In re Tikioki 46C2, Takitumu [2013] CKLC 6; App411.2013 (6 September 2013)

IN THE HIGH COURT OF THE COOK ISLANDS
(LAND DIVISION)
APPLICATION NO. 411/2013

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

AND

IN THE MATTER of the land known as TIKIOKI 46C2, TAKITUMU

AND

IN THE MATTER of an Application for an Injunction

BETWEEN

NGAOA RANGINUI, Trustee
Applicant

Date: 6 September 2013

DECISION OF JUSTICE W W ISAAC

[1] On 2 September 2013 the applicant filed an application for an ex parte interim injunction in respect to Tikioki 46C2, Takitumu ("the land") to prevent the carrying out of earthworks including the tipping of soil, spoil, earth, sand, rock, gravels on the land.

[2] On 3 September 2013 I requested that the Registrar serve the application upon the Respondents and sought their reply by 5 September 2013.

[3] By submissions of Mr Moore as agent, he states that George Wichman as principal of G&S Contractors has given an undertaking to stop work until a full written consent for further work is granted by the Environment Service. This is accepted by the applicant and the applicant seeks to remove G&S as a party.

[4] I now grant that leave and accordingly G&S are no longer a party.

[5] In respect to Mr Tama Joseph, the applicant requests that the injunction be granted and that the application be amended to seek compensation for damages in terms of s 409(c) of the Cook Islands Act 1915.

[6] Mr Joseph has responded by letter of 3 September 2013 and confirmed he had spoken to both the Environment Services and G&S Contractors. He also states that "unbeknown to me, on Monday 2 September 2013, the G&S Contractors carted some soil and placed it where I wanted to build a right of way, I did not at any time ask the contractors to start carting the sand to the land concerned."

[7] Mr Joseph also referred to a family meeting on 2 September 2013 which included the applicant and her agent and he told the meeting that he would "hold off any work on the land until the EIA (Engineer's Report) is completed.

[8] The applicant in response by affidavit of 4 September 2013 does not accept this response and still wishes to proceed with the applicant "... given that Tama refused to make the same common sense response that G&S Contractors made, and given his threat of intentional damage to my property..."

[9] As stated earlier the applicant also seeks compensation for removal of the spoil, costs to restore a survey peg and legal costs.

Discussion

[10] The initial application is for an ex parte interim injunction to prevent the carrying out of earthworks including the tipping of soil, spoil, earth, sand, rock, gravels on the land.

[11] G&S have already carted and dumped soil on this land. Mr Joseph says this was without his knowledge and this fact is not disputed by the applicant.

[12] Notwithstanding this action by G&S the applicant have asked they be removed as a party because they have undertaken not to place more spoil on the land without consent of Environmental Service.

[13] Mr Joseph has given the same undertaking in writing to the Court which is not accepted it would appear because of his comments at a family meeting.

[14] The action the injunction sought to prevent has to some degree happened and it has been agreed by both the initial respondents that no further work will be carried out before consent is received.

[15] In the circumstances I see no need to issue an injunction only against Mr Joseph bearing in mind he did not dump the spoil on the property.

[16] Mr Joseph has given an undertaking to the Court which he should now honour.

[17] In relation to the request to amend the application, leave is refused. Should the applicant wish to recast her applicant that should be done in full and submitted to the Court to be dealt with at the next Land Court sitting.

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

W W Isaac
JUSTICE

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