HOJSGAARD v THE REGISTRAR-GENERAL OF LAND [2021] NZHC 3233

HOJSGAARD v THE REGISTRAR-GENERAL OF LAND [2021] NZHC 3233 [29 November 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-2293[2021] NZHC 3233UNDER the Land Transfer Act 2017IN THE MATTER OF a claim for compensation under section 58BETWEEN PETER HOJSGAARDPlaintiffAND THE REGISTRAR-GENERAL OF LANDDefendantHearing: 8 and 9 June 2021Counsel: P H Thorp and M Singh for plaintiffM J Bryant and D J Watson for defendantJudgment: 29 November 2021JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 29 November 2021 at 4pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors:Glaister Ennor, Auckland for plaintiffCrown Law, Wellington for defendantIntroduction [1]Some information about the cadastre and the rules for cadastral surveying [6]Statutory responsibilities [9]Rules for cadastral survey [10]The Torrens system of land title – Land Transfer Act 2017 [22]The land transfer register kept in the Landonline system [26]The regime under the Land Transfer Act 1952 [30]The keeping of the cadastre in Landonline [34]Orders of the Māori Land Court affecting Māori freehold land [42]Historical background [47]How the title to the Omapere B block was registered [53]Mr Hojsgaard's submissions about the Māori Land Court documents [70]Mr Hojsgaard's concerns with the survey of the Omapere block in ML 437558 [72]The Brill survey of Omapere B – ML 437558 [75]Hojsgaard challenge to Brill survey – Thomson survey SO 486668 [77]The High Court and Court of Appeal decisions [84]The LINZ reconsideration following the court decisions [87]Issues [90]Are the land transfer and cadastral systems separate or an integrated whole? [94]The submissions for Mr Hojsgaard [95]Discussion [107]Has there been a material error or wrongful act or omission by the Registrar? [120]The views of the surveyor, Mr Thomson [123]Defendant's response to allegation of Registrar's error [130]Discussion [131]The pleaded errors [138]Conclusions – no compensable error [140]Consideration of causation and quantum not required [144]Costs [151]Introduction[1] Peter Hojsgaard owns bare land in Omapere, Northland that runs west fromState Highway 12 to abut the sand dunes at the edge of the Hokianga Harbour. It iscomprised in two contiguous parcels with the addresses of 274 and 284 State Highway12. The parcel closest to the beach and the subject of this proceeding, No 284 (theHojsgaard property), is Lot 1 DP 146636 held in record of title (RT) NA87B/961.The other parcel is Lot 1 DP 38734 held in RT NA1087/59. Mr Hojsgaard hasbeen recorded as the registered owner on the record of title for the Hojsgaardproperty since 1998.[2] In late 2014, Mr Hojsgaard marketed both parcels for sale together as"waterfront property". Two days prior to the auction, Mr Hojsgaard's attention wasdrawn to the title of neighbouring Māori freehold land1 (CIR 524865, now RT 524865)1 Defined in Te Ture Whenua Māori Act 1993, ss 4 and 129(1)(b) and (2)(b) as "land, the beneficialownership of which has been determined by the Maori Land Court by freehold order".that included a sketch plan showing that land (Omapere B) as running across the northand west beach frontage of the Hojsgaard property between the mean high water markand the western boundary of the Hojsgaard property. Mr Hojsgaard was advised thatit may have been regarded as misleading for him to describe his land as "waterfrontproperty" and he withdrew the property from sale.[3] Omapere B was a parcel of land that had been created in 1900 by an order ofthe Māori Land Court.[4] Acting on the advice of experts that CIR 524865 was founded on an incorrectsurvey plan, ML 437558, Mr Hojsgaard has spent more than $2.4 million in surveyors'and consultants' fees, legal fees, court costs and associated expenses in a quest torestore the Hojsgaard property to the claimed status of "waterfront property". As Iexplain below, Mr Hojsgaard's determination to correct the error has led to an oralorder of the Māori Land Court approving a new survey plan, ML 537122, thataccurately describes the boundaries of Omapere B and the Hojsgaard property. Thedelivery of the written order will enable the issue of a new record of title forOmapere B that correctly shows the western boundary of the Hojsgaard property asabutting the dry bed of the former Omapere Stream.[5] Mr Hojsgaard now claims against the Crown for reimbursement of these costs,which include the cost of a proceeding in this Court and the Court of Appeal, ascompensation under s 58 of the Land Transfer Act 2017 (the LTA 2017). To succeedin his claim. Mr Hojsgaard must show that he has suffered loss as a result of:2(a) an error or wrongful act or omission of the Registrar-General of Landappointed under s 231(1) of the LTA 2017 (the Registrar) or hisdelegate; or(b) a failure or malfunction of a system or facility used to keep the registerof land under s 9 of the LTA 2017.2 Land Transfer Act 2017, s 58(1)(a) and (b).Some information about the cadastre and the rules for cadastral surveying[6] Understanding the issues in this proceeding requires some understanding of thelegislative framework for cadastral survey and its relationship to New Zealand's landtenure system. In explaining relevant concepts, I draw gratefully on the expositionprovided by the Court of Appeal in Mr Hojsgaard's proceeding against the ChiefExecutive of Land Information New Zealand (LINZ) (the Court of Appeal decision)that led to the correction of the survey error at the heart of this case.3[7] The starting point is the Cadastral Survey Act 2002 (the CSA). "Cadastralsurvey" means the determination and description of the spatial extent – includingboundaries – of interests under land tenure systems.4 The term "cadastre" means allthe cadastral survey data held by or for the Crown and Crown agencies.5 Under theNew Zealand system of land tenure, the cadastre underpins the issue and guarantee oftitles.[8] The cadastre's integrity is of paramount importance, therefore, as is reflectedin one of the express purposes of the CSA which is to promote and maintain theaccuracy of the cadastre.6 Section 3(a) states this is to be achieved by requiringcadastral surveys to be undertaken by licensed cadastral surveyors, who must meetcertain standards before being licensed, and by making provision for the setting ofstandards for cadastral surveys and cadastral survey data. Robin Brill and DenisThomson, who feature prominently in the background history to this proceeding, arelicensed cadastral surveyors.Statutory responsibilities[9] The statutory officers having principal responsibility for the administration ofthe CSA are:3 Hojsgaard v Chief Executive of Land Information New Zealand [2019] NZCA 84, [2019] 2 NZLR864 at [7]–[20].4 Cadastral Survey Act 2002, s 4.5 Section 4.6 Section 3(a).(a) the Surveyor-General, whose relevant functions include:(i) maintaining a national geodetic system;7(ii) setting standards to determine how the spatial extent (includingboundaries) of interests under a tenure system must be definedand described;8(iii) setting standards for integrating new cadastral surveys into thecadastre by the Chief Executive of LINZ (the Chief Executive);9(iv) setting standards for the structure, storage, and provision ofcadastral survey data by the Chief Executive;10 and(v) setting standards for determining when cadastral surveydatasets (CSDs) may be used to define interests under tenuresystems;11and(b) the Chief Executive, whose relevant functions include:12(i) determining whether CSDs and cadastral surveys comply withstandards set by the Surveyor-General;(ii) providing facilities to receive CSDs;(iii) setting conditions for the use of such facilities;(iv) integrating new cadastral surveys into the cadastre; and7 Cadastral Survey Act 2002, s 7(1)(a).8 Section 7(1)(c).9 Section 7(1)(e).10 Section 7(1)(f).11 Section 7(1)(g).12 Section 9(a)–(e).(v) determining the structure and storage of, and the provision ofaccess to, cadastral survey data.Rules for cadastral survey[10] The standards for cadastral survey include provisions about boundaries andwater boundaries. A water boundary is a boundary set at the landward margin of ariver bed or stream bed; a lake bed; or the common marine and coastal area or othertidal area.13 Water boundaries can be marked against the present or former course orlocation of a waterway. Land bounded by water boundaries is subject to specific legaland surveying considerations. It is essential that surveys record current and formerpositions of relevant water body margins correctly, clearly and unambiguously.[11] Under the CSA, the function of approving a new cadastral survey forintegration into the cadastre is reposed in the Chief Executive.14 They must first besatisfied that the survey complies with the CSA and with standards promulgated bythe Surveyor-General regulating the conduct of surveys. The standards relevant to thisproceeding were contained in the Rules for Cadastral Survey 2010 (the Rules) whichhave the status of regulations.15[12] Boundaries, including water boundaries, are governed by r 6. Rule 6.1stipulated that when a cadastral surveyor is defining a boundary by survey, they must:(a) gather all evidence relevant to the definition of the boundary and itsboundary points;(b) interpret that evidence in accordance with all relevant enactments andrules of law; and(c) use that evidence to determine the correct position of the boundary andboundary points in relation to other boundaries and boundary points.13 Rules for Cadastral Survey 2010, r 2.14 Cadastral Survey Act 2002, s 9(a) and (d).15 Section 49. The Rules for Cadastral Survey 2010 were revoked on 30 August 2021 by r 122 ofthe Cadastral Survey Rules 2021. All relevant survey decisions were made under the 2010 Rules,however, and counsel did not suggest they did not apply for the purposes of this proceeding.