IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A MAUD HILDA RYDER NELSON OGLE Applicants. Applicant

Transcription

1 103 Taitokerau MB 284 IN THE MĀORI LAND COURT OF NEW ZEALAND TAITOKERAU DISTRICT A UNDER Section 289, Te Ture Whenua Māori Act 1993 IN THE MATTER OF BETWEEN Mangamuka East No. 1 B No. 1 B RIMA OGLE MAUD HILDA RYDER NELSON OGLE Applicants A UNDER Section 43, Te Ture Whenua Māori Act 1993 IN THE MATTER OF AND BETWEEN Mangamuka East No. 1 B No. 1 B RIMA OGLE Applicant Hearing: 18 March July December 2013 (Heard at Kaitaia) Judgment: 28 May 2015 RESERVED JUDGMENT OF JUDGE D J AMBLER

2 103 Taitokerau MB 285 Introduction [1] On 3 July 2013 I dismissed the present application to partition Mangamuka East No. 1 B No. 1 B ( the land ) filed by Rima Ogle, Maude Ryder and Nelson Ogle with reasons to follow in writing. 1 Subsequently, on 16 September 2013 Rima Ogle wrote to the Court to seek a rehearing of the partition application. A formal application for rehearing under s 43 of Te Ture Whenua Māori Act 1993 ( the Act ) was signed by Rima Ogle on 22 October I heard the application for rehearing on 3 December At the conclusion of that hearing I reserved my decision but indicated that my original decision to dismiss the partition application would remain unchanged and that I would set out my reasons in writing. [2] Accordingly, in this decision I set out my reasons for declining the partition application and my decision in relation to the application for rehearing. Background The land [3] The land is a block of rural Māori freehold land comprising hectares situated at Mangamuka, south of Kaitaia. There are 13 owners holding 100 shares in total. The Redden Whānau Trust holds 60 of the 100 shares. The applicants together with their siblings (11 in total), who are members of the Ogle whānau, each hold either or shares in the land. The remaining four shares are in the name of the late Colin Malcolm whose daughter, Louisa Collier, took a limited role in the partition application. There is no trust structure over the land. [4] The land has apparently been under the stewardship of the Ogle whānau for almost 80 years. I was told that the applicants mother, Maraea Ogle, brought up her family of 11 children on the land. After Maraea Ogle s death in 1986 the Ogle whānau arranged for one of their siblings, Redden Ogle (Senior), to farm the property. He has remained there since Taitokerau MB 191 (63 TTK 191). 7 Taitokerau MB 105 (7 TTK 105).

3 103 Taitokerau MB 286 In 1993 the Court determined the homestead on the land to be the property of Maraea Ogle s descendants pursuant to s 30(1)(a) of the Māori Affairs Act The partition application [5] The partition application was filed on 11 June It was supported by several documents comprising affidavits/statements from the applicants, letters in support or opposition, other correspondence between the owners, minutes of meetings of owners, diagrams of the areas for partition and other information to do with the land. [6] The grounds for the partition were said to be that the caretaker/kaitiaki of the land (who I took to be Redden Ogle (Senior)) was abusive and threatening towards the applicants and other whānau, and that Rima Ogle s son was intending to build on the land. The applicants claimed that Redden Ogle was using the land for his own benefit and that there was considerable tension amongst the owners when they returned to the land for holidays. [7] The applicants noted that they had attempted to hold meetings of owners without success. The supporting minutes record that attempted meetings had been held on 7 August 2010, 27 February 2011 and 20 August The meetings were poorly attended and did not record any significant support for a hapū partition. [8] Prior to the first hearing on 18 March 2013 several of the owners sent to the Court either Notices of Intention to Appear or letters opposing the partition application in strong terms. Several of the owners strongly refuted the applicants claims in relation to the conduct of Redden Ogle (Senior) and laid the blame for any disharmony at the feet of the applicants. [9] The first hearing took place at Kaitaia on 18 March Rima Ogle spoke in support of the partition on behalf of the three applicants. He reiterated that the partition was sought due to the disharmony amongst the owners, in particular, members of the Ogle whānau. Further, he clarified that he did not in fact seek a partition in order to build on the Kaikohe MB 27 (21 KH 27). 56 Taitokerau MB 268 (56 TTK 268).

