THE PROPRIETORS OF POTIKIRUA BLOCK INCORPORATION v TE KANI [2019] NZHC 3200 _x000b_

THE PROPRIETORS OF POTIKIRUA BLOCK INCORPORATION v TE KANI [2019] NZHC 3200[5 December 2019]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECIV 2013-416-153[2019] NZHC 3200BETWEEN THE PROPRIETORS OF POTIKIRUABLOCK INCORPORATIONPlaintiffAND RENATA TE KANI as administrator of theEstate of WAMOANA TE KANIDefendantHearing: 10–12 June 2019Further information provided on 29 July 2019 and4 December 2019Counsel: J P Koning and D W Ballinger for PlaintiffN Weatherhead for DefendantJudgment: 5 December 2019JUDGMENT OF MALLON JTable of ContentsIntroduction [1]The background facts [4]The Incorporation [4]Wharekahika A15 [7]What the documents show [10]The amalgamation [11]Wamoana's requests in the 1980s [15]The 1990 AGM [41]The 1991 Committee meetings [47]The creation and transfer of Lot 1 of DP 8212 [49]Subsequent events [62]What the witness say [79]The evidence of Mr Matchitt [79]The evidence of Ms Pook [84]Unusual features of the documents [89]No payment of $26,000 [99]Value of Te Kani Land [100]My assessment of the facts [102]Māori Land Court decision [112]The legislation [116]Governing legislation [116]Māori land [119]Māori Land Court jurisdiction [120]Partition applications [126]Māori incorporations [134]Resource Management Act 1991 [144]Did the transfer of the land comply with legal requirements? [146]What are the consequences of non-compliance? [156]Limitation Act [166]What about the shares? [170]Result [173]Costs [176]Introduction[1] The plaintiff is the Proprietors of Potikirua Block Incorporation (theIncorporation). It seeks the return of a 29.7 hectare block of land (the Te Kani Land)from the registered proprietor Renata Te Kani (the defendant), the administrator of theestate of Wamoana Te Kani.[2] The plaintiff contends the Te Kani Land was transferred to Wamoana withoutconsideration, pursuant to mistakes about the statutory requirements for such atransfer, and was unlawful. It contends that Wamoana was unjustly enriched by thetransfer in these circumstances and this qualifies as an exemption to Wamoana'sindefeasible title to the Te Kani Land.[3] The defendant accepts the transfer did not comply with the statutoryrequirements. He says, however, that the transfer was effected transparently andthrough the appropriate agents and therefore no unconscionability arose. Further, hesays the Incorporation's claim has been brought out of time and it is now too late togrant the Incorporation any remedy.The background factsThe Incorporation[4] The Incorporation is a Māori incorporation formed under the Māori Affairs Act1953. It owns a large area of Māori freehold land (almost 2,500 ha) (the PotikiruaBlock) located at Cape Runaway in the Bay of Plenty. The Potikirua Block iscomprised of several blocks of land that are administered together.[5] The Incorporation owns and administers the Potikirua Block for the benefit ofits shareholders. There are approximately 360 shareholders. They whakapapa to oneor both of Ngāti Porou and Te Whānau a Apanui iwi. Most of them belong to theWaenga whānau and are descendants of Whaka Parakau and Mere Rewiti.[6] On the western part of the Potikirua Block is a sheep and cattle farm. On theeastern and southern parts is a forestry operation. There are also beehives on the landand honey production is a major source of income.Wharekahika A15[7] Wharekahika A15 is a 264 ha block of Māori freehold land which wasamalgamated with the Potikirua Block and is located on the far eastern side. Prior toits amalgamation into the Potikirua Block, the majority owner of Wharekahika A15was Tahanga (Taha) Wanoa. Taha was connected to the Waenga whānau as a whangai(adopted child) who was raised by Whaaka and Kararaina Parakau.[8] Taha's wife, Raukura Wanoa, and his daughter, Wamoana Te Kani (nee Wanoa)also had ownership interests in Wharekahika A15.1 Wamoana married Parekura (Lob)Te Kani in 1952. They had one child, Renata Te Kani.[9] What later became the Te Kani Land was part of Wharekahika A15. It is flatgrazing land which has been used for the production of supplement and to graze sheep1 As at 1960, two other members of the Wanoa whānau also had interests. At the time of theamalgamation into the Potikirua Block the shareholders of Wharekahika A15 were Taha(2,099 shares); Wamoana (688 shares), Raukura (30 shares); Ruahuihui Karapaina (128 shares)and Tamatami Waiariki (8 shares).and beef. It is separated from the rest of the Potikirua Block farming operation byapproximately five kms and a forestry block. It includes a homestead that has beenoccupied by the Wanoa whānau for generations.What the documents show[10] The plaintiff called evidence at the trial from Tuihana Pook and Eddie Matchitt,who have been members of the Incorporation's Committee of Management (theCommittee) since 1984 and 1977 respectively. The events which they were seekingto recount took place more than 27 years ago.2 Understandably, they had difficulty indoing so. I start with reviewing what the documentary evidence discloses of the eventsand then consider Ms Pook and Mr Matchitt's evidence in light of this.The amalgamation[11] Wharekahika A15 was operated as a farm. By the mid-1960s, the owners ofWharekahika A15, led by Taha, decided that it was not economic on its own and shouldbe amalgamated with the Potikirua land (at that time comprising Whangaparaoa 2Dand 2E2B1 and Wharekahika A3 and A6). This was agreed to by the owners of thePotikirua land.[12] This was put before the Māori Land Court which ordered, in December 1967,that Wharekahika A15 be amalgamated with Whangaparaoa 2D and 2E2B1 andWharekahika A3 and A6. The Court was satisfied that the land could be moreconveniently or economically worked if it were held under one title. At the same time,the Incorporation was created and took title to the amalgamated land (the PotikiruaBlock).[13] As a consequence of amalgamating Wharekahika A15 into a single title vestedin the Incorporation, Taha, Raukura, Wamoana and the two others with small interestsin Wharekahika A15 became shareholders in the Incorporation (with shareholder2 The memorandum of transfer by which the Te Kani land was transferred to Wamoana was signedon 6 July 1992.voting and dividend rights).3 Taha Wanoa surrendered his lease over WharekahikaA15 and sold his stock to the Incorporation.[14] When Taha and Raukura died, Wamoana succeeded to their shares in theIncorporation. This made her one of the largest individual shareholders in theIncorporation.4Wamoana's requests in the 1980s[15] From about 1981, and possibly earlier, Wamoana had been asking theCommittee to support the return of an area of Wharekahika A15, including the familyhomestead, to her immediate family. She was supported in these requests by herhusband, Parekura, who was not a member of the Waenga whānau. Wamoana andParekura lived in Gisborne but visited Wharekahika A15 from time to time.[16] The first recorded instance of Wamoana asking for the return of WharekahikaA15 was at the Incorporation's annual general meeting (AGM) of 20 January 1981.The minutes record that Wamoana asked whether the whole of Wharekahika A15could be returned to her family. The Incorporation Chairman, Mr Stainton, indicatedthat this type of request was new and would probably have to be considered by theMāori Land Court because there had been a legal amalgamation. The minutes record"the Committee was sympathetic to an arrangement on the homestead". It was agreedthat "a firm proposal was required to the Committee to start proper procedures".[17] The Committee convened again on 29 March 1981 because it had received afollow up letter from Wamoana requesting that Wharekahika A15 be partitioned. Amember of the Committee considered that granting the request would encourage morerequests for partition. The Committee discussed that the land had been amalgamatedat Taha's request but Wamoana might have a "small lever" if she had objected to this.The Committee decided to obtain the Māori Land Court minutes before formulating areply. It also discussed "questions of partition, County Subdivisional approval" andwhether it could grant occupancy. It passed the following resolution:3 Above, n 1.4 At the time of the amalgamation there were 97 shareholders, holding a total of 118,709 shares.Taha held 5,563.17 shares, Raukura held 81.15 shares and Wamoana held 4,732.5 shares.That the committee agree to the continued and undisturbed occupation of theWanoa homestead and section by Wamoana Te Kani but that the committeeaccept no responsibility for repairs and maintenance but will fence off theagreed area.[18] Following this meeting, the Committee told Wamoana by letter that her requestfor partition was a difficult matter but would be investigated. Once the facts wereclarified, the Committee would meet again "to prepare their recommendation fordiscussion with you, if you wish, or to present to the Land Court if you intend to lodgean application for partition". The letter advised Wamoana that the Committee was"favourable" to the homestead site and, if there were problems with subdivisionapproval, it would agree to Wamoana having undisturbed occupation of the homesteadand section as stated in the above resolution.[19] Wamoana raised the return of Wharekahika A15 at the following year's AGMon 19 January 1982. She wanted a "yes or no answer". The Chairman explained thatthe Committee did not see how it could agree to partition when Taha Wanoa himselfhad asked for the land to be amalgamated. Committee members' Hikitia Tukaki andWaranga Maangi said that, in light of all the plans under way for the Incorporation,the request for "a yes or no" would be answered "no" but it was Wamoana's right toapply to the Court for a partition. Parekura said that he and Wamoana recognised thecomplexities but did not want a compromise solution such as just having the use of anarea around the homestead.[20] On 3 May 1982 Wamoana wrote to the Māori Affairs Department seekingadvice about whether she could apply to have Wharekahika A15 released from thePotikirua Block. She said she wanted the whole of Wharekahika A15 returned so thather family could have an economical farming unit to manage.[21] She then wrote to the Incorporation Chairman on 26 July 1982. She said shethought the only avenue left was to file an application to wind up the Incorporation sothat the land would revest in the owners and she could then apply for a partition ofWharekahika A15. Her grounds for an application would be that the land had reverted,was not being properly farmed or providing any income or support to shareholders,and the land could be better utilised if "the owners" (Wamoana and her family) wereto farm it themselves. Wamoana said she was willing to meet with the Committee todiscuss alternatives such as the Incorporation bringing an application cancelling itsIncorporation in respect of only Wharekahika A15.[22] The Committee held a meeting the following month, on 24 August 1982, todiscuss Wamoana's concerns regarding Wharekahika A15. The Committee discussedhow a partition of Wharekahika A15 would affect Potikirua's farming, forestry andhorticulture programme. The Farm Supervisor, Mr Hall, said there was no forestryagreement on the "A15 area easy land which was planned for pasture and hay makingwith a haybarn erected". The Committee agreed it would oppose any move to windup the Incorporation in the interests of the majority of owners. The Committeerecorded that it was approaching the matter on the basis of "family spirit and not onhow the letter was expressed which could be answered [by] the Land Court ifnecessary".[23] The Committee resolved:That the Incorporation did not object to Wamoana lodging an application forpartition of her shares in the area previously known as Wharekahika A15 andthat the Incorporation will present its records to assist the Court to come to adecision which is fair to both parties.[24] Wamoana and Parekura joined the meeting in the afternoon. They acceptedthe Committee's resolution was favourable to their proposal. Waranga Maangi notedthat it was not a final decision because it would have to be finalised through the MāoriLand Court. Parekura responded that he did not wish to be in argument at the Courtand asked for the Committee to lay down a proposal or assist them in lodging anapplication for partition. In response to this, the minutes record:N. Perry asked if an agreed basis could be prepared between the Committeeand Wamoana to present to the Court. H. TeMoana supported this andproposed that N. Perry be asked to assist.There were no objections to this proposal.In concluding the meeting the chairman stated that he wished it to berecognised that the Committee decision was concluded on 'te aroha' and hehoped an agreement fair to both parties and also other owners could be workedout to take to the Land Court.