IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A & A

Transcription

1 321 Aotea MB 24 IN THE MĀORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT A & A UNDER IN THE MATTER OF BETWEEN AND Section 19(1)(a), Te Ture Whenua Māori Act 1993 Part Hokio A - Section 1-4 Block IV town of Hokio (7 Kemp Street, Hokio Beach) - Interlocutory Injunction Sandra Williams Applicant Trustees of the Hokio Part A Ahu Whenua Trust Respondent Hearing: 22 May 2014 (Heard at Levin) Appearances: Ms Sandra Williams Ms Linda Thornton (counsel for trustees) Judgment: 22 May 2014 ORAL JUDGMENT OF JUDGE M J DOOGAN Copies to: Sandra Williams, 10 Kemp Street, Hokio Beach Road, Levin Linda Thornton, c/- Kathy Ertel & Co. 26 Bidwell Street, Mt Cook, Wellington 6021

2 321 Aotea MB 25 [1] Bryce Williams is currently on remand with a 24 hour curfew to a property at 7 Kemp Street, Hokio Beach. That property is owned by the Hokio Part A Trust and at issue in this proceeding is Bryce s right to be at that property. [2] This application has been brought on his behalf by Bryce s mother, Sandra Williams. She occupies another property owned by the trust nearby. [3] The Hokio Part A Trust was constituted in March 1997 and at or about that time, had re-vested in it land and houses formerly owned by the Crown. This included 11 houses at Hokio beach. [4] The current trust order dates from May 2004 and by clause 3(b)(11) includes the right of the trustees to permit occupation. There are also powers to lease. [5] I heard today from one of the trustees, Vivienne Taueki, who gave evidence that when the properties were handed back from the Crown they were in a poor state and had been run down. The infrastructure around the houses is also in a poor state. Over time, and since the trustees have assumed ownership and control of the properties, this has led to further deterioration in the condition of the properties. That in turn has apparently led to a situation where most, if not all, of the current occupants of the properties do not pay rent and have not done so for some time. [6] I understand from information provided to me by the parties that some of these issues in relation to the state of the houses and the infrastructure have been before the Court previously in the last 10 years. Some time ago the Court appointed Mr Richard Boast to provide a report. More recently I understand that the Court had appointed Mr Leo Watson to provide advice and assistance to the trustees. [7] I understand that Mr Watson s appointment was in the context of a separate application for review of the trust (application A ). I understand that that review remains ongoing. I mention that because one of the matters raised has been the possibility that the Court should look at a further review of the Trust.

3 321 Aotea MB 26 [8] The immediate context leading to this application is as follows. The property at 7 Kemp Street was previously occupied by Geraldine Vercoe and Donna Sciascia. In or around May 2012, Donna Sciascia died and Geraldine wished to move back to the Hawkes Bay for a period. She evidently intended to return and asked Bryce Williams, who I understand is her cousin, to move in and look after the property in the meantime. [9] Mr Peter Heremaia, (also a current trustee) said that at that time he had asked Geraldine to sign a paper agreeing to that arrangement for a four month period. No actual agreement was produced and its actual terms are unclear to me from the evidence I have heard today. [10] It does seem common ground that Bryce moved in at, or around, May 2012 at Geraldine s invitation. [11] It also appears common ground that Geraldine did not have any formal tenancy agreement with the trust. Neither was any agreement ever entered into between the trust and Bryce. In common with other occupants, Bryce has not paid rent either. [12] Ms Vivienne Taueki provided an affidavit dated 17 April I have also had the opportunity to hear directly from Ms Taueki today. Ms Taueki gave evidence that the trust have been endeavouring to develop a strategic plan to enable the trust to improve the houses to such an extent that they would be habitable at which time the trust intended to formalise the occupancy arrangements and enter into tenancy agreements. The trust had evidently been advised by real estate agents that the properties were not presently in a fit state for leasing. [13] Annexed to Ms Taueki s affidavit were minutes from a meeting of the trust in July A resolution was passed at that meeting on 12 July 2013 as follows, That the trustees secure a house at the Hokio Part A property for the purpose of using it as an administration base and depot for the trustees to carry out the business of the trust. The background to that resolution was a consideration by the trustees of the strategic plan. The trustees were unable to afford the costs of bringing the houses and facilities (such as waste water and sewerage disposal) up to a standard of compliance. The trustees had discussions

