Tafua v Kaufiti [2019] NUHC 3; Application 11890 (13 June 2019)

IN THE HIGH COURT OF NIUE (LAND DIVISION)
APPLICATION NO. 11890
IN THE MATTER OF		Section 47 Niue Amendment Act (No 2) 1986
AND IN THE MATTER OF BETWEEN AND		the land known as Section 119, Block II Alofi district Plan Part Tukaiavi DEBORAH LAVAKULA TAFUĀ Applicant PUAKINA TOGIAONO KAUFITI Respondents
Hearing: Judgment:	On the papers 13 June 2019

JUDGMENT OF COXHEAD J

Introduction

[1] Deborah Lavakula Tafuā filed an injunction application on 8 March 2019. As I read it, she seeks to stop one of the three Leveki Mangafaoa, Puakina Kaufiti, from dealing with land matters concerning Section 119 Block II Alofi district Plan Part Tukaiavi.

[2] The injunction application is opposed.

Procedural History

[3] The Court received the application on 11 March 2019. The application had been served on the respondent who resides in Niue. The respondent filed submissions on 27 March 2019 and the applicant filed a reply on 24 April 2019.

[4] In my directions of 14 March 2019 I had indicated that when submissions had been forwarded to me, I would then decide the matter on the papers.

[5] This is my decision.

Submissions of the Applicant

[6] The applicant seeks a number of orders including:

• (a) preventing a lease of the Lavakula house, or if the Court is not minded to grant an injunction given a lease may already be in place, then an order to cease and remove the lease immediately pending further orders of the Court.
• (b) an injunction to be placed on any transactions or funds derived from the utilisation of the Pikonaau Iani Lavakula land until such time as the Mangafaoa have had an opportunity to discuss and determine an appropriate and equitable way to deal with those funds.
• (c) to prevent the respondent from making any transactions and decisions on the family land.
  

[7] The applicant seeks these injunction orders on the following grounds:

• (a) She is the direct descendent of the Mangafaoa of Pikonaau Iani Lavakula whom have title to the land;
• (b) The current Leveki Mangafaoa according to the land records are Puakina Kaufiti, Tanoa Lavakula and Joe McCoy.
• (c) The Lavakula house that sits on the land has a lease with unknown arrangements.
• (d) The respondent, Puakina, has declined a request to lease the Lavakula house.
• (e) The respondent, Puakina, has not followed proper consultation processes and has acted outside her powers in that she has not given proper notification to the Mangafaoa in New Zealand as well as to the two other Leveki.
  

[8] In her affidavit, the applicant notes that she intended to return to Niue in May 2019 to attend an in-laws birthday. She says she was denied access to the family home because Puakina had leased the house without the applicants family’s approval.

[9] The applicant states that on the family social media page Puakina and her immediate family admit that the house had been leased.

[10] The applicant acknowledges the work that Puakina has done on the family land over many years and is grateful for that. However, she submits that Puakina and Puakina’s family have controlled Niue land matters for so long that they seem to have assumed they can make decisions concerning the land and home without proper consultation. The applicant says that matters will not be resolved through family meetings while there is one family who is controlling affairs in Niue.

[11] The applicant states that she is supported by many family members in New Zealand.

Respondent’s submissions

[12] The respondent opposes the injunction on the following grounds:

• (a) The arrangement with the tenants who reside in the house in question is that they were willing to renovate part of the house on the understanding that the family will support them by helping out with building materials and other resources to upgrade the family home. This was agreed upon by most of the family members in New Zealand.
• (b) There is no lease on the Lavakula house but there is a verbal agreement with the tenant to reside there while upgrading and building the bathroom and a septic tank.
  

[13] The current Leveki, Puakina, denies that the applicant or any other family members have been denied access to the premises in question.

[14] The injunction is also opposed on the basis that the applicant is not the only beneficiary in these lands. Other members of the family, including Mrs Uini Togiaono and extended family members, wish to inform the applicant that she is not allowed to have any access to the family home in Tukaiavi, Alofi, Niue.

[15] The respondent also requests that the Mangafaoa be given further time to have thorough discussions about the issues. The respondent also requests time to consult the family lawyer and obtain advice.

[16] The respondent therefore seeks:

• (a) The majority of the Mangafaoa together with the current Leveki seek to have further formal discussions with a lawyer present at the meeting.
• (b) Notification of the meeting should be given to all families whose houses are on the land that is Tukaiavi.
• (c) Peaceful relationships between family members.
• (d) That financial income from any sources should be utilised for materials to maintain the premises and purchasing resources for the upgrading of the building.
  