[25] On 27 September 1982 Wamoana followed up with a letter to theIncorporation. She recorded her understanding that the Committee had unanimouslyresolved that "the Incorporation consent to the partition of our family block formerlyknown as Wharekahika A15 from the Incorporation". She asked for a copy of theresolution to support the application and to bring the Incorporation's resolution intoeffect. She said the resolution would be brought to reality at the Te Kani family'sexpense as discussed at the meeting, and they were in the process of instructing asolicitor to act for them.[26] Wamoana duly instructed Wattie Mackey, a Gisborne solicitor. On 29 October1982 he wrote to the Incorporation Chairman advising of his instruction. He said heunderstood the Incorporation was agreeable to a partition, and that therefore a partitionorder could be made by consent. He sought confirmation of this. He sent a furtherletter on 24 November 1982. By this time he had discussed the matter with Committeemember Sir Norman Perry who had proposed a meeting. He also had the minutes ofthe 24 August 1982 meeting. He referred to them and said:If this means that the Incorporation is agreeable to the land formerly knownas Wharekahika A15 being returned to its previous owners subject toagreement being reached on any matters that the Incorporation considersappropriate, please advise me as soon as possible.[27] The Incorporation's Chairman, Mr Stainton, responded in December 1982.5He said his response was a "confidential note of explanation and not for use in theLand Court unless we agree otherwise". He said the Committee had agreed with theTe Kanis to work out a plan that was fair to both the Incorporation and Wamoana, andthat Parekura had accepted it could be a complex matter to get all the details workedout. He said:We need this to help and to be able to satisfy shareholders that we would bedoing the right thing in all their interests to consent to a partition of shares,that the purpose is to settle one of the family etc, etc.[28] Mr Stainton proposed a meeting and that he would arrange a paper from theFarm Supervisor as a basis for the meeting. The plan was:5 The record of this response is signed "Chairman". Other records from this period show thatMr Stainton remained the Chairman at this time. to make a realistic agreement together in light of the originalcircumstances, the changes in shares and valuations and how to deal with anybinding agreements or contracts, in the forestry for example, which may be onpart of the area previously known as Wharekahika A15.[29] On 17 January 1983 the Incorporation Committee met to discuss variousmatters, including the proposed partition, prior to the AGM set for the next day. TheCommittee noted that any partition or lease may require Town and County planningapproval and result in the loss of coastal reserve. Wamoana and Parekura attendedpart of the meeting. Parekura made it clear that the Te Kanis wanted a partition of allof the former Wharekahika A15 block. Mr Stainton said the earlier resolution hadbeen "not to object to a partition in that block but now the request was for all the block,which was a difficult matter and had many problems from such partition orsubdivision, valuations and forestry plans" (emphasis in original). Committeemembers supported the Chairman's remarks and "asked that the case go ahead on thegoodwill basis of the resolution agreed at the Opotiki meeting".6 Parekura said thiswas not acceptable as it did not cover all of the A15 land. He said that the Te Kaniswould have to apply to the Court for the Incorporation to be wound up.[30] At the Incorporation's AGM the following day, Mr Stainton read out andconfirmed the Committee's resolution made at the 24 August 1982 meeting that theIncorporation did not object to Wamoana lodging a partition application and that itwould present its records to assist the Court to come to a decision which was fair toall parties. He said the Committee had not been able to reach an agreement and "therewere problems about a partition of all of A15 as demanded" but the Committee'sresolution "could be a basis to find a solution". Parekura was concerned their partitionrequest had been declined by the Incorporation and raised the fact that 77 acres of flatland of Wharekahika A15 was not part of the forestry lease. The Chairman said it wasnot the case that the request had been declined and the Committee's resolution stillstood.[31] There was then a series of correspondence between the Incorporation, itssolicitors (Potts & Hodgson), Wamoana's solicitor (Mr Mackey) and the forestry6 The resolution on 24 August 1982 (at [23] above).consultant (P F Olsen & Co Ltd). In correspondence in February and March 1983, thefocus was on whether there would be issues with a forestry lease:(a) Mr Mackey wrote to the Incorporation Chairman saying hisunderstanding was that the AGM had agreed "to release my client'sland back to her or a part thereof" and considered that consent from alessee (Caxton Paper Mills Ltd ("Caxton")) would also be necessary.(b) In response, the Chairman explained to Mr Mackey that a partition ofall of the Wharekahika A15 land would be difficult when "precedents,valuations and forestry agreements would be involved". He consideredthat if Wamoana agreed to accept a release of part of the WharekahikaA15 land, and the Court made such an order, then he could not see thatCaxton would be able to withhold consent.(c) The forestry consultant advised that the entire Potikirua Block wasleased and thought that partition would require consent from theforestry lessee and the Incorporation.(d) In forwarding the forestry consultant's response to the chairman,Mr Mackey stated that "Potikirua is now classified as European Landand the Māori Land Court cannot order Caxtons to do anything".7[32] The correspondence continued over the following months with the focus onwhether a part of Wharekahika A15 might be released:(a) In May 1983 the Chairman confirmed that all of Potikirua was underlease but suggested that, as the part of Wharekahika A15 between themain road (State Highway 35) and the Oweka River was at the timeexcluded from the planting programme, it might be easier to obtainCaxton's agreement to a release of this part. He said this would stillrequire the support of the Committee and that of the Incorporation in ageneral meeting.7 As discussed later, this is wrong.(b) Mr Mackey's reply in June 1983 expressed concern that the Caxtonlease had been entered into after Wamoana had been seeking the returnof the Wharekahika A15 block and had been led to believe theCommittee would cooperate with this. Mr Mackey also expressed thisview to the forestry consultant, and said Wamoana still wished topartition out Wharekahika A15 or, if that was not possible, "at the veryleast that part from the roadway up to the skyline, which apparently isgood farming land".(c) The forestry consultant response to Mr Mackey advised that itsprogramme did not include Wharekahika A15 for 1983/84; the areareferred to in Mr Mackey's letter was included in the forestrymanagement area but was not an attractive area for pastoral farmingand it would not be viewed favourably by Waiapu County as anadequate subdivision unit; but "the area of A15 east of the road to theOweka Stream (29.7443 hectares)" was excluded from forest plans andwas to be retained for farming by Potikirua. The forestry consultantalso wrote to the Chairman the same day suggesting that Wamoanamight sublease the area from the Incorporation.[33] By late June 1983 the Incorporation had instructed solicitors (Mr Peterson ofPotts & Hodgson) on Wamoana's claim. In July 1983 Potts & Hodgson wrote toMr Mackey reiterating the Incorporation's willingness to find a satisfactoryarrangement and that, because of the lease, the whole of Wharekahika A15 could notbe partitioned. They proposed an occupation arrangement on some of the land notbeing used for forestry. In September 1983 Mr Mackey responded that Wamoanawould like to have partitioned or subdivided into her sole name that part ofWharekahika A15 which was not included in the Caxton forestry plan. By lateOctober 1983 the Incorporation understood that Caxton had agreed that this areawould be released from the lease. Potts & Hodgson advised Mr Mackey of this andsaid it would cooperate with obtaining a partition of this area.[34] Mr Mackey then wrote to the forestry consultant in November 1983 with hisview that: it is not necessary however to proceed with a Partition Application to theMāori Land Court. The piece of land which my clients wish to subdivide fromthe Potikirua Block can simply be subdivided in the normal manner if yourclients agree and the Incorporation agrees.[35] The forestry consultant responded that they had not agreed to allow a partitionand surrender from the lease. Rather, they had agreed to Wamoana using that part ofthe land not required for forestry if the Incorporation consented.[36] The correspondence between Mr Mackey, Potts & Hodgson and the forestryconsultant continued into 1984. Wamoana still wished to have a partition of the land"east of State Highway 35 not set aside for forestry and obtain freehold title to thatland". There was a difference in view between Potts & Hodgson and Mr Mackeyabout whether a partition, which resulted in a subdivision of the Potikirua block, wouldentail the automatic forfeiture of foreshore reserve. Potts & Hodgson considered thatit would and considered the economic effect of this on the Incorporation's projectswould need to be taken into account in valuations. The forestry consultant wasconcerned that changes to the foreshore reserve, as a result of a subdivision, wouldencroach on farm land that was subject to its lease.[37] At the Incorporation's AGM on 20 December 1984 there was discussion abouttaking the farming area of Wharekahika A15 out of the forestry lease. The meetingthought that the validity of the forestry lease was questionable and resolved to have itsvalidity investigated by the Incorporation's solicitors.[38] At a Committee meeting held at around the same time the Committee approvedin principle Wamoana's proposal relating to a 29.7 ha area, subject to the Incorporationbeing comfortable that it would retain the foreshore reserve and receiving all relevantdata, including the proposed share adjustment and a plan of the area to be surveyed,to enable consultation and negotiation before it was confirmed by the Court.[39] On 28 January 1985 the Committee resolved to put the matter of Wamoana'spartition on hold pending the outcome of the investigation into the forestry lease. On31 May 1985 the Committee resolved that Parekura and Wamoana would have a leaseof the "Kahika area commonly known as Potaka" for 14 years pending the outcomeof the partition that Wamoana was seeking. It is unclear whether this lease was everformalised. It is also unclear what the outcome of the investigation into the validityof the forestry lease was.[40] No partition application was ever made in the 1980s.The 1990 AGM[41] According to the documentation, the next development was a Committeemeeting on or about 7 November 1990. By now, Eddie Matchitt was the Chairmanand Harry Satchell was the Secretary. The Committee resolved to seek agreementfrom the owners at the next AGM for partition of Wharekahika A15 from the mainHighway to Oweka River, including the house, to Wamoana. Failing that, this areacould be leased to Wamoana at a reasonable rental and, failing that, the house andsection was to remain with Wamoana. Potts & Hodgson then proposed some wordingfor these resolutions.[42] Public notice was given of the AGM to take place on 29 December 1990. Thenotice advised that the special resolution for consideration at the AGM was:Portion of Wharekahika A15 part of now known as Potikirua Inc from StateHighway 35 Potaka to Oweka River. MAF Act 1953 Sect.278(5) and 289.[43] The minutes of the AGM on 29 December 1990 record that the motion fordiscussion was "partition of Wharekahika A15 Potikirua to Wamoana Te Kani fromstate highway 35 Potaka to Oweka river approx. area of 70 acres".8[44] Mr Matchitt, as the Chairman, commented that the matter had been with theIncorporation for some time, and the Committee had resolved at its last meeting thatthe matter be put to the shareholders. He said the area did not include the house, anarea around the house, and the accessway from the main highway as they alreadybelonged to Wamoana and her family.8 This appears to be the same 29.7 ha under discussion in the 1980s.