In re Akaoa 65, Arorangi [2013] CKLC 2; App213.2013 (22 April 2013)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(LAND DIVISION)
APPLICATION NO. 213/13

IN THE MATTER of Section 409(c) and or 409(d) of the Cook Islands Act 1915 and Rule 132 of the Code of Civil Procedure of the High Court 1981

AND

IN THE MATTER of the land known as AKAOA 65, ARORANGI

AND

IN THE MATTER of an application for an Injunction by JULIA TUAKE
Applicant

AND

IN THE MATTER of TUAKANA TOETA @ TUAKANA TOETA NGATAE
Respondent

Hearing date/s: 15 & 18 April 2013

Counsel: Mr T Moore representing the applicant
Mr A Brown for the respondent

Date: 22 April 2013

JUDGMENT OF JUSTICE WILSON ISAAC

[1] This application commenced as an ex-parte application for an interim injunction dated 5 April 2013 prohibiting Tuakana Toeta or Tuakana Toeta Ngatae from carrying out earthworks including the removal of boulders from the above land dated 5 April 2013.

[2] On 8 April 2013 the application and supporting documents were sent to Savage J for his consideration and Savage J granted an Interim Injunction on 10 April 2013 as sought with directions as to service which were complied with.

[3] On 12 April 2013 an amended ex-parte application was received by the Court for an injunction in terms of s 409(d) of the Cook Islands Act 1915 to prohibit Tuakana Toeta or Tuakana Toeta Ngatae from carrying out any earthworks including the removal of boulders and other materials of any kind from the land and an application for an order to recover damages pursuant to s 409(c) of the Cook Islands Act 1915 was also made.

[4] This amended application was served on the respondent and witness Henry Ariihee who was summoned to appear and was heard on 15 and 18 April 2013.

[5] At the conclusion of the hearing I directed Mr Ariihee to deliver to the Court documentary evidence of the work carried out and the rocks delivered to the Government as requested in the Summons. Mr Moore was given the opportunity to file submissions by 22 April 2013 and Mr Brown by 23 April 2013. All these documents have now been received.

[6] Included in the submissions of Mr Moore was a request for the Court to obtain further evidence from the Ministry of Infrastructure and Planning (MOIP) to obtain further details on the rocks taken in an attempt to clear anomalies arising in the documents provided by Mr Ariihee. Mr Brown consents to this request being made.

[7] As a result I issued a direction to MOIP on 24 April 2013 requesting further information relating to the damages application.

[8] This decision will therefore only deal with the interim injunction application and the decision on damages will be issued when I receive the further information.

Case for the Applicant

[9] Evidence for the applicant was received from the applicant Julia Tuake and also from the summoned witness Henry Ariihee. Mr Moore as agent for the applicant also made submissions in support.

[10] In essence this evidence was that the respondent had authorised earthworks on this land which included the removal of massive boulders from the land and the building of a roadway.

[11] The earthworks and a portion of the roadway were carried out on an occupation right in favour of the applicant's cousin Koiruiru and on the undeveloped portion of the land which is not subject to occupation rights.

[12] There are in excess of 100 owners in this area and the respondent has not held any meetings of owners to obtain their consents and nor did he have any written consents from owners. In effect he operated as if the land was his own.

[13] The land has been devastated and photographs were provided to the Court showing the extent of the damage.

[14] The evidence from the contractor Henry Ariihee confirmed he was only instructed by the respondent and he had no authority from the owners as a whole. He also stated that the deal he had made with the respondent was that he could remove the boulders and sell them in exchange for building a road for the respondent on the subject land.

Case for the Respondent

[15] Counsel for the respondent did not call any witnesses. His case appeared to be based on attempting to limit the damage for his client and suggesting to the Court that the actions of the respondent were to open up the block to enable the 100 plus owners the opportunity to develop and utilise their land. In doing so however, counsel confirmed that this was the respondent's own decision without consultation or approval from any other owner. He also confirmed that before work of this nature was undertaken, an owner would normally call a meeting of owners to obtain consent to the work proposed.

[16] In summary regarding the injunction, counsel submitted that the application for the injunction be struck out because the work was done in the interests of the owners.

Discussion

[17] As stated in this decision I will only determine the application for injunction filed pursuant to s 409(c) of the Cook Islands Act 1915.

[18] Section 409(d) provides:

"409 Miscellaneous jurisdiction of Land Court

In addition to the jurisdiction elsewhere conferred upon the Land Court by this Act, that Court shall have jurisdiction—

(d) To grant an injunction against any person in respect of actual or threatened trespass or other injury to Native freehold land."

[19] It is established law that injunctive relief is a discretionary remedy designed to protect an applicant from injury to his or her legal or equitable rights. It is also well established that in addressing injunction applications the Court must firstly consider that there is a serious question to be tried and secondly considering where the balance of convenience lies. (American Cyanamid Co v Ethicon Limited [1975] UKHL 1; [1975] AC 396).

[20] In this case we are dealing with land in multiple ownership. Over 100 owners have rights and interests which are equivalent to those of the respondent, a co-owner.

[21] The respondent by his actions has affected those rights when he has taken it upon himself to make decisions for them without their knowledge or consent. The balance of owners can feel justifiably aggrieved and understandably seek to prevent the respondent from harming their interests.

[22] The normal course for the respondent would be to obtain consent from the owners. This was not done and the instruction given by the respondent to the contractor had no sanction from the balance of owners.

[23] The result was that damage has occurred to this land as evidenced by the photographs produced to the Court. These photographs were not challenged by Counsel for the respondent.

[24] In this case I find that there is clearly a serious question to be tried. I also find that the balance of convenience lies with the applicant and the more than 100 owners whose rights and interests have been affected by the actions of the respondent.

[25] The interim injunction made by Savage J on 10 April 2013 is now made final and will remain in place until a further order of this Court.

[26] A copy of this decision is to go to all parties.

Wilson Isaac, J

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