Defendant Mrs Guinea was in Court, however Mr George asked that she be committed to leave and that she'll be represented by her sister Mrs Herman.

31. I pointed out that that was the matter for her decision and that provided that she was represented by Counsel she need not to be present.

32. So far as evidence was concerned it was said that the reason for her leaving was she had a medical appointment on Mauke and that this meant leaving Rarotonga yesterday and that she could not return until the end of the week at the earliest.

33. The case having being previously adjourned by me in April of last year upon the ground that Mrs Guinea was in Australia understandably perhaps another adjournment was not sought and the case proceeded upon the bases of Mrs Guinea not being present and not giving evidence.

34. During the hearing Mr George applied for leave to have an affidavit sworn by her accept it is evidence but in the circumstances and bearing in mind that such evidence would not be subject to cross examination. I decline that application.

35. The pediment evidence of the witnesses called was first the evidence of the Plaintiff who said that he had ten brothers and sisters making a family of eleven including him that his father built the family home and that he and his brothers and sisters lived in it when they were infants.

36. He said he lived in the family home during his youth and left it when he married and built his own house this was about 1951. He said his father passed away in the 1960's or 1970's he wasn't precisely sure of when. He said similarly that his brother Tangi who had lived in the family home had left it when he married and built his own house. He said that himself and Tangi and another man rebuilt the house and added a verandah after the house was damaged by a cyclone. He said when he was born the house was already built he is now 75 years of age.

37. He said that in 1983 his niece the Defendant Kura and her then husband Archie came to Mauke and there was a meeting between them and his brother Purea Purea at which the Defendant and her husband requested that they be able to occupy the family home and be able to renovate it.

38. He said that he considered that they ask him for such permission mainly because he was an elder on the island and was the son of Purea who built the house.

39. He said he was told by the Defendant that the purpose was to have the house for family members when they return for holiday and that when it wasn't required by family they would rent it to tourist. He said he thought reasons were good and said he agreed for himself to that.

40. I noticed that he said he wasn't aware if they spoke to Purea but he said his wife was there when they spoke to him. He said that nothing was said at the meeting with about what would happen to the improvements which the Defendant and her husband made if they left.

41. He said that after this the Defendant and her husband renovated the house moved into it lived there from time to time and they rented it to tourist and even some Government workers. This was during the period 1986 to 2003.

42. He said that he wrote a letter to the Defendant I take it in 2003 requesting that she and her husband agreed to a niece Tracy who had just returned from New Zealand being able to stay in the house that the Defendant claimed she spent a lot of money on it, he asked saying that they spent $52,000.00 on renovations so that there were $17,000.00 outstanding.

43. There was a meeting on Mauke on the 31st of October 2003 of which a minute was made. At least some 8 people were there at that meeting including the Plaintiff and the defendant and also Tracy and Purea Purea the Plaintiffs brother.

44. In the English translation of the Minutes it is recorded that the Defendants said she came into Mauke in December 1983 her father had passed away in September, she asked her two uncles Tautara and Papa Purea if she could renovate the house they agreed. They did not give me a time limit I was surprised when I received their letter in New Zealand. That's the letter that I have just referred to but a copy was not produced.
45. I told the family there of the intentions of the letter, I really thought when this house was given to me it would be for 60 years I renovated the house and spend a large sum of money, my intentions – wishes are for the return of the house provided I get compensation for the money spent.

46. It is being recorded that the Plaintiff said, I would like the house to be returned in December as for the money spent on the house I would like you to show us receipts outlining how the money was spent, where is the rent money how much did you get?

46. He said when Kura and Archie came back to Mauke they asked me for the house, I gave them permission to renovate on these conditions that they asked namely; 1, we would rent it to tourists and when family members come home from afar they can use the accommodation but he said this did not eventuate.

47. Mr. Purea said that when the family came home they stayed with him and this is recorded in the Minutes.

48. As recorded that Purea said; "Younger brother I would like the house to be returned in December, I'm not happy that you will remove your materials from the house especially when there is a roll in place for removing fixed things on buildings. I suggest you leave the house and don't touch it. You can uplift your personal belongings e.g. beds etc and as for the house please leave it for the future generations".

49. This then recorded the Defendant said; "I cannot produce receipts as I have been away in New Zealand for 5 years for health reasons, I agree to return handover the house but I will remove my materials". Plaintiffs recorded saying "to solve all these matters it would be wise to get a value assessor to assess how much money you have spent".

50. Purea the brother said "I am pleased the house will return but I am not happy that the materials will be removed".

51. The Defendant just recorded to saying, "I agree to move out of the house and that the house will be returned to the family but what I will remove is the verandah that I put during my time".

52. The Chairman then apparently it was recorded to saying, "Perhaps if the family looked at $15,000.00 to give to Kura for the materials would she be happy", and that Kura said she agreed with that sum but it is recorded that the Plaintiff said, "I will not pay the sum we will discuss it with the family and decide on a reasonable amount to pay Kura", this was indorsed by Purea.

53. That is a record of what was discussed and clearly there was no agreement to pay any form of compensation for the renovations nor agreement that Kura could remove them.

54. The evidence says that shortly after that in early November she did in fact remove a considerable amount of items from the house which is alleged by the Plaintiff were fixtures.

55. The Plaintiff said on the 1st of November she started to break the house up, she started breaking out the walls the windows the electric wiring the water pipe and the heater tank which she took away.

56. He then produced photographs showing the damage and what have been removed.

57. The Plaintiffs wife Mrs Tekura Purea basically confirmed what her husband said is the background but particularly said that she was at the 1993 meeting and that Kura the Defendant did not say anything about removing improvements.