[45] The discussion on the resolution covered "forestry approval", "countyapproval", "owners approval", "Māori Land Court approval" and "would othershareholders want to partition".9[46] The motion was put to a secret ballot. Scrutineers were appointed. The motionwas defeated 19 votes against and 10 votes in favour.The 1991 Committee meetings[47] The Committee again discussed the option of a lease at its 12 April 1991meeting. The Committee resolved to offer to lease the area between State Highway 35and the Oweka River to Wamoana rent free for five years and then for $2,000-$3,000per annum thereafter. The lease would not include the house and the area around thehouse because that belonged to Wamoana and her family. Again, it seems that leasewas never formalised.[48] A record of a meeting between the Committee and Wamoana and Parekura on12 September 1991 stated:10After discussion the committee agreed to Wamoana applying for a partitionfor part of Wharekahika A15 between State Highway 35 to Oweka River, anarea of approximately 25 hectares. This partition to be carried out as soon aspossible.Moved by Harry SatchellSeconded by Eddie MatchittAll committee in favour of the motionThe creation and transfer of Lot 1 of DP 8212[49] As matters transpired, no partition application was ever filed in the Māori LandCourt. Instead, a number of steps were taken in 1991 to 1993 that led to thesubdivision of the Potikirua Block into three titles and the transfer of one of those titlesto Wamoana. That title comprises 29.744 ha and is between State Highway 35 and theOweka stream and is to the east of the rest of the former Wharekahika A15 block.9 The minutes record these as topics and do not state the content of the discussion on these topics.10 The minutes do not record the contents of the "discussion" that might have shed light on what theCommittee meant.[50] Wamoana and Parekura engaged Campbell Taylor, of Grant & Cookeregistered surveyors. Mr Taylor wrote to the Principal Assistant Land Registrar on3 October 1991:(a) advising that the Incorporation have "agreed to subdivide an area of31.1987 hectares" out of the Potikirua Block and sell it to one of theshareholders in the Incorporation, Wamoana, who would purchase theland by reducing her shareholding in the Incorporation;11(b) querying whether he was correct in his interpretation of s 11 of theResource Management Act 1991 that Māori land was exempt and sodid not need a resource consent;(c) stating that "even though Incorporation Land is Maori Freehold Landthe Maori Land Court have no jurisdiction"; and(d) seeking confirmation that he could lodge a plan for deposit without aCouncil consent on the plan.[51] The Principal Assistant Land Registrar replied on 29 October 1991:(a) He agreed a resource consent was not required. His view was that s 11of the Resource Management Act did not apply to Māori land unlessthe Māori Affairs Act 1953 provided otherwise. He said the MāoriAffairs Act 1953 made provision for partition orders, but not for"subdivisions of land" as defined by the Resource Management Act.Subdivisions of Māori land were therefore exempt from s 11.(b) He said that, because the land was held by a Māori incorporation underPart IV Māori Affairs Amendment Act 1967, dealings by the11 The plaintiff submits this was a misinterpretation of the Committee's September 1991 resolution.The Committee had agreed to "Wamoana applying for a partition". It had not agreed tosubdivision without Māori Land Court approval.Incorporation of the land "would only requiring noting in the MāoriLand Court".12(c) He would require the registration of an order from the Māori LandCourt, under s 30 of the Māori Affairs Act 1953, determining that theland is Māori freehold land.[52] The order from the Māori Land Court determining that the Potikirua Block wasMāori freehold land was given on 21 November 1991. The Judge noted in the minutebook that the order was sought at the insistence of the Principal Assistant LandRegistrar at Gisborne who required it as a prerequisite to accepting a subdivision planfor deposit.[53] Mr Taylor lodged the plan on 18 December 1991. The plan showed an area of29.744 ha between State Highway 35 and the Oweka stream (Lot 1) and a smallertriangular shaped area of 1.454 ha in the north corner separated from Lot 1 by a legalroad (Lot 2), comprising a total 31.198 ha of land. The plan was endorsed as approvedby the Incorporation with its seal affixed and the signatures of Mr Matchitt,Mr Satchell and Tuihana Pook (by now a member of the Committee). The planrecorded that it was "exempt pursuant to Section 11(2) of the Resource ManagementAct 1991".[54] The plan was lodged by Mr Taylor along with the 21 November 1991 MāoriLand Court determination and a copy of the 12 September 1991 Committee resolution,which by this stage had the Incorporation's seal affixed and Mr Satchell andMr Matchitt's signatures.[55] The Chief Surveyor approved the plan as to survey on 13 February 1992. TheAssistant Land Registrar advised Burnard Bull (the solicitors who were acting for12 The plaintiff submits this was incorrect, because a dealing by way of subdivision and transfer ofland needed to be processed by way of a partition application, which was a considerably moreinvolved process than a mere "noting" in the Court's records. The "noting" the Principal AssistantLand Registrar appears to be referring to is that required under s 233(1) of the Māori Affairs Act1953. As discussed later, he is correct that this is a noting requirement.Wamoana at this time) of this, and that the plan could be deposited when orders fornew titles were registered.13[56] Burnard Bull (Mr Isaac) then wrote to Potts & Hodgson on 3 April 1992advising that they were acting for Wamoana on the transfer of 29.744 ha ofWharekahika A15 and requesting that it produce the Potikirua title (CT 4C/224). Theletter enclosed a copy of the Committee's resolution dated 12 September 1991 assigned by Mr Matchitt and Mr Satchell.[57] In accordance with that request, by letter dated 29 April 1992 to the Registrarof the Land Transfer Office, Potts & Hodgson (Mr Peterson) produced CT 4C/224. Inits letter to Burnard Bull on 8 May 1992, Potts & Hodgson (Ms Riddell, a law clerk,supervised by Mr Peterson) acknowledged it had done so to "enable you to register atransfer from the Proprietors of Potikirua to Wamoana Te Kani".[58] The production of the Potikirua title (CT 4C/224), enabled the District LandRegistrar to cancel this title and three new titles were issued, including CT 5C/1337(Lot 1 of DP 8212) which is the 29.744 ha block that is the focus of this proceeding.[59] Steps were then taken to have the new 29.744 ha block, CT 5C/1337,transferred from the Incorporation to Wamoana. These steps included the preparationof a memorandum of transfer between the Incorporation as the transferor andWamoana as transferee. The land was described as having an area of 29.744 ha andbeing Lot 1 on Deposited Plan 8212 but the CT number was not included. The transferwas stated as being pursuant to "an oral agreement in consideration of $26,000 paidto the Transferor by Wamoana Te Kani the receipt of which sum the Transferorhereby acknowledges ". The Incorporation's seal was affixed in the presence ofMr Matchitt and Mr Satchell who had initially signed the memorandum on 19 May1992 and again on 6 July 1992.13 Counsel recall that Mr Mackey left Gisborne at some point and this accounts for the change inWamoana's legal advisors.[60] At some stage, it is unclear when, some details were added to the memorandumof transfer: namely, the CT number and that the transfer was subject to CompensationCertificate No: 174701.1.[61] The following steps also occurred:(a) 13 July 1992: Wamoana signed a statutory declaration under the LandSettlement Promotion and Land Acquisition Act 1952 for the transferof the 29.744 ha from the Incorporation which, amongst other things,declared she was the purchaser and that she had entered the transactionsolely on her own behalf.(b) 4 September 1992: the Assistant Land Registrar advised Burnard Bullthat registration of the memorandum of transfer could not be effecteduntil the provisions of the Māori Affairs Act 1953 relating to Māori landwere complied with and the transfer was made subject to a lease.(c) 3 February 1993: in response to the Assistant Land Registrar'srequisition, the Māori Land Court entered the memorandum of transferin the Potikirua Block memorial schedule, recording a transfer of29.774 ha for consideration of $26,000 to Wamoana. At the same time,the Court Registrar endorsed the memorandum of transfer pursuant tos 233 of the 1953 Act.(d) 16 February 1993: Burnard Bull (Mr Isaac) wrote to Potts & Hodgson(Ms Riddell) requesting a copy of CT 5C/1337 to enable registration ofthe transfer. The letter stated it was for "a transfer of the land fromPotikirua Incorporation" and it enclosed a copy of the memorandum oftransfer. Potts & Hodgson (Ms Riddell) provided the copy of thecertificate of title on 22 February 1993.(e) 5 March 1993: the memorandum of transfer was presented to theDistrict Land Registrar in Gisborne and registered against CT 5C/1337.Wamoana then became the registered proprietor of Lot 1 of DP 8212.14The status of the land changed from Māori freehold land to general landbecause the title was transferred otherwise than by order of the Courtand the instrument of transfer did not record that the land remainedMāori freehold land.Subsequent events[62] There was no discussion of the transfer of the land to Wamoana (or anyapplication for partition of the land) at the Incorporation AGMs in 1993, 1994, 1995,or 1997. The minutes of the 1996 and 1998 AGMs are not before me.15[63] Wamoana died on 4 March 1999 at the age of 78. She had made a will, throughBurnard Bull, nine months earlier (on 18 June 1998) in which, amongst other bequests,she bequeathed:(a) "My shares in Potikirua Maori Land Incorporation" to Renata Te Kani.(b) "My Māori Land interests in Wharekahika A15 Block" to her husbandfor life and then to her son and grandsons as tenants in common in equalshares with the wish "that my Māori Land interests not be sold but beused for a Papakainga".[64] Probate on the will was granted on 11 May 1999. On 21 June 1999 BurnardBull wrote to Mr Satchell, as the Incorporation Secretary, enclosing the certifiedprobate and the will and requesting that the Incorporation arrange succession to RenataTe Kani. Mr Satchell made a handwritten note on the letter as follows:Received 24 June 99. For Next Committee meeting July 99.From Committee. Matters to be addressed. (Re Land Tenure. Re Vesting BackTo Wamoana Lob. Certificate of Shares at Costs for adjustment $25000.Based on Land Shares. Visit to [Parekura] Lob June 1999. Ed and myself.To be sorted. No succession until approving.14 By this time the memorandum of transfer now included the CT number and recorded that it was"Subject to Compensation Certificate No: 174701.1. It is likely these details were added sometimebetween 3 February 1993 and 5 March 1993. See the discussion at [96].15 Counsel advise that diligent searches were made for these records as well as records of theCommittee meetings in these years. They could not be located and appear to have been lost.[65] Similarly, the minutes of an Incorporation Committee meeting on 21 July 1999(attended by Mr Matchitt, Mr Satchell and Ms Pook, amongst others) recorded:Lob Te Kani was to attend meeting with the committee over Wamoana sharesand land transfer.Estate of Wamoana Te Kani shares, these shares are not to be adjusted until allissues are dealt with concernin[g] value for land this matter is out standing.E Matchitt Moved that no share adjustment until all issues are dealt with.Second T Pook Carried.[66] There was no mention of the land transfer or the shares at the IncorporationAGM on 27 November 1999. It was discussed at the Committee meeting on 2 April2000 in similar terms as at the July meeting, the minutes recording:Wamoana Shares re return of Potaka block Lob was to attend this meeting todisscus the Valuation as at that time was $25000.00 and shares to be a[d]justedto accommodate the return of the block, Ed and Harry visisted Lob to sort thismatter out from that time, share certificate was issued to Lob which he haswith the lawyers, Harry contacted Potts an Hodgson Lawyers Opotiki and wasnotified that lawyer has gone out of business and will try to return thedocuments.[67] The minutes of the Committee meeting on 13 June 2000 simply recorded that"Wamoana shares re value for land to shares" was a matter arising from the previousmeeting minutes. There is no record of any further discussion about this matter at thatmeeting.[68] Meanwhile Parekura, as Wamoana's executor, applied to the Māori Land Courtfor succession orders. On 30 June 2000 the Court ordered that Wamoana's interest inthe Potikirua Incorporation consisting of 9,313.74 shares was vested in Renata TeKani.16 The Māori Land Court provided a copy of this order to the Incorporationsecretary by letter dated 12 October 2000. In handwriting on the letter Mr Satchellmade the following note:Management Committee Approval. Executive of Will. 18/12/02.7th November 2009Re Lob in Breach of Succession Voted to Management Committee 7thNovember 200916 Succession orders were also made for other land in which Wamoana had interests in accordancewith the bequests in her will.? Could Now Be in dispute. ??