4 103 Taitokerau MB 287 land and that he had no specific plans to use the land for any particular purpose. The partition was primarily aimed at resolving the disharmony with his siblings. [10] Other owners spoke in opposition to the partition application. In particular, Lynette Robb, one of the two trustees of the Redden Whānau Trust that holds 60 percent of the shares in the land, strongly opposed the process undertaken to partition the land. [11] The owners supported the Court directing a meeting of owners at Mangamuka Marae facilitated by the Court staff. The applicants also accepted that this was necessary. I made plain to the applicants that the Court could not simply partition land because they wanted it, and that the Court needed to be satisfied that a partition was reasonably necessary. Therefore, the Court needed to consider whether other options such as an ahu whenua trust or occupation orders were a reasonable alternative to partition. [12] At the conclusion of the hearing I adjourned the application with the following directions: 5 The application is adjourned to July 2013 for a meeting of owners to be convened by the Registrar of the Court at Mangamuka Marae before 30 June The meeting is to discuss and pass resolutions in respect of: 1. The proposed partition; 2. The future use of the land; 3. The establishment of an ahu whenua trust and the nomination of trustees; 4. The granting of occupation orders. [13] The meeting of owners took place at Mangamuka Marae on 31 May It was facilitated by two Court staff members. Importantly, all of the owners either attended in person or through a representative except for the late Colin Malcolm s successors. [14] The minutes record a robust discussion (punctuated at times by the entry, family debate ) and the Court staff compiled a comprehensive spreadsheet of the voting results in relation to the four topics considered. Significantly, in relation to the partition proposal, only two owners clearly supported partition (Rima and Nelson Ogle); the other applicant (Maud Ryder) favoured partition but was leaning towards occupation orders; eight 5 56 Taitokerau MB 268 (56 TTK 268) at MB 288.

5 103 Taitokerau MB 288 owners (including the Redden Whānau Trust) opposed partition; and the descendant of one deceased owner was not sure. Different views were expressed in relation to the ongoing utilisation of the land. None of the owners supported an ahu whenua trust. Once again, significantly, all of the owners supported occupation orders. [15] The second hearing took place on 3 July Of the applicants, only Nelson Ogle attended in person. Maud Ryder was unwell and Rima Ogle had recently had a knee operation. I explained to those present my understanding of the outcome of the meeting on 31 May 2013, which was to oppose partition but support occupation orders. [16] Nelson Ogle reiterated his concerns about feeling unwelcome on the land but accepted that an occupation order could resolve that issue. Redden Ogle (Senior) strongly disputed the various allegations that had been levelled at him but also saw occupation orders as an appropriate solution. Other owners also spoke in support of occupation orders. [17] At the conclusion of the hearing I dismissed the partition application with reasons to follow in writing. The application for rehearing [18] On 16 September 2013 Rima Ogle wrote to the Court to seek a rehearing of the partition application. The letter was received on 23 September On 15 October 2013 I directed that a rehearing application be completed. This was completed on 22 October [19] On 19 November 2013, the Redden Whānau Trust sent a letter to the Court advising that the trust was unable to send a representative to the rehearing and enclosing copies of the minutes of a further meeting of owners held on 21 September 2013, after I had dismissed the partition application. The Redden Whānau Trust felt that progress was being made with the land and queried why Rima Ogle had now sought a rehearing. The minutes of the 21 September 2013 meeting (which Rima and Nelson Ogle attended) indicate that a well run meeting took place where the owners resolved to support occupation orders for seven of the whānau including Rima and Nelson Ogle. (And I note that two occupation order applications have since been filed with the Court).

6 103 Taitokerau MB 289 [20] The application for rehearing took place at Kaitaia on 3 December Rima Ogle explained that he applied for a rehearing as he had not been able to attend the previous hearing as he had had a knee operation. He also felt that his brother, Nelson Ogle, had not been able to adequately address the Court as he suffers from a hearing problem. Rima Ogle had in fact written to the Case Manager on 28 June 2013 to advise that he would not be at the hearing but did not seek an adjournment. He explained in Court that he did not seek an adjournment as he did not appreciate that the application might be dismissed on that date. [21] Rima Ogle otherwise reiterated the disharmony within the whānau but indicated on more than one occasion that he was willing to drop the partition proposal if occupation orders were granted. In fact, Nelson Ogle (who is recorded as voting in support of occupation orders at the meeting on 31 May 2013) also accepted that an occupation order would give him what he wanted, as did Maud Ryder. [22] All of the parties in Court agreed that the further meeting held on 21 September 2013 had demonstrated further positive progress amongst the owners and the Ogle whānau. [23] I concluded the hearing on the basis that I would not change my original decision to dismiss the partition application and that I would issue my reasons in writing. Discussion [24] The criteria for considering a partition application are set out in s 288 of the Act, which provides: 288 Matters to be considered (1) [In addition to the requirements of] subsections (2)to(4) of this section, in deciding whether or not to exercise its jurisdiction to make any partition order, amalgamation order, or aggregation order, the Court shall have regard to (a) (b) (c) The opinion of the owners or shareholders as a whole; and The effect of the proposal on the interests of the owners of the land or the shareholders of the incorporation, as the case may be; and The best overall use and development of the land.