4 321 Aotea MB 27 with Weltec about a relationship through which they could use trainees to carry out some of the required works. [14] Ms Taueki went on to explain that following the July resolution, due to a number of other matters that the trust and trustees were involved with, with no practical steps were taken to secure a house at the Hokio Part A property until after December 2013 and into the early part of [15] In December 2013 Bryce Williams was arrested and remanded in custody. There was apparently no communication of this fact from Bryce himself or from Bryce s family to the trustees. By about March 2014 the trustees had identified the property at 7 Kemp Street as a suitable property for the administration building proposed by the July 2013 resolution. [16] On 22 March the trustees began moving property from 7 Kemp Street and this led to an altercation between Mr Philip Taueki and Ms Sandra Williams. That in turn led to the police being called. [17] Ms Taueki gave evidence that on the advice of the police the trustees would cease further steps to take control of the property and would give notice to Bryce to remove his property within 14 days. Also evidently in reliance on advice from the police the trustees, shortly after 22 March, changed the locks on the property. It also appears that at or about 22 March some trust property was moved on to 7 Kemp Street and remains there at present. It also appears that on 22 March, after moving some of Bryce Williams possessions to the carport area, those possessions were subsequently moved back into the house. [18] Shortly after these events Ms Williams made this application for an injunction and I considered the application on the papers on 31 March The application was made on an urgent ex parte basis and on 31 March 2014 I delivered an interim decision which recorded the following: The application is made under urgency as the trustees have recently taken steps to evict her son Bryce Williams from a property at 7 Kemp Street, Hokio Beach. Bryce is currently in jail but has a parole hearing on 15 April 2014 and may be

5 321 Aotea MB 28 released on 29 April It is alleged that on 22 March 2014 Mr Philip Taueki had, without notice to Ms Williams or her son, entered the property and started to remove Bryce s possessions. Bryce had been in residence there for two years although there is no formal tenancy agreement. Ms Williams says her son has not abandoned his home and intends to return there when released. She seeks an injunction to restrain the trustees of the Hokio Part A Ahu Whenua Trust from any further interference or trespass to her son s residence and property pending proper process in the Tenancy Tribunal or elsewhere to resolve the issues. I am satisfied on the papers as filed that an urgent interim injunction is warranted. There is a serious question to be tried. Ms Williams alleges the trustees wish to use 7 Kemp Street as an office. Against that is the question of Mr Williams s residency there for some two years and possible imminent return. In the circumstances, unilateral eviction without notice by the trustees seems harsh and likely to occasion harm to Mr Williams rights and possessions. It is unlikely that an award of damages would be an adequate remedy for such breaches, if established, at trial. I also believe the balance of convenience clearly favours Mr Williams given the possibility of his imminent release. [19] Accordingly, orders were made granting an interim injunction restraining the trustees or their agents from taking any further steps to evict Bryce Williams or from interfering with his possessions or right to quiet enjoyment of that property. The injunction was until further notice of the Court. [20] I also required the applicant to serve the application itself and supporting papers on the trustees and I directed the trustees to file with the Court at least 10 working days before the hearing, a written report outlining and including the information relied upon by the trustees in deciding to take steps to remove Mr Williams possessions from the property. The matter was set down for hearing today. [21] As it transpires, prior to the issue of the injunction the trustees had commenced steps to give notice to Bryce Williams. Ms Taueki produced a copy of a letter dated 28 March to Bryce Williams in Manawatū Prison. Ms Taueki says the letter was actually