[69] The reference to 7 November 2009 indicates that Mr Satchell wrote the note atleast nine years after receiving the letter from the Māori Land Court.[70] I do not have before me any record of a Committee meeting on 7 November2009. It appears, however, that Parekura had been voted on to the Committee on7 November 2009, and Mr Satchell was noting on the 12 October 2000 letter that thisappointment was now in dispute because Parekura no longer held shares in Potikiruafollowing the succession order. Consistent with this, a letter on behalf of theCommittee members dated 12 January 2010 advised Parekura that his nomination tothe Committee had been overturned on this basis.[71] The Committee's letter of 12 January 2010 to Parekura went on to say:17Matekino [a member of the Committee] went to the lawyers who havesubmitted a letter confirming that succession from Wamoana to Renata shouldhave been completed which at that time was not due to that Potikirua Inc wasto return the lands to Wamoana as was discussed at the 1996 AGM and thattitle was to be produced and shares to the value of $25000 was to be amendedat that time.[72] The letter went on to say that the land had been under Parekura's managementfor the past 12 years and the Committee would now "exercise its powers" to have theland back under the management of the Incorporation. This would include the housesite, but the Incorporation would submit an occupation order, in favour of Renata forher family's use, to the Māori Land Court. The letter also advised that all Wamoana'sshares (9313.74 shares) had been transferred to Renata in accordance with the MāoriLand Court succession order.[73] At this time Mr Isaac, who had been the partner acting for Wamoana when thetransfer of the land to Wamoana took place, was long gone from Burnard Bull.18Mr Hall, of Burnard Bull, responded to this letter on 19 February 2010. He sought acopy of the Incorporation's Rules regarding whether members of the Committee wererequired to be current shareholders. He also said the Incorporation had no power to17 As noted earlier, the minutes of the 1996 AGM are not before me.18 Mr Isaac was appointed to the Māori Land Court in 1994 and is now the Chief Judge of that Courthaving been appointed to that position in 2009.reacquire the land as it had been transferred to Wamoana. He provided a copy of the6 July 1992 Memorandum of Transfer and a copy of the 5C/1337 title.[74] Mr Peterson of Potts & Hodgson replied on 26 February 2010 saying:I have been instructed by Potikirua Incorporation in relation to the transfer ofland from Potikirua to Wamoana without the consideration of surrender forshares. I have been requested to investigate how this eventuated as none ofthe committee members at the time remember the matter being put to aresolution of the incorporation. Can you advise what process was taken andhow the land was transferred without settlement being completed. Is therecorrespondence which is available for disclosure. We request a copy of thesettlement details for the time that Parekura Te Kani or Wamoana Te Kani tookthe land by transfer.[75] This letter suggests Mr Peterson's concern, on behalf of his client, was that thetransfer had occurred without the consideration having been paid. It will be recalledthat Mr Peterson was the supervising partner of Ms Riddell when the transfer tookplace. Burnard Bull (Mr Hall) replied on 1 March 2010 saying they no longer heldtheir 1992 file to check if the funds were paid but they could "only assume that fundswere paid because of your client Incorporation having acknowledged receipt of thosefunds by signing the transfer".[76] After this the Incorporation asked Walter Rika to assist in sorting the matterout. He wrote to Burnard Bull on 7 May 2010 saying:The Committee's understanding of the transaction was that Parekura's wifeWamoana was to transfer to Potikirua Inc her shareholding in the Inc inexchange for the land that she sought from Potikirua. And that the transactiondid not involve a payment of $26,000.00 for the land which payment has neverbeen received by Potikirua. There are also other aspects of the transaction thatare unclear to the Incorporation Committee as there appears to be no referenceor notation in the Incorporation minute book about the transaction and theCommittee were not aware of the Transfer document that has been produceduntil now – some eighteen years later.[77] On 26 July 2010 Mr Rika advised Mr Matchitt that he had met with Parekurawho did not have any details of what his wife paid to the Incorporation at the time thatthe transaction was done, and that all of his wife's records have long since beendestroyed and their solicitors did not have records either.[78] At a Committee meeting on 1 August 2010 the Committee resolved to place acaveat on the land and to hold Renata's shares in the Incorporation as security.Mr Matchitt informed Parekura that the shares were being held as security in a letterdated 16 August 2010. He also referred to the 1990 AGM resolution having goneagainst Wamoana getting the land, although Mr Matchitt was personally in favour ofit. He said it was left to Parekura and Wamoana to progress whether the block couldbe taken out of the Caxton lease and without foreshore reserve being taken fromPotikirua. He said "[t]here was no money amount or exchange confirmed. No ownersor shareholders resolution allowed for this". He advised that the Incorporation would"refer this matter to the Māori Land Court for hearing as we allege that this wholetransaction is fraudulent".What the witness sayThe evidence of Mr Matchitt[79] Mr Matchitt has been on the Committee since 1977 and is its longest servingmember. He is 78 years old.[80] He gave evidence about the 1990 AGM. He said the Committee decided to putWamoana's request to that meeting for a discussion and a vote because the issue hadbeen going on for some time. He said Wamoana and Parekura were to apply for apartition but had not done so and kept coming to the Committee meetings about this.He said the shareholders who opposed the resolution at the AGM did so because theywanted the land kept together for the shared benefit of the mokopuna of the hapū thathad contributed their lands. The concern was that if one hapū withdrew their landthere would be no reason to resist requests of other hapū to do the same.[81] It was his view that the AGM firmly resolved that Wamoana would not get theshareholders' nor the Incorporation's agreement for a partition of Wharekahika A15and the Committee could not act contrary to their wishes. However, Wamoana stillwanted Wharekahika A15 returned. The lease proposal discussed at the April 1991Committee meeting was viewed by the Committee as consistent with the spirit of the1990 AGM that the Potikirua Block not be split up. The 12 September 1991 resolutionwas a fair compromise. It allowed Wamoana to apply for a partition. The Committeewould stay neutral and shareholders would be able oppose the partition if they wished.[82] Mr Matchitt said the conveyancing and registration documents that led to thesubdivision and transfer of the land to Wamoana were arranged without theIncorporation's or the Committee's knowledge or agreement. He did not recall anydiscussion in the early 1990s about a price for the land and no money was paid byWamoana and Parekura. He acknowledged his signature appeared on the survey planand the earlier versions of the memorandum of transfer (those prior to the addition ofthe CT number and that the transfer was subject to the Compensation Certificate). Hedid not recall signing these documents but believed he must have thought thesedocuments were part of a partition application. He believed he would not haveunderstood the legal consequences of the documents were a subdivision and the Māorifreehold land becoming general land, and thereby being lost to the Incorporation'sshareholders and Māori generally. He did not meet with Mr Isaac of Burnard Bull,nor with Potts & Hodgson (the Incorporation's solicitors), nor the surveyor about this.He was positive the Incorporation's solicitors did not provide advice about thesubdivision. He did not know why Lot 2 was created as part of the subdivision andwhy that was retained by the Incorporation.[83] Mr Matchitt said that after 1991 they did not hear from Wamoana and Parekuraagain and the transfer only came to light in 2009. Mr Matchitt said he was shocked tolearn that the land had been transferred.The evidence of Ms Pook[84] Ms Pook has been a member of the Committee since 1984. She agreed withMr Matchitt that the concern with Wamoana's request in the 1980s was that if apartition was permitted for one shareholder, it would be much harder as a matter ofprinciple to oppose anyone else who wanted to partition off another piece. In the early1990s the Committee considered whether it would support a partition of just a smallsection of Wharekahika A15 but the resolution put at the AGM was defeated. Ms Pookalso agreed with Mr Matchitt as to what the Committee envisaged with its12 September 1991 resolution.[85] Ms Pook said that after the 12 September 1991 the issue seemed to mostly dieaway. The Te Kanis continued to use the house from time to time and Parekura grazedsheep and cows on the surrounding land. They did not pay rent but that was the waythings had been since 1986 or 1987. Ms Pook was unaware the 29 ha piece had beensubdivided and become general land. She said neither Wamoana or Parekuramentioned it at any time.[86] Ms Pook did not recall signing the survey plan, nor seeing the memorandumof transfer. Nor did she meet with surveyors or lawyers about it, nor receive any legaladvice about the survey plan she signed. She believed it must have been presented toher by Wamoana and Parekura as part of the necessary steps for a partition application.She said Mr Satchell held the Incorporation's seal. She said the fact that there werethree signatures rather than the signatures of all seven Committee members indicatedthey had signed the plan outside of a Committee meeting.[87] She noted that the minutes of the July 1999 and April 2000 meetings referredto a discussion about Wamoana's family providing value for the land or having orshareholding adjusted. She believed the Committee were adamant these options weresubject to Wamoana being granted a partition order from the Māori Land Court. Shewas very surprised to learn of the transfer. Ms Pook's efforts to resolve the matterthrough Mr Rika and directly with Renata were unsuccessful. The Incorporationtransferred Renata's shares into its name and has accumulated dividends on thoseshares since 2015 as security pending the resolution of this matter.[88] Ms Pook accepted that Potts & Hodgson were called upon quite frequently bythe Incorporation for legal advice and that Mr Peterson from that firm was inattendance at the Committee meeting on 24 January 1984. She did not rememberhaving any meeting with Mr Peterson where he gave the Incorporation advice aboutWamoana's application. Ms Pook did not recall why the small triangular piece of land(Lot 2) was created and retained by the Incorporation. She did not remember how shecame to sign the survey plan. Nor did she recall any discussion with anyone aboutthis.Unusual features of the documents[89] Terry Nowland, a barrister and solicitor since 1968 with particular experiencein property law, was called by the Incorporation to give expert opinion evidence aboutthe conveyancing and registration documents by which the transfer of the land toWamoana occurred.[90] He explained that memoranda of transfer were a feature of paper-basedconveyancing practice before the Land Online system. A memorandum of transferwas the instrument transferring title to the land and recorded the consideration anddate of the agreement. The District Land Registry office held the original certificateof title and the registered proprietor of the land or its mortgagee held the duplicatecertificate of title. Dealings in land required the duplicate certificate of title to beproduced to the Registrar for the dealing to be recorded on the original and duplicatecertificate of title simultaneously. When presented with the original and duplicatecertificate of title and a memorandum of transfer, the Register would memorialise thetransfer of the title documents. Once the transfer was registered the land belonged tothe transferee. The usual practice was for the purchaser to prepare a notice of changeof ownership that would be provided to the vendor's solicitor to lodge with the localauthority. Solicitors would be expected to report to their respective clients.