Moeirea 101 Mauke, Re [2020] CKLC 7; Application 8 of 2019 (31 August 2020)

IN THE HIGH COURT OF THE COOK ISLANDS
(LAND DIVISION)

APPLICATION NO. 8/2019

IN THE MATTER	of the land known as MOEIREA 101 MAUKE
AND IN THE MATTER	of an application for Occupation Right by MARIA IOANE VAERUARANGI also known as TUNGANE POKERE APPLICANT

Hearing Dates: 2 and 8 October 2019

Appearances: Mr B Mason for Applicant

Mr Whitta for Respondents

APPLICATION NO: AIT 148/2017

IN THE MATTER	of the land known as PUIPUIRANGI 110 TAUTU
AND IN THE MATTER	of an application for Occupation Right by NOOAPII PITA IEREMIA APPLICANT

Hearing Date: 30 September
Appearances: No appearance for the applicant

Mrs Browne to oppose

APPLICATION NO: AIT 248/2012

IN THE MATTER	of the land known as PUIPUIRANGI 110 TAUTU
AND IN THE MATTER	of an application for Occupation Right by ZEKARIA WILLIAMS APPLICANT

Hearing Date: 30 September
Appearances: Mrs Browne for Applicant

Mr Nicholas has filed submissions for Mr Ieremia subsequent to the hearings in both the above matters

Date: 31 August 2020 (NZ)

JUDGMENT OF JUSTICE P J SAVAGE

[1] There is an issue as to the jurisdiction of this Court in both of these cases. It arises because the Court must be satisfied as to the wishes of a majority of owners before it can exercise the power given to it by s 50 of the Cook Islands Amendment Act 1946.

[2] In particular the question arises as to the way the Court deals with owners who have died but remain on the title, not having been succeeded to.

[3] There were views put forward to me that they should be counted or on the other hand not counted for the purpose of calculating the number of owners so that the issue of a majority could be established. I took a somewhat different view and suggested that s 447 of the Cook Islands Act 1915 meant that the shares passed by operation of law immediately upon death to those entitled to succeed and without the need for a succession Order for the purposes of establishing the number of owners.

[4] Because I could see that this was a somewhat different view to that previously held and might have serious consequences for the exercise of this jurisdiction, I invited submissions not only from the parties but also from the Cook Islands Law Society. Mr Mason did not wish to make submissions. Mr Whitta and the Law Society did.

[5] I think it is appropriate that my direction and the submissions of Mr Whitta and the Law Society be available and therefore they are annexed as items A, B and C to this judgment.

[6] There is no contrary view to my reading of s 447 but the parties rightly point out difficulties that then arise.

[7] The temptation is to respond to those ancillary matters but I think the short point is, if I have no jurisdiction, then anything that I might say further would simply be obiter.

[8] For example, it may be that the mere expression of a wish by an owner is not the making of an alienation but as in so far that an occupation order is an alienation it is made by the Court.

[9] I am not satisfied as to the requisite wish of the majority of owners in either of these cases and they are dismissed for want of jurisdiction.

Dated at Rotorua, New Zealand this 31^st day of August 2020

P J Savage
JUSTICE