The Law

[17] The Land Court has exclusive jurisdiction to grant an injunction under s 47(1) of the Niue Amendment Act (No 2) 1986.

[18] Section 47 states:

47 Jurisdiction of the Land Court

(1) In addition to any jurisdiction specifically conferred upon the Land Court by any enactment other than this section, the Land Court shall have exclusive jurisdiction –

(a) To hear and determine any application to the Land Court relating to the ownership, possession, occupation, or utilisation of Niuean land, or to any right, title, estate or interest in Niuean land or in the proceeds of any alienation of it;

(b) To determine the relative interests of the owners or the occupiers in any Niuean land;

(c) To hear and determine any application for the appointment of a Leveki Mangafaoa in respect of any Niuean land;

(d) To hear and determine any claim to recover damages for trespass or any other injury to Niuean land;

(e) To grant an injunction against any person in respect of actual or threatened trespass or any other injury to Niuean land;

(f) To grant an injunction prohibiting any person from dealing with or doing any injury to any property which is the subject-matter of any application to the Land Court;

(g) To create easements in gross over Niuean land;

(h) To make any order recording the determination of any matter relating to land or any interest in it, whether provided for in this Act or other enactment;

(i) To authorise the survey of any land.

(2) The grant of an easement under subsection (1)(g) may, if the Court thinks fit, be made subject to the payment of compensation in respect of it, or to any other conditions that the Court may impose.

[19] Section 47(1) empowers the Court, amongst other things, to grant an injunction against any person in respect of actual or threatened trespass to any injury to Niuean or prohibiting any person from dealing with or doing any injury to any property which is the subject-matter of any application to the Land Court.

Discussion

[20] Firstly, it is not clear to me whether this is an application for an interim injunction, a permanent injunction or a removal of Leveki. It does appear that the applicant seeks a number of things on an urgent basis.

[21] For example, the application refers to ss 15(2) and 16(1) of the Niue Land Act 1969. Both sections concern the removal and replacement of a Leveki Mangafaoa. The application makes no mention of s 47 although there is reference to seeking an injunction.

[22] Interim injunctions are normally filed to stop all matters until other Court proceedings are finalised. The object of an interim injunction is to protect the applicant from harm, or in this case damage to property or rights, that is the subject of litigation for which the applicant may not be adequately compensated by an award of damages by the Court if they are successful at the hearing.

[23] The difficulty here is that no other proceedings have been filed. The applicant does not want things stopped pending the outcome of other matters, rather the applicant wants things stopped or removed in general.

[24] Section 47(1)(f) provides that the Court can grant an injunction prohibiting any person from dealing with or doing any injury to any property which is the subject matter of any application to the Land Court. I have already noted that there is no pending application to the Land Court. Once again it is difficult to see how the Court can grant an injunction reliant on s 47(1)(f).

[25] Where there could be specific injunctive relief is with regards to the applicant’s request that any transactions or funds derived from the utilisation of the lands be stopped until such time as the Mangafaoa have had an opportunity to discuss and determine an appropriate, transparent and equitable measure to be put in place. The problem here for the Court is an injunction is to stop all matters until other Court proceedings are finalised, not until a meeting can be held.

[26] Unfortunately for the applicant, their application is somewhat lacking in evidence and clarity as to what they want.

[27] The application is not clear in terms of injunctive relief and there is a lack of an evidential basis to support the granting of an injunction. For example, the applicant seeks an order to cease or remove the lease immediately pending further orders of the Court. There is no further application upon which the Court will be making further orders and therefore if I was to grant an injunction it is unclear what further orders are being sought. Further, it is unclear to me whether there is a lease in place. From the papers I have, there appears to be some type of oral agreement in place for the occupation of the Lavakula house. It is unclear if this is a lease, licence or some other type of agreement.

[28] There are clearly matters that need to be clarified and sorted out between the Mangafaoa. However, an injunction, as filed, is not the appropriate application. If an agreement (whether it be a lease or some other type of agreement) has already been entered into, then perhaps another form of relief is more appropriate.

[29] The respondent has made various requests to the Court in their response to the applicant’s submission. However, they have not filed an application and it would be inappropriate to make the orders that they are seeking based on their memorandum. It is also noted that they have not filed any affidavit evidence to substantiate any of the requests that they make.

[30] The application for an injunction is dismissed.

Copy of this decision is to be sent to all parties.

Pronounced in Rotorua, Aotearoa/New Zealand on this 13^th day of June 2019.

COXHEAD CJ