NICHOLAS v TE AMO [2023] NZCA 22

NICHOLAS v TE AMO [2023] NZCA 22 [16 February 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA512/2021[2023] NZCA 22BETWEEN PHYLLIS RANGI NICHOLASAppellantAND ANDREW TE AMO, DOUGLAS REWI,PETER WHITE AND RENEE REWI ASTRUSTEES OF THE TE WHAITI-NUI-A-TOI TRUSTRespondentsHearing: 4 August 2022Court: Miller, Courtney and Simon France JJCounsel: M J Sharp for AppellantM S McKechnie for RespondentsJudgment: 16 February 2023 at 10 amJUDGMENT OF THE COURTA The appeal is allowed. The decision of the Māori Appellate Court is set aside.B There is a determination under s 18(1)(a) of the Te Ture Whenua Māori Act1993 that the appellant has a right to possession of the house built by her onthe block of land known as Te Tuturi C, which entitles her to occupy the houseand its curtilage until 31 May 2066.C The matter is remitted to the Māori Land Court for reconsideration of theinjunction in light of the findings of this Court and, if necessary, the specificarea constituting the curtilage.D The respondent must pay the appellant costs for a standard appeal on a bandA basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] This appeal concerns a house on a block of Māori freehold land in the WesternUrewera Mountains.1 The block, known as Te Tuturi C, is part of the largerTe Whaiti-Nui-A-Toi block, which is owned by the trustees of theTe Whaiti-Nui-A-Toi Trust. The appellant, Phyllis Nicholas (nee Martin), is abeneficiary of the trust.[2] Mrs Nicholas made improvements to the house over a period of years in thelate 1990s and early 2000s, after moving a shed onto the land in 1989. Initially herwhānau held a licence to occupy it. Later, members of her extended whānau took overoccupation, against her wishes. They remained in occupation after the licence expired.Later still, Mrs Nicholas regained possession.[3] The increasingly acrimonious dispute over who is entitled to occupy the houseled the trustees to apply for an injunction prohibiting Mrs Nicholas from occupyingthe house and requiring her to remove it. Mrs Nicholas cross-applied under s 18(1)(a)of the Te Ture Whenua Māori Act 1993 for a determination that she has "an equitableinterest in the land in the nature of ownership rights in a building constructed upon theland" and asserted that these ownership rights include the right to access and occupythe house.[4] In the Māori Land Court, Judge Coxhead accepted that the house, which is ona concrete foundation and cannot be moved, was part of the land.2 Therefore, thehouse was owned by the trustees, subject to any equitable interest Mrs Nicholas couldprove. He found that Mrs Nicholas did have an equitable interest (which he describedas ownership of the house) by reason of her financial contribution to the construction1 Although the decisions of the courts below refer to the structure as a shed, given the nature of theimprovements we think it more accurate to refer to it as a house.2 Te Amo v Nicholas – Te Whaiti-Nui-A-Toi Block (2020) 233 Waiariki MB 92 (233 WAR 92) [MāoriLand Court judgment] at [22].of the house and its ongoing upkeep.3 However, the Judge held that an order unders 18(1)(a) determining ownership rights did not in itself carry a right of possession oroccupation unless, as a result of the trustee's actions, Mrs Nicholas had formed areasonable expectation that she was entitled to occupy the house so that it would beunconscionable for the trustees to deny her a right of occupation.4 The Judge held thatthe trustees had not created any such expectation.5 He granted the injunction sought,but delayed the issuing of final orders until after Mrs Nicholas made a freshapplication to the trustees for an occupation order.6 Mrs Nicholas did so, but thetrustees refused to grant her a right of occupation. Final orders were therefore issued.7[5] On appeal to the Māori Appellate Court, there was no challenge to the findingthat Mrs Nicholas owned the house. The trustees' position was and remains that sheowns the house and may remove it. However, the Māori Appellate Court held thatMrs Nicholas' ownership of the house did not carry with it a right of occupation unlessshe had actually made a contribution to the land itself (as opposed to the house) or thatthe trustees had done something to create a reasonable expectation that she would beentitled to occupy the house.8 It held that neither had occurred and thereforeMrs Nicholas had no right of occupation.9 Mrs Nicholas appeals.