In re Sanderson [2011] CKHC 14; Misc 188.2010 (23 February 2011)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

MISC NO. 188/2010

IN THE MATTER of the Cook Islands Act 1915, Sections 448 and 450

AND

IN THE MATTER of the lands know as TE TAORA SECTION 128D, A, TUTAKIMOA SECTION TION 14E, AVARUA, AVARUA SECTIN 190A1, AVARUA, AVARUA SECTION 190A2, AVRAUA, TAPATEA SECTION 107B1, AVARUA, TAPATEA SECTION 107B2, AVARUA, TAPATEA SECTION 223, AVARUA, PARECTION 134, AVARUA

AND

IN THE MATTER of an application by MATANGARO SANDERSON nee MARAU to revoke the Succession Orders to the interest of TUOKURA MAEVA (female deceased) and grant new Succession Orders
Applicant

Hearing: 23 February 2011

Counsel: Mrs T Browne for Applicant
Mrs T Carr for Respondent

Judgment: 23 February 2011

ORAL JUDGMENT OF HINGSTON J

Decision of preliminary objection by the Respondent

[1] Mrs Browne's first ground is that the Court cannot rule on or deal with the substantive matter because of the Court of Appeal 1968 decision. This would be accepted if the facts were the same; assuming Mrs Carr can prove her "Marau"his the child of Tuakura. The Court of Appeal was dealing with a different factual situation, i.e. Tuakura had no Issue and no close blood relation.

[2] The doctrine of precedent does not apply where the authoritative decision is clearly distinguishable on the facts, whatever the ranking of the Appellate Court.

Res judicata

[3] Mrs Browne relies upon the statement of Marau in the 2007 Court when the succession by Emma to Tuakura was challenged.

[4] Marau was not a "party" to those proceedings. She made a statement claiming that her father was next-of-kin and does not appear to have taken matters any further.

[5] The question before me was, was what she said sufficient to allow a plea of res judicata against her? I think not. What was before the Court and dealt with did not encompass her statement. Of course, if she was a party or had acted throughout as a party against the Order to Emma, res judicata would be a proper plea by Mrs Browne.

[6] The procedures of the Land Court are sufficiently flexible to allow for statements or objections from the "floor" so to speak; to close these offerings legalistically could have the effect of dissuading observers from making statements.

[7] If Marau had filed a written objection and supported that in Court then she would have been a party.

[8] Similar considerations pertain to the statement of Mii Collier. It was not germane to the issue before the 2007 Court.

[9] Having decided that neither Mrs Collier or Marau (sister of the applicant, Mrs Sanderson),d themselves be s be subject to a successful plea of res judicata notwithstanding the close relationship, I do not believe Mrs Browne's objection under teis head could succeed. On the preliminary question, should Mrs Carr's client proceed to a full trial, the answer is yes.

H Kingston J