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Fesili v Attorney General [2024] WSSC 22 (10 May 2024)

IN THE SUPREME COURT OF SAMOA
Fesili v Attorney General & Ors [2024] WSSC 22 (10 May 2024)


Case name:
Fesili v Attorney General & Ors


Citation:


Decision date:
10 May 2024


Parties:
GALUVAA SAGALE POIVA FESILI, Administrator of the Estate of Fuapepe Fesili, Deceased (Applicant) v THE ATTORNEY GENERAL for and on behalf of the MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT (First Respondent); ULUGIA ALEX STANLEY and ULUGIA TITO KAMU, suing individually and in a representative capacity for and on behalf of the beneficiaries of the ESTATE OF CHARLES COWLEY (Second Respondent); TOFAEONO AUFATA PUPI and LEO’O LAKI TULAGA, both of Vaigaga, for and on behalf of the lawful descendants of CECILIA BURMEISTER (Third Respondent) & SAMOA LAND CORPORATION, A Government statutory body (Fourth Respondent).


Hearing date(s):
23 April 2024


File number(s):
MISC 8/19


Jurisdiction:
Supreme Court – CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Asher


On appeal from:


Order:


Representation:
K Kruse for the Applicant
D J Fong for the First Respondent
K Koria for the Second Respondents
J Brunt (via video-link) and C Seiuli for the Third Respondents
S C Vaai for the Fourth Respondent


Catchwords:
Land ownership – correction of land register – declaratory judgment.


Words and phrases:
“rights to land”.


Legislation cited:
Declaratory Judgments Act 1988, s. 11;
Land Titles Registration Act 2008, ss. 5(e); 5(1)(e); 5(4)(b); 32.


Cases cited:
Ambrose v Attorney-General [2011] NZHC 1654; [2012] NZAR 23 (HC);
Chan v Body Corporate 105164 [2015] NZHC 2491;
College Rifles Rugby Union Football and Sports Club Inc v Minister of Lands [2015] NZHC 2001;
Hayes v Parlane [2014] NZHC 2416;
Hojsgaard v Chief Executive of Land Information New Zealand [2018] NZHC 750;
Ifi v Attorney-General [2020] WSSC 23;
Mandic v The Cornwall Park Trust Board (Inc) [2011] NZSC 135;
Re Chase [1988] NZCA 181; [1989] 1 NZLR 325.


Summary of decision:

MISC8/19


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:


of the DECLARATORY JUDGMENTS ACT 1988 and the LAW REFORM ACT 1964


AND:


in the matter of s. 5 the LAND REGISTRATION ACT 2008, concerning Court Grant 631 purported to be recorded at Volume 1 Folio 150 of the Land Register


BETWEEN:


GALUVAA SAGALE POIVA FESILI, Administrator of the Estate of Fuapepe Fesili, Deceased


Applicant


AND:


THE ATTORNEY GENERAL for and on behalf of the MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT.


First Respondent


AND:


ULUGIA ALEX STANLEY and ULUGIA TITO KAMU, suing individually and in a representative capacity for and on behalf of the beneficiaries of the ESTATE OF CHARLES COWLEY


Second Respondent


AND:


TOFAEONO AUFATA PUPI and LEO’O LAKI TULAGA, both of Vaigaga, for and on behalf of the lawful descendants of CECILIA BURMEISTER


Third Respondent


AND:


SAMOA LAND CORPORATION, a Government statutory body


Fourth Respondent


Court Honourable Justice Asher


Counsel K Kruse for the Applicant

D J Fong for the First Respondent

K Koria for the Second Respondents

J Brunt (via video-link) and C Seiuli for the Third Respondents

S C Vaai for the Fourth Respondent


JUDGMENT DATED 10 MAY 2024

Introduction

  1. This proceeding arises from a notice of motion under the Declaratory Judgments Act 1988. After the filing of an amended application, and the abandonment of proposed order B, the application seeks orders:[1]
  2. It relates to a dispute between two groups of people who claim rights to the land Mr Fesili calls Mateao, and has its origins late in the nineteenth century. The land in question is located in the village of Tanugamanono in the district of Tuamasaga. One group, the applicant and his wider family, occupy at least a part of the land referred to in a document known as Court Grant 631. The other group, the second to fourth respondents, have legal title to land referred to in Court Grant 631. In essence the Applicant and his family want their right to occupy Mateao including any part of the land that could be said to be included in Court Grant 631, recognised and their possession protected.