[6] The parties identified two questions for determination. One related to theMāori Appellate Court's decision that Mrs Nicholas could only show an equitableinterest in the land by making a contribution to the land apart from the house itself.The other related to the Court's finding that the trustees had not acted to create areasonable expectation that Mrs Nicholas would be entitled to occupy the house. Forthe reasons we come to, we have concluded that the Court erred on the secondquestion; the trustees are estopped from denying Mrs Nicholas a right to occupy thehouse until May 2066. We record that it is not necessary to distinguish between thepresent trustees and their predecessors. The trustees' position is that they did nothing3 At [23]–[32].4 At [50].5 At [51].6 At [69].7 Te Amo v Nicholas – Te Whaiti-Nui-A-Toi Block (2020) 234 Waiariki MB 188 (234 WAR 188).8 Nicholas v Te Amo – Te Whaiti-Nui-A-Toi Block [2021] Māori Appellate Court MB 274 (2021APPEAL 336) [Māori Appellate Court judgment] at [36].9 At [38].to engender any expectations in Mrs Nicholas but they accept they are bound if theirpredecessors did so. Since this outcome would resolve the appeal it is unnecessary todetermine the first question. However, we make some observations that may be ofassistance in future cases.The approach on appeal[7] The Māori Appellate Court treated the appeal as one against the discretion ofthe Māori Land Court in which it would only interfere if the Māori Land Court hadapplied a wrong principle, failed to take a relevant consideration into account, takenan irrelevant consideration into account or was otherwise plainly wrong.10 Thisapproach was not correct.[8] Mrs Nicholas had sought a declaration as to the existence of an equitableinterest in land, asserting a constructive trust. Although the making of a declarationinvolves an element of discretion, the determination of equitable interests is notdiscretionary. The right of appeal against the Māori Land Court's decision is a rightof general appeal conducted by way of rehearing.11 It was for Mrs Nicholas to satisfythe Māori Appellate Court that it should differ from the Māori Land Court, in whichcase she was entitled to a fresh assessment by the Māori Appellate Court in accordancewith the approach described by the Supreme Court in Austin Nichols & Co Inc vStichting Lodestar.12BackgroundMrs Nicholas builds a house on Te Tuturi C block[9] The Te Whaiti-Nui-A-Toi block comprises approximately 3,024 hectares.It was formed in 1974 by the amalgamation of a number of existing blocks of Māorifreehold land, including the Te Tuturi C block. The Te Tuturi C block had been ownedby Mrs Nicholas' whānau and it holds special cultural significance for her.10 Māori Appellate Court judgment, above n 8, at [14], citing Kacem v Bashir [2010] NZSC 112,[2011] 2 NZLR 1 at [32].11 Te Ture Whenua Māori Act 1993, ss 55, 58 and 58A.12 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4]–[5].[10] The Te Whaiti-Nui-A-Toi block was vested in the Māori Trustee who leased itto the Ministry of Forestry until 2066 (the forestry lease). In 1989 individualresponsible trustees replaced the Māori Trustee as owners of the block. Later that yearMrs Nicholas sought the trustees' consent to build a dwelling on the Te Tuturi C block.One of the trustees agreed. Mrs Nicholas moved a shed onto the property at herexpense.[11] Mrs Nicholas then sought a licence to occupy the land. The trustees advisedthe Ministry of Forestry that they would consent to their granting a licence to theMartin family for this purpose on certain conditions. The trustees' letter was not inevidence but the part of the letter recording the conditions of their consent wasreproduced in the Māori Appellate Court's decision.13 We discuss the terms of theletter in more detail later.[12] The Ministry granted a licence to occupy to Mrs Nicholas' brother, FrankMartin (Frank), on 9 July 1990. On Mrs Nicholas' evidence the licence was grantedto Frank because she lived in Te Puke and the Ministry required the licence to be heldby somebody who was living nearby who could care for the site. In May 1999 theterms of the licence were varied including to change the name of the licensee to "theMartin Whānau with Frank Martin named as responsible caretaker". It is not evidentwhat triggered that variation.