2021 Chief Judges MB 1233 - Māori Land Court

2021 Chief Judges MB 1233

d v y MLC [9 September 2020]

I TE KOOTI WHENUA MĀORI O AOTEAROA

I TE ROHE O TE TAITOKERAU

In the Māori Land Court of New Zealand

Taitokerau District

A20200007363

CJ 2020/25

WĀHANGA

Under

Section 45, Te Ture Whenua Māori Act 1993

MŌ TE TAKE

In the matter of

Kaihu 1A2E3B2

I WAENGA I A

Between

JOSHUA BENJAMIN HITA

Te kaitono

Applicant

ME

And

DASON HITA

Te kaiurupare

Respondent

Nohoanga:

Hearing

19 July 2021, 2021 Chief Judge’s MB 1062-1081

(Heard at Whangarei)

Whakataunga:

Judgment date

15 September 2021

TE WHAKATAUNGA Ā TE KAIWHAKAWĀ MATUA W W ISAAC

Judgment of Chief Judge W W Isaac

2021 Chief Judge’s MB 1234

Hei timatanga kōrero

Introduction

[1] On 6 August 2020, Joshua Benjamin Hita filed an application under s 45 of Te Ture

Whenua Māori Act 1993 to amend a succession order relating to Pene Hita Tua, made at 30

Kaipara MB 117 on 27 August 1958.

[2] Pene Hita Tua passed away on 30 December 1955. As he did not leave a will,

succession orders were made pursuant to s 136 of the Māori Affairs Act 1953 to Ngaroma

Hita, the deceased’s widow, as trustee for the deceased’s children. Kaihu 1A2E3B2 block

was to go to the deceased’s brother, Tiki Hita Tua, conditional upon a payment of £25 to

Ngaroma Hita, and evidence of such payment being provided to the Court.

[3] A receipt for £25 dated 19 September 1958 was then provided to the Court. On 15

May 1961, the Court wrote to Mr Tua requesting confirmation that the receipt was in fact in

satisfaction of the Court’s conditions. No response was received as Mr Tua had passed away

several months prior. The conditional order was subsequently finalised and released.

[4] The applicant claims the order is incorrect as it was made conditional upon Mr Tua

paying £25 to Ngaroma Hita and a receipt for such to be filed with the Court, but the receipt

did not specify what the payment was for and the order was issued regardless.

[5] A hearing was held on 19 July 2021 and I reserved my decision.1

Kōrero whānui

Background

[6] The Registrar’s Preliminary Report and Recommendation sets out the background to

the application. The Report is reproduced in full as follows:

APPLICATION UNDER SECTION 45 OF TE TURE WHENUA MĀORI ACT 1993

PRELIMINARY REPORT AND RECOMMENDATION

Introduction

1 2021 Chief Judge’s MB 1062-1081 (2021 CJ 1062-1081).


1. This application has been filed by Joshua Benjamin Hita (the applicant) and seeks to amend a

succession order made at 30 Kaipara MB 117 on 27 August 1958, in respect of the interests of Pene

Hita Tua in Kaihu 1A 2E 3B2 block.

2. The applicant claims that the said order is incorrect due to a mistake, error or omission on the part of

the Court, because:

a) The Court made the order subject to Tiki Hita Tua (The deceased’s brother), paying the sum of

25 pounds to Ngaroma Hita (The deceased’s widow), and a receipt for such being filed with the

Court;

b) The Court finalised the order, to vest the interests of Pene Hita Tua in Tiki Hita Tua, without

confirming that the receipt filed was in fact payment for the interests of Pene Hita Tua in Kaihu

1A 2E 3B2 block, as per correspondence; and

c) The receipt produced does not show what reason the money was paid for.

3. The applicant claims to be adversely affected, by the error made, as five generations of their family

have been disinherited of their birthright.

Concise history of Order sought to be amended

4. The succession application was first heard by the Court at 30 Kaipara MB 108-109 on 26 August

1958 and the evidence transpired as follows:

29 Sec 135 Pene Mita Tua

decd

Dick Hita applicant called, sworn

Knew deceased, my brother. He died 30 December 1955. He was also known as Pene

Taranui Mita. Died at Te Kopuru hospital. I was present at funeral. Left no will. He was

married once only. Left children.