Background facts

  1. Mr Fesili, is the son of Fuapepe who was the daughter of Samau Leupolu, who was the son of Leupolu Timani. Leupolu Timani’s father was also called Leupolu, and he is said to have purchased the land known as Mateao in 1871. Mr Fesili traces his family’s connection to the land in question through this line of ancestors. It is said without contradiction that dozens of Leupolu descendants are buried on the land. Leupolu and his descendants have lived at Mateao since 1871. Mr Fesili, lives on the land with his family and cares for the small cemetery.
  2. However, the land occupied is not registered in the names of Leupolu or Mr Fesili’s family. On 3 February 1897, three years before the German Administration, the Supreme Court of Samoa made Court Order 631 in favour of the ancestors or predecessors of the second to fourth respondents and others.
  3. As summarised in the first respondent’s submissions, an undated claim No. 3473 was filed by claimants Caroline Johnston and others at some point prior to the German Administration. It claimed absolute ownership over approximately 50 acres of land situated in the east side of Vaea. The Land was described “by mark and boundaries and especially by name”, being that land called “Tiamoli”. A description of marks and boundaries followed. On 26 August 1892, the Samoa Land Commission submitted its Report to the Chief Justice. On 3 February 1897, the Chief Justice issued Court Grant 631 in respect of claim No. 3473. The Court Grant was also made prior to the German Administration.
  4. The registration process for ownership of land during the German Administration was summarised in Ifi v Attorney-General where Tuatagaloa J stated:[2]
  5. Attached to Mr Fesili’s affidavit are documents from what appears to be the early period of the period of German Administration. They are from the German Land Registry, written in German and headed “Flur Plan VIII” (the German Land Registry being known as “Flur”). Beside what appears to be Lots 90 and 91, are the words “Foe and Leupolu” and “Eingeb” (eingeb meaning “native”). There is a plan showing a triangular piece of land which has “C Gr 631” on it. But there is nothing to show what Lot or Lots that triangular piece of land includes, or the area of them. There is no reference to Mateao. There is however a reference which reads: “Leupolu, native, contested by the heirs of W. Johnston (C Gr 31)”. Presumably the “6” was left out of “C Gr 31”. This text was in English, unlike the rest of the document, and may have been put on the 1897 document at some point after the German Administration ended in 1914.
  6. There are also documents from 1908 concerning Court Grant 631 which indicate a dispute between the two families. The documents are exchanges in German between the Government Surveyor and the Imperial District Court. They are attached to Mr Fesili’s affidavit together with what is said to be “certified translation[s] from the German into the English language”.[3] I do not know who did the translations or whether they have been verified. However, on the face of it, these attachments appear to be proper translations of original documents. Where I refer to the documents below, I refer to the English translations.
  7. The first document, sent in response to an earlier query, is a letter of 2 October 1908 from the Government Surveyor to the Imperial District Court saying:
  8. The German authorities were clearly aware of the dispute and referred to efforts made to resolve it. Significantly, part of the land in Court Grant 631 is assumed to be “probably identical” to a part or all of Lots 90 and 91. There is a letter, again from a Government Surveyor to the Imperial District Court in Apia asking the Imperial District Court to:
