A200S000S812 A200S000S802 A200S000S803

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1 Minute Book: 75 RUA 214 IN THE MAORI LAND COURT OF NEW ZEALAND TAIRA WHITI DISTRICT UNDER IN THE MATTER OF BETWEEN AND A200S000S812 A200S000S802 A200S000S803 Section 73, 19(1)(b) and 43, Te Ture Whenua Maori Act 1993 TokataAI5 TE MARIA LILY STENDER Applicant TREVOR JOSEPH EVANS Respondent Hearing: I September 2005 (Heard at Gisborne) Appearances: Ron Barber - Counsel for Te Maria Lily Stender Judgment: 6 October 2006 JUDGMENT OF C L FOX Introduction [1 J Mr Trevor Evans came to the Maori Land Court seeking to change the status of his land Tokata AI5 from Maori land to General land, ostensibly to enable him to raise finance to develop his land and the business he operates on it. [2J On 9 September 2004, the Maori Land Court made a conditional order granting a change of status fi'om Maori land to General land at 68 RUA L It also dismissed an application tiled for a recommendation setting aside a part of the block as a Maori reservation for the purposes of an urupa. The condition of the order was that Mr Evans would provide a written undertaking that he would not sell Tokata AI5 and that he would return to the Maori Land Court to change the status of the land to Maori land once the term of any mortgage or otherwise had expired. Mr TE M L STENDER V T J EVANS MLC A [6 October 2006]

2 Minute Book: 75 RUA 215 Evans gave that undertaking in a letter dated 11 October 2004 and upon that basis the status order was finalised. [3] In May 2005, Mr Evans authorised Bayleys Real Estate to advertise the block for tender. Descendants of a nwnber of previous owners in the land and members of the hapu associated with the land have objected and they have applied to the Maori Land Court to revoke the change of status order from Maori land to General land. Applications Supported by Hapu Members [4] In April 2005, the Maori Land Court in Gisbome received 3 applications concerning Tokata A15 block filed by Mr Ron Barber (counsel) on behalf of his client Te Maria Lily Stender in respect of Tokata A15. A supporting affidavit from the applicant was also filed. [5] The first was an application ex parte for an injunction pursuant to section 19(1)(b) of Te Ture Whenua Maori Act 1993 prohibiting the owner, Mr Trevor Joseph Evans from selling or offering to sell Tokata A15 (CT GS6C/81O). The application for a temporary injlll1ction was granted ex parte in Chambers at 161 GIS on 19 April 2005 prohibiting the sale of Tokata A15 until the status application was fully reheard and determined. [6] The second was an application ex parte for a rehearing pursuant to Section 43 ofte Ture Whenua Maori Act By far the most important application, this was made with respect to the conditional order granting a change of status from Maori land to General land. The application was made upon the grounds that: The order changing the status of Tokata A15 from Maori Land to General Land at 68 Ruatoria MB (Reserved Decision) pursuant to Section 135/93 was made conditional upon the applicant Trevor Joseph Evans providing a written undertaking to the Court that he would not sell Tokata A15; This written undertaking was given under the hand of Trevor Evans dated 11 October 2004; That the land Tokata A15 is now being advertised for sale by Bayleys Real Estate Agents of Gisbome;

3 Minute Book: 75 RUA216 That this proposed sale of Tokata AI5 has only just come to the notice of the objectors who appeared at the hearing of the application for Change of Status and the application for rehearing could not reasonably have been made sooner; There are special and urgent circumstances that require this application for rehearing and the application for injunction filed contemporaneously herewith that require notice to be dispensed with. [7] The order for leave to be heard out of time and for a rehearing was granted in Chambers, and as a result the conditional order made at 68 Ruatoria MB was annulled. [8] The third application was made pursuant to section 73(3) of Te Ture Whenua Maori Act 1993 to cancel the conditional order made by the Maori Land Court at 68 Ruatoria MB (Reserved Decision) on the 9 September 2004 upon the grounds that the condition had been breached by Mr Evans authorising the tender. A copy of the glossy brochure used by Bayleys advertising the property was later filed along with a general advertisement that appeared in the property section of the Gisborne Herald. [9] Before all the above applications could be heard, the Court was also advised that a matrimonial property caveat had been placed on the title by Mrs Trevor Evans. Special Maori Land Court Hearing [10] All the applications were heard by the Court for the first time on 27 June 2005 at 70 RUA Although the applicants represented by Mr Barber were present, Mr Evans was not. This was despite receiving 15 days notice of the proceedings. No apology was received for his non-attendance. [II] During the course of the hearing the Court issued the following decision: "This case concerns Tokata AlS, a block of Maori freehold land situated near the township ofte Araroa (East Coast). This matter was last before this Court on 3 March On that date, the Court had before it two applications:-

