In re Kaireva Section 6J3A & 6J3A2, Ngatangiia [2012] CKLC 5; Application 567.2010 & 291.11 (12 July 2012)

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

APPLICATION 567/2010

IN THE MATTER of the land known as
KAIREVA SECTION 6J3ATANGIIA

IN THE MATTER of an application for Partition by
DORA PIERCE
Applicant

APPLICATION 291/11

IN THE MATTEMATTER of the land known as
KAIREVA SECTION 6J3A2, NGATANGb>

IN THE MATTER of an Application for confirmation by
ALFRED WIGMORE and WYNNE MANUELA
Applicants

b>Hearing: 17 and 19 October 2011
Counsel: Mrb> Mr Little for the Applicant in 567/10
Mrs Browne for Applicant 1/11

Minute: 12 July 2012

INTERIM DECISION OF THOF THE HON. JUSTICE HETA KENNETH HINGSTON

[1] These two matters were part heard in March 2011 and further heard by Justice Savage in October 2011 where he stood the matter down for submissions from Counsel and referred to me for a decision.

[2] I have read Counsel's submission and am clearly of the view that the partition application on a matter of principle should be dealt with first. The legislation providing for objectors to resolutions of a meeting of owners by applying for partition that has been in place in New Zealand and in the Cook Islands for a long time and the Court has always dealt with the partition before the confirmation.

Application for Partition

[3] The applicant Dora Pierce asks that the 1/5 share to Wigmore family be partitioned out of the parent block. A 1/5 share of Kaireva 6J3A block would amount to some 650m2 however I am told that much of the land has been eroded and a fair area of usable land would be around 460m2.

[4] I observed at the March hearing that this makes for a very small section but there has been no view expressed by the applicant family to the effect that it would be too small to be useful.

[5] I also indicated that the if the land is partitioned I would leave Mr Alfred Wigmore in the residue thus the area to be excised would be 1/7 less than the 460m2, some 65m2, leaving roughly 400m2. I make observation that Mr Alfred Wigmore has Tutukiara 49B block is some 356m2.

[6] The Court when making a decision on partition as well as taking into account the wishes of the owners must decide amongst other matters while it is inexpedient the owner that the proposal succeed.

[7] 6 out of 7 Wigmores appear to want their nephew Robert to have a section to build on. Robert failed to gain an occupation right previously because of the other owners being a majority voted against it.

[8] If the Court makes an order comprising some 400m2 it could well be used by Robert or some other person in the family. As long as they are part of the whole the Wigmore family are unable to utilize their interest.

[9] The Court is of the view that partition as sought of some 400m2 is appropriate and therefore give notice that it will make an Order in terms of the proposed subdivision plan marked "E" hereunder when counsel can advise which of the 400m2 blocks is to go to the Wigmore family. The ownership of the 400m2 will comprise the Wigmore family less Mr Alfred Wigmore who will remain in the residue.

[10] If Counsel cannot agree as to which section within one month of today's date Court will decide which of the five in the subdivision plan will be excised.

Application for Confirmation of Resolution

[11] Moving now to application 291/11 (application to confirm a resolution to lease Pt Kaireva Section 6J3A2 to Alfred Wigmore and Wynne Manuela), I am firmly of the view that this must be dismissed for the following reasons:

1. The power of attorney granted by Tangianau Arama was obtained by the misrepresentation as to how the power of attorney was to be used. I record this after reading the affidavit filed by the lady sworn at Auckland on the 16th day of October 2011. The affidavit clearly refuses consent to inter alia "any leases of this land".
   

She also did not support the partition proposal. The impact of the meeting of assembled owners meeting that the use of the power of attorney was improperly exercised gave the applicants for a lease a clear majority. However, taking into account the tenor of the affidavit, only 1/5 affirms the lease and 2/5 are against it.

2. The second reason I am against the proposed lease is because effectively all the land share of the Wigmore family will be used up by an owner with 1/7 share as against the 6/7 share of his siblings who don't want him to have it.
   

[12] The Court is of the view that if the owners other than the Wigmore family (excluding Alfred) are desirous of his obtaining a lease, Alfred should call a further meeting of owners to accomplish this.

[13] I also take into account that the Wigmore family granted Alfred a lease of another family block, Tutukiara Pt Section 49B Titikaveka.

[14] Application to confirm resolution of assembled owners dismissed.

Dated at Rarotonga this day of July 2012.

______________________________
Heta Kenneth Hingston J