[13] Over the next several years, Mrs Nicholas paid for improvements to the shedso that it became a liveable house. In 1991 part of the dirt floor was concreted.Windows, doors, a bathroom, a kitchen and other fittings were installed. In 2002 moreconcreting was done. It does not appear that any of this work was done with a viewto the structure being removable without demolishing it. Mrs Nicholas' husband andchildren helped with this work. Mrs Nicholas also met the ongoing insurance costsand paid for power to the dwelling. Mrs Nicholas' immediate whānau and some ofher wider whānau, such as her sister Violet Paul, regularly spent time at the property.Frank also stayed there frequently, although he did not contribute much to the expensesassociated with it.13 Māori Appellate Court judgment, above n 8, at [7].Events after Frank Martin's death[14] After Frank's death in 2003, another of Mrs Nicholas' brothers, Reo Martin(Reo), and his whānau, progressively took up occupation of the house and eventuallyrefused to allow Mrs Nicholas to use it at all. Reo tried, unsuccessfully, to obtain alicence to occupy from the trustees.[15] During this time Mrs Nicholas continued to maintain the property, includingcontributing to a tractor and supplying equipment to keep the site tidy.[16] The forestry lease came to an end in 2012. Mrs Nicholas was unaware of this.She only learned of it during the current litigation.[17] Reo's whānau continued to occupy the house. After Reo died in 2016Mrs Nicholas and her whānau made efforts to secure a fresh licence to occupy theproperty. They obtained the agreement of half the Martin whānau for the proposal.However, Reo's son, Victor Martin, also applied for a licence to occupy. By 2019another of Reo's sons, Danny Martin (Danny), was in occupation. On Mrs Nicholas'account he was causing trouble with other whānau, including threatening a cousin,Trevor Martin (Trevor), who had begun to build a shed near the house.14 Mrs Nicholaswent to the property to tell Danny to leave. He called the police, who required him toleave. Mrs Nicholas then moved into the property.[18] The trustees, unhappy with the ongoing, and escalating, dispute betweenwhānau members over the use of the land, maintained that none of the whānau havethe right to live in the house. They commenced the proceedings that have led to thisappeal.14 Trevor Martin was a party to the proceeding in the Māori Land Court in respect of this shed(referred to in the judgment as "the shack") but is not a party to the appeal. We do not need torefer to his position.The Māori Land Court decision[19] The trustees' application for an injunction was brought on the grounds thatMrs Nicholas and her associates had forcibly removed the existing occupant of thehouse, unlawfully taken possession of it, and refused to obey a trespass notice.[20] Mrs Nicholas brought her cross-application under s 18(1)(a) of Te TureWhenua Māori Act, which provides:18 General jurisdiction of court(1) In addition to any jurisdiction specifically conferred on the courtotherwise than by this section, the court shall have the followingjurisdiction:(a) to hear and determine any claim, whether at law or in equity,to the ownership or possession of Māori freehold land, or toany right, title, estate, or interest in any such land or in theproceeds of the alienation of any such right, title, estate, orinterest:[21] As noted, the determination Mrs Nicholas sought was that she had "anequitable interest in the land in the nature of ownership rights in a [house] constructedupon the land". The grounds for her application were that she:(a) had moved the house onto the land in 1989 and since then has paid forimprovements to it and expenses relating to it;(b) had always treated the house as her own and her ownership had orshould reasonably have been accepted by the trustees; and(c) her ownership rights include the right to access and occupy the houseso that she could not be treated as a trespasser.[22] Mrs Nicholas's application was advanced on the basis of a constructive trustarising from her contributions to the house over the years. She asserted that she had areasonable expectation as a result of these contributions and from the licence tooccupy, and that she had ownership rights over the house. As to occupation, she hadargued that ownership of a building on Māori freehold land may include a right ofpossession of the surrounding land — essentially a right of occupation — engagingprinciples of constructive trust or equitable estoppel where the trustees had allowedthe building to be constructed.[23] Judge Coxhead identified the relevant issues as being: (1) who owned thehouse; (2) whether Mrs Nicholas had a right of occupation of the land; and (3) whethera permanent injunction should be granted.[24] The Judge adopted the principles and approach set out by Judge Milroy in NgaUri a Maata Ngapo Charitable Trust v McLeod.15 In that case, the Judge had said:[34] Case law makes it clear that the Court's jurisdiction is declaratory innature – the Court may declare existing ownership rights at law or in equitybut cannot create new ownership rights. It follows from the wording of thesection that the Court may also determine that a building is not part of the landand that the beneficial owners of the land as a group are not the owners of thebuilding.