4 Minute Book: 75 RUA 217 (a) (b) An application for change of status of the land from Maori freehold land to General land. An application to set aside an area of Tokata AIS as an urupa or cemetery. The Court reserved its decision on that date. A full written judgment was released on 9 September 2004 recorded at 68 RUA In that judgment I granted the order under S.I3S/93 permitting the change of status on the basis that:- (a) (b) Mr Evans needed to raise development finance; Mr Evans would need to file a written undertaking that he will not sell Tokata A IS and that he would return to the Maori Land Court to return the status of the land to Maori land once his mortgage had been discharged. This letter was filed on II October 2004 and it reads as follows:- "I TREVOR JOSEPH EVANS ofte Araroa I. Confirm that I am the applicant under Application A S204 and I am the person referred to in the order dated 9 September 2004 at 68 Ruatoria MB I undertake to the Maori Land Court that: (a) (b) I will not sell Tokata AIS; and I will lodge an application with the Maori Land Court to return the status of the land to Maori land within 6 months of the expiry of any mortgage registered against the title of Tokata AIS". In that judgment I also dismissed Mr Evans' application under S.338/93 for a Maori Reservation. On 9 September 2004 an application was made by Mr Barber for Te Maria Lily Stender under S.43/93 which is the section of Te Ture Whenua Maori Act 1993 that allows the Court to consider a rehearing. The grounds for bringing the application [included] that Mr Evans was offering to sell Tokata AIS contrary to the undertaking t1,at he had given this Court. An affidavit in support deposed that t11is property/block of land had been advertised for sale in the property supplement of the Gisborne Herald (our local newspaper). Ms Stender positively identified the block as Tokata AIS. An application for an injunction was also filed. By Court minute dated 19 April 200S, I granted the application for a rehearing. (See 161 GIS ). The order made pursuant to S.13S/93 was annulled and therefore is no longer of any effect. I also granted a temporary injunction until the rehearing of this application under section 13S & 136. That injunction prohibited the sale of the block.

5 Minute Book: 75 RUA 218 The Court can only assume from the lack of attendance that Mr Evans doesn't contest the evidence given by the applicant Ms Stender. That being the case the Court having granted the application for rehearing will now hear that application under Section 135. I asked Mr Evans to file an undertaking following my written judgment dated 9 September 2004 that he would not sell the land and he did so file that written undertaking. Taking into account: I. the undertaking; and 2. the fact that the previous order was made on condition that that undertaking was given; and 3. the lack of evidence provided by the owner of this block, Mr Trevor Evans, as to why he appears to have pursued his own proposal to sell the land; I have no choice but to dismiss his application under Section 135 ofte Ture Whenua Maori Act I dismiss this application on the basis of the principles ofte Ture Whenua Maori Act 1993 which are clearly spelt out in the preamble of the Act. It is very clear from reading the statue including Section 17 of the Act that the Court must have regard for the need to retain Maori land in the hands of the owners, their whanau and their hapu. Although Mr Evans' interests are important, they must be seen in the broader context of the need of the whanau to retain what remains of Maori freehold land within that broader grouping. This application was, it now appears, designed to circumvent the first option to preferred classes provisions ofte Ture Whenua Maori Act It is clear that Mr Evans intended to sell this property and that the evidence that he gave the Court at the hearing and by way of the undertaking that he only wanted to change the status in order to pursue development of the property was false. That being the case the order is to dismiss the application. Mr Evans has 28 days from this date to bring an application for rehearing if he is unhappy with the result given his lack of attendance today at this Court sitting but such application must be accompanied by any possible valid excuse that he might have for not showing up. '" There will be an order for costs based on the reasonable expenses that you tender to the Court Mr Barber.... The temporary injunction is cancelled." Application for Rehearing filed by Mr Evans [12] Mr Evans applied for a rehearing of the application for change of status where the COUli dismissed his application above. That application was contained in

