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In re Vaiokura 191B, Avarau [2013] CKLC 3; App490.2001 (23 April 2013)

IN THE HIGH COURT OF
THE COOK ISLANDS
(LAND DIVISION)
App No. 490/2001


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 VAIOKURA 191B, AVARAU


AND


IN THE MATTER of an application for Partition by MELE MERAPI TARIPO for and on behalf of the descendants of IOBU TUMU
Applicant


App No. 514/2001


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 MANGAITI KAIROA 30 & 54 NO.1, AVARUA


AND


IN THE MATTER of an application for Partition by MELE MERAPI TARIPO for and on behalf of the descendants of IOBU TUMU
Applicant


App No. 165/2013


IN THE MATTER of Section 23 of the Cook Islands Amendment Act 1960


AND


IN THE MATTER of the land known as MANGAITI KAIROA 30 & 54 NO.1, AVARUA


AND


IN THE MATTER of an application for a Vesting Order by TARA SCOTT, JONARA SCOTT AND LIANA SCOTT
Applicants


Hearing: 23 April 2013


DECISION OF JUSTICE W W ISAAC


The Applications

[1] On 23 April 2013 the Court heard the following applications:

General Background in respect to Mangaiti Kairoa Section 30 and 50 No.1, Avarua

[2] Mangaiti Kairoa Section 30 and 50 No.1, Avarua is 1619m² and is located in Avarua opposite the Pananga Nui market.

[3] Pursuant to a partition order of 24 February 1917 the land was vested into the following:

Iobu Tumu m.a. 1

Arapau f.a. 1/4

Mere Arerangi f.a. 1/4

Maria f.a. 1/4

Makiroa f.a 1/4

Uanga (utanga) m.a 1


3 Shares

[4] Therefore the Iobu family, the Arerangi family, Utanga family held one share each as tenants in common in this land.

[5] Since 1917 there have been numerous successions to the original owners which has resulted in a land title with in excess of 100 owners although the original division between the three families remains.

[6] The land, which is the subject of this application, has historically been occupied by the wider Utanga family for approximately 100 years. First living in a Kikau hut on the land and then a family home which was built in the middle part of the 20th century. This family home is positioned in approximately the middle of this land.

[7] The family home has been a home where members of the Utanga family have visited and stayed when they return from overseas. The upkeep of the house has been maintained by the Utanga family.

[8] The area seaward of the home has also been maintained by the Utanga family and has been an integral part of the family home. It has also been used for community purposes as it is directly opposite the Ruatonga meeting house. It has been used for parking and for church and other activities. It was also used a meeting house during construction of the Ruatonga meeting house.

[9] The area containing the Utanga family home and the front section amounting to 1290m² are the subject of the vesting application before the Court. The front section amounting to 551m² is the subject of the partition application before the Court.

[10] It should also be noted that the rear of the block is occupied by the Arerangi family and a portion of this section occupied by the Arerangi family is included in the 1290m² sought in the vesting application.

The Vesting Application
The Law

[11] Section 23 of the Cook Islands Amendment Act 1960 states as follows:

23. Vesting Orders - (1) [The Land Court] may in its discretion, on application being made to it by an owner of any estate or interest in any Native freehold land, make an order (hereinafter referred to as a vesting order) for the transfer of any such Native freehold land to a Native or a descendant of a Native to provide him with a site for a dwelling. A vesting order may be made in favour of 2 or more persons as joint tenants.


(2) No vesting order shall be made vesting any area exceeding one-third of an acre in any one person or in 2 or more persons as joint tenants:


Provided that the Court may make a vesting order in respect of a larger area in any case where it is satisfied that the nature of the land is such that it is unsuitable for subdivisions into lots that will enable a vesting order to be made in respect of an area of not more than one-third of an acre.


(3) In the making of a vesting order, the Court shall determine the value of the land or of the interest in land comprised therein, and the value so determined shall for the purposes of this Part of this Act be final and conclusive.


Case for the Applicants

[12] The applicants Tara Scott, Jonara Scott and Liana Scott of the Utanga family have applied for a vesting order in respect to 1290m² of Mangaiti Kairoa Section 30 and 50 No.1, Avarua.

[13] The applicants consider that s 23 permits such an application as the applicant Tara Scott is an owner and the vesting order is for the transfer of any such Native freehold land to a Native or a descendant of a Native who does not need to be a land owner to provide a site for a dwelling.

[14] The area sought includes the Utanga family home and the area seaward of the home. It does not include the grave or small dwelling at the rear of the section occupied by the Arerangi branch of the family.

[15] In terms of share holding Tara Scott has an undivided interest in the land amounting to 12m² and it is submitted that an interpretation of the words "for the transfer of any such Native freehold land to a Native or a descendant of a Native... to provide him with a site for a dwelling" enables the vesting of more than Mrs Tara Scott is entitled to. It should be noted here that the joint applicants Jonara Scott and Liana Scott are not registered as owners so have no interest to transfer.

