Tuake v Toeta [2013] CKLC 9; Application 01.2011 (5 April 2013)

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

[LAND 347/1998]

APPLICATION NO. 1/2011

IN THE MATTER of Sections 390A of the Cook Islands Act 1915

AND

IN THE MATTER of the land known as
RAUPA Section 87E3B Arorangi

AND

IN THE MATTER of an application by
JULIA TEREAPII TUAKE
Applicant

AND

of an application for partition by
TUAKANA TOETA (for the Moari branch)
Respondent

JUDGMENT OF THE COURT

Background

[1] This is an application for rehearing under section 390A, Cook Islands Act 1915. While the application is dated 23 February 2011, and was filed on that day, it could not be said to have been complete until the supporting affidavit and submissions were received by the Court on 22 July 2011.

[2] The application concerns the land known as Raupa Section 87E3B Arorangi which was subject to a Partition Order made by Smith J on 15 March 2000. The land in the above described title was then partitioned into three new titles which for convenience I describe as sections 1, 2 and r>

• [a] Sea] Section 1 comprises two parcels of land being a valuable beachside parcel and a second hillside parcel. This land was registered in the name of the respondent;
• [b] Section 2 is a hillside parcel registered in the name of Tuvaine Toeta;
• [c] Section 3 comprises various parcels of land registered in the name of the 79 remaining landowners.
  

[3] The respondent (Tuakana) and his late sister, Tuvaine, comprise the Moari branch of the family. Each had equal shares in relevant land. The Moari branch had a relative interest in a one and five-sixths share in the total land comprising section 87E3B which would have entitled them to land in excess of three hectares. Sections 1 and 2 as described above total slightly in excess of two hectares and the respondent advised the Court in March 2000 that the Moari branch accepted that in full and final settlement of their entitlement. It is now said that Tuvaine knew nothing about all of this at the time. She died shortly thereafter.

[4] The applicant is one of Tuvaine’s children and she holds powers of attorney from her siblings to bring this application on their behalf. For convenience, I will (sometimes) refer to the applicant as if that were Tuvaine herself.

[5] There is evidence before the Court that the value of the parcels comprising section 1 is considerably in excess of the value of the land in section 2. That is, it is said that the respondent’s land is worth considerably more than the applicant’s land.

Procedural History

[6] I first considered the application in October 2011 which followed the applicant completing the papers before the Court and the file being sent to me in October 2011 for consideration. At that point there had been no response from the respondent and I directed (by way of a minute) that the application be filed upon Mrs Browne.
[7] That then then occurred and over the following months further papers were filed.

[8] I then issued a furtherte which set out a full discussion of the application, the submissions filed and my conclusnclusion that the matter should be referred to the Land Division. I think it useful to set out paragraphs [15]-[17]:

“[15] I think Mrs Browne is right that the application, as worded, is too wide. I do not think there is jurisdiction under section 390A to revisit, for example, the family meeting. The only way that a partition order can be re-examined under this jurisdiction is if the relative interests of the parties fall to be considered. It is not entirely clear to me whether this exception is open here. As I understand “relative interests”, this term reflects a percentage interest held by a particular landowner in a whole section. Here, the effect of the Order made by Smith J was to crearee new sectioections, two of which were wholly held by the applicant and respondent respectively. Mrs Browne submits (see parag14ph 14 of her submission) that the amendment sought by theicant here is not one with with regard to the relative interests defined by the Order of Smith J. Theems to be some force orce tt submission.

[16] On the other hand, though, the relative interests of the applicant and respondents in Rauction 87E3B were not appropriately recognised in the subsequbsequent partition. I must say that that troubles me. It seems to be implicit within the Order made by Smith J that he assumed that artipartition adequately recognised the relative interests of both Tuvaine and the respondent.

[17] This is a highly specialised area and I believe I would be much assisted report from the Land DivisDivision of the Court and for that purpose intending referring the application to the Land Division.”

[9] I particularly noted, in a postscript to the Minute, that I had set out my provisional thinking in more detail than I would usually do so as to ensure that the Land Division of the Court was in a position fully to report to me.

Report by the Land Division

[10] The matter was heard by Isaac J on 27 February 2012. It was some time before the transcript of the hearing and the submissions were sent to him (September 2012).

[11] His report is dated 13 March 2013. While I will now refer to key excerpts from that report, I annex the report and formally adopt it as an appendix to this Judgment.

[12] The key advice received from Isaac J is that my concerns about the Court’s jurisdiction appeared to him to be correct. His key findings can be found in paragraphs [47] and [48] as follows:

&#822] In this case the applicant’s mother received a sole sole interest in one title created by the partition order and the respondent a sole interest in the other. No relative interests were created in either order.

[48] As a result and in terms of s 390A(1) the Chief Justice in my view does not possess the jurisdiction to interfere with the partition of Justice Smith. Accordingly, I would recommend that the application can be dismissed at this point without considering the submissions of the applicant relating to the alleged errors of the Justice Smith order.”

[13] Isaac J, who also holds the position of Chief Judge of the Maori Land Court in New Zealand, then went on helpfully to set out his appreciation of the similar jurisdiction which exists in New Zealandhe Te Ture Whenua Maori Act 1993. I repeat paragraph [51] a51] as follows:

“[51] Clearly the jurisdictions between the Chief Judge of the Māori Land Court New Zealand and the Chief Justice of the Cook Islands are very similar in my view the principles applied by the Chief Judge of the Māori Land Court in exercising this jurisdiction are applicable to the Chief Justice of the Cook Islands in terms of s 390A(1). These principles include:

(i) When considering s 45 applications, the Chief Judge needs to review the evidence given at the original hearing and weigh it against the evidence produced by the applicant (and any evidence in opposition);

(ii) Section 45 applications are not to be treated as a rehearing of the original application;

(iii) The principle of Omnia Praseumutur Rite Esse Acta (everything is presumed to have been done lawfully unless there is evidence to the contrary) applies to s 45 applications. Therefore in the absence of a patent defect in the order, there is a presumption that the order made was correct;

(iv) Evidence given at the time the order was made, by persons more closely related to the subject matter in both time and knowledge, is deemed to have been correct;

(v) The burden of proof is on the applicant to rebut the two presumptions above; and

(vi) As a matter of public interest, it is necessary for the Chief Judge to uphold the principles of certainty and finality of decision. These principles are reflected in s 77 of the Act, which states that Court orders cannot be declared invalid, quashed or annulled more than 10 years after the date of the order. Parties affected by orders made under the Act must be able to rely on them. For this reason, the Chief Judge’s special powers are used only in exceptional circumstances.”

Disposition

[14] I dismiss the application. Prima facie, the respondent is entitled to costs. If the parties are not able to resolve this between them then I invite memoranda.

[15] One matter should be addressed by Counsel if costs orders are sought. It appears to me that there were delays by Mrs Bron responding to the appl application. There may have been good reason for that but I would seek some explanation in any relevant memoranda.

Distribution of this Judgment

[16] As is usual, this Judgment will be distributed by the Court to Mr Moor to Mrs Browne. Foe. For the avoe once of doubt, that Judgment will include the report of Isaac J which is an appendixt.

[17] I also direct the Registrar to send an electronic copy of the Judgment tont to Ms Cathervans, President of thof theSociety so that she can distribute it to members of the Society. The Registrar should also also send an electronic copy to Land Agent regularly appear in the Court.

Dated ated 5 April 2013 (NZT)

Tom Weston CJ

APPENDIX

REPORT OF ISAAC J