6 Minute Book: 75 RUA 219 a letter written to the Maori Land Court dated 14 July Mr Evans advised that he failed to appear because in May 2005 he had a serious heart operation in Hamilton. On the day of the hearing he was indisposed and was attending the Tairawhiti Hospital. Second Maori Land Court Hearing [13] The application filed by Mr Evans for a rehearing was granted on 1 September 2005 (See 70 RUA 286). All the orders made at 70 Rua were annulled. The Court then reheard the original application filed by Mr Trevor Evans to change the status of Tokata A 15 from Maori land to General land. [14] Mr George Evans attended the Court and was the spokesman for his brother Mr Trevor Evans. Arguments for Mr Evans [15] Mr George Evans, discussed the value of having a General fee simple land title. In particular he noted that no one can tell an owner of General land what they should do with it. He is, it was noted in cross examination, a registered valuer. [16] Mr George Evans advised that his brother developed the block and injected a large amount of capital into his business. After Mr Trevor Evans obtained a valuation he realised it was valued significantly lower because of its status as Maori land. That made him realise that he may need to lmderstand its value as General land and raise funds. [17] He needed to inject more money into the business for further development and that is what he told the Court before it made its decision on 9 September Mr Evans has not been well and needed to attract investors. The serious nature of his health issues made him concerned for the welfare of his wife and family.

7 Minute Book: 75 RUA 220 [18] Mr Evans merely instructed the real estate agents to put the property up for tender so that he could test the market and see what people would be prepared to pay for the property. He never intended to sell the land. [19] Mr George Evans contended that his brother's rights as a title-holder in fee simple were being transgressed by the applications before the Court. In his view, the hapu member's interference was "mischievous" given that they did not talk to the whanau first. The Evans Whanau have told Mr Trevor Evans that the title to the land is sacrosanct but that he should explore ways of building the enterprise on his land to ensure the well-being of his family is taken care of, particularly now that he is so ill. I note no health certification was produced to support the proposition as put regarding the state of Mr Evans' health. [20] Mr Evans submitted that his brother, would not have applied to have an area set aside as a Maori reservation for an urupa if he planned on selling it. It was the Maori Land Court in its decision dated 9 September 2004 made at 68 Ruatoria MB , that declined to grant that application. [21] Mr Trevor Evans confinned the above during the presentation of his evidence. He also added that he used the process for calling tenders as a mechanism for identifying investors. He paid the real estate agent fees to publish the tender details because he believed that was cheaper than commissioning a valuation. It cost $400 compared to the $4,000 it would have cost to obtain 3-4 valuations from different valuers. A representative from Bayleys was not called to corroborate this evidence. [22] Mr Trevor Evans also queried the right of the opposition to bring the matter to the Court and challenged whether they did fit into any of the categories of the preferred classes of alienees identified in Te Ture Whenua Maori Act Arguments for Hapu Members [23] The case for those who opposed the grant of an order changing the status of the land may be paraphrased in the following manner. Mr Trevor Evans did intend