  9. There were then letters indicating that a conciliation procedure was attempted on 6 November 1908 but postponed for various reasons. All persons appeared again without summons on Saturday 14 November 1908 at 8am. The documents indicate a further letter and then another conciliation procedure occurred on 17 February 1909. It is recorded that at that procedure:
  10. On 20 February 1909, the Imperial District Court Judge is recorded as saying “With the respectful request whether the mapping of the boundaries between Court Grant 631 and 941 can now commence”. The nature and provenance of Court Grant 941 is unclear.
  11. Almost two years later, another document dated 2 February 1911 is sent from the Government Surveyor to the Imperial District Court saying “A restoration of the boundary between Court Grant 941 and the disputed piece of land will, if possible at all, probably contribute little to clarify the situation.” There are then remarks about the boundary of the land and:
  12. There is then a reference to a survey on 21 February 1911 declaring that:
  13. There is then a set of certified translations, headed 21 and 22 February 1911, which I set out in full because they are incomplete and difficult to summarise:
  14. The last remark appears to be directed to the second to fourth respondents’ ancestors. However there is no further correspondence produced about the rights of “Leupolu and his companions” and their competing claims with the persons named “Cowley heirs” until on 10 January 1921 when the land, or part of it, was registered in the Land Register at Volume 1 Folio 150. The registered owners recorded in the Land Register were:
  15. Each of these owners is shown as holding an equal one-fifth share as tenants in common. The title read:
  16. The applicant also relies on Plan 19F/44 from 1978. This appears to show some of the land in Flur VIII and refers to Court Grant 631 and Lots 90 and 91 as part of a large piece of land which bears little resemblance to the earlier grants in Flur Plan VIII. There is no explanation of the history or authorship of this 1978 plan.
  17. The various documents listed and explained in the preceding paragraphs evidences claims to the land in Court Grant 631, at least from Leupolu and his family.
  18. On 24 November 2009 the applicant filed a statement of claim against the Samoa Land Corporation seeking possessory title by virtue of adverse position to part of the land that is called “Tiamoli” at Papauta. On 26 April 2012 the applicant filed a motion to amend the application and add further defendants. The hearing of these proceedings took place on 4 October 2013. On 18 October 2013 Sapolu CJ delivered a judgment dismissing the applicant’s claim on the basis that the claim was time barred. There was no appeal against that decision.
  19. On 14 January 2019 the applicant filed this proceeding seeking broader orders than are presently sought, although they were along the same lines. The second and third respondents applied to strike out the Declaratory Judgment Act proceedings on the basis that they were frivolous, vexatious and an abuse of the Court process, that the doctrine of res judicata applied, and that the application disclosed no reasonable cause of action.
  20. That application to strike out was heard and was dismissed in the judgment of Tuatagaloa J on 3 February 2020. In essence she distinguished between a claim for adverse possession, and a claim that actually called into question the title. The former did not prevent a claim based on the different later cause of action.
  21. That application was then part-heard in 2022 but not completed because various documents were not available. The judge who had part-heard that case then became unavailable. A new hearing without reference to the earlier hearing has now taken place before me.