[13] Rule 6.2 listed the types of boundary or boundary points which must be definedby survey. These include not only "a new water boundary or irregular boundary", butalso "an existing irregular boundary that has been converted into one or more right-line boundaries" and a boundary where its extent and location as defined in anapproved CSD are insufficient for the determination of its compliance with theapplicable accuracy standard.16[14] A "right-line boundary" is one that follows the shortest distance between twoboundary points.17[15] Rule 6 provided that when the margin of the water body defining a waterboundary has moved, but the boundary has not moved, that boundary must beconverted to one or more right-line boundaries or may become an irregular boundaryif it meets certain specified criteria.18[16] By r 3.4(a)(i), the position of a water boundary or an irregular boundary,including one defined by adoption, must be determined to a sufficient level of accuracyto take into account the risk of overlap or ambiguity in boundaries including the waterboundary on the other side of the water body. A boundary is "defined by adoption" ifit is an existing boundary or boundary point that is not defined by survey or accepted.19That means that a surveyor has defined an existing boundary or boundary point usinginformation from either a prior CSD that has already been integrated into the cadastreor, in the absence of such information, from an estate record held by the tenure systemmanager. The surveyor must have ensured that the adopted work meets accuracytolerances and that there is no known evidence of conflict.20[17] Rule 8.2(a) required a CSD to include a survey report. The report must, amongother things, provide details of any conflict between the new survey being submittedfor approval and an existing survey in the cadastre, and to provide details of how thesurveyor resolves the conflict.2116 Rules for Cadastral Survey 2010, r 6.2(a)(i), (iii) and (vii).17 Rule 2.18 Rule 6.7(a).19 Rule 2.20 Hojsgaard v Chief Executive of Land Information New Zealand, above n 3, at [14].21 Rules for Cadastral Survey 2010, r 8.2(a)(v).[18] In Chief Executive of Land Information New Zealand v Te Whanauo Rangiwhakaahu Hapū Charitable Trust (Otito Reserve),22 the Court of Appeal heldthat if there is a conflict between surveys, compelling evidence is required before thedecision-maker can conclude the earlier plan is in error and should be replaced,notwithstanding the consequential prejudice that might otherwise be caused to thosewith interests in the land.23 A very "high standard of satisfaction" as to the existenceof error was said to be required.24[19] In its decision in Mr Hojsgaard's proceeding against the Chief Executive, theCourt of Appeal observed that the statements in Otito Reserve reflected long-established surveying practice and that the expert surveying witnesses agreed thatexisting survey plans are presumed to be correct once approved as to survey (thepresumption of correctness). The experts also agreed that compelling evidence isrequired to move boundaries established by such survey plans.25[20] There is a mechanism for correction of the survey once it is integrated into thecadastre. Section 52 of the CSA empowers the Surveyor-General to correct errors ina CSD affecting title. Subsection (1) provides:52 Correction of errors in survey(1) If an error is found in a cadastral survey dataset affecting any titleunder the Land Transfer Act 2017 or any title or tenure under any otherAct, the Surveyor-General may, in writing, require the cadastralsurveyor responsible for the error to undertake, or arrange to beundertaken, the work necessary to correct the error within a time thatthe Surveyor-General considers reasonable.[21] In exercising the power of correction under s 52, the Surveyor-General mustadopt the same standard as applies to the Chief Executive when making decisions atthe approval stage; namely, they should only find error if there is compelling evidenceof it.2622 Chief Executive of Land Information New Zealand v Te Whanau o Rangiwhakaahu HapūCharitable Trust (Otito Reserve) [2013] NZCA 33, [2013] NZAR 539.23 At [91] and [107].24 At [107].25 Hojsgaard v Chief Executive of Land Information New Zealand, above n 3, at [17].26 Otito Reserve, above n 22, at [91], [107] and [127].The Torrens system of land title – Land Transfer Act 2017[22] The purpose of the LTA 2017 is to continue and maintain the Torrens systemof land title in New Zealand and retain the fundamental principles of that system.27[23] The LTA 2017 facilitates the provision of a register of land subject to the Actthat, among other things:28(a) provides security of ownership of estates and interests in land;(b) facilitates the transfer of and dealings with estates and interests in land;and(c) describes and records the ownership of estates and interests in land.[24] The statutory officer primarily responsible for the maintenance of the registerof titles under the LTA 2017 is the Registrar-General of Land (the Registrar).29 In thisjudgment, every reference to the Registrar is intended to include, where appropriate,a reference to a District Land Registrar (DLR) or any other person to whom theRegistrar delegated any powers or duties in accordance with the statutory power ofdelegation conferred on the Registrar, whether under the Land Transfer Act 1952 (theLTA 1952) or the LTA 2017.[25] Section 9(1) of the LTA 2017 requires the Registrar to keep and operate aregister of land that is subject to the Act. Section 9(2) and (3) provide:(2) The register must be kept in a form or manner determined by theRegistrar that—(a) records information; and(b) permits the recorded information to be readily accessed orreproduced in usable form.(3) For example, all or part of the register may be kept by means of acomputer system or facility that records information electronically.27 Land Transfer Act 2017, s 3.28 Section 3.29 Section 231.The land transfer register kept in the Landonline system[26] Landonline is an integrated digital system provided by LINZ to manageNew Zealand's title and survey transactions. It was created in 2000 following themerger of the Land Transfer Office with the Department of Survey and LandInformation and the formation of LINZ in 1996.[27] In the exercise of their powers under s 9(3) of the LTA 2017, the Registrar issatisfied that Landonline is the appropriate platform to support the storage andoperation of the land transfer register. The introduction of Landonline as the platformused to keep the land transfer register followed the enactment of the Land Transfer(Automation) Amendment Act 1998 (the LTAAA). That Act empowered the:(a) use of modern information technology for the purpose of registeringand recording land transfer information;(b) conversion of paper certificates of title to computer freehold registers(CFRs), computer interest registers (CIRs) and other electronic formatsof title register; and(c) first steps towards automation of transactions relating to land and titleto land.[28] Subsequently, the LTAAA was repealed and replaced by the Land Transfer(Computer Registers and Electronic Lodgement) Amendment Act 2002 (the CRELA),which enabled information technology to be used for:(a) registering instruments, dealings, and other matters under theLTA 1952;(b) recording and storing particulars of instruments, dealings and othermatters relating to land and title to land registered under the LTA 1952;and(c) preparing and lodging electronic instruments.30[29] While the CRELA preserved the integrity and underlying purposes andprinciples of the Torrens system of land tenure and the LTA 1952,31 it made the creationand storage of information about interests in land more efficient and, particularly,enabled transactions to be conducted more efficiently.The regime under the Land Transfer Act 1952[30] The events with which this proceeding is concerned occurred principallybetween 2010 and 2016, during which time the CRELA and the LTA 1952 were inforce. The land transfer register during that period comprised information containedin instruments prepared and registered in accordance with predecessor legislation,including information in paper-based instruments and certificates of title.[31] Under the LTA 1952, the Registrar-General of Land appointed under s 4(1) ofthat Act was assisted in performing the statutory powers and duties conferred on thatposition by DLRs appointed to each of the land registration districts created under therelevant legislation.[32] Under s 33 of the LTA 1952, the Registrar was required to keep a register,whether in the form of a book or otherwise, and bind up or include in it a duplicate ofevery grant of land and of every certificate of title. Each such duplicate grant orcertificate of title constituted a separate folium of the register. The Registrar wasrequired to record in the register the particulars of all instruments, dealings and othermatters required to be registered affecting the land to which the grant or certificate oftitle applied.[33] Under the CRELA, certificates of title, when stored electronically, becameCFRs. Section 50 of the LTA 1952 provided for the provisional registration ofdealings, memorials and entries affecting land pending the creation of a folium of theregister, which would occur, under s 51, as soon as the register of the land was finallyconstituted.30 Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002, s 3(a).31 Section 3(b)(i).The keeping of the cadastre in Landonline[34] As I have noted,32 the cadastre underpins the issue and guarantee of titles underthe New Zealand system of land tenure. One of the statutory purposes of the CSA is"to provide, either on an optional or mandatory basis, for the electronic lodging andprocessing of cadastral surveys".33[35] Exercising their statutory function "to determine the structure of, and to storeand provide access to, cadastral survey data",34 the Chief Executive has determinedthat the Landonline system is the appropriate platform to use for the storage of, andaccess to, the cadastre.[36] The Landonline spatial view is a graphical description of the cadastral surveydata available from the LINZ data service and third-party resellers. From the mid-1980s, an index survey system for survey spatial data had been created by thedigitisation of the hard copy cadastral record maps and block sheets kept manually toform the Digital Cadastral Database (DCDB). After the introduction of Landonline,the spatial data from the DCDB was added progressively. Because of the inaccuracylimitations of the cadastral record maps and block sheets, attempts were made toimprove the accuracy of the Landonline spatial view as part of a project known as theSurvey Conversion Project. Although around 70 per cent of parcels were targeted inthe project, mainly in urban and intensive rural areas, some 30 per cent remainedunchanged from the original cadastral record maps. It is accepted that the Landonlinespatial view, therefore, does not contain an authoritative determination of the locationand configuration of boundaries.