[35] Although common law provides that the owners of the land own anyfixtures, s 18(1)(a) enables the Court to recognise that one or more of theowners may separately own a particular improvement. In determining thesematters the Court has equitable jurisdiction and may recognise constructivetrusts.[25] Applying Auckland City Council v Ports of Auckland, the Judge accepted thatthe house, with its concrete foundation, could not be moved and was to be treated aspart of the land. In accordance with conventional common law principles, ownershipof the house would run with the land. Accordingly, the trustees were the legal ownersof the house.16[26] However, the Judge acknowledged that the trustees' ownership rights weresubject to any equitable interests and noted, further, that the trustees did not claimownership of the house, and instead took a "neutral" position.17 The Judge turned toconsider Mrs Nicholas' claim that she had an equitable interest in the house.He canvassed the relevant principles on the existence of constructive trusts based on15 Nga Uri a Maata Ngapo Charitable Trust v McLeod – Harataunga West 2B2A1 (2012) 49 WaikatoManiapoto MB 223 (49 WMN 223) (footnotes omitted).16 Māori Land Court judgment, above n 2, at [22]–[23], citing Auckland City Council v Ports ofAuckland Ltd [2000] 3 NZLR 614 at [72]–[76].17 Māori Land Court judgment, above n 2, at [23]–[25].improvement to property by reference to Lankow v Rose,18 Stratulatos v Stratulatos19and Tipene v Tipene.20 The Judge held that, as a result of the improvementsMrs Nicholas had undertaken, she was the owner of the house.21 Although the Judgeused the word "ownership" it is probably more apt to say that Mrs Nicholas had anequitable interest in the house, which is how her claim had been advanced.[27] However, the Judge considered that ownership and occupation were separatematters and that an order under s 18(1)(a) determining ownership rights in a buildingdoes not, in itself, carry with it a right of possession or occupation.22 Rather, becausethe land is administered by a trust, the trustees, as the legal owners of the land, controlthe use and occupation of it, subject to questions of equitable estoppel:[45] Where ownership of a building is determined as being ownedseparately, the question of any right to occupy the land will ordinarily need tobe negotiated with the trustees. Where the Court can intervene, is if equityrequires it in order to do justice as between the parties.[50] In my view, the correct position is that ownership and occupationare two separate matters. If the Court finds ownership and the owner wantsthe house to remain on the land, then they need to seek authority from thetrustees for that occupation, as the trustees as legal owners control theoccupation and use of the land. Where the Court can intervene is where thetrustees have created a reasonable belief that the owner would have some rightto occupation, the owner has relied on that expectation to their detriment andit would be unconscionable for the trustees to deny this. In such situations theCourt intervenes in equity to prevent the trustees from enforcing their legalrights to have the building removed.[28] The Judge went on to conclude that the trustees had not done anything to createan expectation that Mrs Nicholas could acquire an interest in the land. Her right tooccupy depended on the licence to occupy, which had expired in 2012:[51] I consider that the criteria to establish a constructive trust or equitableestoppel do not exist in the present case. The trustees have not, by theiractions, given rise to any valid assumption, belief or expectation for PhyllisNicholas to rely on. The most Phyllis Nicholas could rely on is the licenceto occupy and nothing the trustees did or said created any belief or expectationthat she would have an interest in the land. Further, there is no evidence thetrustees were aware of any arrangements regarding the licence as between18 Lankow v Rose [1995] 1 NZLR 277 at 294.19 Stratulatos v Stratulatos [1988] 2 NZLR 424 at 436–437.20 Tipene v Tipene - Motatau 2 Section 49A4F (2014) 85 Taitokerau MB 2 (85 TTK 2).21 Māori Land Court judgment, above n 2, at [32].22 At [43].Frank Martin and Phyllis Nicholas and, while it may have been expected thatthe forestry lease would continue until 2066, it was terminated in 2012. Therights granted by the licence under that lease could not as a matter of law gobeyond the lease. [While the trustees have arguably allowed the wider Martinwhānau to occupy the land since 2012, at most this would be a bare licenceand it is clear by commencement of these proceedings that any such licence isnow intended to be revoked.] It is therefore my view that Phyllis Nicholas, asthe owner of the shed, has no authority to have that shed on the land.