1. Eddie Hita @ Eri Pene Hita m.18 Gordon St, Dargaville

2. Hariata Pene Hita f.19 Gordon St, Dargaville

3. Ihipera Pene Hita f.16 Gordon St, Dargaville

Others whose names I do not know.

Court. You will have to ascertain names and name of mother who would be their trustee.

Adjourned.

5. The said application was further heard by the Court at 30 Kaipara MB 116-117 on 27 August 1958

and the evidence transpired as follows:

29 Sec 135 Pene Hita Tua, decd

From page 109

Ngaroma Hita called.

Deceased my husband. Left issue 8. They are

1. Hariata Pene f. 19

2. Eddie Pene f. 18

3. Ihipera Pene f. 15

4. Paka Pene m. 11

5. Te Aroha Pene f. 9


6. Moni Pene m. 7

7. Mere Pene f. 6

8. John Guy Pene m. 5

one died in infancy.

Did not adopt any children. I am on widows pension. We have a home built for us, by Māori

Affairs DH.

My pension is £45 or £46 per month.

I think interest of my husband in the Kaihu 1A2E3B2 Block should be given to Dick.

Court. Calls Dick Hita.

I am 55. I have 10 children. If I acquire interest in this Block I will give it to one of

my children.

Court. Are you prepared to make any offer of payment for vesting deceased’s share in you.

After deliberation witness offers £25 / - / -.

Vesting order under Sec 136 vesting the interest of deceased in Kaihu 1A2E3B2 in Tiki Hita

Tua solely will issue when Tiki has paid the sum of £25 / - / - to Ngaroma Hita as trustee for

deceased’s children and receipt filed.

6. The succession order, made under section 136 of the Māori Affairs Act 1953 (The 1953 Act), was

clearly made conditional upon the payment of £25 to the deceased’s widow, Ngaroma Hita, and

evidence of such payment being provided to the Court.

7. Once finalised, the succession order vested the deceased’s interest as follows:

Taitokerau District

Block Shares

Kaihu 1A 2E 3B2 62.500

Beneficiary/Successor

Name Sex Proportion

Tiki Hita Tua m Solely

Identification of evidence that may be of assistance in remedying the mistake or omission

8. The applicant has provided copies of the following documents in support of his application:

a) The Court’s subject application file, as ordered at 30 Kaipara MB 117 on 27 August 1958;

b) The order complained of, made pursuant to section 136 of the 1953 Act, at 30 Kaipara MB 117

on 27 August 1958; and

c) Entry of the order into the ‘Schedule of Ownership’ for Kaihu 1A 2E 3B2 block, and

d) A photo

9. The applicant further states, in an email dated 12 August 2020, that:


The Court wrote to Tiki Hita Tua on 15 May 1961 and requested that ‘Ngaroma Hita’ sign a

‘certificate’ to confirm that the £25 they had received on 19 September 1958 was in full

satisfaction of the Court’s directions.

It may be of interest to this case to note that, despite the greatest efforts of the Records

Preservation Officer, they could not locate the “signed certificate” or anything further in relation

to said letter in the Te Tai Tokerau office.

Court Research

10. Court research shows that:

a) Receipt No 13, for payment of £25 to Ngaroma Hita, is dated 19 September 1958 and is

verified by a witness as shown below:

b) On 30 October 1958 the following annotation was made on the Court’s copy of the letter to

Tiki Hita Tua (Dated 11 September 1958):

c) Over 2 ½ years later, on 15 May 1961, the Court sent a follow up letter to Tiki Hita Tua

requesting the return of a signed certificate, to verify that the £25 paid on 19 September

1958 was in satisfaction of the Court’s conditions. The draft certificate is shown below:


d) No

such

‘signed’ certificate is held on the Court’s file, however the conditional order made was

subsequently finalised and released.

e) The order was also eventually entered into the Court’s ownership records on 22 January

1963, as verified by the following initialled entry:

f) It is noted that this entry is about 4 ½ years after the Court order was conditionally made

(27 August 1958), and almost 2 years after the follow up letter (requesting a certificate to

be signed) was sent to Tiki Hita Tua (15 May 1961).

g) I further note that an ‘undated’ annotation was made on the Court’s copy of the letter to