[37] Prior to the digitisation and computerisation of the cadastre and the landtransfer register, cadastral survey data and the information available in registered titlesto land were kept in hard copy and stored separately. Although the production of titlesto land is dependent on access to cadastral survey data, it is not necessary for theinformation to be stored together.32 At [7] above.33 Cadastral Survey Act 2002, s 3(b).34 Section 9(e).[38] The fact that the land transfer register and the cadastre are both stored digitallyin Landonline, however, has enabled some efficiencies in the recording of informationin the land transfer register. As incumbent Registrar Robert Muir explains, the storageof the separate data on the land transfer register and the cadastre in one electroniccomputer system:(a) facilitates the prompt importation of digital data and images of plansthat have been approved as to survey by the Chief Executive under theCSA to the land transfer register when those plans are accepted fordeposit and recorded in the register by the Registrar under the LTA2017; and(b) enables the spatial view in Landonline to be automatically updatedwhen an approved survey plan is accepted by the Registrar for depositunder the LTA 2017 and the title is issued for the relevant estate orinterest in land.[39] The evidence establishes to my satisfaction that, although both the land transferregister and the cadastre are supported by the Landonline platform, each is a separatesystem or facility kept and operated by the Registrar and the Chief Executiverespectively, in accordance with their independent statutory roles. The use of theLandonline platform to support both the land transfer register and cadastre doesnot mean that one system comprises the other or vice versa.[40] As Mr Muir explains, the following data are held in the cadastre but are notpart of, or associated with, the land transfer register:(a) CSDs that have been submitted in Landonline for assessment by theChief Executive under the CSA and not approved;(b) survey plans that are part of CSDs that have been approved as to surveybut have not been submitted to, and accepted by, the Registrar fordeposit under the LTA 2017; and(c) plans that are not related to registered instruments or records of title.[41] Mr Muir emphasises the distinction between survey plans and cadastralinformation which form part of the land transfer register and those which do not. Heexplains the paramountcy of registered title under the Torrens system and saysconfidence in the system more broadly would be undermined if property boundaryinformation that does not fall within the remit of the Registrar were to be treated as ifit were part of the register. Mr Muir also notes that the spatial view in Landonline,which provides a graphical depiction of the boundaries of properties, does not formpart of the land transfer register. It is derived from the cadastre and is administeredand authorised by the Chief Executive, not by the Registrar.Orders of the Māori Land Court affecting Māori freehold land[42] Section 50 of the LTA 1952 provided for the provisional registration of ordersof the Māori Land Court declaring land to be held in freehold tenure.35[43] At the time that is relevant to this proceeding, namely May 2010, a computerinterest register would be created for provisional registration under s 50 of theLTA 1952 if it was land to which s 124 of the Te Ture Whenua Māori Act 1993(the TTWMA) applied; that is, where an order had been made by the Māori LandCourt affecting title to Māori freehold land. Sections 123 and 124 of the TTWMA, asthey read in 2010, are key provisions in this proceeding. The relevant provisions read:123 Orders affecting title to Maori freehold land to be registered(1) Subject to subsection (7A) of this section, every order to which thisPart of this Act applies shall, in accordance with the succeeding provisions ofthis Part of this Act, be registered against the title to that land under the LandTransfer Act 1952 (2) For the purposes of registration, the order shall be transmitted by theRegistrar of the Court to the District Land Registrar and the District LandRegistrar shall, except as otherwise provided in this Act, register the sameaccordingly.(7A) Where an order to which this Part of this Act applies has not beenregistered in accordance with subsection (1) of this section, the registration of35 Land Transfer Act 1952, s 50(a) and (c).that order against the title to the land may, if its effect has been incorporatedinto a consolidated order, be effected by registering the consolidated orderagainst the title to the land; and subsections (2) to (4) of this section shall, withall necessary modifications, apply in relation to the registration of theconsolidated order.124 Special provisions where insufficient survey plan(1) Where any order to which this Part of this Act applies is presented forregistration under the Land Transfer Act 1952, the District Land Registrarshall, if the order is not supported by a plan defining the land affected by theorder and sufficient for the purposes of the registration of that order under thatAct, embody the order in the provisional register as a separate folium, and,subject to subsection (2) of this section, all the provisions of that Act relatingto provisional registration shall thereupon apply accordingly.(2) Where any order to which this Part of this Act applies is, in accordancewith subsection (1) of this section, embodied in the provisional register as aseparate folium, any person in whom the beneficial ownership of land or anyinterest in land is vested by that order may, in accordance with section 167(5)of the Land Transfer Act 1952, and in accordance with the regulations in forcein that behalf, deposit a plan in relation to the land or interest in land to whichthe order relates, which plan shall define the pieces of land affected.[44] The combined effect of the sections was that:(a) the Registrar of the Māori Land Court was required to transmit allorders affecting or relating to the title in any Māori freehold land madeby the Māori Land Court to the Registrar and the Registrar was requiredto register those orders under the LTA 1952; and(b) if the order presented for registration was not supported by a plan that:(i) defined the land affected by the order; and(ii) was sufficient for the purposes of the registration of that orderunder the LTA 1952,the Registrar was required to register the order provisionally by placingit in a separate folium in the provisional register.3636 Te Ture Whenua Māori Act 1993, s 124(1).[45] The document stored electronically on the provisional register would be heldas a computer interest register.37[46] When it became possible to finally constitute the register of that land in termsof the LTA 1952, the provisional registration would be closed and a CFR wouldreplace the CIR.Historical background[47] In describing the relevant historical background regarding preparation of plans,conveyances and titles to the Hojsgaard property and Omapere B, I rely on the agreedstatement of facts dated 28 April 2021 prepared by counsel for the hearing andcounsel's helpful submissions. I am grateful to them for their assistance, given thatthe facts I can describe as relevant to this proceeding are the product of much evidence,submission and findings in the High Court proceedings between Mr Hojsgaard and theChief Executive.38 It is necessary to set out the facts in some detail.[48] Omapere Block 243N, having an area of 0.8726 hectares, was land situated tothe north and west of Mr Hojsgaard's land at 274 and 284 State Highway 12. Historicplans, Crown Grants and conveyances prepared between 1859 and 1867, notablyML 223, show a creek or stream (the Omapere Stream or the Stream) between theOmapere Block and what became the Hojsgaard property (formerly described as"Martin's Land" after the original owner by Crown Grant in 1861) as shown in theclose-up image taken from ML 223 and reproduced below:3937 Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002, s 9.38 Hojsgaard v Chief Executive of Land Information New Zealand [2018] NZHC 750, [2018]3 NZLR 99.39 Omapere is misspelt "Omapera" on the plan but not in the Partition order.[49] The right bank of the Omapere Stream, when viewed facing downstream to theHokianga Harbour, is depicted as forming the southern and eastern boundary of thesouthern part of the Omapere Block. The left bank of the Stream is depicted asforming the northern and western boundary of the Hojsgaard property, extendingdown to the harbour.[50] On 27 January 1900, the Omapere Block was partitioned by the Native LandCourt into Omapere A and Omapere B, but no new titles were issued at that time.[51] The Omapere Stream changed course suddenly in 1907 following heavyrains in the hills behind Omapere.40 As a result, it now flows into the HokiangaHarbour some 100 metres north of the former mouth of the Stream. It is common40 I use the names "Omapere Stream" and "Stream" to refer also to the dried bed of the Streamfollowing the sudden change of course in 1907.ground that, in law, this avulsion41 did not alter the boundaries of Omapere B andMartin's Land/the Hojsgaard property.[52] In 1964, the cadastral record maps and block sheets for Omapere B and theHojsgaard property showed the Omapere Stream extending down to the HokiangaHarbour and separating Mr Hojsgaard's property from Omapere B, as depicted inML 223. By 2007, however, the Stream was no longer shown separating theHojsgaard property from Omapere B in the Landonline spatial view. Instead, the twoproperties were shown directly abutting each other, with the south-eastern boundaryof Omapere B running right across the seaward boundary of the Hojsgaard property.How the title to the Omapere B block was registered[53] The Māori Land Court presented a photocopy of the Native Land Court's 1900Partition order for Omapere B to the Registrar for registration in May 2010, along witha Consolidated order recording the names of the three proprietors of the block and aStatus order declaring the land to be Māori freehold land. Those orders were presentedwith the standard LINZ lodgement form used to present paper instruments forregistration at that time, listing the three orders. Also presented with the orders was amemorandum of the Court dated 21 May 2012, requesting the issue of a CIR to registerthe Partition order and the other orders affecting the block.[54] The photocopy of the Partition order presented to the Registrar for registrationhas a stamped note on the first page:Duplicate issued pursuant to Rule 67 of the Maori Land Court Rules 1994 forregistration purposes. Certified a correct copy.