58. Mr Keta Williams a professional builder was called to give evidence and his evidence says and in fact recorded in the letter which she sent to the Plaintiff dated the 21st of November 2003 he said the purpose of the inspection was to assess the fair value of the building materials and labour that took to construct the present dwelling that have removed and should be required to return the dwelling to it's original state.

59. He described the materials that have been used in the renovations and concluded by saying "as at the date of this report I consider the fair replacement value of all building materials and labour to replace and return the present house back to its original state before the removal and destruction of parts of the house is $32,428.00.

60. Now as I've said Mr. George called the evidence of Mrs Herman, she is the Defendants younger sister being of the same parents and she said that the Plaintiff was her fathers younger brother, her father being the eldest in the family.

61. She said that she lived in the family home and when she was 14 she left Mauke in 1967 to attend college on Rarotonga and confirmed that in 1983 Kura and her husband returned to Mauke renovated the house.

62. She said that to her knowledge this was done with the permission of the Plaintiff and Purea Purea her uncle and the Plaintiffs brother. She was not at the meeting at which permission was given.

63. Mrs Herman emphasize that it was her father and siblings who contributed mainly to the maintenance of the house she said that Hurricane Dolly in 1967 damaged the house considerable, she was there and that her father repaired the house, the damage with assistants and with funds received from Kura and another brother living in New Zealand. She said that new roofing was put on in 1968, she was not aware of any assistants from the Plaintiffs.

64. She said she was not at the family meeting in October 2003 where the return of the home was discussed but said she believed that the purpose of the Plaintiff in requiring this was to give the house to his daughter Tiata and that she never heard any suggestion of the house being given to the niece Tracy.

65. She said that she's met her uncles and aunties when she's gone to New Zealand and so far as she was aware they do not support the Plaintiffs step in claiming money from the Defendant and in bringing the section.

66. As I have stated I find that the Plaintiff does have standing to bring this proceeding and complies with the requirement of Section 451 he produced a document which he said records agreement which was his brothers and sisters in New Zealand that he bring the action describe his Power of Attorney, signed by 4 of his brothers and sisters.

67. I find that in affect the Plaintiff brings his action with the authority of the majority of his brothers and sisters and for the benefit of all the people who have an interest in the family house.

68. The Plaintiffs motive is to have the house return to the condition that it was before the Defendant removed the articles in November 2003.

69. He considers that she has had compensate by the usage she's had of the house for 17 years that years involving receiving rent.

70. I find from the evidence that as a result of the 1983 the Plaintiff and his brother who is the Defendant obviously regarded as having authority to do so granted her and her husband a license to occupy the family home and to renovate it.

71. I find that there was no agreement made that she could remove any fixtures which she made in a cause of renovations or be reimbursed for such fixtures when she left the property.

72. I find that she occupied the family home for the 17 years from 1986 to 2003 and received rents from it.

73. I find that when her license to occupy was terminated in late October 2003 she then removed items from the family home.

74. The issue is whether she was entitled to do so she did not have permission or authority from others who had an interest in that house but could have removed them without such authority or permission if they had not been fixtures and with chattels.

75. There has not been any great argument about whether items removed for fixtures; Mr George admitted that the law relating to that aspect of fixtures did not apply in this informal family situation.

76. However I find that it does and the basic law about fixtures and the difference between chattels and fixtures is stated by the authors of Migmore and Hind and Sim stated in paragraph 12.031 "the general principal broadly a fixture as anything once a chattel or personal property which has become so attached to the land as to form in law part of the land and to have been become real property, thus buildings erected on land and items permanently attached to the buildings becomes fixtures in part of the land itself".

77. The authors seen there with the difficulties which arise in boarder line cases as to whether a particular item has become a fixture or not .

78. In this case having regard to the nature of the items I consider that it is clear the following items that were removed were fixtures, first a flushing toilet or toilets which would involve toilet pans and plumbing then showers, apparently it was seen from the photographs 2 showers but involving plumbing and the line and indeed there is sign of damage to the walls and to the base when that shower showers were removed.

79. Second or the next windows clearly fixtures, doors clearly fixtures, septic tank clearly fixtures and very importantly the verandah which the photographs show are clearly had been fixed to a concrete base and to the walls of the house.

80. Also removed were pipes and the electric wiring, this is evident from the photographs and damage was caused to the building particularly wall linings on the removal as can be seen in the photographs Exhibit 5.

81. As I have said I find that the Defendant had no authority to remove the fixtures and that there was no agreement that she be reimbursed for them. She had a license to occupy the family home but that was terminated in late October 2003.

82. I accordingly consider that she is under a legal obligation to pay for the cost of bringing the house back to the state it was as of the 31st October 2003 before the removal of fixtures by her and destruction of parts of the house and I consider that the fair and appropriate cost for this is a state by Mr Williams $32,428.00.

83. This obligation I find is owed to the people who have an interest in the family home and that is not just the Plaintiff and that it would be an appropriate to order payment of the sum to him.

84. I accept the submission of Mr Little that the appropriate order in the circumstances is that that sum be paid into Court to be held and trust and dispersed by the Registrar at his discretion by payment to a professional builder contractor or contractors for work done to restore and repair the family home as close as possible to the condition it was before or at the 31st October 2003.

85. I realize that such a judgment will be quite a blow to the Defendant but there is a balancing of legal interest as well as family interest involved and alternately in this matter of dispute it is the law which must prevail and result the dispute. So there is judgment accordingly for $32,428.00 against the Defendant to be paid into Court on the terms which I have stated.

86. Leave is given to the Plaintiff to file a memorandum relating to cost and interest to be filed and serve within 14 days as of today as judgment, the Defendant may file and serve and response memorandum documents within 14 days of receiving the Plaintiffs memorandum

Judge

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.