7 103 Taitokerau MB 290 (2) The Court shall not make any partition order, amalgamation order, or aggregation order affecting any land, other than land vested in a Maori incorporation, unless it is satisfied (a) (b) That the owners of the land to which the application relates have had sufficient notice of the application and sufficient opportunity to discuss and consider it; and That there is a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter. (3) The Court shall not make any partition order, amalgamation order, or aggregation order affecting any land vested in a Maori incorporation unless it is satisfied (a) (b) That the shareholders of the incorporation to which the application relates have been given express notice of the application; and That the shareholders have passed a special resolution supporting the application. (4) The Court must not make a partition order unless it is satisfied that the partition order (a) (b) is necessary to facilitate the effective operation, development, and utilisation of the land; or effects an alienation of land, by gift, to a member of the donor's whanau, being a member who is within the preferred classes of alienees. [25] The approach the Court should take to partition applications has been considered by this Court and other Courts on several occasions and does not need reiteration here. 6 [26] As far as s 288(1) and (2) are concerned, the overwhelming view of the owners in the present case is that they do not support a partition of the land. The majority of the owners (by shareholding and number) made it clear that they opposed the applicants partition proposal when they attended the meeting of owners on 31 May 2013, as did their various written and oral presentations at the hearings on 18 March 2013 and 3 July Therefore I cannot be satisfied that there is a sufficient degree of support for the partition proposal. 6 Whaanga v Trustees of the Anewa Trust [2015] NZCA 121, Hammond Whangawehi 1B3H1 (2007) 34 Gisborne Appellate Court MB 185 (34 APGS 185), Reid v Trustees of Kaiwaitau 1 Trust (2006) 34 Gisborne Appellate Court MB 168 (34 APGS 168) and Brown v Māori Appellate Court [2001] 1 NZLR 87.

8 103 Taitokerau MB 291 [27] In terms of s 288(4)(a) of the Act, it is plain that partition is not reasonably necessary to facilitate the effective operation, development and utilisation of the land. Plainly the owners see occupation orders as a reasonable alternative to partition. Furthermore, I do not accept that the personal disharmony amongst some of the owners justifies partition in the present circumstances. [28] For those reasons the partition application had to be dismissed on 3 July [29] Turning to the application for rehearing, I accept Rima Ogle s explanation as to why the application for rehearing could not have reasonably been filed within the 28 days as stipulated in s 43(2) of the Act: he did not receive the minutes of the 3 July 2013 hearing until after 27 August I also accept that his absence due to the knee operation might ordinarily have been a sufficient ground to seek a rehearing notwithstanding that his letter to the Court did not expressly seek an adjournment. [30] However, I am not persuaded that a rehearing was in the interests of justice. Plainly each of the applicants had by the time of the hearing on 3 December 2013 accepted that occupation orders were a reasonable alternative to the partition proposal. In fact, it is not even clear that Rima Ogle wished to continue with the partition proposal; he simply sought a rehearing to address some of the issues that had been raised in Court on 3 July What surprised many of the owners was that Rima Ogle sought the rehearing on 16 September 2013 yet fully participated in the meeting of owners on 21 September 2013 where he supported occupation orders but did not tell any of his fellow owners that he was going to seek a rehearing. [31] There was therefore no purpose in conducting a rehearing of the partition application as Rima Ogle did not dispute the outcome of the meeting on 31 May 2013, he supported the occupation orders as an alternative to partition, and he was in fact no longer pursuing partition of the land. There was otherwise no new evidence to be heard and no new grounds in support of partition. [32] The application for rehearing is therefore dismissed and the dismissal of the application for partition remains.

9 103 Taitokerau MB 292 Conclusion [33] For the above reasons the partition application and application for rehearing were dismissed. Pronounced in open Court at 4.39 pm in Whangarei this 28 th day of March D J Ambler JUDGE