[91] Mr Nowland considered there were some unusual features of the conveyancingand registration documents in this case. First, the survey plan was lodged by thetransferee (Wamoana) or her solicitor (Bulls Burnard) rather than the transferor (theIncorporation). This was unusual, but not unheard of and could occur when thepurchaser of the land had undertaken to pay the costs of subdivision.[92] Secondly, the transferee's solicitor (Mr Isaac of Burnard Bull) signed, assolicitor for the Incorporation, the order for the new certificate of title dated19 February 1992. This document requested the District Land Registrar to issue a newcertificate of title in the name of the Incorporation for the 29.74 ha parcel of land withthe deposit of the survey plan. Mr Nowland said it was unusual for the order to bemade by the transferee's solicitor but was consistent with the subdivision being carriedout on Wamoana's instructions.[93] Thirdly, the memorandum of transfer referred to an oral agreement for the saleof land. Mr Nowland said agreements for the transfer of land would almost always berecorded in a written agreement, so that they were enforceable and there would be lessroom for uncertainty about its terms.[94] Fourthly, the memorandum of transfer described the consideration as havingalready been paid when it apparently had not. Mr Nowland said that, in the ordinarycourse, the consideration would be paid by the purchaser at the time the vendor'ssolicitor provided a memorandum of transfer and the certificate of title. This was aformal process in which a bank cheque would be exchanged for the title and thememorandum of transfer.[95] Fifthly, the date of signatures on the memorandum of transfer was amendedfrom 19 May 1992 to 6 July 1992. The amendment of dates was initialled by theoriginal signatories but there was no reason on the face of the document as to why itneeded to be redated.[96] Sixthly, the CT number and reference to a compensation certificate were addedto the memorandum of transfer, without those additions being initialled by thesignatories. The additions would have been required because those details would nothave been known at the time of the earlier signatures. Based on the stamps on thesecond page of the memorandum, it was likely these additions were made between theMāori Land Court Deputy Registrar's endorsement on 3 February 1993 (which ispresent on both versions of the memorandum) and the entry of the transfer on the LandRegistry Gisborne on 5 March 1993 (which is only present on the second version ofthe memorandum). The additions should have been initialled by the originalsignatories.[97] Lastly, the transferee had surveying and legal representation throughout thesubdivision and subsequent transfer process, whereas Mr Nowland's understandingwas that the transferor did not.[98] Mr Nowland considered it was possible that these unusual features meant thatthe Incorporation's officers had not received advice about the purpose of the surveyplan or that the memorandum of transfer was able to be registered to effect the transferof the land. He accepted, however, that it would be expected that a solicitor asked toproduce a certificate would contact their client to confirm whether the solicitor hadinstructions to do so. He also accepted it would be expected that a solicitor, whoreceived new certificate of titles following a subdivision, would report to their clientabout this.No payment of $26,000[99] Lisa Dodds, the Incorporation's chartered accountant since 2009, providedevidence that she had reviewed the Incorporation's accounts and there was noindication in those accounts of the Incorporation having received $26,000 for the saleof land to Wamoana.Value of Te Kani Land[100] Martyn Craven, a registered valuer, gave expert opinion evidence as to themarket value of the land at issue (Lot 1 DP 8212). He assessed its 1993 market value,as a separate parcel of General Land, at $41,000 plus GST (if any), comprising $10,000for the dwelling and garage and $31,000 for the land. He assessed its 15 March 2019market value at $220,000 plus GST (if any).[101] Mr Craven would have assessed its 15 March 2019 market value at $255,000plus GST (if any) had the property been maintained properly, comprising $193,000 forthe land (of which $15,000 was for the house site) and $62,000 for improvements(made up of $56,000 for the house, $2,000 for the garage and $4,000 for fencing).My assessment of the facts[102] The documents show that in the 1980s Wamoana and Parekura wanted thereturn of the whole Wharekahika A15. They did not want to apply for a partition toachieve this unless it was to be a consent application. The Committee was preparedto consent to a partition application but only if it was for a part of Wharekahika A15.It is unclear how much of Wharekahika A15 it would consent to. Certainly therewould be no issue if it was the homestead and an area around that, but the Committeeappears to have been open to proposals provided if it was not for the whole ofWharekahika A15. The Committee was sympathetic to reaching a fair agreement withWamoana that would involve an adjustment of her shares in return. The idea seems tohave been that once a fair agreement was reached, it would be put before theshareholders for their approval.[103] Wamoana and Parekura, however, were still wanting the return of the whole ofWharekahika A15. A possible complication was the loss of foreshore reserve, but theprimary complicating factor was the forestry lease. This led to the suggestion inJanuary 1983, from Parekura, that the area not used for forestry be returned toWamoana. Parekura said this area was about 77 acres (or about 31 ha) and appears tohave been the area that later became Lots 1 and 2. From this point, Wamoana andParekura appear to have begun focussing on this land and Mr Mackey, the forestryconsultant and the Incorporation's solicitors were corresponding about this. In thecourse of this correspondence Mr Mackey expressed the view a partition applicationwas not necessary.[104] By December 1984 the Committee agreed that a 29.74 ha area could bereturned to Wamoana, subject to the details being finalised (share adjustment, surveyplan, consultation and negotiation). By this stage the Committee's idea was to reachan agreement that would be approved by the Court. However, all of this was put onhold while the validity of the forestry lease was investigated. It would seem that thelease was valid (or at least no grounds were found for saying it was not). By 1990 theCommittee was still in favour of returning the 29.74 ha area to Wamoana. However,a majority of shareholders voted against this. This left the Committee with its12 September 1991 resolution to agree to Wamoana applying for a partition of thisarea.[105] Mr Mackey appeared still to have been of the view that a partition applicationwas not necessary. Rather, the land could be returned to Wamoana via a subdivisionand sale process. The surveyor and the Deputy Land Registrar seemed to have beenof a similar view They proceeded to take the steps to achieve this. Those stepsrequired the involvement of the Incorporation's solicitors. It is not likely that theyproduced the Certificate of Title for the Potikirua Block without instructions from oneor more Committee representative(s), nor that they received the return of three newtitles in the Incorporation's name in August 1992, without reporting to one or morerepresentatives of the Committee. It was made clear to the Incorporation's solicitorsthat the Certificate of Title was being requested to enable the transfer of the land to beregistered. It is likely this was conveyed to the same representative(s).[106] I find that the Committee representative(s) must have been aware by this stagethat the transfer could occur without the need for a partition application. That was theview of those involved on Wamoana's side and the District Land Registrar agreed.This is consistent with Committee representatives signing the survey plan and thetransfer. They no longer remember signing those documents, which makes it difficultto accept their evidence that they would have understood the documents related to apartition application. It is also consistent with the views expressed by Committeerepresentatives in 1999 when the issue of succession to Wamoana's shares first arose.Those views indicate that at this point the Committee members recalled that the shareadjustment (being the intended consideration for the transfer of the land) had neveroccurred and this still needed to be sorted out.[107] I find that sometime after 12 September 1991 and before the memorandum oftransfer was re-signed on 6 July 1992 the consideration was agreed between Wamoanaand Mr Matchitt and/or Mr Satchell. The agreement was an oral one, as recorded inthe memorandum of transfer. The consideration recorded on the transfer was intendedto represent the market value of the land which would then be used as the basis foradjusting Wamoana's shares in the Incorporation. This fits with the $26,000 referredto in the transfer being close to the amount ($25,000) Mr Satchell later rememberedthe figure to be in June 1999. It also fits with the records in 1999 that there was to bea share adjustment based on the value of the land transferred. Lastly, it is within rangeof the 1993 market value of the land, less the dwelling and garage (it being recognisedthat the homestead was Wamoana's).[108] Eleven years later, in January 2010, the Committee either no longer recalledthe background or had a change of heart and wanted the return of the land as the shareadjustment had never happened. That is consistent with Mr Peterson's letter of26 February 2010 querying on behalf of the Committee how the transfer had occurredwithout the consideration having been given. It is also consistent with theCommittee's understanding as conveyed by Mr Rika to Burnard Bull on 7 May 2010.When Parekura did not propose that a share adjustment should now take place, theCommittee's view hardened. With that hardening of attitude, and inevitable dimmingof memory, Mr Matchitt and Ms Pook (and probably others) have looked at the lastwritten record of what was to happen – namely its resolution of 12 September 1991 –and now recall (erroneously, in my view) that they only ever agreed to an applicationfor a partition to the Māori Land Court. Added to this, as I will shortly discuss, theadvisers at the time of the transfer were wrong – a subdivision of Māori freehold landwas required to be by partition – and the Incorporation has now likely received adviceto this effect.[109] It is understandable in these circumstances why Mr Matchitt and Ms Pook nowrecall matters as they do, but their recollection is not reliable. The documents at thetime of the transfer and when the issue of succession to Wamoana's shares aroseprovide a more reliable basis to determine what occurred.[110] I add that there is no evidence that Wamoana or Parekura misled the Committeeor any of its representatives in obtaining the transfer of the 29.74 ha land. Thewitnesses do not say they did (nor could they as, quite understandably, they do notnow ever recall signing the documents). Wamoana instructed a surveyor and solicitorswho in turn communicated with the Incorporation's solicitors. It was all transparent.It required the involvement of the Incorporation's solicitors who cooperated to achievethe transfer.[111] The issue now is whether any of what occurred should be unwound becausethe transfer of the land did not comply with statutory requirements and noconsideration was ever paid. To answer these issues it is necessary to review therelevant legislation. But before I do that, I refer first to the Incorporation's first attemptto obtain the return of the Te Kani Land.Māori Land Court decision[112] On 2 December 2011 the Incorporation applied to the Māori Land Courtseeking an order cancelling the endorsement on the memorandum of transfer made bythe Deputy Registrar on 3 February 1993.19 The order was sought under s 44 of theTe Ture Whenua Māori Act 1993. That section permits the Chief Judge of the MāoriLand Court to cancel or amend an "order" made by the Court, a Registrar or"certificate of confirmation" issued by a Registrar under s 160 of the Act if it isnecessary in the interests of justice to remedy a mistake or omission.