[55] Placed partly over this note is a stamped seal of the Court. A signature is drawnon this stamp and the words "Deputy Registrar" are printed over the lower portion ofthe stamp.[56] The Partition order for Omapere B has a handwritten note incorrectlyconverting the Imperial measurement of the area of the parcel – one acre two roods41 Avulsion is the sudden separation of land from one property and its attachment to another,especially by flooding or a change in the course of a river.and 18¾ perches – to 0.8726 hectares more or less. The metric figure noted on theorder is the equivalent of the area of the whole Omapere Block; the correct metricequivalent for the area of Omapere B is 0.6543 hectares.[57] The same note and stamp appear on the first page of the duplicate Consolidatedorder and the duplicate Status order received by the Registrar. The stamp is not on theMāori Land Court memorandum, nor on the LINZ lodgement form.[58] A Māori Land Court stamp (or part thereof) also appears on the second andthird pages of the Partition order (but without the note or a signature), as well as thesecond page of the Consolidated order. The certified copy of the Partition order refersto the part (Omapere B) as being "particularly delineated in the plan indorsed herein".[59] A sketch plan was also provided to the Registrar by the Court:[60] In the sketch plan, the Hojsgaard property is immediately to the right (that is,the east) of the finger extension of Omapere B and part of the boundary with the otherHojsgaard land (Lot 1 DP 38734) is shown to the right or east of that.[61] The key features of the sketch plan are:(a) The parcel of land depicted in the sketch plan is marked "Omapere B".(b) The form of the plan and the words printed on the sketch plan:Omapere BSketch Plan Only.0.8726 heactares [sic] more orlessindicate that the plan is not derived from the cadastre, that it is not anapproved survey plan defining the land affected by the Partition orderand that it is insufficient for the purposes of the registration of thatorder as a computer freehold interest under the LTA 1952.(c) The sketch plan is incorrect in that it depicts as Omapere B the wholeof the Omapere Block prior to the Partition order.[62] I accept Mr Thorp's submission that the reference in the Omapere B Partitionorder to the part "particularly delineated in the plan indorsed herein" is a reference toplan ML 223, reproduced at [48] above. The plan contains a handwrittenendorsement42 that reads:Produced before the Native Land Court at Rawene on Partition this 27th dayof January 1900.D BramwellJudge[63] It is not firmly established:(a) when the sketch plan was prepared or by whom, although it may beassumed the maker was an official of the Māori Land Court; or42 Not reproduced in the close-up image at [48].(b) what source information was used in the making of the sketch plan.[64] It is clear that the maker of the sketch plan did not have regard to ML 223which was stored in hard copy in the LINZ archives with relevant earlier plans and thecadastral record maps and block sheets for Omapere B and the Hojsgaard property thatexisted in 1964.43 I infer from the affidavit of Mr S J Schwarz dated 14 November2017,44 however, that the person who prepared the plan probably referred to the 2007spatial plans in Landonline. Inexplicably, the 2007 version of the spatial plans did notshow the water body separating the Omapere Block from OLC 127, which was theforerunner to the creation of Lot 1 on DP146636, the Hojsgaard property.[65] The lodgement form, the Māori Land Court memorandum and the three orderswere received by the Registrar on 4 June 2010. The Registrar's delegate who dealtwith the Māori Land Court documents identified that the obligation under theTTWMA to register the Court's orders presented to him should be given effect byissuing a provisional CIR under the LTA 1952 and the CRELA.[66] In relation to the Partition order, the Registrar's delegate:(a) produced a copy or image of the paper copy of the order provided;(b) accepted the copy or image for the purposes of registering the Partitionorder; and(c) entered a unique identifier for the instrument (PO 8513011.1) in therelevant computer register: CIR 524865 (now RT 524865).[67] This process was completed, along with registration of the other two ordersrelating to Omapere B, on 10 June 2010. In accordance with the deeming provisionin s 47(4) of the LTA 1952 (which provided that instruments presented by post aredeemed to have been presented for registration on the business day after the day onwhich they were received), what is now RT 524865 records on its face that it was43 See [123] below.44 Filed in the High Court proceeding on behalf of Mr Hojsgaard, although not all of the exhibitsproduced in that case have been replicated in this proceeding.created on 8 June 2010 at 9.00 am, and that the title is "Qualified" (that is, theequivalent of a CIR in the provisional register under the LTA 1952).[68] Under the heading "Interests", RT 524865 records that:The within order has been embodied in the register pursuant to Section 124(1)Te Ture Whenua Maori Act 1993. It will not be finally constituted a folium ofthe register until a plan has been deposited pursuant to Section 167(5) LandTransfer Act 1952.[69] The stamped sketch plan provided to the Registrar by the Māori Land Courtwith the certified copy of the Partition order is appended to RT 524865 as its titlediagram.Mr Hojsgaard's submissions about the Māori Land Court documents[70] On behalf of Mr Hojsgaard, Mr Thorp argues that the errors in the documentssent to the Registrar by the Māori Land Court should have been obvious to theRegistrar's delegate who received them. Counsel submits that:(a) it should have been clear to whoever received the documents that thehandwritten note beside the Imperial measurement for the area ofOmapere B was incorrect;(b) the sketch plan provided with the documents could not have been the"plan endorsed herein" referred to in the duplicate Partition orderbecause of the typed note showing a metric area; and(c) although the sketch plan appears to have part of a stamped seal of theMāori Land Court affixed, the sketch plan is not referred to in theCourt's memorandum in the box reserved for "SUPPORTINGORDERS/PLANS" or in the LINZ lodgement form.[71] I discuss Mr Thorp's observations at [130] to [141] below.Mr Hojsgaard's concerns with the survey of the Omapere block in ML 437558[72] In 1990, the former owners of the Hojsgaard property had commissionedMr M R Wright to survey the property because of their belief that the seawardboundary of their land extended out at least to the foot of the Stream bank, if not asfar as the mean high-water mark. Subsequently, Mr Wright prepared a plan byreference to an old plan (OLC 127); the Crown Grant 283C to the original owners ofthe Omapere Block that showed what became the Hojsgaard property as having awater boundary; on-site observations and anecdotal evidence. He concluded that thewestern boundary of the Hojsgaard property should be depicted as a right-lineboundary representing the former location of the left bank of the Stream. Mr Wright'sreports do not refer to ML 223. The Wright survey was approved as to survey on30 July 1991 and the Hojsgaard property became Lot 1 on Deposited Plan 146636;title was not issued until 7 September 1998.[73] An image appended to both the High Court and Court of Appeal judgmentsshows the boundaries of the properties involved in the proceeding (as depicted in therespective titles), superimposed on an aerial photograph of the area. The westernboundary to the Hojsgaard property is shown running along the bank immediatelyabove the beach, consistently with the Wright survey.[74] Mr Hojsgaard, however, was unaware of the steps that had been taken in 2010leading to the registration of a qualified title to Omapere B.The Brill survey of Omapere B – ML 437558[75] A survey of the land in Omapere B, requisitioned in 2007, was lodged with theChief Executive in 2008. That survey was not approved and, following a number ofrequisitions by the Chief Executive, it had been withdrawn on 8 January 2010.[76] In March 2010, acting under delegation from the Surveyor-General, the ChiefRegistrar of the Māori Land Court authorised Mr Robin Brill to complete a survey ofOmapere B. The survey of the block was prepared by Mr Brill and the plan –ML 437558 dated 17 November 2010 – was approved as to survey by the ChiefExecutive in December 2010. This was a forerunner to the depositing of the planunder s 167(5) of the LTA 1952, and removal of CIR 524865 from the provisionalregister to become a folium of the register, but those steps were never taken.Hojsgaard challenge to Brill survey – Thomson survey SO 486668[77] After becoming aware of the Brill survey, Mr Hojsgaard took issue with thedepiction of Omapere B on ML 437558 and contended that the survey plan wasincorrect because it:(a) did not depict the former course of the Omapere Stream between thesouthern and eastern boundary of Omapere B and the northern andwestern boundary of Mr Hojsgaard's land; and(b) also included Omapere A within Omapere B.[78] Mr Hojsgaard commenced what Ms Watson correctly described as a lengthyand multifaceted process to challenge ML 437558, seeking to have it removed fromthe cadastre and replaced with a survey which depicted the former course of theOmapere Stream as forming part of the boundary to the Hojsgaard property.[79] Mr Hojsgaard sought advice from Mr Denis Thomson of Thomson SurveyLimited of Kerikeri, lawyers and the land status expert, Mr S J Schwarz of SchwarzConsultancy Limited.[80] Mr Thomson concluded that:(a) Mr Brill erred in ML 437558 by not depicting either the Streamseparating the Hojsgaard property from the Omapere Block or thepartitioning of the Omapere Block into Omapere A and Omapere B;(b) the Wright survey had determined the location of the Stream and, asrequired by the prevailing regulations, right-lined its left bank as thenorthern and western boundary of the Hojsgaard property;(c) the determination of the location of the Stream in the Wright survey hadto be respected, as it was to be presumed correct; and(d) the evidence (including anecdotal accounts by former owners, ageological report obtained by Mr Wright from a Dr Orbell and on-sitefeatures such as a low bank and former boat slipway rail) supported thatdetermination.