6 321 Aotea MB 29 posted on 26 March. Ms Williams says that on 8 April Bryce notified her that he had received a letter from the trustees. [22] The letter reads as follows, This letter is to inform you that the trustees, as the legal owners of Hokio Part A lands, have now taken control of the vacant house on our property at 7 Kemp Street, Hokio Beach, and as a result of this have become aware that you have furniture and other belongings inside the house. The trustees wish to advise that you, or your nominated agent, have 14 days from the date of this letter to remove your furniture and other belongings from the property. Failure to do so may result in your property being sold or disposed of at the trustees discretion. [23] I understood from Ms Williams that on or about 3 April she had attempted to gain entry to the property and at that time discovered that the locks had been changed. She had asked for and was denied, entry by Ms Taueki and after discussing the situation with her solicitor, had herself instructed a locksmith to change the locks. I understand that this took place around that time and that access to the property remains effectively under Ms Williams control. Ms Williams counsel advised the Court of that situation and on 11 April 2014, I issued a further minute directing that the trustees be personally served with the application and the interim orders made on 31 March [24] I noted that the Court had been informed that the locks had been changed and also noted that on 8 April 2014 Ms Williams had received the letter from the trustees dated 28 March 2014 advising that her son had 14 days to remove his possessions. I noted that it was possible that those steps had been taken or commenced prior to the issue of the interim injunction or prior to receipt by the trustees of the injunction order and therefore ordered the Registrar to arrange personal service of those documents on the trustees. I also noted that in the event that any further steps were taken or initiated by the trustees in contravention of the terms of the injunction, that counsel for the applicant, Ms Williams, should apply for transmission to the High Court for enforcement. If that was necessary I would consider a possible further order requiring the trustees to attend and explain why they should be removed.

7 321 Aotea MB 30 [25] Having heard from the trustees counsel, (Ms Thornton), and from Ms Taueki I am satisfied that there is no issue in terms of the trustees acting deliberately in contravention of the terms of the interim injunction. The events outlined took place in between the application and issue of interim injunction and subsequent receipt by the trustees of notice of that injunction. [26] Ms Thornton has applied for a dismissal of the injunction. Her instructions are that Mr Williams has no current right to occupation or possession of the property. In essence her submission was that to the extent that Mr Williams had been in occupation for some time, it was merely as a bare licensee with the license revocable at will by the legal owners who are the trustees. The trustees declined the proposal by Ms Williams counsel for mediation or some alternative proposal and do not wish Mr Williams to continue in occupation presently or in the future. [27] Ms Williams seeks an extension of the interim injunction in the first instance until 28 May 2014 as Bryce has a sentencing hearing on that date. It is possible that he may receive a custodial sentence. It is also possible that he may receive a sentence of home detention in which case I understand that Bryce wishes to be remanded back to 7 Kemp Street. [28] Mr Sword spoke in support of Ms Williams and pointed to the overall interest of justice in this situation. [29] I acknowledge that the present situation is a difficult one for all parties. It is clear that the trustees have some long standing and difficult issues to address with the housing at Hokio Beach. [30] Mr Sword also recommended that the Court consider a review of the trust in light of the long standing and clear breaches of trust. I have already noted that there is a related review of trust application before the Court and I do not propose to amend or extend this application and will leave those wider questions to those related proceedings. [31] What I will focus on is the immediate issue which concerns the occupation of 7 Kemp Street.