[113] The Deputy Registrar's endorsement, by a memorial on the memorandum oftransfer, was made under s 233 of the Māori Affairs Act 1953 and ss 42 and 48 of theMāori Affairs Amendment Act 1967. That section does not specify what the DeputyRegistrar must be satisfied of when he or she makes the endorsement. TheIncorporation contended the Deputy Registrar was required to be satisfied of the termsof the oral agreement, whether the consideration of $26,000 had been paid, that thememorandum had been executed in accordance with s 42 of the Māori AffairsAmendment Act 1967 and that a resolution at a general meeting had been passedpursuant to s 48 of that Act. The Incorporation contended that, by so doing, the DeputyRegistrar was performing a quasi-judicial function rather than an administrative actand the decision to endorse the memorandum was in effect an "order" of the Court.20[114] The Deputy Chief Judge rejected this argument.21 She considered theendorsement was not within the definitions of "order" in either the Te Ture WhenuaMāori Act 1993 or the Māori Affairs Amendment Act 1967. The Judge agreed withPihema v Pehikano that s 233 was a purely administrative function.22 The sectioncould be contrasted with a certificate of confirmation for which s 160 of Te TureWhenua Māori Act 1993 sets out a list of matters of which the Registrar was requiredto be satisfied.23 The Judge considered s 233 required only that the Deputy Registrarbe satisfied that the memorandum of transfer was an "alienation" of Māori freeholdland. The Deputy Registrar's functions did not turn the memorial of endorsement intoan "order" of the Court.19 The Proprietors of Potikirua Block Incorporation v Te Kani [2013] Chief Judge's MB 82 (2013CJ 82). Refer [61(c)] above. It also sought an injunction preventing the registered proprietor ofthe land from dealing with it until the application for cancellation was dismissed.20 At [31].21 At [36].22 Pihema v Pehikano [1984] 1 NZLR 625 (HC).23 The Proprietors of Potikirua Block Incorporation v Te Kani, above n 19, at [37].[115] This meant that s 44 did not provide jurisdiction to cancel the endorsement.The Judge therefore declined to do so. This decision was given on 30 January 2013.The High Court proceeding was filed on 9 October 2013.The legislationGoverning legislation[116] Māori land legislation provides a system for administering and dealing withMāori land. At the time relevant to this proceeding, the relevant legislation was theMāori Affairs Act 1953 and subsequent legislation (the Māori Affairs Amendment Act1967 and the Māori Purposes Act 1975) which made amendments to the Māori AffairsAct 1953.24 Further amendments were made to the Māori Affairs Act 1953 by thevarious iterations of local government legislation and, subsequently, the ResourceManagement Act 1991.[117] Ultimately, the Māori Affairs Act 1953 and its amending legislation wasreplaced by Te Ture Whenua Māori Act 1993. The explanatory note to the Bill whichbecame this Act explained the need for replacement legislation as follows:25The Māori Affairs Act 1953 was well constructed and well drafted. But overthe years it suffered from the ebb and flow of legislative attention and policychanges. It underwent massive surgery in 1967, and a further seriousoperation in 1974. In each case, the effects were so widespread that a tidiertextual amendment method proved inadequate to the task, so that manysubstantial changes remained locked forever in the amending legislation,where they irritate to this day. Successive reprints have served to hide someof the wounds, without effecting a cure.[118] It has not been easy to work through the Māori Affairs Act 1953 and itsamending legislation. If mistakes were made by those involved in effecting thetransfer of the Te Kani land, the difficulty of navigating the legislation was likely thecause.24 The Māori Affairs Act 1953 and this subsequent amending legislation were repealed when the TeTure Whenua Act 1993 came into force on 1 July 1993 (s 362(2) and sch 2).25 Māori Affairs Bill 1991 (124-1) (explanatory note) at 1. (Upon being reported back from theMāori Affairs Committee, the Bill's name changed to (Māori Affairs) Te Ture Whenua MāoriMāori Land Bill 1992 (124-2).)Māori land[119] Under the Māori Affairs Act 1953, Māori land meant customary land or Māorifreehold land.26 Māori freehold land was defined as "any land other than Europeanland which, or any undivided share in which, is owned by a Māori for a beneficialestate in fee simple, whether legal or equitable".27 European land meant "any landother than Māori land which has been alienated from the Crown for a subsisting estatein fee simple".28Māori Land Court jurisdiction[120] The Māori Affairs Act 1953 provided for the continuation of the Māori LandCourt and the Māori Appellate Court (both established earlier).29 The Māori LandCourt's jurisdiction included:30(a) To hear and determine as between Māoris any claim, whether at lawor in equity, to the ownership or possession of Māori freehold land, orto any right, title, estate, or interest in any such land or in the proceedsof the alienation thereof:(b) To determine the relative interests of the owners in common, whetherat law or in equity, of any Māori freehold land:[121] Its jurisdiction on these matters did not limit the jurisdiction of any other Court,but once a matter was heard and determined by the Māori Land Court or the AppellateCourt it could not thereafter be heard in any other Court.31[122] Māori land could be alienated or disposed of in the same manner as Europeanland.32 This was subject to the provisions of the Māori Affairs Act 1953 (as amended)or another Act.33 One such provision restricted how land that was owned in fee simple26 Māori Affairs Act 1953, s 2. Customary land was "land which, being vested in the Crown, is heldby Maoris or the descendants of Maoris under the customs and usages of the Maori people".27 Above.28 Above.29 Sections 15 and 37.30 Section 30(1).31 Section 30(2).32 Section 2: alienation was defined as meaning: "the making or grant of any transfer, sale, gift, lease,licence, easement, profit, mortgage, charge, encumbrance, trust, or other disposition ".33 Māori Affairs Act 1953, s 211. The Māori Affairs Amendment Act 1967 amended some of theprovisions relating to alienation.by more than 10 owners as tenants in common could be alienated.34 One of the wayssuch land could be alienated was in accordance with Part XXIII of the Māori AffairsAct 1953 (relating to the powers of assembled owners). However, this Part did notapply to Māori incorporations as these had their own requirements for disposing ofland (discussed below).35[123] An alienation by transfer was to be executed by the parties to be bound.36Generally, no alienation of Māori Land by way of transfer had force or effect until ithad been confirmed by the Court.37 Confirmation was granted "by a certificate ofconfirmation endorsed or otherwise written on the instrument of alienation, under theseal of the Court and the hand of" a Judge.38 Once granted, the instrument of alienationtook effect according to its tenors subject to the requirements (if any) of registrationunder the Land Transfer Act 1952.39 Confirmation could not be given unless the Courtwas satisfied as to the adequacy of the consideration, having regard to the relationshipof the parties and any other special circumstances of the case, and that the alienationwould not result in the undue aggregation of farm lands if completed.40[124] However, where the alienation did not require Court confirmation, a memorialwas required by s 233(1) as follows:41No alienation of Māori freehold land which is not by this Part of this Actrequired to be confirmed by the Court shall have any force or effect unless anduntil the instrument by which the alienation is effected has endorsed thereona memorial that it has been produced to the Registrar and has been noted inthe records of the Court.[125] The Māori Affairs Act 1953 provided for the registration of a Māori Land Courtorder, affecting or relating to the title to land, against the title to the land under theLand Transfer Act 1952.42 The Court's order was to be transmitted by the Registrarof the Court to the District Land Registrar for this purpose.43 A minute of the Court's34 Māori Affairs Amendment Act 1967, s 92.35 Section 114 (amending s 304 of the Māori Affairs Act 1953).36 Section 222 (as amended by s 97 of the Māori Affairs Amendment Act 1967).37 Section 224 (as amended by s 98 of the Māori Affairs Amendment Act 1967).38 Section 226(1).39 Section 226(2).40 Section 227 (as amended by s 100 of the Māori Affairs Amendment Act 1967).41 Section 233 (as amended by s 106 of the Māori Affairs Amendment Act 1967).42 Section 36(1).43 Section 36(2).order was recorded in the Court's records and drawn up under seal of the Court.44 No"freehold order or partition order and no final vesting order" could be sealed "unlessand until a plan of the land ha[d] been prepared in form and manner sufficient forpurposes of registration under the Land Transfer Act 1952".45 It was not necessary toproduce the certificate of title for the purposes of this registration.46Partition applications[126] Part XVI of the Māori Affairs Act 1953 (as amended by the Māori AffairsAmendment Act 1967) concerned partition orders. It conferred exclusive jurisdictionon the Māori Land Court as follows:47173 Jurisdiction to partition Māori freehold land(1) The court shall have exclusive jurisdiction to partition Māori freeholdland.(3) The provisions of this Part of this Act shall be read subject to theprovisions of sections 432 and 432A of this Act[127] As at 1 October 1991 (the time relevant to this proceeding), s 432 requiredpartitions that involved parcels to be held by owners who were not members of thesame hapū to comply with the Resource Management Act provisions for subdivisions.Specifically, it provided:48432 When partition of land to comply with Resource Management Act1991 as to subdivisions(1) This section applies to every partition of land by the Court except fora partition into parcels to be held by owners who are members of thesame hapu.(2) Subject to the provisions of this section, the Court shall not partitionany land to which this section applies, otherwise than in accordancewith the Resource Management Act 1991.44 Section 34(2).45 Section 34(9).46 Section 36(2).47 The provisions to which this section was subject, as referred to in s 173(3), were amended anumber of times as amendments were made to town planning and local government law at varioustimes, ultimately leading to the amendments made via the Resource Management Act 1991.48 This version of s 432, as well as s 432A next referred to, were introduced via the sch 8 to theResource Management Act.(3) Without limiting subsection (2) of this section,—(a) A partition of land shall be deemed to be a subdivision of landwithin the meaning of section 218 of the ResourceManagement Act 1991; and(b) Sections 120 and 121 of the Resource Management Act 1991(relating to appeals to the Planning Tribunal) shall apply toany decision of a territorial authority in relation to anyapplication for a subdivision consent which is required by thissection.(4) Notwithstanding anything in this section or in the ResourceManagement Act 1991, any condition imposed by the Court requiringa contribution of land for reserve purposes or land in lieu of reservesshall only require any such land to be set aside from that part of theland which is to be alienated.(5) Notwithstanding subsection (2) of this section or anything to thecontrary in the Resource Management Act 1991—(a) The territorial authority shall not require, as a condition of asubdivision consent, that a contribution in land (being acontribution for reserve purposes or land in lieu of reserves)be made in respect of any part of the land in respect of whichthe Court has certified to the territorial authority as being ofspecial historical significance or spiritual or emotionalassociation with the Maori people or any group or section ofthe Maori people; and(b) No survey plan relating to the partition shall be required to bedeposited by the District Land Registrar or Registrar of Deedsin accordance with Part X of the Resource ManagementAct 1991.(6) Subject to subsection (7) of this section, the Court may make apartition order to which this section applies in respect of any land if asubdivision consent under the Resource Management Act 1991 hasbeen obtained for the partition and the consent has not lapsed.(7) At the time of making any partition order to which this section applies,the Court shall—(a) Make such orders as it considers necessary, having regard toPart X of the Resource Management Act 1991, to ensure thatin respect of any conditions of the subdivision consent thathave not been complied with, adequate provision is made forsuch compliance; and(b) Make such orders as may be necessary to—(i) Vest in the territorial authority any esplanade reserverequired to be set aside under section 230 of theResource Management Act 1991; and(ii) Vest in the Crown any land to which section 235 ofthat Act applies,—and sections 229 to 237 of the Resource ManagementAct 1991 shall apply with all necessary modifications.