Tiki Hita Tua dated 11 September 1958 (To which the receipt issued on 19 September 1958

has been glued) - The said annotation has been made by the ‘witness’ on the receipt, and is

shown below:


Full annotation enlarged

h) The fact the said annotation is on the letter asking Tiki Hita Tua to provide evidence that

the monies had been paid, could be read as being confirmation thereof. It is just

unfortunate that the said annotation is not dated, so there is no way of knowing exactly

when, in the chain of events following the order being made, the actual annotation was

made (i.e. around the time that the receipt issued in 1958, or around the time the orders

were finalised in 1963).

i) Kaihu 1A 2E 3B2 block was amalgamated with several other blocks on 26 April 1965 (39

Whangarei MB 170-172) to form ‘Kaihu T’ block. The 62.500 shares of Tiki Hita Tua, in

Kaihu 1A 2E 3B2 block, equate to 63.951 shares in Kaihu T block.

j) The affected shares (63.951 shares in Kaihu T block) are currently vested in the trustees of

the ‘Tiki Hita Tua Whanau Trust’.

Details of subsequent Orders affecting lands to which this application relates

11. The subsequent orders affected by this application are as follows:

a) Creation of the Tiki Hita Tua Whanau Trust made at 4 Whangarei Succession MB 78 on 20

April 1998 (Sections 214, 219, 220 and 222 of Te Ture Whenua Māori Act 1993 [The 1993

Act]); and


b) Replacement of trustees order for the Tiki Hita Tua Whanau Trust made at 19 Taitokerau

MB 213-217 on 13 April 2011 (Sections 220 and 239 of the 1993 Act).

Details of payments made as a result of the Order

12. To date, no details have been sought regarding any payments made, in respect of the land affected,

as a result of the order made.

Reference to areas of difficulty

13. The two parties directly involved in the succession (Tiki Hita Tua and Ngaroma Hita) are now

presumed to be deceased, and are therefore unable to give any further evidence to the Court as to

what actually transpired at the time.

14. A receipt dated 19 September 1958, for £25 paid to Ngaroma Hita (Receipt No 13), was provided to

the Court, however subsequent to that Court staff have made a note on file that confirmation of what

the monies were actually paid for needed to be sought.

15. On file is a letter dated 15 May 1961, to Tiki Hita Tua, seeking confirmation as to what reason the

£25 payment to Ngaroma Hita on 19 September 1958 was for, and a draft certificate for signing by

Ngaroma was provided for that purpose.

16. There is no final ‘signed’ certificate on the Court’s file, however the subject order subsequently

issued, therefore indicating that the conditions of the Court had been met.

17. Even on the face of it, it does seem rather likely that the payment of £25 to Ngaroma Hita on 19

September 1958 (As evidenced by receipt no 13 of that date) was for the purpose of meeting the

Court’s conditions in respect of the succession order made.

18. Ultimately Court staff must have deemed there to be sufficient evidence of the Court’s conditions

being met, as the subject succession order was released and entered into Court records. Also in

support of such a conclusion is the notation made on the Court minute at 30 Kaipara MB 117 which

states:

Receipt produced dated 19:9:1958 for £25

In terms of historical internal processes of the Court, I would not expect such a notation to be made,

on the actual Court minute, until such time as staff were satisfied that the Court’s conditions had been

met.

Consideration of whether matter needs to go to full hearing

19. The Court’s approach with an application of this nature is:

a) To weigh the evidence provided by the applicant against the evidence provided at the

original hearing;

b) A challenge to original evidence must be balanced against the presumption that everything

has been done lawfully unless there is evidence to the contrary;

c) That the evidence given at the time the order was made, by persons more closely related to

the subject matter in both time and knowledge, is deemed to have been correct; and

d) The burden of proof is on the applicant to rebut any such evidence.

20. In this instance, there does not appear to be sufficient evidence to show that an error was made

either in the presentation of the facts of the case to the Court, or on the part of the Court.


21. The subject order was made conditional upon the payment of £25 to Ngaroma Hita, which appears

to have been satisfied by the receipt dated 19 September 1958 being provided to the Court, and a

notation to that effect being made in the Court’s minute book.

22. However, a Court hearing is still necessary to afford all parties an opportunity to present their case

to the Court.