[29] Given that the trustees had considered and refused Mrs Nicholas' request foroccupation of the land and had made it clear that they did not want the shed to stay onthe land, the Judge concluded that an injunction should issue.23The finding that the trustees were not estopped from denying that Mrs Nicholashas a right of occupation[30] Mrs Nicholas' position is, essentially, that the trustees are estopped fromdenying that she has a right to occupy, notwithstanding the termination of the forestrylease. She argued that while the forestry lease and licence to occupy were in placethere was no need for her to have any separate agreement with the trustees and that theterms of the trustees' consent to the licence to occupy created a reasonable expectationthat she was entitled to remain in occupation until 2066.[31] The finding of the Māori Land Court that the house was part of the land andthat Mrs Nicholas owned the house were not challenged. The Māori Appellate Courtagreed that the right to occupy the house was dependent upon the licence to occupy.It did not accept that the trustees had done, or omitted to do, anything that might havejustified an expectation by Mrs Nicholas that she was entitled to occupy the propertybeyond the termination of the forestry lease.24[32] The Māori Appellate Court noted particularly that Mrs Nicholas did not haveconsent from the advisory trustees to occupy the land, and that even if such consenthad been given, the authority to grant a licence to occupy lay with the Ministry ofForestry. There was, therefore, no basis on which Mrs Nicholas could reasonably haveexpected to occupy the land, except as set out in the licence granted by the Ministry,23 Māori Land Court judgment, above n 2, at [65].24 Māori Appellate Court judgment, above n 8, at [39].and when the forestry lease came to an end in 2012 that also brought the licence tooccupy to an end.25[33] The Māori Appellate Court said:[39] Ultimately, although the appellant hoped to occupy the land for amuch longer duration, she ought to have been aware that the right ofoccupation under the licence would end if the Ministry of Forestry's leasecame to an end. This is explicit in the Deed of Licen[c]e to Occupy. We seenothing in the evidence in terms of the conduct of the trustees that wouldsupport a reasonable expectation that [Mrs Nicholas] would be entitled to aright of continuing occupation once the forestry lease ended.[34] There was no disagreement as to the essential elements of equitable estoppel.Mrs Nicholas had to prove the creation or encouragement of a belief or expectation bythe trustee, reliance by her on that, and detriment as a result.26 Mr McKechnie, for thetrustees, accepted that Mrs Nicholas may have had a certain belief or expectation inher own mind but submitted that this fell well short of a reasonable expectation thatshe would be entitled to continue occupying the land after the termination of theforestry lease.[35] In our view the Courts below placed undue emphasis on the termination of theforestry lease without adequately considering the circumstances in which the licenceto occupy had been granted, and in which Mrs Nicholas had incurred the cost ofconstructing the house.[36] The trustees had explicitly consented to the Ministry granting a licence tooccupy to the Martin family. That consent was made on the following terms:271. Provided you are satisfied that the Whakatāne District Council buildingpermit has been fully complied with.2. You assume responsibility to ensure that the Martin family do actuallyreimburse you for lost revenue due to the loss of one hectare of trees.Then the trustees approve the issuing of the building licence to theMartin family of the existing building on the land but that the licencebe subject to the following conditions:25 At [38].26 Goldstar Insurance Co Ltd v Gaunt [1998] 3 NZLR 80 at 86.27 Recorded in the Māori Appellate Court judgment, above n 8, at [7].1. That the licence to occupy will be for the remaining unexpiredportion of the lease only which expires on 31 May 2066.2. That from 1 June 2066 the future of the building will depend onowners of the land at 31 May 2066.3. That the Martin family meet all costs associated with theLicence.[37] The first two conditions required the Ministry to be satisfied of the specifiedmatters. There was no evidence that the Ministry was not satisfied of them and theydo not assume any significance in relation to the issues before us.