8 321 Aotea MB 31 [32] Ms Williams had also proposed possible mediation in respect of her own occupation of another of the properties at Hokio Beach. For present purposes, once again, I propose to leave to one side the rights or otherwise of other occupiers and focus on the issue as it relates to 7 Kemp Street and Bryce s immediate situation. [33] In terms of the legal position, it is my view that Ms Thornton is correct that the trustees as the legal owners do have the right to control who goes onto the land. They do have the right to grant or deny occupation. [34] I note in passing the Māori Appellate Court in Eriwata and related cases which clearly set those principles out. [35] I am also satisfied that in legal terms the nature of Bryce s occupation could properly be characterised as a bare license. It appears that he did enter into possession with at least one of the trustees, Mr Heremaia, aware of the situation at the time. However in the absence of any written agreement and in the absence of other characteristics of a tenancy arrangement, it does appear to me to be an occupation in the nature of a bare license which by its character, is revocable at will by those who have the legal right to control the property and the land. [36] While it appears to me that the legal situation is clear, the factual situation is a difficult one. I was satisfied that there were grounds for issue of the interim injunction for the reasons that I outlined in the minute issuing that injunction. I am also conscious that Bryce has an upcoming hearing in a short time and I believe it would not be in the interests of justice to today bring to an end the current occupation which, as Ms Thornton said, is effectively there by order of the Court. [37] What I propose to do is to extend the interim injunction until 31 May 2014 which is after Bryce Williams sentencing hearing. This is to enable the sentencing to conclude. I accept that in light of the submissions made on behalf of the trust the possibility of a sentence of home detention being served at that address is not viable, absent the Trust s agreement.

9 321 Aotea MB 32 [38] The effect of the orders that I propose to make today is to extend the interim injunction in the meantime given that Bryce is currently remanded to that address on a 24 hour curfew. However I do not think, in light of the legal situation as I see it, that it would be right to extend the injunction indefinitely beyond that point. The issue that I wish to consider if a sentence of home detention is a possible option, is whether Bryce or his counsel need time to explore alternative addresses prior to the sentencing on 28 May 2014? [39] The issue that causes me some concern, given the proximity of the sentencing, is whether if the sentencing Court wishes to look at the home detention option at an alternate address and that this not be unduly compromised by the fact that this property, 7 Kemp Street, would not be available. Leave could be reserved to counsel for Ms Williams and to Ms Thornton, to advise the Court if there is any need for an interim arrangement in the event that home detention is under consideration to allow Mr Bryce Williams sufficient time to transition from 7 Kemp Street to whatever alternate address the Court directs. [40] Following discussion with the parties during which counsel for the trustees proposed a two week extension after 28 May 2014, the Court continued. [41] I do not have in mind an indefinite adjournment. I do think it is in the interests of all parties that there be some clarity going forward. However, what I had in mind was a short transition period (if it is needed) and again I do not know and do not want to speculate as to what the sentencing Court requires. It will require a definite address on the day and it is just possible that given the short time before 28 May 2014, that Mr Williams counsel may need to use the 7 Kemp Street address pending an alternative again I cannot speculate. [42] The Registrar has kindly advised me that the pre-sentence reports considering home detention take approximately eight weeks to prepare so they would be well under preparation at this point. [43] What I will do is make the order extending the interim injunction to 31 May 2014 with leave reserved to the parties to apply for further directions as required. I will simply leave it on that basis for either party to seek further directions.

10 321 Aotea MB 33 [44] The Court makes an order pursuant to section 19(1)(a) of Te Ture Whenua Māori Act 1993 extending the interim injunction served on the trustees of Hokio Part A Ahu Whenua Trust at 318 Aotea MB dated 31 March 2014 to 31 May [45] Leave is reserved to the parties to apply to the Court for further directions as or should, the need arise. Pronounced at pm in on this th day of M J Doogan JUDGE Addendum to Oral Judgment Minute Following Teleconference - 5 June 2014 [46] Pursuant to the leave reserved, counsel for Ms Williams advised by memorandum dated 30 May 2014 that Mr Williams sentencing had been deferred to 29 May 2014, at which time he received a sentence of home detention for five months. Pursuant to that sentence, he was required to reside at 7 Kemp Street, Hokio Beach. [47] Mr Ellison advises that since the hearing, he had been made aware that the previous occupier, Geraldine Vercoe-Wakefield likely had a written tenancy agreement with the trustees. When she left she wrote a letter giving Bryce Williams the right to occupy 7 Kemp Street until her return. On this basis, Mr Ellison submits that the lessee had given Bryce Williams the right to occupy the premises and the trustees must follow due process before being entitled to evict, which process should include notice to Geraldine Vercoe- Wakefield. [48] Mr Ellison also advised that his client was willing to agree to amend the terms of the injunction to allow the trustees to enter the property with 48 hours written notice in order to complete repairs and maintenance and that Bryce Williams was willing to enter a tenancy agreement in order to have secure tenure.