Recommendation of course of action to be taken

23. If the Deputy Chief Judge is of a mind to exercise her jurisdiction, then it would be my

recommendation that:

a) A copy of this report be sent to those affected parties, for whom we have contact

details for, giving them an opportunity to comment or respond, in writing,

within 28 days of the date this Report is sent to them.

b) The application be set down for a hearing at the Whangarei Māori Land Court in

June 2021.

c) Notice of the Court hearing be issued to all parties affected, for whom the Court

holds contact details.

d) If no objections are received, then the application be dismissed.

[7] The Report and Recommendation was sent to all contactable parties on 15 March

2021. Joshua Benjamin Hita filed an objection to the recommendation that the application

be dismissed and the matter subsequently went to hearing on 19 July 2021.

Ngā kōrero o te Kaitono

Submissions of the applicant

[8] The applicant submits the Court made an error in finalising the order without

verifying the receipt. He raises concerns as to the validity of the payment as the receipt does

not specify what the payment was for. The applicant claims his whānau have been adversely

affected by the order as five generations have been disinherited of their birth right. The

applicant submits the delay in bringing the application is due to him only just learning how

to obtain and access information held by the Court.

[9] Christine Turner, by way of letter and at the hearing, supports the s 45 application.

Ms Turner is a trustee and has lived on the land her whole life. She raised allegations of

fraud but no evidence was provided to support this. She requested the Court allocate the

shares back to the whānau of Pene Taranui Hita.


Ngā kōrero o te Kaiurupare

Submissions of the respondent

[10] Dason Hita submits his grandfather, Tiki Hita Tua, received his brother’s shares

legally. He provided evidence that Tiki and Pene lived on the land and took care of it and

that Tiki was the tuakana of his siblings. He also discussed how Mr Walden had witnessed

the receipt and the Court may have had various versions in front of it.

[11] He submits his grandfather passed away in December 1960 which is why there was

no further correspondence with the Māori Land Court after this date. He notes he is making

submissions on behalf of his Aunt, Millie Ihaka, who is the daughter of Tiki.

[12] Dason Hita agrees with the recommendation in the Report that the application be

dismissed.

Te Ture

The Law

[13] The Chief Judge’s jurisdiction to amend or cancel an order of the Māori Land Court

is set out in s 44(1) of the Act:

44 Chief Judge may correct mistakes and omissions

(1) On any application made under section 45 of this Act, the Chief Judge may,

if satisfied that an order made by the Court or a Registrar (including an order made

by a Registrar before the commencement of this Act), or a certificate of confirmation

issued by a Registrar under section 160 of this Act, was erroneous in fact or in law

because of any mistake or omission on the part of the Court or the Registrar or in the

presentation of the facts of the case to the Court or the Registrar, cancel or amend the

order or certificate of confirmation or make such other order or issue such certificate

of confirmation as, in the opinion of the Chief Judge, is necessary in the interests of

justice to remedy the mistake or omission.

[14] In Ashwell – Rawinia or Lavinia Ashwell (nee Russell), I set out the principles to be

applied in determining such applications made pursuant to s 45 as follows:2

2 Ashwell – Rawinia or Lavinia Ashwell (nee Russell) [2009] Chief Judge’s MB 209 (2009 CJ

209).


(a) When considering s 45 applications, the Chief Judge needs to review the

evidence given at the original hearing and weigh it against the evidence

provided by the applicants (and any evidence in opposition);

(b) Section 45 applications are not to be treated as a rehearing of the original

applications;

(c) The principle of omnia praesumuntur rite esse acta (everything is presumed

to have been done lawfully unless there is evidence to the contrary) applies

to s 45 applications. Therefore, in the absence of a patent defect in the order,

there is a presumption that the order made was correct;

(d) Evidence given at the time the order was made, by persons more closely

related to the subject matter in both time and knowledge, is deemed to have

been correct;

(e) The burden of proof is on the applicant to rebut the two presumptions above;

and

(f) As a matter of public interest, it is necessary for the Chief Judge to uphold the

principles of certainty and finality of decisions. These principles are reflected

in s 77 of the Act, which states that the Court orders cannot be declared

invalid, quashed or annulled more than 10 years after the date of the order.

Parties affected by orders made under the Act must be able to rely on them.