(8) Without limiting subsection (7) of this section, the Court shall makean order—(a) Vesting in the territorial authority the land that, in accordancewith the subdivision consent, is required for the constructionof roads or the making of reserves; and(b) Declaring that the land is dedicated for the construction ofroads or (as the case may require) is set apart as reserves forthe purposes specified in the subdivision consent subject tothe Reserves Act 1977.(9) Notwithstanding anything in subsections (7) and (8) of this section,the Court may, instead of setting apart any land as a reserve under theReserves Act 1977 (including any esplanade reserve), recommendthat it be set apart as a reservation under section 439 of this Act.(10) Except as otherwise provided in subsections (7), (8), and (9) of thissection, sections 220 to 244 (inclusive) of the Resource ManagementAct 1991 shall not apply to any partition to which this section applies.(11) No vesting order shall be made under this section in respect of anyland which is subject to any lease, licence, mortgage, charge, or otherencumbrance.(12) Where any land proposed to be dedicated or set apart under thissection is subject to any lease, licence, mortgage, charge, or otherencumbrance, the Court, with the consent of the person entitled to thebenefit of the encumbrance and the vesting order, shall vest the landfree from that encumbrance accordingly.(13) A vesting order in favour of the territorial authority made for thepurposes of this section shall have no force or effect until the territorialauthority has, under its seal, accepted the dedication and has certifiedin its acceptance that the relevant conditions of the subdivisionconsent have been complied with to the satisfaction of the territorialauthority.(14) On the completion of any vesting order made by the Court for thepurposes of this section, the Registrar of the Court shall forward theorder to the District Land Registrar, together with a certified copy ofthe acceptance by the territorial authority of the dedication to whichthe vesting order relates, and the District Land Registrar shall registerthe order.(15) In this section, "subdivision consent" has the same meaning as insection 2(1) of the Resource Management Act 1991 and includes acertificate of compliance as defined in that Act.[128] In contrast, s 432A was concerned with partitions into parcels to be held byowners who were all members of the same hapū. Such partitions did not requirecompliance with the Resource Management Act, but the Māori Land Court couldinvite submissions from the territorial authority. Specifically, it provided:432A Restrictions may be imposed in respect of other partitions—(1) This section applies to every partition of land by the Court where thepartition is into parcels to be held by owners who are members of thesame hapu.(2) The Court shall, in respect of every partition to which this sectionapplies, impose a restriction that the land shall not be alienated underthis Act otherwise than in accordance with this section.(3) Where an application to which this section applies is made to theCourt to confirm the alienation of Maori land, the Court—(a) May, if it considers it appropriate, publicly notify theapplication and invite submissions from the territorialauthority and any other person who is likely to be affected bythe application; and(b) May, subject to subsection (4) of this section,—(i) Refuse to confirm the alienation; or(ii) Vary the terms of the alienation; or(iii) Confirm the alienation subject to such conditions asthe Court considers fair and reasonable,—having regard to the provisions of section 106 (subdivisions not to begranted), section 108 (conditions of resource consents), section 220(conditions as to subdivision), and sections 229 to 237 (which relateto esplanade reserves) of the Resource Management Act 1991 and thefact that the land has previously been partitioned without asubdivision consent being obtained under that Act.(4) The Court shall not, in confirming an alienation under subsection (3)of this section, require as a condition of such confirmation, acontribution of land for reserve purposes or land in lieu of reserves tobe set aside—(a) From any part of the land other than from that part of the landwhich is to be alienated; or(b) Which the Court is satisfied is of special historicalsignificance or spiritual or emotional association with theMaori people or any group or section of Maori people.(5) The Court may exercise a power under subsection (3)(b) of thissection notwithstanding that the alienation is not a subdivision.(6) Subsection (3)(b) of this section does not limit the powers of the Courtunder section 224 of this Act.[129] Section 174 enabled the Māori Land Court to decline a partition application asfollows:174 Discretion of the courtThe jurisdiction conferred by this Part of this Act shall be discretionary, andthe Court may refuse to exercise that jurisdiction in any case in which it is ofopinion that partition would be inexpedient in the public interest or in theinterest of the owners or other persons interested in the land.[130] Section 175 enabled the Māori Land Court to direct a sale of the land insteadof making an order for partition if the Court considered partition on an equitable basiswas impracticable. The land was to be sold to Māori and could only be sold to non-Māori with the leave of the Court.[131] Section 176 provided for a partition order to constitute the title to the land asfollows:176 Partition orders to constitute title(1) Māori freehold land may be at any time partitioned by the Court bythe making of partition orders.(2) The term "partition order" as used in this Part of this Act means, asthe case may require, either—(a) An order for the partition of any land into two or more definedseparate parcels; or(b) An order creating or evidencing the title to any one or moreof such defined parcels.(3) Every partition order shall constitute, without any transfer or otherinstrument of assurance, the title to the parcel or the several parcels ofland therein included.[132] Section 178 provided for partition orders to be registered against the title underthe Land Transfer Act. Section 180 permitted the Court to order partition into parcelsheld severally by single owners, or parcels held by any number of owners as tenantsin common, or partly both of these. Section 181 enabled the Court to partition the landamongst the owners in accordance with their several shares, or to give effect to anarrangement made by the owners including any agreement as to payment ofcompensation.[133] The Māori Land Court Rules 1958 set out the particulars required for apartition application.49 A plan showing "the proposed partition with measurements ofboundaries, and areas where possible" was to be filed with the application.50Māori incorporations[134] Māori incorporations are one of the vehicles by which Māori land may beadministered.51 The Māori Affairs Amendment Act 1967 provided that an order couldbe obtained constituting the owners of Māori freehold land as a Māori incorporation.52A Māori incorporation was a body corporate.53 At the time relevant to this proceeding,the objects, powers and procedures that applied to a Māori incorporation were as setout in the 1967 Amendment Act and, later, the Māori Purposes Act 1975.[135] The objects of a Māori incorporation included occupying, managing andfarming land or growing timber on it.54 It also included arranging "for the alienationby sale, or lease, or otherwise of the land or of any portion thereof".55[136] The order constituting the Māori incorporation vested the land in theincorporation.56 Pursuant to the 1967 Amendment Act, all Māori freehold land sovested in the Māori incorporation ceased to be Māori land on such vesting.57 Thismeant it became European land (as it was then termed). This was altered by the MāoriPurposes Act 1975. On the commencement of that Act, it ceased to European land andwas again Māori freehold land (as defined in the Māori Affairs Act 1953).5849 Promulgated under s 25 of the Māori Affairs Act 1953.50 Māori Land Court Rules 1958, r 82(1) and (3).51 Trusts are the other main vehicle. Counsel for the Incorporation advises that Māori incorporationswere the common vehicle in the East Coast for a period.52 Māori Affairs Amendment Act 1967, s 26.53 Section 31.54 Māori Affairs Amendment Act 1967, s 27.55 Above.56 Section 31(2).57 Section 31(3).58 Māori Purposes Act 1975, s 17. Perhaps accounting for Mr Mackey's error in 1983, referred toearlier, in considering the Potikirua land to be European land.[137] When the order for incorporation was made, the total number of shares wasfixed and that number was related to the total value of the land and assets held by theincorporation.59 A list of shareholders in the incorporation was annexed to the orderof incorporation.60 These initial shareholders were those who were the owners of thefreehold interest in the land immediately before the order.61 The number of sharesallocated to a shareholder was the proportion of the total shares which that person'sformer share in the value of the incorporation's assets bore to the total value of thoseassets.62[138] The incorporation was required to establish a register of shareholders.63 Sharescould be transferred only in accordance with the requirements of the 1967 AmendmentAct.64 A shareholder could transfer his or her shares to the incorporation.65 Wherethis occurred, the incorporation was deemed to have acquired the shares on behalf ofthe remaining shareholders rateably and in proportion to their respective shareholdinguntil the end of the financial year in which they were acquired. At that point, the totalnumber of shares in the incorporation was reduced by the number of shares that hadbeen acquired in that financial year.66[139] Requirements were imposed on the use of the seal of the incorporation asfollows:42 Form, custody, and use of seal(1) The seal of every Māori incorporation under this Part of this Act shallbe in the prescribed form, and the custody thereof shall be determinedby regulations under this Act.(2) Subject to the provisions of subsection (3) of this section, the seal maybe affixed to any instrument in the presence of a majority of themembers of the committee of management and all the members of thecommittee present when the seal is affixed shall sign the instrument.(3) Pursuant to a resolution passed by the committee of management inthat behalf, given either in specific or general terms, the seal may be59 Māori Affairs Amendment Act 1967, s 32(2).60 Section 30(2).61 Section 32(1).62 Section 32(3).63 Section 32(4).64 Section 38(1).65 Section 41(3)(a).66 Section 41(7).affixed to any instrument in the presence of any two members of thecommittee. In any such case, the two members of the committee shallsign the instrument and there shall be an endorsement on theinstrument stipulating the date and substance of the resolution passedby the committee of management as aforesaid.(4) Except as provided by this section, the seal shall not be affixed to anyinstrument.[140] A Māori incorporation's powers to deal with its assets were as follows:6748 Incorporation's powers to deal with assets(1) Whether or not any such power is specifically included in its objectsof incorporation, a Maori incorporation shall, acting by and throughits committee of management, have power to alienate, mortgage,charge, or otherwise dispose of or deal with the assets from time totime vested in it in the same manner as if it were a private person offull capacity:Provided that the incorporation shall not sell any land except pursuantto a resolution of a general meeting of shareholders.(2) On the presentation to him of any memorandum of transfer executedby the incorporation, the District Land Registrar shall not beconcerned to inquire whether a resolution under subsection (1) of thissection has been passed in respect of the sale.(3) The provisions of section 42 of the Companies Act 1955 as to the formof contracts shall apply to a Maori incorporation in as full and amplea manner as if the incorporation were a limited liability company dulyincorporated under the provisions of that Act.[141] In short, a sale of land could only occur pursuant to a resolution of a generalmeeting of shareholders but the District Land Registrar was not required to inquireinto whether such a resolution had been passed. Unlike transfers of land by otherholders of Māori land, a transfer of land by a Māori incorporation did not requireconfirmation by the Court.68 Instead, they required an endorsement by the Registrar.6967 Companies Act 1955, s 42 provided that the law relating to when contracts between private partieswere required to be by deed or in writing and when writing was not required was to apply tocontracts made by a company.68 Māori Affairs Amendment Act 1967, s 31(3A). This subsection was inserted by s 17 of the MāoriPurposes Act 1975 and stated "[n]othing in subsection (3) shall affect in any way the provisionsof this Part of this Act relating to powers of an incorporation to deal with its assets and no dealingby an incorporation with any land shall require confirmation by the Court". The effect subsection(3) is discussed above at [136].69 Māori Affairs Act 1953, s 233 (as amended by s 106 of the Māori Affairs Amendment Act 1967).