[81] Mr Thomson prepared a survey plan: SO 486668. It was referred to LINZ andMr Brill, together with a report from Mr Schwarz. It was accepted that ML 437558incorrectly included Omapere A in the land depicted as Omapere B and, on 13 July2015, the Surveyor-General issued a notice requiring the error to be corrected pursuantto s 52 of the CSA. Mr Brill acknowledged that error, but he did not agree that theStream had run where depicted by the hydro-parcel in SO 486668 and contended thatit ran instead through the Hojsgaard property, and properties to the south.[82] A further request to the Surveyor-General to correct the plan, based onadditional information and reports prepared for the court case, did not persuade theSurveyor-General or Mr Brill that the hydro-parcel proposed by Mr Thomson in hissurvey was correct.[83] Expert opinions obtained by Mr Hojsgaard for the court proceeding included areport from Mr Bruce Morrison, a former chief surveyor of the North Auckland LandDistrict, who said that ML 437558 had been approved in error because of the absenceof the depiction of the Stream along its southern and eastern boundary.The High Court and Court of Appeal decisions[84] It is unnecessary to describe the detailed evidence and the arguments of theparties considered by Jagose J in the High Court proceeding brought by Mr Hojsgaardagainst the Chief Executive. The outcome of the proceeding, in the judgmentdelivered on 20 April 2018, was a declaration that, in approving the Brill survey inML 437558, the Chief Executive had failed to have regard to the relevant mandatoryconsideration of whether the western boundary of the Hojsgaard property as shown inthe Wright survey was depicted by a right-line water boundary.45[85] The Chief Executive was directed to reconsider whether ML 437558 compliedwith the Rules for Cadastral Survey, but the Court refused to quash the approval ofML 437558.46 Mr Hojsgaard appealed.[86] In its decision delivered on 2 April 2019,47 the Court of Appeal quashed theapproval of ML 437558 and directed the Chief Executive to reconsider the approvaldecision in the light of all the available evidence. The Court held that, if ML 437558was found incorrect on reconsideration, not to quash it would leave the plan protectedby the presumption of correctness that applies to an approved survey, even if it shouldnever have been accepted into the cadastre in the first place. The Chief Executive wasdirected to reconsider the correctness of the Brill survey in light of all the evidencethat had become available.The LINZ reconsideration following the court decisions[87] A delegate of the Chief Executive, who had not previously been involved inthe matter, examined all the available evidence and carried out the reconsideration.The delegate determined that ML 437558 should not be approved as to survey andreturned it to Mr Brill on requisition. Mr Brill declined to revise the plan and it wassubsequently withdrawn.[88] Two survey plans were prepared by Mr Thomson. One depicts Omapere Aand Omapere B (ML 537122) and the other (SO 549341) separately depicts the hydro-parcel that Mr Hojsgaard says represents the former course of the Stream. They havenow been approved as to survey by the Chief Executive.[89] As Omapere B is Maori freehold land, r 7.7(6) of the Maori Land Court Rules2011 requires the approval of ML 537122 by a judge of the Māori Land Court beforea new title can issue in terms of that survey plan. I was informed by counsel while45 Hojsgaard v Chief Executive of Land Information New Zealand, above n 38, at [105].46 At [106]-[110].47 Hojsgaard v Chief Executive of Land Information New Zealand above n 3.this judgment was in preparation that an oral order approving the plan has been madeand a written order is imminent. Titles will then be issued to both Omapere A andOmapere B, and RT 524865 will be replaced on the land register with a record of titleincorporating a plan that depicts the Hojsgaard property bordering onto the hydro-parcel.Issues[90] The principal question for decision is what, if any, compensation under s 58 ofthe LTA 2017 should be awarded to Mr Hojsgaard for the substantial costs he hasincurred in seeking the registration of titles containing accurate plans that establish theboundary of his property as abutting the left bank of the former Omapere Stream bed.[91] It appears that the courts have not previously been called upon to interpret s 58.Applying conventional principles of statutory interpretation, the meaning of thesection "must be ascertained from its text, in light of its purpose and context".48 I haveregard also to any consideration of cases decided under s 172 of the LTA 1952, so faras they may be relevant.[92] It is convenient to set out s 58:58 Compensation for loss or damage resulting from Registrar's erroror from system failure(1) This section applies to a person who suffers any loss or damage as aresult of—(a) an error or a wrongful act or omission of the Registrar or of aperson to whom a power or function is delegated undersection 233; or(b) a failure or malfunction of a system or facility used to keepthe register under section 9.(2) The person may bring a proceeding in the court against the Crown forcompensation.[93] In answering the principal question, these issues fall for determination:48 Interpretation Act 1999, s 5; Legislation Act 2019, s 10(1).(a) Has there been a material error or wrongful act or omission by theRegistrar?(b) What is the "system or facility used to keep the register under section 9"of the LTA 2017?(c) Has there been a material failure or malfunction of that system orfacility?(d) What is the loss or damage suffered by Mr Hojsgaard?(e) Has a causal link been established between that loss or damage and:(i) any material error or wrongful act or omission under s 58(1)(a);and/or(ii) any material system or facility failure or malfunction unders 58(1)(b)?(f) If so, what compensation should be paid to Mr Hojsgaard by the Crown,if any?Are the land transfer and cadastral systems separate or an integrated whole?[94] It is convenient to consider first the issue about the nature of the system orfacility used to keep the register under s 9 of the LTA 2017. That issue includes adetermination about whether the cadastre is part of that system or facility.The submissions for Mr Hojsgaard[95] The starting point for the submissions on behalf of Mr Hojsgaard is theproposition that only the Registrar can place an instrument in the register and that heis, in that sense, the gatekeeper for its accuracy. It is submitted that, althoughs 58(1)(a) is predicated on an error or a wrongful act or omission of the Registrar, anyerror in the register, however and by whomever caused, must be a failure ormalfunction of the system used to keep the register for the purposes of s 58(1)(b). Inother words, for the Crown to be liable to pay compensation under s 58(1)(b), there isno need to ascribe fault; if the register is wrong, the right to compensation unders 58(2) for consequential loss or damage follows automatically.[96] In support of that proposition, counsel relies on Registrar-General of Land vMarshall in which the High Court was required to consider a claim for compensationunder s 172 of the LTA 1952, the predecessor to s 58 of the LTA 2017.49 Mr Thorpreferred to observations of Hammond J in the reported judgment,50 and his conclusionthat:51 as a matter of legal policy, a wide scope for compensation is to be preferredin advancing the general philosophy of the statute.[97] I do not agree, however, that the High Court's observations in Registrar-General of Land v Marshall assists Mr Hojsgaard's position. That case involved anapplication for damages in the form of losses incurred by Mr Marshall who claimedownership of former Māori land which he had purchased from a deceased estate andin respect of which he was recorded as the owner on the title in the Land TransferOffice. The records of the Māori Land Court, however, showed the deceased's fivechildren as the owners: the solicitor acting on behalf of the deceased and the childrenhad failed to register the transmission into his name as administrator of the estate withthe Māori Land Court. The DLR had accepted the transmission without the MāoriLand Court's endorsement.[98] The deceased's children claimed ownership. Mr Marshall succeeded in hisclaim to the Māori Land Court for title and then sued the DLR in the District Court torecover as damages the cost of the proceedings in the Māori Land Court. The Registrarresisted the claim on the grounds that the application to the Māori Land Court byMr Marshall was superfluous because he had title under the LTA 1952.[99] Upholding the view of the District Court Judge that the DLR was liable,Hammond J concluded that it was not necessary with respect to a claim under s 172(a)of the LTA 1952 for a plaintiff to demonstrate that there had been any deprivation of49 Registrar-General of Land v Marshall [1995] 2 NZLR 189.50 At 194–195.51 At 195.any estate or interest in land. He referred to "orthodox principles of statutoryconstruction" in holding that "a wide scope for compensation" should be preferred. Inthat context, Hammond J was referring to the heads of damage that were available forcompensation, not to the scope of liability under the section.[100] Moreover, Mr Thorp's proposition that every error gives rise to a right tocompensation is not supported by the observations in Marshall about the limits onliability under the equivalent to s 58(1)(a). The requirement to establish a causal nexusbetween the asserted loss or damage and an error or wrongful act or omission of theRegistrar is a major limitation on the section:52The mere fact that something 'went wrong' does not trigger a right tocompensation. There has to be a relationship between the Registrar's wrongand the result.[101] That brings into focus the significance of the addition of s 58(1)(b) to thegrounds for compensation that were available under s 172 of the LTA 1952.[102] Mr Thorp submits that the absence of any reference to the Registrar or hisdelegate in s 58(1)(b) indicates a much broader approach to the Crown's liability topay compensation under the section. He argues that:(a) both the CSA and the LTA 2017 are administered by LINZ;(b) the Landonline system has an integrated nature with both the cadastreand the titles register being accessible within the one computer system;and(c) because the Registrar relies on the survey approval system for theaccuracy of the register, the survey approval system must, therefore, beused to keep the land register.52 Registrar-General of Land v Marshall, above n 49, at 197.