[16] Mr Holmes submitted that the genesis of the vesting order consent was in the 1955 Belshaw Stace Report on the Programme for Economic Development of the Cook Islands. This report attempted to address the housing need of land with multiple ownership and to provide an easier way forward for Cook Islanders to build on their land. This was supported at the time by Chief Judge Morgan who expressed his views to the Official Secretary of the Cook Island's Government.

[17] Mr Holmes also referred to the introductory speech of Minister Matheson on the Bill when s 23 was introduced and interpreted the Minister's address as being that consent of effected owners was not required and that a vesting order could be for a area larger than the owner's share.

[18] Mr Holmes also sets out the explanatory note to the Amendment Bill 1960 as providing for the making of vesting orders transferring to a Native or descendent of a Native an interest in Native freehold land to provide him a site to build.

[19] Mr Holmes submits this background information is to demonstrate that it was Parliament's intention that the Court, not the landowners, transfer the land and that the consent of the landowners to a vesting order was not required and that the persons to whom the land is transferred by a vesting order can in the Court's discretion be vested with more than the land owning applicant's entitlement.

[20] As a consequence Mr Holmes submits that the Court has a discretion to transfer more than Tara Scott's undivided 12m² share of this land to herself and her two daughters, by vesting order without the consent of the other landowners. Further it is submitted that the other owners do not give up ownership of their interest in the land, the area of land owned is simply reduced.

[21] If the application is successful the applicant proposed to remove the old family home and replace it with a nicer, better and more commodious one. There is also an undertaking to build a self-contained flat for visiting members of the Utanga family.

[22] The applicant Tara Scott is the sole remaining child of her father who built the family home. She and her father were brought up on this land and she has had the most significant connection to the land.

[23] In relation to the objector Terry Utanga it is submitted he already has a house on Tumu land. Also Tara and John Scott fought a costly Court battle ending in 2012 in the Privy Council which they ultimately won. This was funded solely by them on behalf of Utanga family. It is submitted that this should be taken into account by the Court.

[24] Also if the Court is sympathetic to the Arerangi family objection then the applicants will reduce the area sought to 1076m² so that the application does not encroach on the area currently used by the Arerangi family.

[25] In relation to the Iopu family, the applicants are prepared to pay them compensation of $23,255.00 being the value of their 500m² entitlement if this application it successful. This amount is to be retained by the Justice Department as partial security for costs in the Privy Council case.

Case for the Objectors Terry, Ann and Dawn Utanga

[26] In respect to the Utanga family home the Utanga objector's mother spent money renovating the home before the 50th anniversary of the Ruatonga meeting house in 2007. She pays for the power and ensures the plumbing is working and the property is clean to enable visitors to stay.

[27] The area from the house to the sea is also maintained by the Utanga Objector's family because Terry's grandfather was a deacon of the Cook Island Christian Church and it is kept clean as a contribution to the community. This front section is an integral part of the family home and is also used by the community.

[28] It is accepted by the Mr Mason that vesting orders in terms of s 23 of the Cook Islands Amendment Act 1960 was designed to help permanent residents and Cook Islander's to build. However as the Cook Island's has become more developed the need for vesting orders has diminished.

[29] In relation to s 23 of the Cook Islands Amendment Act 1960 Mr Mason submits it is the owner of the interest who makes the application and not the recipient of the vesting order and the vesting order can transfer any such Native freehold land to a Native who is another owner or a non owner.

[30] As Native land is held as tenants in common, the applicant can only vest his or her share to another Cook Islander and only if the Court agrees. Also a person who holds an interest only has a life interest as the person cannot pass his interest by will and cannot alter the fact that his children will succeed to the interest.

[31] In respect to the vesting application Mr Maiou submits this should not be granted because no Native has applied to vest his interest to Tara Scott; Tara Scott opposes her own application for land apart from the front section; Tara Scott has no discernible need for a vesting order as she is not landless or impecunious and if the vesting order is made it will make the wider Utanga family dependant on Tara and John Scott and will deprive the village of communally used land.

[32] The family home and the front section are places of welcome for the family and it is neither in the interest of the public or the owners or in the interests of justice that the status quo should change.

Case for the Descendents of Iobu Tumu

[33] Mrs Browne as counsel for the Iobu family refers to s 23 of the Cook Islands Amendment Act 1960 and submits that it specifies that what is being transferred is an "estate or interest in any Native freehold land." Native land is defined at s 2 of the Cook Islands Act 1915 as "land which, or any undivided share in which, is owned by a Native (or descendent of a Native) for a beneficial estate in fees simple whether legal or equitable." The purpose of the vesting order is therefore to transfer the estate of interest of an owner in any Native land to a Native or descent of a Native to provide him with a site for a building.

