In re Clift [1992] CKLC 3; In re Clift (24 June 1992)

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

IN THE MATTER of the Cook Islands Act 1915, Sections 446-452.

AND

IN THE MATTER of a Lease dated 31 August 1977
over the land known as TE PUNA S50A3A,
TE PUNA TAPERE,
TAKITUMU DISTRICT

AND

IN THE MATTER of an application by
RONALD ARTHUR CLIFT for an Order that the applicant has taken
reasonable steps to comply with Clause 6 of the lease and
that in the circumstances the applicant may dispense with
the consent of the sole landowner who is deceased.

Mrs Bartlett for the Applicant

Date of Judgment: 24th day of June 1992

JUDGMENT OF DILLON J.

This is an application to the Court for directions, and involves a proposed transfer of a Lease of the above land from Mr Clift to McJimbo Limited the sale price being $NZ135,000.00.

One of the terms of the lease is as follows:

"6. Subject to paragraph 5 hereof, the Lessee shall not transfer assign sublet or otherwise part with the possession of the land hereby leased or any part thereof without the written consent of the Lessor and if more than one, the majority of Lessors residing on Rarotonga first had and obtained PROVIDED HOWEVER that the Lessors may require the Lessee to give the first option of taking by transfer assignment sublease or otherwise of the property in question to the Lessors or any of them or any of their nominee upon the same terms and conditions as the Lessee is able to transfer assign or sublease to any other person AND the Lessors may withhold the granting of such consent until the Lessors or any of them have exercised their rights or powers under this clause."

The Lessor of this lease was Rongo Ka who died in Australia on 15 January 1992. There has been no succession to the estate of the deceased. The application for directions is to enable this impasse to be satisfied.

Mrs Bartlett had not been able to make contact with the children of the deceased who are living in Australia and they had not responded to her correspondence. She sought the assistance of the Cook Islands Consular Office in Sydney. Mr Barton has now reported that the family do not wish to exercise the option in Clause 5 to take over the land and consent to the transfer from Mr Clift to McJimbo Ltd.

This Court orders that the provisions of Clause 6 have been complied with and that it is in order for the Leases Approval Committee to now deal with that application.