[103] Referring to s 11 of the LTA 2017, Mr Thorp notes that the Registrar isrequired to record in the register the plan deposited under the LTA 2017.53 He notesalso that, under s 11(2)(b), the Registrar may record: any other information that the Registrar considers necessary or desirable toensure that the register is complete and accurate.[104] On that basis, he argues, the survey plans and the cadastre underpin the issueand guarantee of titles and that their integrity or accuracy is of the same paramountimportance as the integrity of the land register. Thus, the register and the cadastre areinterdependent because the land register cannot exist without the cadastre.[105] Mr Thorp also argues that the legislative history of s 58(1)(b) supports anargument that the words "system or facility" in s 58(1)(b) have a wider meaning thanmerely "computer system or facility". He notes that, in the draft Land Transfer Billprepared by the Law Commission for the purposes of its 2010 report,54 the forerunnerto s 58(1)(b) reads:55 a failure or malfunction of a computer system or facility kept under [whatbecame s 9].[106] He argues that the omission of the qualification "computer" in the legislationas finally enacted supports the contention that the word "system" has a wider meaningthan the tangible way in which the register is kept.Discussion[107] While I accept that a record of title depends for its integrity on the accuracy ofplans deposited in the register, it does not follow, in my view, that the cadastre and theregister are interdependent or integrated.[108] First, I have regard to the discrete statutory responsibilities of the Surveyor-General and the Chief Executive for the provision of a system for the electroniclodging and processing of cadastral surveys,56 the provision of a national geodetic53 Land Transfer Act 2017, s 11(1)(g).54 New Zealand Law Commission A New Land Transfer Act (NZLC, R116, Wellington, 2010).55 At 218 (emphasis added).56 Cadastral Survey Act 2002, s 3(b).system,57 and the statutory obligations of the Registrar to continue and maintain theTorrens system of land title in New Zealand, including providing a register of land thatdescribes and records the ownership of estates and interests in land.58[109] Section 4 of the CSA defines "geodetic system" as meaning: a system that enables positions on the surface of the Earth to be determinedby a reference to a mathematical model that describes the size and shape ofthe Earth.[110] Put simply, the CSA is concerned with the measurement and recording ofblocks of land; the LTA 2017 is concerned with the kind of right or title by which landis held under a tenure system that provides for the creation and transfer of interests inland. While the cadastral survey data contained in plans forming the cadastre informsthe tenure system that creates interests in the land, the determination and descriptionof the spatial extent of interests under a tenure system is not dependent on the natureor maintenance of the tenure system.59[111] Second, the storage of separate data on the land transfer register and thecadastre in one electronic computer system is discussed above at [26] to [41]. I accepton the evidence of the Registrar and the Surveyor-General that there is no necessityfor CSDs and the register of titles to be stored within the same computer system. Thejoint use of the Landonline system by the Surveyor-General and the Chief Executiveon the one hand and the Registrar on the other is an administrative convenience ratherthan a necessary component of the keeping of the register.[112] Third, the relationship between the cadastre and the register of titles to landhas not altered since the Torrens system was introduced into New Zealand in 1870,60when plans and titles were hand-drawn and stored separately in large bound folios.That "the system or facility" in s 58(1)(b) refers to the means by which the register iskept, rather than created, is emphasised by the plain wording of the paragraph. Theexpression "a system or facility used to keep the register under section 9" refers to the57 Cadastral Survey Act 2002, s 3(c).58 Land Transfer Act 2017, s 3(a) and (b)(iv).59 See the definition of cadastral survey in Cadastral Survey Act 2002, s 4.60 Land Transfer Act 1870.obligation under s 9(2) to keep the register in a form or manner that recordsinformation and permits the recorded information to be readily accessed or reproducedin usable form. As s 9(3) makes clear, all or part of the register "may be kept by meansof a computer system or facility that records information electronically", but that isnot necessary to maintain the integrity of the Torrens system.[113] Fourth, addressing the argument that s 58(1)(b) is not limited or qualified byreference to a "computer" system, I acknowledge that "system" is a word that is apt todescribe both an organised or connected group of things forming a unified whole anda scheme or method by which something is done.61 But, in suggesting reform of thecompensation provisions, the Law Commission intended that what became s 58(1)(b)would extend the Crown's liability to the failure or malfunction of a computer systemor facility; that is, the mechanism by which records of title are stored and from whichthey are accessible. I am not persuaded that the removal of the qualification"computer" in the legislative provision as finally enacted indicates any more than that,as Ms Watson suggested on behalf of the Registrar, the wording of ss 9 and 58 "future-proofs" the maintenance and operation of the register. The provisions apply to anymeans of storing and enabling access to records of title that might be used currently aswell as those that might be devised in the future. Section 3(c) of the LTA 2017 explainsthat one of the purposes of the Act is to replace the LTA 1952: with a modern Act that reflects the fact that the land transfer registeris kept and operated electronically and that most dealings in land are carriedout electronically.[114] Fifth, the heading to s 58 gives an indication as to Parliament's intention aboutwhat may give rise to the right to compensation: an error by the Registrar or "systemfailure". An example of a system failure that is not attributable to an act or omissionof the Registrar may include, as suggested by Ms Watson, a technological failurewithin the Landonline system, including an error in auto-registration. Section 58(1)(b)would also cover a failure in the system used to keep paper-based instruments thatform part of the register under s 9, such as might occur if a paper certificate of titlecould not be located in hard copy storage facilities, such as archives.61 Oxford English Dictionary (online, 3rd ed, September 2021).[115] Sixth, I consider also that the use of the word "facility" as an alternative to"system", and the use of the word "malfunction" as an alternative to "failure", supportthe view that s 58(1)(b) refers to the physical means or the equipment required forkeeping the register.[116] Seventh, the explanatory note to the Land Transfer Bill 2016 as introduced intothe House of Representatives described the draft compensation provisions in the Billas making compensation "available for loss through Registrar's error [and] theoperation of the land registration system" in a manner that is "broadly consistent withthe current legislation".62 As the narrow view of the Registrar's liability taken byHammond J in Marshall indicates, the LTA 1952 was concerned exclusively witherrors, omissions, mistakes or misfeasance of the Registrar in relation to the register.63If Parliament had intended to broaden the scope of the Crown's liability forcompensation under s 58 to include errors or wrongful acts or omissions in theproduction of plans or other CSDs for the cadastre, and to errors or failures within theMāori Land Court, the new legislation would have said so expressly.[117] A purpose of the land transfer system is to provide a register from whichpersons who propose to deal with land can ascertain all the facts relating to the title.These facts include, for instance, the name of the registered owner; the nature of theestate which the registered owner holds; and all the mortgages and encumbrances, etc,to which the land is subject.64 I agree with Ms Watson that there is nothing in the text,legislative history or policy underlying the LTA 2017 to establish that s 58(1)(b) wasintended to extend the Crown's liability beyond paying compensation for lossesincurred as a result of a failure or malfunction in the means by which the Registrar hasdecided to store the records in the land transfer register.[118] I find that, to succeed, Mr Hojsgaard's claim for compensation must befounded on s 58(1)(a) or on a failure or malfunction in that part of the Landonlinecomputer system used to keep the register.62 Land Transfer Bill 2016 (118-1), Explanatory note at 2.63 Land Transfer Act 1952, s 172.64 Land Transfer Act 2017, s 3(b)(iv); D W McMorland and others Hinde McMorland & Sim LandLaw in New Zealand (online ed, LexisNexis) at [8.004] "Main objects of the Land TransferSystem".[119] I consider next the surveying and other errors identified by Mr Thorp asestablishing Mr Hojsgaard's right to compensation for the costs he incurred incorrecting them. They do not include any allegation of a computer failure ormalfunction, so the attention must be on s 58(1)(a).Has there been a material error or wrongful act or omission by the Registrar?[120] The amended statement of claim filed by consent at the start of the hearing setsout the particulars of the errors on which Mr Hojsgaard relies. They are foundedprimarily on the views of Mr Thomson, the surveyor who has assisted Mr Hojsgaardsince he cancelled the auction of his property in 2014. I will return to the pleadings ingiving my views on which, if any, of the allegations are made out as grounds forcompensation.[121] It will be seen that the alleged errors or failures relied upon by Mr Hojsgaardoccurred between 1998 and 2016. The LTA 2017 did not come into force until12 November 2018. That means that the alleged errors or failures must be consideredagainst the legislative landscape at the time of the alleged error; namely, the LTA 1952and the CRELA.