[34] Mrs Browne submits that the interest being transferred in terms of s 23 of the Cook Islands Amendment Act 1960 is the fee simple in the land. Tara Scott's interest is equivalent to 12m² and there was no support, even from her own Utanga family to vest their interests in the applicant.

[35] Also the application is not supported by the Arerangi family or the Iobu family and it was proposed the land should be customarily divided into three equal pieces for the Iobu, the Utanga and Arerangi families.

Discussion

[36] This case raises important issues relating to the nature of Maori freehold land in Rarotonga as prescribed by the Cook Islands Act 1915.

[37] Section 421 sets out that the Land Court shall have exclusive jurisdiction to investigate the title and determine the relative interests of the owners and make a freehold title order defining the area dealt with (s 423 of the Cook Islands Act 1915). The effect of this freehold order is to vest the land into the persons named for a legal estate in fee simple (s 424 of the Cook Islands Act 1915) and to hold the land if more than two owners as tenants in common in the shares set out in the orders (s 425 of the Cook Islands Act 1915).

[38] Therefore the tenant in common share of an owner is that persons interest in the land, and that is the interest that that owner can benefit from. This can mean either in terms of occupation or by the sharing of income in proportion to each owners share.

[39] In some cases multiple ownership create complexities with the use and administration of land and either all the owners have to approve the manner in which the land is utilised or if there is not unanimous agreement the jurisdiction of the Land Court as set out in the Cook Islands Act 1915 and its amendments is utilised to create the appropriate legal mechanisms for use and administration.

[40] Section 23 of the Cook Islands Amendment Act 1960 was one such provision which was enacted to enable more effective occupation of land in multiple ownership by owners for building purposes.

[41] Mr Holmes in his submissions transverses the background to the passing into law of s 23 of the Cook Islands Amendment Act 1960.

[42] The 1955 Belshaw Stace Report on the Programme for Economic Development of the Cook Islands recommended a provision for the "sale of interest to other Maori's by the simplest possible legal procedures such as sale through meeting of owners and vesting orders by the Court... The precedents established by the Māori Land Court in New Zealand might prove useful in formulating procedure...".[1]

[43] Also Minister Matheson in his speech introducing the 1960 Amendment Bill to Parliament referred to the difficulties of selling or transferring land in multiple ownership and the need to introduce legislation which he said was well tested in respect of Māori law in New Zealand to enable "the Native Land Court on the application of an owners, to vest a piece of land not exceeding 1/3 of an acre in a Native for building purposes."

[44] Section 23 is set out in full in paragraph [11] above but in essence it gives the Land Court a discretion on the application of an owner of "any estate or interest in Native land" to make an order to transfer "any such" Native freehold land to a Native or a descendent of a Native.

[45] In my view the words 'any such' interest refer directly to the estate or interest held by the owner wishing to vest. Section 23 therefore clearly means that an owner of an estate or interest may apply to the Court to transfer that specific interest to another owner or another Native.

[46] This section does not enable an owner to vest more than he or she has. It does not provide the ability for an owner to obtain the tenant in common interests of other owners without their consent or to utilise a vesting application as a quasi occupation or quasi partition application.

[47] In sum, the application is ill conceived in that it flies in the face of established land law principles and misinterprets the legislation and also the comments of those persons responsible for the passing of the 1960 Amendment Act.

[48] To enable such an application to be successful, Mrs Scott or her daughters would need other owners to vest their tenant in common interest into them. This has clearly not happened and as a result the application must fail.

[49] The application is therefore dismissed.

The Partition Applications
The Law

[50] Sections 429 and s 430 of the Cook Islands Act 1915 state as follows:

429. Jurisdiction to partition Native land - (1) [The Land Court] shall have exclusive jurisdiction to partition Native freehold land.


(2) Such jurisdiction shall be discretionary, and the Court may refuse to exercise the same in any case in which it is of opinion that partition would be inexpedient in the public interest or in the interests of the owners or other persons interested in the land.


430. Partition orders - (1) Native freehold land may be partitioned by the making of partition orders.


(2) Each such order shall constitute without any conveyance or other instrument of assurance the title to the parcel of land therein included.


Mangaiti Kairoa 30 and 50 No.1, Avarua
The Applicants Case

[51] The applicant Mele Merapi Taripo of the Iobu Tumu family seeks to partition the Iobu Tumu family share from this land amounting to 551m².

[52] It was submitted that the 1/3 share of the applicant in this land amounts to 551m² which is her entitlement.

[53] It was also submitted that this area accords to the understanding among the three families that the Arerangi family occupy the inland portion, the Utanga family the middle and the Iobu family the front portion.

[54] Further a meeting was held on 20 April 2000 between the Utanga and Iobu family to discuss this partition. The majority supported the request and only Tara Scott and Tony Utanga objected.