[38] The remaining three conditions are significant, however. In terms of duration,the first condition conveys that the licence to occupy would run until the expiration ofthe forestry lease. However, the second condition conveys that the licence to occupywould run until the expiration date of the forestry lease — May 2066 — regardless ofwhen the forestry lease actually ended, meaning that it was only after that date thatthe right to occupy the house would depend on the trustees. This statement could onlyreasonably be interpreted as meaning that the trustees would permit Mrs Nicholas tooccupy the land until May 2066, and only after that date would her situation dependon whether the trustees agreed to further occupation. To put it another way, the termsof the trustees' consent amounted to a representation that Mrs Nicholas would beentitled to occupy the house until May 2066, even if the forestry lease were to endbefore then.[39] The circumstances around the termination of the forestry lease in 2012 wereunclear. Mr Sharp, for Mrs Nicholas, suggested that it may have been connected tothe Waitangi Tribunal hearings into the Urewera claims being held at the time, whichincluded a claim regarding the Te Whaiti-Nui-A-Toi forestry lease. But in any event,as we have noted, Mrs Nicholas was not informed of the termination. The trustees,however, were aware that the house continued to be occupied (albeit by Mrs Nicholas'wider whānau). It is impossible to think that they did not also appreciate that theessential aspects of occupation such as maintenance of the house and grounds werenot continuing.[40] In these circumstances we are satisfied that by the terms of their consent to thelicence to occupy, the trustees made a representation that Mrs Nicholas would beentitled to occupy the house until May 2066. We are satisfied that Mrs Nicholasincurred expenditure and undertook work on the house and its surrounding grounds inthe belief that that she would be able to occupy the house until May 2066. In our view,it would be unconscionable for the trustees to now go back on that representation. Theappeal therefore succeeds on this ground.The effect of finding that Mrs Nicholas could only acquire a right of occupationby contributing to the land, as opposed to the house[41] The conclusion we have reached on the previous issue means that, strictly, wedo not need to consider the Māori Appellate Court's conclusion that, notwithstandingMrs Nicholas' ownership of the house, she had not acquired any right to occupy itbecause she had not contributed to the land on which the house stands.28 However,given the complexity of this question, our views may be of some assistance to theMāori Land Court and the Māori Appellate Court in future cases.[42] Mrs Nicholas had asserted "an equitable interest in the land" arising from theinterest she had as a result of constructing and maintaining the house, which she haddone with the reasonable expectation of acquiring the right to use the house so that theowners of the land could not, in conscience, deny her that right. Essentially, sheasserted a constructive trust as was shown to exist in Lankow v Rose.29[43] The Māori Land Court had accepted that, as a result of a constructive trust,Mrs Nicholas owned the house.30 As we have earlier observed, this description doesnot reflect the findings made and would be more aptly described as Mrs Nicholashaving established an equitable interest in the house through a constructive trust.However, the Māori Appellate Court did not accept that a constructive trust couldresult in an interest in the land on which the house stood so as to permit occupation ofthe house.31 The Court considered that, whereas an orthodox constructive trust asdescribed in Lankow v Rose conferred an equitable interest in the land, that was not28 Māori Appellate Court judgment, above n 8, at [37].29 Lankow v Rose, above n 18.30 Māori Land Court judgment, above n 2, at [32].31 Māori Appellate Court judgment, above n 8, at [28].possible in relation to Māori freehold land.32 The result was that, althoughMrs Nicholas was recognised as the owner of the house, she was not permitted tooccupy it.33[44] The Court described the nature of the constructive trusts recognised by Gilliesv Keogh34 and Lankow v Rose, noting particularly that they provided a way ofresponding to the fact that de facto relationships were not recognised under theMatrimonial Property Act 1976 and subsequently the Property (Relationships) Act1976 (PRA).35 It concluded that the constructive trusts imposed in these cases affectedboth land and improvements because the term "matrimonial