[122] That does not mean, however, that the right to compensation in s 58 on whichMr Hojsgaard relies does not apply. Mr Hojsgaard rightly claims under s 58 of theLTA 2017, but whether a qualifying error or failure has occurred is to be determinedby reference to the relevant legislative provisions at the time of the alleged error orfailure.The views of the surveyor, Mr Thomson[123] The starting point for Mr Thomson's analysis of the errors is his undisputedconclusion that, up to and including the time Mr Wright surveyed the Hojsgaardproperty in 1998, the records held in the cadastre were:(a) the only pre-existing survey of the Omapere Block, ML 223 dated1866;(b) the 1964 record maps and block sheets; and(c) the 1996 DCDB plan accurately depicted the Omapere Block and theOmapere Stream separating it from the Hojsgaard property as surveyedin ML 223.[124] It is worth repeating that, as is explained above at [36], the DCDB was formedby the digitisation of the hard copy cadastral record maps and block sheets keptmanually and the spatial data from the DCDB was added progressively to Landonlineafter it was introduced. As also explained at [36], because of the accuracy limitationsof the cadastral record maps and block sheets, the survey conversion project attemptedto improve the accuracy of the Landonline spatial view, but some 30 per cent ofparcels in mainly rural areas remained unchanged from the original cadastral recordmaps. It is accepted by surveyors, and is common ground in this proceeding, that theLandonline spatial view does not contain an authoritative determination of the locationand configuration of boundaries, particularly those in rural areas.[125] From the base of the information available in 1998, therefore, Mr Thomsonhas identified the following errors:(a) a failure of the responsible officials in LINZ to realise that the westernboundary in the Wright survey of the Hojsgaard property was the right-lined left bank of the former course of the Omapere Stream;(b) the same mistake made by Mr Brill when he conducted the survey ofwhat should have been only Omapere B (as it was after the 1990Partition order) of omitting the Omapere Stream from his plan,ML 437558, compounded by;(c) the approval of ML 437558 by the Surveyor-General, with the resultthat the Omapere Stream was omitted from the plan in CIR 524865,which purportedly related to the Omapere B block;(d) the failure of Mr Brill to recognise the partition of the Omapere Blockinto Omapere A and Omapere B in 1990;(e) the replication of those errors by the official of the Māori Land Courtwho drafted the sketch plan provided to the Registrar with the copiesof the 1990 Partition order, the Consolidated order and the Status order;(f) the failure of the Registrar to note what Mr Thomson says were thethree obvious errors in the sketch plan and Partition order, in that:(i) the conversion from the Imperial measures into hectares wasobviously wrong;(ii) a check of ML 223 (which Mr Thomson says has been readilyavailable in the Landonline system since well before 2010)would have revealed the presence of the Omapere Stream and,from handwritten details on ML 223 before it was digitised, thepartition of the Omapere Block into Omapere A and Omapere Band their correct areas; and(g) the failure of the Registrar by issuing and registering CIR 524865without checking the accuracy of any of the documentation presentedby the Māori Land Court, in breach of what Mr Thomson says is theultimate objective of every surveyor and official involved in the landtransfer system of achieving accuracy in the land register.[126] It can readily be seen from Mr Thomson's analysis that the only errors he hasidentified that could arguably come within the category of error referred to ins 58(1)(a) is the decision of the Registrar to register the documents sent by the MāoriLand Court without checking them as to their accuracy and issuing CIR 524865, albeitas a provisional register.[127] Mr Thorp endorses Mr Thomson's view that it is not a sufficient response tohis proposition that that is an error of the Registrar to say that only a provisional titlewas issued. That is because, Mr Thomson says, as happened in the case ofMr Hojsgaard's land, both real estate agents and members of the public rely upon theland register. In his view, they would not expect that any plan permitted onto the landregister had not been checked by the officials responsible for the land register, let alonethat the plan would contain such "substantial errors" as in CIR 524865.[128] I have held that s 58(1)(b) does not assist Mr Hojsgaard because it addresseserrors or failures related solely to the computer system for the keeping of the register.Because s 58(1)(a) focuses solely upon the errors and wrongful acts or omissions ofthe Registrar, the errors that occurred before the documents were sent by the MāoriLand Court to the Registrar cannot be relied upon by Mr Hojsgaard in themselves. Ifthey were errors, they were the errors of Mr Brill; the Surveyor-General; the ChiefExecutive; the Māori Land Court officials; or a combination thereof. Mr Hojsgaard'scase under s 58(1)(a), therefore, must depend on proof of a failure by the Registrar toidentify that those antecedent errors had been made and to correct them before issuingthe provisional title in CIR 524865.[129] That brings into focus the duties of the Māori Land Court following the makingof the orders affecting the title to the Māori freehold land in Omapere B and, mostimportantly, the duties of the Registrar upon receipt of such documents.Defendant's response to allegation of Registrar's error[130] The Registrar argues that it cannot be an error for him to have accepted thedocuments received from the Māori Land Court for registration and then to issue thetitle for Omapere B. In doing so, it is submitted he was simply complying with hisstatutory duty to register the Partition order, the Consolidated order and the Statusorder as required by s 123 of the TTWMA. The Registrar of the Māori Land Courtwas under a duty to transmit the Court's order to the Registrar for the purposes ofregistration and the Registrar had a duty to register the order accordingly.65 Section123(7A) required the Consolidated order identifying the owners to be registered in thesame way.65 Te Ture Whenua Māori Act 1993, s 123(2).Discussion[131] Section 124 of the TTWMA is a key provision in the circumstances that appliedin this case. I repeat it:124 Special provisions where insufficient survey plan(1) Where any order to which this Part of this Act applies is presented forregistration under the Land Transfer Act 1952, the District Land Registrarshall, if the order is not supported by a plan defining the land affected by theorder and sufficient for the purposes of the registration of that order under thatAct, embody the order in the provisional register as a separate folium, and,subject to subsection (2) of this section, all the provisions of that Act relatingto provisional registration shall thereupon apply accordingly.(2) Where any order to which this Part of this Act applies is, in accordancewith subsection (1) of this section, embodied in the provisional register as aseparate folium, any person in whom the beneficial ownership of land or anyinterest in land is vested by that order may, in accordance with section 167(5)of the Land Transfer Act 1952, and in accordance with the regulations in forcein that behalf, deposit a plan in relation to the land or interest in land to whichthe order relates, which plan shall define the pieces of land affected.[132] As already observed, the Registrar was not generally required under theLTA 1952 to register any instrument unless the land subject to the exercise of theRegistrar's function was adequately defined. It is plain that the sketch plan sent to theRegistrar by the Māori Land Court with the orders and other documents did notcomply with the CSA and would not be suitable for the creation of a computer freeholdregister. Section 124(1) recognised the difficulty that would be created for theregistration of Māori freehold land titles, in circumstances where no plan exists or theplan is not sufficient for the purposes of registration, by requiring the Registrar toregister the Court's order in the provisional register and issue a computer interestregister rather than a computer freehold register.[133] In my view, there can be no criticism of the way in which the Registraraddressed the need to issue a provisional title for Omapere B. It was plain on the faceof the sketch plan that it was not "a plan defining the land affected by the order andsufficient for the purposes of the registration of that order" under the LTA 1952.66 TheRegistrar was under a duty to embody the order in the provisional register accordingly.It was reasonable for the Registrar to include the sketch plan in the registration of the66 Te Ture Whenua Māori Act 1993, s 124(1).order, to provide additional relevant information about the parcel of land affected, eventhough the plan was not referred to in the memorandum accompanying the copies ofthe orders. The partial Māori Land Court stamp on the sketch plan authenticates itsstatus as a document emanating from the Court.[134] There was a clear notation on the Partition order that it "will not be finallyconstituted a folium of the register until a plan has been deposited pursuant to Section167(5) Land Transfer Act 1952". While that status may not have had any particularsignificance for a lay person or a real estate agent not familiar with the intricacies ofthe land transfer system, the Registrar cannot be held responsible for the failure of anyperson inspecting the title to seek the advice of someone who might be expected tounderstand the implications of a property being subject to a provisional registration.[135] Section 124(2) contemplates that, following the provisional registration unders 124(1), a plan that accurately defined the land and was sufficient for the purposes ofthe registration of the order would be prepared and deposited so that a CFR would beissued in place of the CIR which would be removed from the provisional register. Bythe time CIR 524865 was placed on the provisional register, Mr Brill had beencommissioned to prepare a survey of Omapere B.67 There is no evidence why,following the approval of Mr Brill's plan ML 437558 as to survey, the plan was neverdeposited so that a CFR could be issued. Nothing may turn on that, however, becausethe CFR would inevitably have replicated the errors in Mr Brill's survey plan.