In re Murray [2011] CKHC 16; Application 517 of 2008 (11 March 2011)

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

APPLICATION NO 517/2008

IN THE MATTER of Section 52 of the Land (Facilitation of Dealings) Act 1970

AND

IN THE MATTER of the land known as TE RAVAKI SECTION 107A1A, AVARUA

AND

IN THE MATTER of an application by RATAI MURRAY
Applicant

APPLICATION NO 378/2010

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 TE RAVAKI SECTION 107A1A, AVARUA

AND

IN THE MATTER of an application by TARURU RAMEA
Applicant

Hearing: 23 February 2011

Appearances: Mrs Tina Browne for Applicant in 517/2008 and as Objector in 378/2010
Mr C Petero for Applicant in 378/2010

Judgment: 11 March 2011

JUDGMENT OF HINGSTON J

T Browne, Browne Harvey & Associates, Avarua, Rarotonga
Charles Petero, Rarotonga

[1] Mrs Taruru Ramea, the applicant, seeks a Partition over 962 square metres on the land known as Te Ravaki Section 107A1A, Avarua. Mrs Ratai Murray objects. Both of these persons are owners in the land. Mrs Murray has an application before the Court to confirm a lease on the land. Mrs Ramea objects.

[2] This land has been long-term leased, but towards the end of the lease the lessor began to "sell" sections of land to owners by way of a sub-lease. Each owner purchasing or sub-leasing counted on the totality of owners agreeing that they could continue occupation when their 16-odd year balance sub-lease term expired.

[3] Most of the purchasers applied for and were granted occupation licences when the sub-leases expired. Some of them built on the land. Mrs Murray had not built. The achieving of occupation licences was preceded by a meeting of some of the owners. Mr Wichman, Mrs Ramea's son, had obviously had his eye on this particular section and spent the sum of $7,000 in filling up part of the section. He then applied and was granted an occupation licence on 30 October 2007. Mrs Murray applied to the Court requesting cancellation of the licence, and with Mr Wichman's consent the occupation licence was cancelled; Mr Wichman indicating he was going to seek a lease. Mr Wichman erroneously believed that because he had surrendered the occupation licence he was entitled to a lease of the land. The owners did not grant Mr Wichman his lease but, rather, resolved that the objector could have a lease. Mr Wichman's mother, Taruru Ramea an owner in the land, made an application for this Partition.

[4] Much of the evidence before me suggested unfairness in the distribution of land in that some families may have or have achieved more than their share. The owners had addressed this at a meeting and seemed to accept that this could have happened. The value of the various families' excisements were also traversed in some detail. Taking into account the acceptance of the families of owners that some would get more than others, this evidence does not influence me one way or the other.

[5] What is more important are the parties' attitude towards the land. Mr Wichman was obviously interested as he spent a considerable sum of money improving the section. I mention this not that it counts towards valuation; rather, to demonstrate his keenness or his wanting to use the land. The objector, on the other hand, had a sub-lease for some 16 years and did not build or fill the lower parts of the land.

[6] The Court is required to find inter alia this Partition is expedient the owners. Obviously to the objector there is an expediency. The section refers to 'owners' which I take to suggest more than one owner. I am of the view that it is expedient the owners that this land be used.

[7] Mrs Murray had many years to do something with the land. She did not. Mr Wichman spent money to improve the land notwithstanding he could have lost his investment. In view of my findings on this matter I believe it would be proper to make the Partition Order as sought in the application to Taruru Ramea, and I make that Order.

[8] The application for confirmation of resolution of owners of Ratai Murray is dismissed.

Hingston J