home" was defined inthose Acts as including the house together with any land, buildings or improvements.But since the PRA expressly excludes Māori freehold land from the ambit of the Act,a constructive trust could not be imposed to resolve a relationship property disputeinvolving Māori freehold land.36 Instead, a constructive trust could be imposed overother property so that the non-legal owner could be compensated for their interest inthe house, assuming circumstances allowed it.37[45] Extrapolating from the relationship property context, the Māori AppellateCourt concluded that the reasonable expectation test could only lead to an interest inMāori freehold land, as opposed to a house on the land, if the contribution were madeto the land itself:[35] With regard to Māori freehold land, the Courts' approach toimprovements on land differs from that under the Property (Relationships) Act1976, as the Court can recognise a separation in the ownership of theimprovement from the ownership of the land. This is a means of ensuringequity between owners, as the common law assumption is that a fixture isowned by all the owners.[36] Given that the approach in our jurisdiction is to separate the ownershipof the improvement from the ownership of the land, it follows that thereasonable expectation test must be applied with respect to both theimprovement and the land if the claim is to succeed. The claimant must satisfythe Court that he or she has a reasonable expectation to own or possess theimprovement, and that he or she also has a reasonable expectation to own or32 At [32].33 At [40].34 Gillies v Keogh [1989] 2 NZLR 327.35 Māori Appellate Court judgment, above n 8, at [31]–[32].36 At [32]–[33], citing Property (Relationships) Act 1976, s 6.37 At [34].possess at least that portion of the land on which the fixture is located. Whereland is vested in trustees, the trustees are the legal owners of all of the landrather than those with shares in the land owning a portion according to theirshare.[46] Applying that approach to the facts of the case before it, the Court concludedthat:[37] If we accept the submission of counsel for the appellant that aconstructive trust ought to be imposed on the basis of a reasonableexpectation, the subject matter of the constructive trust is limited to theproperty to which the appellant made a direct contribution. The lower Courtconsidered the appellant's financial contributions to the shed and recognisedthese contributions by granting an order determining ownership of the shed inthe appellant's favour. In our view the appellant's contributions have beenrecognised. There is no evidence that the appellant made any directcontributions to the land that would give rise to a reasonable expectation of aninterest in the land.[47] This approach seems inconsistent with that taken in previous decisions of boththe Māori Land Court and Māori Appellate Court. It also gives rise to the question: ifan order under s 18(1)(a) as to ownership does not confer a right to occupy, what rightsdoes it confer? We make the following observations as a way to identify the relevantprinciples.[48] First, both the Māori Land Court and the Māori Appellate Court have longaccepted as applicable to Māori freehold land, the common law position that astructure affixed to the land may become part of the land, and if that is the case, beowned by the legal owners of the land.38 That is the position in this case.[49] Secondly, it has also long been the position in the Māori Land Courtjurisdiction that the interests of the legal owners are subject to equitable interests.These can include interests arising by way of constructive trust over structures thathave become part of the land, which may be recognised by way of an order unders 18(1)(a).39 How such an interest is recognised depends, however, on whether the38 Tohu – Te Horo 2B2B2B Residue (2007) 7 Whangarei Appellate MB 34 (7 APWH 34) at [16];Stock v Morris – Wainui 2D2B (2012) 41 Taitokerau MB 121 (41 TTK 121) at [20]–[22]; Nga Uria Maata Ngapo Charitable Trust v McLeod, above n 15, at [48]–[52]; Clarke v Rewha – HauaiNo 2G Sec 2B (2019) 186 Taitokerau MB 68 (186 TTK 68) at [14]–[16].39 Stock v Morris, above n 38 at [22]; Matenga v Bryan – Parish of Tahawai Lot 18C-F and 18I(2003) 73 Tauranga MB 150 (73 T 150); Nga Uri a Maata Ngapo Charitable Trust v McLeod,above n 15 at [35] and [55]; Thompson – Succession to Walter William Wihongi (2015) 117person having an equitable interest is also a legal owner of the land. In Stock v Morris,the Māori Land Court explained:40[65] Section 18(1)(a) enables the Court to "do equity" in relation to Māorifreehold land. While the Preamble and ss 2 and 17 set the kaupapa of the Actand promote the interests of the owners, the Court cannot allow the actions ofowners to cause injustice to non-owners. The case law provides helpfulguidance on the appropriate remedies where non-owners have contributed toimprovements on Māori freehold land.