This application

  1. As set out, a declaration that Mateao is located on Lots 90 and 91 is sought, as is an order that Mateao be surveyed.
  2. It is common ground between all parties that Court Grant 631 has not been surveyed. The protraction of this dispute is, in considerable part, caused by the fact that the boundaries of Court Grant 631 are yet to be surveyed and determined.
  3. The applicant’s concern is that Court Grant 631 came to be located on Lots 90 and 91 in the Flur Plan VIII and Plan 19F/44. This is land that the applicant clearly considers is occupied by his family. The great concern is that the title to that land does not recognise his family interest, and is in the name of the second to fourth respondents.
  4. On the face of it this is a dispute which (as has been recognised by earlier Courts) needs a negotiated solution. Indeed there has been a settlement conference, but it was unsuccessful. The respondents point out that there has been a significant change in position by the applicant. Initially in 2008 there was no challenge to Court Grant 631 and the proceedings were based on adverse possession. It was only after those proceedings had proved unsuccessful because of limitation issues, that the validity of the existing Land Registry record became the focus of the efforts by the applicant to regularise their claim to the land.
  5. While it would seem on the face of it that there would be an obvious benefit in surveying the land that was the subject of Court Grant 631 and trying to settle its boundaries, the applicant has, until recently, resisted a survey process taking place. However, that is part of the relief now sought. The applicant states he is not seeking to claim ownership of any part of Court Grant 631 for himself or his family; he simply asks the Court to declare that the first respondent’s land records contain an error insofar as they purport to locate Court Grant 631 on Lots 90 and 91.
  6. One course of action that could be followed is an application to the Land Titles Investigation Commission (Land Commission) under the Land Titles Investigation Act 1966. However, no party has pursued that to date.
  7. Ms Kruse, for the applicant, relies in support of the applicant’s claim on s5(1)(e) of the Land Titles Registration Act 2008 which provides that the Registrar may correct errors and omissions in the Register. However, s5(4)(b) states that if the correction prejudices or affects a right accrued from a recording made in the Register before the correction, the correction shall be deemed to have no force or effect.
  8. Moreover plainly any direction to the Registrar that is sought in this proceeding would run against s32 of the Land Titles Registration Act 2008 which provides that, except in the case of fraud, the registered proprietor for the time being of the estate or interest in the land recorded on the Register will hold the same free of all other estates and interests that are not so recorded. There are hurdles, therefore, for the applicant to overcome.

Jurisdiction

  1. The immediate problem for the applicant is that this is a Declaratory Judgments Act application, filed by notice of motion under that Act and invoking it. This Act creates a limited jurisdiction. The Samoan Declaratory Judgments Act is very similar in wording to the New Zealand Act of the same name. The New Zealand Supreme Court in Mandic v The Cornwall Park Trust Board (Inc) held, following a long line of authority, that an application for a declaratory order under the Declaratory Judgments Act is inappropriate where there are questions of fact to be determined.[4] This conclusion also stems from the words in s 4 of the Samoan Act. The focus of the Act is on the interpretation, construction and validity of statutes or things done under statutes. It is not designed for the resolution of factual disputes. This has been emphasised in several New Zealand High Court decisions.[5]
  2. In Hojsgaard v Chief Executive of Land Information New Zealand the plaintiff sought orders for the Surveyor-General to correct errors in the survey of land he owned. The parties had each produced contradictory surveys of the land in question. It is not entirely clear from the report whether it was the Declaratory Judgments Act 1908 that was relied on, or rather the general power of a Court to grant a declaration. Nonetheless, in rejecting application for declaratory orders, Jagose J stated:[6]
  3. Further, the purpose of the Declaratory Judgments Act is to allow for declaratory orders to be made; this is in contradiction to orders requiring a party to do something. The Act does not provide for the making of mandatory orders requiring people to do things. As Edwards J stated in Chan v Body Corporate 105164, “The declaration...amounts to a mandatory order and there is no jurisdiction to make such an order under s 3 of the Act.”[7] There are other causes of action including mandamus and certiorari and indeed for a declaration not relying on the Declaratory Judgments Act, that are appropriate for that sort of claim.
  4. Moreover the jurisdiction under the Declaratory Judgements Act is discretionary. As Cooke P stated in Re Chase:[8]