[55] Mrs Browne as counsel also refers to established principles that the Court should take into account when dealing with partition applications. In particular the decision of Dillon J in Ruaroa v Vaipapa Section 89P[2] which also states that partition orders should be made by consent of the owner to accord with the area traditionally occupied by the owners. Where an owner adopts an attitude which is unfair and deprives another owner of their entitlements, the Court should intervene and make an order.

[56] In this case Mrs Browne considers the Court should intervene as the stance taken by the objectors that the Iobu family are not entitled because they have not occupied the land is unreasonable and it would be an injustice not to grant the order.

[57] Further it is argued that the partitioning of the land as sought would not be inexpedient in the interest of the owners as each family would get the sections of land informally agreed to and that would be a fair division.

Case for Tara Scott

[58] In opposition to the Iobu application for partition it was submitted that most of the consents to the partition were obtained in May 2001 and since that time a number of land owners have specifically withdrawn their consent to the partition.

[59] It was further submitted that the partition would leave the Utanga family with just 576m², no front yard, no access to the main road and the denial of the redevelopment of a site occupied by the Utanga family for about 100 years. It was also submitted that the development of a commercial building on the site was detrimental impact on enjoy of their family homestead and would have a severe visual impact on the land.

[60] Further neither the applicant Mele Tapiro or any other member of the Iobu family have ever occupied, lived or planted this land.

[61] It also submitted that any commercial development would be inexpedient in the public interest and in the interests of the other owners in the land.

Case for Terry, Ann and Dawn Utanga

[62] It was submitted that the Court should not exercise its discretion to grant a partition order vesting the front portion of this property into applicant Mele Tapiro or the Iobu family for the following reasons:

Discussion

[63] The Court has a wide discretion in terms of s 429 Cook Islands Act 1915. The Court however may refuse to exercise this discretion if it is of the opinion that the partition would be inexpedient in the public interest or in the interest of the owners to this land.

[64] First I accept that the applicant has applied for the share that her family, the Iobu family, are entitled to and that the Arerangi family have traditionally used the inland part of this land and the Utanga family the middle part of this land.

[65] The evidence does not however support that the Iobu family have used the roadside portion. The evidence provided to the Court clearly supports that the front section has been used by the community to support the activities of the Ruatonga meeting house. The evidence also supports that the Utanga family have maintained this section for many years. The evidence does not support the use of this section by the Iobu family.

[66] Furthermore the consents to the partition relied upon by the applicant were obtained approximately 13 years ago. Circumstances have changed and not only are the consents out of date but owners who may have consented at that time no longer consent to the partition application and it cannot be held that the applicant, upon the evidence I have considered, has the majority of owners supporting this partition application.

[67] Therefore having regard to the principles set out by Dillon J in Ruaroa v Vaipapa Section 89P the issue for me to consider is whether or not the objectors to this partition are being unreasonable.

[68] Having regard to the interests of the owners and the public interest I do not consider that they are being unreasonable. In terms of the interest of the owners the applicant herself confirmed that the site would probably be used by her for commercial activities. This would immediate alter the use of the section by the general public. It would alter its value to the community and its value to the Ruatonga meeting house. Furthermore there would be a direct impact on the rest of the owners by developing a commercial use of this section immediately adjacent to residential use.

[69] I have little doubt therefore that this partition would be inexpedient in the interest of the public and the interest of the owners.

[70] As a result this application is declined.

[71] It should be noted that as this application for partition and the vesting application have been declined that the status quo for Mangaiti Kairoa 30 and 50 No.1, Avarua will remain. In relation to the front part of this section that effectively means that all owners with tenants in common interests in this land have the right to use this land. Not one owner can be prevented from its use.

Partition of Vaiokura Section 191B, Avarua

[72] The law set out in paragraph [50] above applies to this application. Mrs Browne for the applicant at the Court sitting on 23 April 2013 stated that there has been no evidence given in opposition to this partition application. Mrs Browne also confirmed that the Court could accept the affidavit evidence in relation to this application. This was accepted at the time by Mr Holmes.

[73] Apart from the generic submissions relating to partitions, no submissions relate to this block of land.

[74] In opposition Mr Holmes says the Court has not received evidence upon which it can base its decision as to whether or not to grant this partition. It is therefore submitted that this application should be dismissed.

Discussion

[75] I have considered the submissions and affidavit evidence filed in relation to this application, I also requested a search to be done of the Court record. I cannot find any evidence to support this application. In particular I can find no evidence to inform me whether or not the application is expedient in the public interest or in the interest of the owners.

[76] As a result I must dismiss this application and now do so.

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

Dated at Rarotonga this th day of 2013.


W W Isaac
JUSTICE

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


[1] At p78 of the 1955 Belshaw Stace Report.
[2] Ruaroa v Vaipapa Section 89P

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