[70] There is no bar to the Court making a s 18(1)(a) order in favour ofa non-owner. However, an order vesting interests in the land or a right topossession of the land (or part of it) in favour of a non-owner will likely offendthe kaupapa and provisions of the Act Where the Court concludes that anon-owner is entitled to equitable relief, the Court will in the first place lookto awarding monetary compensation. If monetary compensation isinappropriate, the Court may award ownership of the house if it can beremoved from the land. The Court will take into account the non-owner's freeoccupation of the land as a factor. Ultimately, each case depends on its ownfacts.[50] In Tipene v Tipene, the Māori Land Court applied the principle from Lankow vRose that "a constructive trust can be given practical effect by such means as the justiceof the case requires." In doing so, Judge Doogan commented:41 The most common means are either a vesting order or an order for paymentof the assessed value of the beneficial interest I note for completeness thatI share the reservations expressed by Judge Ambler in the Stock v Morris caseas to whether or not a non-owner can be granted a right of possession unders 18(1)(a).[51] Thirdly, in previous cases under s 18(1)(a)'s predecessor, s 30(1)(a) of theMāori Affairs Act 1953, the Māori Land Court has expressly said that where aco-owner of multiply owned Māori freehold land builds a house with the acquiescenceof their co-owners, they acquire exclusive possession of the part of the land the housestands on.42 In Stock v Morris, the Judge observed that although the references topartition in these older cases are no longer as relevant under s 18(1)(a), the "essentialTaitokerau MB 245 (117 TTK 245) at [26]–[27]; and Tipene v Tipene – Motatau 2 Section 49A4F(2014) 85 Taitokerau MB 2 (85 TTK 2).40 Stock v Morris, above n 38.41 Tipene v Tipene, above n 39 at [63], citing Lankow v Rose, above n 18, at 8. Footnote omitted.42 See Kopa v Kopa – Kotuku B1 Block (1983) 62 Whangarei 182 (62 WH 182) at 186; and Sadlier– The Proprietors of Anaura (1987) 24 Ruatoria MB 61 (24 RUA 61) at 63.point made is that the order creates an equitable charge or right that is distinct fromthe legal ownership of the land".43[52] The effect of the Māori Appellate Court's decision in the present case wouldbe that a co-owner of Māori freehold land who acquires the equitable ownership of ahouse that is part of that land does not acquire any right of occupation unless they havealso contributed to the land on which the house is situated. It is not clear what thismeans in a practical sense and it seems to be inconsistent with the principles that wehave just discussed, which have long been applied in the Māori Land Courtjurisdiction. A review of the case law suggests that (at least in the case of a co-ownersuch as Mrs Nicholas) there is no impediment to a constructive trust being givenpractical effect by a right of occupancy, should justice require it in the circumstancesof that particular case. Where a constructive trust is made out in respect of a house,and neither compensation nor removal of the property are possible or appropriate,there seems to be no reason that the equitable owner cannot enjoy occupation rights.[53] Acknowledging the distinct jurisdiction and expertise of the Māori Land Courtand Māori Appellate Court, we nevertheless cannot see a principled basis for the MāoriAppellate Court's finding that in order for a constructive trust to give rise to a right tooccupancy, separate contributions to the land itself must also be made out.Results[54] The appeal is allowed. The decision of the Māori Appellate Court is set aside.[55] There is a determination under s 18(1)(a) of the Te Ture Whenua Māori Act1993 that the appellant has a right to possession of the house built by her on the blockof land known as Te Tuturi C, which entitles her to occupy the house and its curtilage,until 31 May 2066.[56] The matter is remitted to the Māori Land Court for reconsideration of theinjunction in light of the findings of this Court and, if necessary, the specific areaconstituting the curtilage.43 Stock v Morris, above n 38, at [29].[57] The respondent must pay the appellant costs for a standard appeal on a band Abasis and usual disbursements.Solicitors:Te Whenua Law, Rotorua for AppellantGraeme Dennett, Rotorua, for Respondents