Discussion

  1. The documents and events traversed under the ‘Background Facts’ subheading above lend considerable support to the Leupolu family’s claim that certain land, which may well have been described as Lots 90 and 91, and included in Court Grant 631, was subject to a claim by the family. Indeed, although some remarks are unsympathetic to the applicant’s ancestors’ claim, others such as a letter to Dr Schwesinger (detailed above) appear to place the onus on the European owners to prove “your claim to the disputed land against the Samoans named above in order to achieve a final settlement”.
  2. The correspondence traversed above shows the German Administration making considerable efforts to resolve a problem where Court Grant 941 has given title to a block of land owned by people with European names over which a Samoan family is making a claim based on long term occupation. The 1908 to 1911 correspondence shows real problems in identifying correct boundaries and the possibility arises of some of the land being customary land. However, in the end there is nothing in the translated German documents of relevance after 1911. The matter, it seems, has been left unresolved.
  3. Then, without explanation, on the papers before the Court, the New Zealand Administration in 1921 created the title being Volume 1 Folio 150 in the name of the ancestors of the second to fourth respondents. It may be that there is just inherent and unresolvable uncertainty in the words describing the land in Court Grant 631. This does sound like an issue well-suited to resolution by the Land Commission.
  4. As the above analysis shows, there is little common ground between the parties as to the key background fact of whether, and if so to what extent, Court Grant 631 affects the land claimed as Lots 90 and 91 by the applicant. Ms Kruse argues that the applicant just wants to have the record fixed – but she wants it fixed in accordance with her client’s wishes – which is opposed by the respondents.
  5. Ms Kruse places considerable reliance on the affidavit of Tuala Piki Tuala, who is a surveyor. He explains that in his opinion there has been an error somewhere in relation to the property dimensions. He stated that the Land Registry Plan 19F/44 had incorrectly located the land in Court Grant 631 on Lots 90 and 91, known as Mateao. He had done a quick survey of the peripheral boundaries of Lots 90 and 91. In his calculation the last boundary line of Court Grant 631 did not end up or meet with the starting point of the boundaries as described in the Court Grant, which meant there was an error somewhere along the boundary dimensions.
  6. However Mr Fong for the Attorney-General, did not accept this was accurate. He pointed out that on 9 May 2008 Mr Tuala’s firm had written to the Registrar not challenging the correctness of Court Grant 631, but rather putting forward the applicant’s claim for adverse possession. Mr Tuala had not raised then differences between Court Grant 631 and Lots 90 and 91. The same plan that was on Plan 19F/44 appeared to have been endorsed by the applicant’s surveyor. It is true that without explanation, this diminishes the weight that can be put on his opinion.
  7. I put to Ms Kruse the proposition that Declaratory Judgment Act applications should not be used to resolve disputes of fact. She did not disagree with that proposition but submitted there was no disputed fact in relation to the relief sought because the relief sought, as set out above (ground B being abandoned and ground A not seeking substantive relief) not involve any contest. However, as I have indicated, what is sought is not uncontested. While all parties appear to concede the land has not been surveyed, the respondents do not concede that Court Grant 631 incorrectly includes Lots 90 and 91, known to Mr Fesili as ‘Mateao’. The way Mr Fong put it, the land owned by the registered proprietors is actually land called 'Tiamoli’. The freehold ownership of Tiamoli, which has not been established, is contested. Mr Fong submitted there is a place for resolving such a dispute which is the Land Commission. Essentially, he submitted, the applicants were seeking to claim freehold property and such a claim should go before the Land Commission.