11 321 Aotea MB 34 [49] In light of the fact that the interim injunction was due to expire on 31 May 2014, I directed that it be extended pending an opportunity for counsel for the trustees to respond and for the Court to give such further directions as may be required. [50] Ms Thornton for the trustees responded by memorandum dated 30 May [51] Ms Thornton confirmed that the trustees remained of the view that they did not want Mr Williams to remain in residence at 7 Kemp Street. Ms Thornton points out that despite the submission that Ms Vercoe-Wakefield likely had a tenancy agreement, no such agreement has been produced. Ms Vercoe-Wakefield left the premises months ago, has not retained rights to occupy, and has not accomplished a transfer of any rights she may have had to Mr Williams. From the trustees point of view, Ms Vercoe-Williams abandoned the premises and was replaced by a squatter. Mr Williams occupancy has not been legitimised. [52] Ms Thornton expresses concern that Mr Williams was sentenced to home detention at a property he has no right to occupy and in circumstances where the probation authorities were not advised that 7 Kemp Street was not a viable location for the possible sentence of home detention. [53] Mr Thornton asks that the District Court be informed of the fact that Mr Williams has no legal right to occupy 7 Kemp Street and that an alternative location for his sentence of home detention be established as soon as possible. In the event that the Court is considering modifying the orders made on 22 May 2014 Ms Thornton seeks an opportunity to be heard. [54] I convened a teleconference with the parties on 5 June Ms Williams appeared in person and advised that Mr Ellison is no longer acting due to the difficulties arising from the fact that he is based in Dunedin. Ms Thornton attended the teleconference for the trustees. [55] Ms Williams confirmed that whilst the probation service was made aware of the injunction granted on 31 March 2014, they were not made aware of the oral decision I delivered following the hearing on 22 May 2014.

12 321 Aotea MB 35 [56] I agree with Ms Thornton that this is unsatisfactory and has led to a situation where it appears Mr Williams was sentenced in circumstances where the Sentencing Court was not fully informed of relevant information that goes directly to the question of the suitability of 7 Kemp Street as a home detention residence. [57] I noted that this appeared to be a situation where an applicantion pursuant to s 80F of the Sentencing Act 2002, to vary or cancel the sentence of home detention, would be necessary. That application may be made by an offender or a probation officer. [58] I advised the parties that the minutes of the hearing of 22 May 2014 had been finalised and would be distributed within the next few days. I also indicated that the oral judgment together with an addendum recording the outcome of this teleconference would be released as soon as possible so that it could be drawn to the attention of the Probation Service. [59] The extension of the interim injunction on 22 May 2014 was in my view necessary given the fact that Mr Williams was remanded at that address on a 24 hour curfew with sentencing due a week later. To their credit, the trustees did not oppose that extension and neither do they now oppose a further extension of the injunction and order that the Probation Service can be advised of this decision and that appropriate steps can be taken to vary or amend the sentence of home detention. [60] There is accordingly a further and final order extending the injunction until 4pm on Monday 30 June On or before that date Mr Williams must surrender possession of the property to the trustees or their nominee. [61] I record that the stove at the property belongs to Mr Williams and will be removed. Ms Williams indicated a wish to recover the locks that she had installed. She may do so but the property should be returned to the trustees in a secure state with either the current locks, those previously removed by Ms Williams, or suitable replacements. [62] Ms Williams expressed concern about possible claims against her son or herself in relation to allegations of damage to the property. She indicated that she had photos to prove

13 321 Aotea MB 36 that there was no damage. If any such issue arises following surrender of possession of the property to the trustees I reserve leave to the parties to seek further directions if required. M J Doogan JUDGE