[136] Mr Thorp argues that the errors in the documents sent by the Māori Land Courtwere so obvious that the Registrar should have noticed immediately that the sketchplan was not suitable for registration as the title diagram for CIR 524865. It is notimmediately clear to me why that should be so. Accepting that the plan was only asketch plan, the Registrar was entitled to heed the provisions of the TTWMA that hewas required to issue a provisional title nevertheless because that obligation existedboth in respect of an inadequate plan and also in the absence of any plan at all.[137] Moreover, as Mr Thomson discovered, by the time the Māori Land Court cameto consider the matter in 2010, the spatial view in Landonline misstated the boundaries67 As discussed at [76].and the area of Omapere B. It is reasonable to infer that the official of the Māori LandCourt was misled by an error in the cadastre rather than by having miscalculated theconversion from Imperial measures to metric measures. Simply looking at thedocuments would not have alerted the Registrar to the failure of the sketch plan toidentify that the parcel shown as Omapere B had been partitioned into Omapere A andOmapere B.The pleaded errors[138] I set out here Mr Hojsgaard's pleadings about the errors on which he relies,and give my findings on each. In the amended statement of claim, "the CIR 524865error" is defined as preparing and registering CIR 524865 in error because itwrongfully omitted the Stream separating the Hojsgaard property from the OmapereBlock and the 1900 Partition order, and because the plan "contained the clearly wrongarea". The pleading asserts:16. The Plaintiff's loss has been caused by all or any of:(a) The CIR 524865 error.(b) The error of the Defendant or his delegate in not checking forand, therefore, discovering the CIR 524865 error.(c) The error of the Defendant or his delegate in placing anincorrect sketch plan in the land register with RT 524865without any checking of the accuracy of the sketch plan.(d) The error of the Defendant or his delegate in considering itnecessary to place the unchecked sketch plan with RT 524865in the land register rather than issuing RT 524865 without theunchecked sketch plan and instead describing the land asdepicted in the 1866 survey, ML 223, and depicted anddescribed in the 1867 Crown Grant, 283C, less the portionpartitioned off as Omapere A.(e) The failure of the Landonline system used to keep the landregister to require any checking for accuracy of such a sketchplan before placing it into the land register.(f) The failure of the Landonline system used to keep the landregister to prevent all or any of the CIR 524865 error, theML 437558 error or the spatial plan error by:(i) Requiring all deposited plans to distinguish on theirface right-lined water boundaries from ordinaryboundaries;(ii) Providing a satisfactory system for the identificationin surveys of a right-lined water boundary separatefrom an ordinary boundary;(iii) Ensuring that the Landonline system included onlineall the information necessary to enable the discoveryonline of a right-lined water boundary separate froman ordinary boundary;(iv) Ensuring that the Landonline system included onlinecopies of the documents that accompanied surveyssuch as the Wright Survey and enabled the presenceof a right-lined water boundary to be detected, whichdocuments, in the case of the Wright Survey, were notcopied online until 1 July 2015; and(v) Ensuring that the Landonline system adequatelyreplaced the manual checking of surveys by the ChiefSurveyor for the Land District, with reference to allaccompanying documents and the manually keptblock sheet record, so as to prevent the occurrence oferrors such as the spatial plan error, the CIR 524865error and the ML 437558 error.[139] Paragraphs 16(a) to 16(d) found the claim under s 58(1)(a) and are reflected inthe submission of Mr Thorp that the Registrar erred in not considering the accuracyand reliability of the Māori Land Court documents, including the sketch plan, andplacing the sketch plan on the provisional register with CIR 524865.Conclusions – no compensable error[140] I have held that the statutory scheme required the Registrar to act on the ordersof the Māori Land Court as provided to him. There is nothing in the legislativescheme, in my view, that creates an obligation, statutory or otherwise, for the Registrarto go behind the documents presented by the Court to check their accuracy or integrity.It may seem to an experienced surveyor such as Mr Thomson, considering the MāoriLand Court documents in hindsight and with the benefit of having considered "the1866 survey, ML 223, and the 1867 Crown Grant, 283C, less the portion partitionedoff as Omapere A", that errors were obvious, but it was not the function of theRegistrar to question the documents provided by the Court and to research thecadastre. The statutory scheme presumes that those enquiries would have been madeby or in front of the Māori Land Court before the orders provided to the Registrar weremade. Moreover, as I have explained, even if it could be said the sketch plan wasobviously inadequate to define the land sufficiently to enable the issuing of a CFR, theRegistrar acted in accordance with the statutory requirement by placing the records onthe provisional register and issuing a CIR.[141] To the extent, therefore, that the allegation that Mr Hojsgaard's loss is the costof having to rectify Mr Brill's survey error and its consequences, I am not persuadedthat anything done by the Registrar was in error.[142] It is clear on the face of the pleadings in paras 16(e) and (f), including sub-paras (f)(i) to (v), that the claim based on those pleadings fail because they rely onwhat I have held to be a misinterpretation of s 58(1)(b). They allege what might bebroadly described as systemic failure in "the Landonline system" that arises from theway in which those responsible for the management of the Landonline system operatedit. As I have held, however, the liability to pay compensation on the basis of s 58(1)(b)depends on proof of a failure or malfunction within the Landonline computer system,not errors by those responsible for establishing its content and maintaining it.[143] I conclude, therefore, that none of the errors identified by Mr Thomson, as wellestablished as they may be, can give rise to a claim for compensation founded on eithers 58(1)(a) or s 58(1)(b). While Mr Hojsgaard is entitled to feel aggrieved by the errorsmade by a registered cadastral surveyor and officials within LINZ, s 58 does not assisthim to recover his costs in correcting them.Consideration of causation and quantum not required[144] It follows from the reasons for my conclusion that Mr Hojsgaard's claim failsthat it is unnecessary to consider what consequences flowed from the errors in thesurveying and management of information in the cadastre that appear to beestablished. I have concluded also that there would be no point in considering theissue of quantum to assist the parties in the event that my views on liability areconsidered elsewhere to be wrong. It is common ground that a clear causal nexusneeds to be established between errors that are compensable under s 58 and theclaimed loss. In the first place, to offer any benefit to the parties, the assessment ofquantum in this judgment would have to be based on identifiable error. Whetherliability is properly founded on s 58(1)(a) or s 58(1)(b) will be determinative of thelosses which may be recovered.[145] Moreover, the Court would need the assistance of counsel to answer thequestion, that is not without difficulty, of the extent to which an error by the Registrarin not enquiring more closely into the integrity of the documents forwarded by theMāori Land Court was an effective cause of the losses claimed.[146] In that regard, I observe, without comment, that the Court of Appeal expressedsome doubts about whether the evidence entitled Mr Hojsgaard to claim riparianrights.68[147] A broader consideration is what loss, if any, is attributable to Mr Hojsgaard'sclaim that the errors of which he complains led to his being unable to market hisproperties for sale as "waterfront property". The term may be apt to describe anyproperty which has a frontage to a beach and sea views without having a legal right toaccess to the water, over land which is the property of another but is covered in sandthat does not present any physical barrier. Mr Hojsgaard's claim that the errors relatedto the definition of Omapere B, particularly its southern and eastern boundary, doesnot necessarily lead to the conclusion, on the evidence presented, that the value ofMr Hojsgaard's property was in any way diminished.[148] I note also that the Court of Appeal considered that quashing the approval ofthe Brill survey would not prejudice claims that were then before the WaitangiTribunal, including claims relating to ownership of the dried stream bed comprisingthe hydro-parcel identified by Mr Thomson. That is an issue that may require furtherconsideration in the context of assessing the quantum of Mr Hojsgaard's loss.[149] In my view, the evidence presented on behalf of Mr Hojsgaard is insufficientto allow the Court to assess, for example, whether all of the nearly $1.9 million in legalcosts claimed by him were reasonably and necessarily incurred as a result of eitherRegistrar or systemic error or failure and, if not, how much of them. While I acceptMr Thorp's submission that identifying the legal costs claimable under s 58 would not68 Hojsgaard v Chief Executive of Land Information New Zealand, above n 3, at [88]–[93].be constrained by the matters contained in the costs provisions of the High Court Rules2016, a much fuller enquiry is required to assess the reasonable necessity of incurringlegal costs to correct any errors that have been identified as causing loss.[150] I note also, again without expressing a view, the observation of the Court ofAppeal that Mr Hojsgaard succeeded in that Court, not because of a wealth of technicalevidence, but because of the presumption of accuracy confirmed in Otito Reserve.69Costs[151] As the successful party, the Registrar is entitled to costs. Costs shall bedetermined on a category 2B basis.[152] If costs cannot be agreed, the Registrar shall have until 17 December 2021 tofile and serve a memorandum seeking costs. Mr Hojsgaard shall file and serve amemorandum in response by 4 February 2022. The Registrar may file a brief replymemorandum only by leave of the Court. Costs shall be determined on the papersunless the Court directs otherwise.Toogood J69 Hojsgaard v Chief Executive of Land Information New Zealand, above n 3, at [132].