  8. Mr Fong accepted that there was a need for Court Grant 631 to be surveyed. Nevertheless, Mr Fong denied that Court Grant 631 is a completely different piece of land from Mateao. He referred to a 1908 letter in German from the Government Surveyor to the Imperial District Court that stated that Court Grant 631 was probably identical to a part or all of Lots 90 and 91. In a later letter it was added that efforts be made to persuade Leupolu and Foe to voluntarily renounce their “...alleged claim to the land Tiamoli Court Grant 631 before legal action is taken”. It is to be noted that the land was call “Tiamoli”, not “Mateao”. However, I have also noted the reference to the Europeans having to prove their claim to the disputed land against the Samoans in the exchange of 21 and 22 February 1911. Clearly there was a dispute between the recorded owners and the applicant’s ancestors back then. It has remained unresolved for over 110 years.
  9. Mr Brunt for the third respondent also made the point that the land had already been partially surveyed in 2008 by the applicant’s surveyor, Mr Tuala, as part of the adverse possession proceedings. Mr Brunt accepted that there could be an order for a survey made.
  10. Mr Vaai for the fourth respondent did not agree with the applicant’s contentions. He submitted that the land in Court Grant 631 it is clearly identified in the records. To direct a survey would be difficult because there are multiple land owners. He questioned who would get the front, who would get the riverside and who would pay for the cost of the survey. There had been no survey because, the respondent submits, the applicant’s family was hostile to that. After further discussion Mr Vaai appeared to accept it would be appropriate to order a survey. Later in submissions he submitted that the applicant’s family were squatters, and their appropriate remedy had been an adverse possession order. He says that an application to the Land Commission would be met by a claim of res judicata, going back to Court Grant 631.
  11. Ultimately Ms Kruse observed that if there was a survey the parties would still go back to square one where it would be necessary for the Court to direct that those references to Court Grant 631 be considered with other plans. In my view it is clear that resolution of the issues between the parties will involve a careful analysis of the history of the situation, coupled with a consideration of new survey results. At the moment there are major gaps in proof.
  12. The applicant’s argument turns on Court Grant 631 applying to Lots 90 and 91, but there is nothing to show what Lots Court Grant 631 relates to, the area of them or indeed who owns them. There is no reference to Mateao. The applicant appears to assume the right to possession, but it is not at all conceded by the respondents. That necessary plank in proof is missing. There is no uncontested recent survey evidence. It is submitted by the respondents that the shapes of the land in Lots 90 and 91 are different from those described in Court Grant 631, and that would appear to be so. Without the help of a surveyor giving evidence and being examined, it is impossible to assess this submission.
  13. Ms Kruse submits that she is not asking the Court to state outright that her clients own Lots 90 and 91, but simply asks for a direction that the Registrar fix their records. But the question remains – fix the records to reflect what? The applicant has not put forward any proposal as to how the land should be described in the title. Ms Kruse submitted that it was her client’s wish, before the Land Commission, to prepare and show plans and land sketches that correctly show Lots 90 and 91. It is not clear what sort of title or claim the applicant wants to pursue.
  14. There is insufficient evidence on which the Court could, with confidence, make an order requiring the Registrar to take any steps. The only step that the Court could order would be for a survey of Court Grant 63 be done. But that in itself may not resolve the issues between the parties. In any event, there is not it appears consensus among the parties that such a survey should be directed by this Court. There would be issues as to who would do the survey and who would pay for it.
  15. It is also to be noted that neither the applicant or the present respondents are on the title. Mr Fesili had given uncontested evidence that he is the descendant of the Leupolu line. As far as the respondents are concerned, it is the respondents’ ancestors that are shown on the title, and they are all deceased. The status of the current respondents is not necessarily established. This may be a technical point, but it is another impediment. In relation to the importance of proving the status of the descendants of title holders, (although it was in relation to an applicant), I note the statement of Tuatagaloa J in Ifi v Attorney-General that:[9]