For this reason, the Chief Judge’s special powers are used only in exceptional

circumstances.

[15] As stated in Tau v Nga Whānau o Morven and Glenavy – Waihao 903 Section IX

Block, the Chief Judge must exercise his jurisdiction by applying the civil standard of proof

on the balance of probabilities, having regard to that standard’s inherent flexibility that takes

into account the nature and gravity of the matter at issue.3 This means that the applicant must

establish on the balance of probabilities that there was a mistake or omission.

3 Tau v Nga Whanau O Morven & Glenavy – Waihao 903 Section IX Block [2010] Māori Appellate

Court MB 167 (2010 APPEAL 167).


[16] The Court of Appeal has recently confirmed that the power under s 44(1) falls into

two parts:4

The first is an evaluative decision as to whether the order made was “erroneous in

fact and law because of any mistake or omission on the part of the court or the

Registrar or in the presentation of the facts of the case to the court or the Registrar.”

The second is a power, which is likely in most cases to involve discretion, to “cancel

or amend the order … or make such other order …. as, in the opinion of the Chief

Judge, is necessary in the interests of justice to remedy the mistake or omission.” We

note that in making that decision, and exercising that power, the preamble to the Act

and ss 2 and 17 are of particular significance.

Kōrerorero

Discussion

[17] The issues for determination are:

(a) Was an error made in fact or in law or in the presentation of the evidence to

the Court which led to an error in the order complained of?

(b) If so, is it necessary in the interests of justice to remedy the error by amending

the order?

Was an error made?

[18] The applicant claims the Court made an error in finalising the order without verifying

the receipt. He raises concerns as to the validity of the payment as the receipt does not specify

the payment was for Kaihu 1A2E3B2.

[19] In the hearing, I asked whether there had been any other Court orders requiring Tiki

Hita Tua to pay £25 to Ngaroma Hita and file a receipt with the Court. The applicant was

unable to point to any such instances.

[20] The succession hearing was held on 27 August 1958 and a receipt was provided to

the Court less than one month later, on 19 September 1958. Ngaroma Hita is named on the

receipt.

4 Inia v Julian [2020] NZCA 423 at [10].


[21] It is also important that there was a short timeframe between the hearing and the

receipt being filed and that no alternatives have been put forward explaining what else the

receipt could have been for. Having regard to this, I find it is highly likely the receipt was in

fulfilment of the Court’s conditions. I also note Ngaroma Hita did not dispute the finalising

of the order, nor did any other individual for some 60 years.

[22] I also wish to refer to the statements made to me by the applicant and Ms Turner

during the hearing of this application relating to confirmation of the identity of witnesses

and the veracity of statements made to the Court.

[23] Often parties to the Court will not always take an oath or an affirmation. At times,

statements are made from persons attending to support or oppose from the body of the

Courtroom. In terms of s 69 of the Act, the Court may act on any testimony sworn or unsworn

and may receive any evidence if it considers that would assist the Court.

[24] In this case, the applicant and Ms Turner questioned how the Court could determine

their own identity or the identity of speakers to the Court and whether they were telling the

truth.

[25] The judiciary tend to take parties at their word and their words as spoken to the Court

are judged not only by the Court but also by those in the Courtroom and their tipuna. The

fact that the applicant and Ms Turner asked whether I could validate their identity and

whether they were telling the truth casts doubt in my view on the validity of the statements

made to the Court.

[26] The applicant has not discharged the burden of proof and shown on the balance of

probabilities that there was an error and the receipt could have related to something else.

Accordingly, I am of the view that there was no error in law or fact such as to engage the

Chief Judge’s jurisdiction.

[27] Additionally, given these orders were finalised 60 years ago, the descendants of Tiki

Hita Tua are entitled to rely on them.

Is it necessary in the interests of justice to remedy the error by amending the order?


[28] As I have found there was no error in the order complained of, there is no need to

consider this issue.

Kupu Whakatau

Decision

[29] Based on the reasoning above, the application is dismissed.

[30] The Case Manager is directed to distribute a copy of this judgment to all parties.

I whakapuaki i te wā 3:30pm ki Tūranganui-a-Kiwa i te rā 15 o Mahuru 2021.

W W Isaac

CHIEF JUDGE

2021 Chief Judges MB 1233 - Māori Land Court

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