8 Minute Book: 75 RUA 221 to sell the land. Tenders were called for by public advertisement. That is a costly and expensive exercise involving commissioning the services of a real estate agent. It is improbable that Mr Evans went through this process merely so that he could identify investors and gain an appreciation of the market value. [24J The Court's order for change of status to General land made on 9 September 2004 made at 68 Ruatoria MB was a conditional order, granted on the basis of an undertaking. The actions Mr Evans subsequently took to offer the block for sale, was a complete breach of that undertaking. It was also a breach of faith and possibly even contempt of Court. [25J It was only due to the vigilance of the broader hapu members in filing for an injunction that he was stopped from selling the land. The Court has heard evidence in the past that demonstrates that the applicant has a propensity for selling ancestral land once the status of the land has been changed to General land. He simply can not be trusted. Furthermore, the matrimonial property caveat on the property was a sham. [26J Evidence was led to demonstrate that a number of those in opposition to the application to change the stahls of the land to General land were in fact descendants of previous owners of the original blocks from which Tokata A15 was created. Decision [27J Before the Maori Land Court can cancel or amend a conditional order, section 73 requires that there must be a failure to comply with the Court's condition. In this case, Mr Evans clearly complied with the condition to provide an undertaking. Therefore the application under section 73 of Te Ture Whenua Maori Act 1993 must be dismissed. [28J In relation to the application for a rehearing, section 43 clearly applies, where leave is given to file out of time as in this case. As noted above a rehearing was granted and the order made at 68 Rua in relation to the change of status fi-om Maori land to General land was annulled. I note that under section 142 of Te

9 Minute Book: 75 RUA 222 Ture Whenua Maori Act 1993, every status order shall upon registration, or upon noting under section 124 of the Act, have the effect of giving to the land the particular status specified in the order. The registration of Maori Land Court status orders is effected under Part 5 of the Act. That brings me to the vexed issue of the Matrimonial Property caveat. I note in this regard the case of Bruce v Edwards [2003] 1 NZLR 515 which indicates that Section 88(1) of Te Ture Whenua Maori Act 1993 protects an equitable interest against the consequences of any reversal order (annulment) of a change of status order at a rehearing. In Bruce v Edwards [2003] an equitable interests was clearly established. In this case, there is no basis for assuming that Mrs Trevor Evans will actively pursue Matrimonial Property proceedings in the Family Court. In fact, the evidence heard by this Court indicates that the Evans' enj oy a strong and happy maltiage. Consequently, I do not think in these circumstances that it is improper to order an annulment in this case and send it for registration. [29] Therefore, and in accordance with section 125 of the Act, the Registrar of the Maori Land Court is directed to transmit the order annulling the order made on 9 September 2004 at 68 Ruatoria MB and noting that the land is Maori freehold land. The temporary injunction issued pursuant to section 19 of Te Ture Whenua Maori Act 1993 will remain in place until the land is registered in accordance with the Land Transfer Act 1952 as Maori land. [30] The final question remaining before tlus Court is whether it shonld grant the order for a change of status given that Mr Evans, may have acted in a manner contrary to his undertalcing to this Court not to sell Tokata A15. I note that Mr Evans' conduct since the undertalcing was given is only relevant to whether I should make a new order. [31] Having heard the witnesses give evidence, I think there is an issue about Mr Trevor Evan's credibility. While I accept that it may have been cheaper to advertise rather than obtain valuations, I do not believe for a minute that Mr Evans was using this approach to identify investors. I also do not believe that Mr Evan's went through the tender process intending to test the market and to ascertain value. He chose a very experienced real estate company to advertise for tenders and I am

10 Minute Book: 75 RUA 223 celiain that he intended to act upon the process if a reasonable offer was received. I mai<e this finding after hearing his evidence and after listening to the cross examination of that evidence by Mr Barber. [32] Consequently, I have preferred the case as presented by Mr Barber, that Mr Evan's has developed the story regarding investors and valuations to justify acting contrary to his undertal<ing to the Court. Furthermore, I agree that without the vigilance of the applicant for the temporary injunction the land would have been sold. [33] I can only conclude that the original reason Mr Evans gave to apply to change the status of Tokata Al5 no longer applies. He does not need the order to raise finance to develop the land and his business, rather he wants the order to facilitate the sale of the land. The Court can not, therefore, be satisfied that the land can be managed or utilised more effectively as General land as required by section 136 (d) of the Act, because the purpose of the application is not to develop the land. The purpose is to facilitate sale and circmnvent the provisions concerning the preferred classes. [34] The original application made pursuant to section 135 of Te Ture Whenua Maori Act 1993, and filed by Mr Trevor EV8l1S is dismissed. ~;:~x C LFox JUDGE