Conclusion

  1. As has been observed, under s 11 the Declaratory Judgments Act, jurisdiction is discretionary. The Court may on any grounds which it deems sufficient, refuse to give or make any such judgment or order. In this proceeding and on the information presently before the Court, a declaratory judgment would be a clumsy and unjust way of resolving the dispute between the parties.
  2. There has still not been a full analysis of all the documents and background. The only surveyor’s report available contradicts the stance taken by the same surveying firm in the earlier proceeding.
  3. This is, in the end, an intensely factual contested issue. Factual questions remain unanswered: Where are the boundaries of Court Grant 631 and Lots 90 and 91? How do they relate to each other, and what are the ownership rights of the second, third and fourth respondents? As a further complication, ss 5(e) and 32 of the Land Titles Registration Act do not permit a correction of the register if it prejudices or affects a recorded right, and provide that the register is paramount. Even if there was an error, the register would prevail.
  4. The danger in trying to make any declaratory judgment without knowledge and resolution of the full facts in the usual way, is in the large amount of assumptions required, some of which would be based on tenuous evidence. There would be a serious risk of injustice. Quite simply the Declaratory Judgments Act tool is not designed for this sort of case. It requires a more orthodox proceeding possibly relying on the prerogative writs, or a hearing before the Land Commission, where there may be full affidavits and cross-examination, or an ability to properly investigate. It requires detailed survey evidence, going beyond what is said by Mr Tuala presently.
  5. It is unfortunate that I cannot go further because I have no doubt from the records of the turn of the last century, that there is a seriously arguable claim by the Leupolu descendants to at least a part of the land in Court Grant 631. The problem is that I do not have the evidence which would enable me to direct the first respondent to “correct the error”, because I cannot define the nature of the error with any precision, or what sort of interest the applicant’s family should have.
  6. Equally, although it is seriously arguable that the plans are invalid in the sense of being an inaccurate representation of the land that was intended to be part of Court Grant 631, I cannot say that that is established on the balance of probabilities in terms of the relief sought in (C). Nor in terms of (D) can I declare that Mateao is located on Lots 90 and 91. I do not have sufficient evidence to do that, and I remain unclear as to what constitutes Lots 90 and 91.
  7. I have considered whether I should order a survey of the land as is sought in (E) although that is a survey of “Mateao” and it is not even clear what is constituted by Mateao. It is possible that the boundaries of Lots 90 and 91, if they can be defined, do not coincide with Court Grant 631. In any event, I was unable to get clear consent from all parties to make such an order. Ultimately it was Mr Fong’s position that the applicant is trying to claim ownership over exactly the same piece of land that is now registered in the names of the second – fourth respondents’ ancestors. The applicant says that the description and boundaries of Court Grant 631 are wrong. The respondents say that they are right and covered by indefeasibility. A survey might clarify that.

Result

  1. Therefore I have concluded that in the absence of uncontested factual issues, the Declaratory Judgments Act cannot and should not be applied to this application. This procedure, where the evidence cannot be tested and is in dispute, means the jurisdiction does not apply. Further, I have decided in the Court’s discretion, with one possible exception, it should not proceed. The issues are too complex, and the Court cannot does not have the experience, or necessarily the powers, of the Land Commission.
  2. However as a way forward towards a general resolution, if the parties all agreed that the land in Court Grant 631 should be surveyed, and could reach an arrangement as to the payment for such a survey, I would make such an order. The matter could then be easier to resolve, and the Land Commission procedure could be assisted.
  3. Therefore I give the parties 28 days to advise me whether or not they wish me to make such an order. If all parties agreed, I would be prepared to make the order, even though it may be stretching my jurisdiction under the Declaratory Judgments Act. As I have said I traversed this at the hearing, but got inconsistent and sometimes negative answers. It seems to me that a survey would be a constructive start to resolving the issues. If no such unanimous advice agreeing to a survey is received, the application will be dismissed.
  4. I reserve the question of costs for further submissions if necessary. As will be clear, I have sympathy for the applicant. It was unfortunate that the adverse possession proceedings, which may have offered a merit based solution, were time-barred. There is undoubtedly an issue that has to be resolved as to the boundaries of this land, and possibly as to the status of the applicant’s right to the land. I also have sympathy for the respondents, who are embroiled in this difficult case because of uncertainties of title that arose over a hundred years ago.

DATED this 10th day of May 2024
JUSTICE ASHER


[1] Ground A did not seek substantive relief.
[2] [2020] WSSC 23 at [19].
[3] The Court was not taken through these letters in chronological order during the hearing, but the exercise has been carried out in the course of preparing this judgment.
[4] [2011] NZSC 135 at [5].
[5] Ambrose v Attorney-General [2011] NZHC 1654; [2012] NZAR 23 (HC) at [33]; Hayes v Parlane [2014] NZHC 2416 at [33]; and College Rifles Rugby Union Football and Sports Club Inc v Minister of Lands [2015] NZHC 2001 at [44].
[6] [2018] NZHC 750 at [76].
[7] [2015] NZHC 2491 at [67].
[8] [1988] NZCA 181; [1989] 1 NZLR 325 at 333.
[9] Above n 1, at [32]-[34].

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