[142] The management committee exercised the powers and function of theincorporation but subject to compliance with any resolution as to their powers andfunctions as passed at a general meeting of shareholders.70 However, "theincorporation shall be bound by every act of the committee" and no person dealingwith the committee need inquire into whether there is any restriction on the committeeby any such resolution.71[143] The Registrar of the Māori Land Court was to keep a register of Māoriincorporations recording details including as to the land vested in the incorporationand particulars of all orders made by the Court.72Resource Management Act 1991[144] Section 11(1) of the Resource Management Act provided restrictions onsubdivisions "within the meaning of section 218". Most relevantly, s 11(1)(a)provided that no person could subdivide land unless it was expressly allowed by a rulein a district plan or a resource consent and a survey plan in accordance with Part X ofthe Act had been deposited with the District Land Registrar or Registrar of Deeds.Section 11(2) provided that s 11(1) did not apply to Māori land as defined in the MāoriAffairs Act 1953 "unless that Act provides otherwise".[145] Section 218 of the Resource Management Act defined "subdivision of land" asmeaning (amongst other things) "[t]he division of an allotment [b]y an applicationto a District Land Registrar for the issue of a separate certificate of title for any part ofthe allotment". As referred to above, the Māori Affairs Act 1953, as amended by theResource Management Act, deemed partitions to be a subdivision under this section ifthe partition orders did not relate solely to owners who were members of the samehapū. Amongst other things, Part X of the Resource Management Act set outrequirements for subdivision applications.73 It also set out conditions on which asubdivision consent might be granted.74 Some of these requirements were modifiedby ss 432 and 432A of the Māori Affairs Act 1953.70 Māori Affairs Amendment Act 1967, s 57(1).71 Section 57(2).72 Section 64.73 Resource Management Act 1991, s 219.74 Section 220.Did the transfer of the land comply with legal requirements?[146] The Incorporation submits the process by which Lot 1 was created andtransferred to Wamoana did not comply with the provisions of the Māori landlegislation in five ways:(a) First, the Incorporation submits that Wamoana was required to make apartition application to obtain the land. The process adopted createdtitle to a separate parcel of land (and was therefore a partition unders 176(2) of the Māori Affairs Act 1953) without complying with thepartition process over which the Māori Land Court had exclusivejurisdiction.(b) Secondly, the Incorporation submits the process did not comply withs 432 of the Māori Affairs Act 1953.(c) Thirdly, there was no shareholders' resolution to sell the land asrequired by s 48(1) of the 1967 Amendment Act.(d) Fourthly, the common seal was not affixed to the memorandum oftransfer in a manner that complied with s 42(2) or (3) as required by the1967 Amendment Act. This was because a majority of the Committeewere not present when the seal was affixed or, if they were present, theydid not sign the instrument. Nor was there a resolution that the seal beaffixed in the presence of two Committee members, nor anendorsement of such a resolution.(e) Finally, the Incorporation submits the Māori Land Court Registrarwrongly endorsed the memorandum of transfer. The Incorporationsubmits the Registrar was required to, but did not, properly scrutinisethe instrument and observe that there was no evidence of ashareholder's resolution and that the seal had not been properly affixed.[147] The defendant does not contest these matters but with one qualification. Thatqualification is to the last matter. As to that, the defendant submits the Registrar couldhave rejected the memorandum of transfer because of the absence of a shareholders'resolution and the seal that had not been affixed as required, but he was not requiredto do this.[148] First, I accept the submission that a partition application was the first necessarystep before a transfer of a portion of the Potikirua Block could take place. This isbecause the subdivision was a partition. It divided the land (the Potikirua Block) intothree separate parcels (s 176(2)(a)). The Māori Land Court had exclusive jurisdictionover this (s 173). While the Incorporation had the power to sell the land, a sale of thePotikirua Block could not occur until that land was divided into one or more separateparcels. A partition order was therefore a prerequisite to a sale.[149] Secondly, I agree the subdivision failed to comply with s 432 of the MāoriAffairs Act 1953 (as amended by the Resource Management Act). Mr Taylor (thesurveyor) and the District Land Registrar appear to have overlooked the new s 432enacted via the Resource Management Act, which deemed a partition to be asubdivision (without taking away the Māori Land Court's exclusive jurisdiction overthem) and imposed requirements under that Act.[150] Thirdly, I agree a shareholders' resolution was required before the land couldbe sold to Wamoana and no such resolution was obtained.[151] Fourthly, I agree the common seal was not affixed to the memorandum oftransfer as required by s 42 of the 1967 Amendment Act. There were seven membersof the Committee. This meant that at least four members needed to be present whenthe seal was affixed to the memorandum and all those present needed to sign thememorandum. Here the memorandum was signed by just two members, Mr Matchittand Mr Satchell and there is no evidence of any resolution that permitted this.[152] Lastly, whether the Registrar was required to check a resolution had beenpassed and that the affixing of the seal complied with the statutory requirements,depends on whether the Registrar's task was to update its records or to ensurecompliance with the statutory requirements for disposal of the land.[153] The Incorporation submits it is the latter. This is because the Registrar is in aposition to ensure compliance. The Incorporation submits the Registrar would havebeen aware from its own records that the Incorporation's Committee had sevenmembers and therefore that a seal affixed in the presence of two members of theCommittee was insufficient. It submits the Registrar should have requested a copy ofthe shareholders' resolution before endorsing the memorandum of transfer. It submitsthat, unless the Registrar has this function, there is no other process that provides acheck on whether there has been compliance with the statutory requirements fordisposal of Māori land held by a Māori incorporation. It submits this would underminethe protective legislative regime for Māori land. The Incorporation draws an analogywith the Deputy Land Registrar rejecting the memorandum of transfer when firstlodged because it did not have an endorsement from the Māori Land Court.[154] This issue was before the Māori Land Court. The Deputy Chief Judge of thatCourt rejected the Incorporation's submissions. In so doing, she relied on twodecisions of the High Court which had held that the Registrar's function was anadministrative one and the Registrar had no power or duty to determine the validity ofthe instrument.75[155] The Incorporation seeks to distinguish these cases on the basis they involved,respectively, a lease that did not comply with the terms of a trust and a mortgage. TheIncorporation made the same submission to the Māori Land Court. In effect, theIncorporation seeks to review that Court's decision on this point. I decline to do sobecause I am not persuaded the decisions are distinguishable – the nature of theRegistrar's role does not change because of the nature of the instrument to bememorialised or the nature of the alleged invalidity of the transaction. In any case, itis unnecessary for the determination of the causes of action that are before me todetermine the Registrar's role under s 233 of the Māori Affairs Act 1953.75 Pihema v Pehikano, above n 22; and Housing Corporation of New Zealand v Māori Trustee [1988]2 NZLR 662 (HC).What are the consequences of non-compliance?[156] At the time relevant to this proceeding the provisions of the Land Transfer Act1952 applied.76 Pursuant to s 62 of that Act, Wamoana obtained an indefeasible titlesubject to its limited exceptions. Further, pursuant to s 63, no action can be broughtfor the recovery of the land subject to some limited exceptions.77[157] This is not contested by the Incorporation. It submits that an exception applies,namely that it has an in personam claim against Wamoana. Such claims weredescribed in Regal Castings Ltd v Lightbody as follows:78An in personam claim against a registered proprietor looks to the state of theregistered proprietor's conscience and denies him the right to rely on the facthe has an indefeasible title if he has so conducted himself that it would beunconscionable for him to rely on the register. Such a claim is concerned withthe personal obligations of the registered proprietor rather than with thesanctity of their title.[158] A person claiming in personam must show:79(a) it has a cause of action entitling it to the assistance of the Court,indefeasibility issues aside;(b) it would be unconscionable (contrary to good conscience) for theregistered proprietor to rely on their indefeasible title; and(c) depriving the registered proprietors of an indefeasible title would notbe contrary to the policy and purposes of the Torrens system.76 The Land Transfer Act 1952 has been repealed by the Land Transfer Act 2017. However, sch 1 ofpt 1 of the Land Transfer Act 2017 contains transitional provisions which provide that "courtproceedings under the Land Transfer Act 1952 in progress before the commencement of thisclause" must be dealt with in accordance with the 1952 Act as if it has not been repealed but afterit has been dealt with, has effect as if it had been dealt with under the 2017 Act. Therefore, the1952 Act is the one applying for these provisions.77 See, for example, Assets Co Ltd v Mere Roihi [1905] AC 176, (1905) NZPCC 275 (PC); Boyd vMayor of Wellington [1924] NZLR 1174 (CA); and Frazer v Walker [1967] NZLR 1069, [1967]1 AC 569.78 Regal Castings Ltd v Lightbody [2008] NZSC 87, [2009] 2 NZLR 433 at [148] per Tipping J.79 At [157]-[170].[159] Two of the pleaded claims contend there was no contract entered into. Thiscontention is made on the basis the parties were not ad idem. This was becauseWamoana intended a sale whereas the Incorporation intended a partition application,what was intended by the consideration was unclear, and no consideration was everpaid. The Incorporation contends in these circumstances that Wamoana was unjustlyenriched and she holds the Te Kani land on a resulting trust for the benefit of theIncorporation.[160] I do not accept this submission. I have found that a sale was intended by theparties who signed the memorandum of transfer. I have found that the intendedconsideration was an adjustment of Wamoana's shares, which would be made on thebasis that the transferred land had a value of $26,000 and Wamoana's interest in theassets of the Incorporation had been reduced to this extent. Under the Māori AffairsAct 1953 (as amended), Wamoana's shares were to be adjusted to reflect that reducedvalue of her interest in the Incorporation in proportion to the value of theIncorporation's total assets at that time. That adjustment was not made, but it wasalways open to the Incorporation to do so from the time Wamoana's title to the landwas registered. A resulting trust does not arise because one party to a contract hassimply failed to exercise its rights to receive the consideration it is due.80[161] The other two causes of action proceed on the basis that the Court finds therewas a contract for the sale of land. The Incorporation claims the contract was void asan illegal contract under the Illegal Contracts Act 1979. Alternatively, theIncorporation submits it was entitled to cancel the contract because the considerationwas not paid. The Incorporation purported to give notice of cancellation under s 8 ofthe Contractual Remedies Act 1979. The Incorporation submits this cancellation andthe contract's illegality under the Illegal Contracts Act gave rise to a resulting trust inthe Te Kani land in favour of the plaintiff.[162] The Incorporation's claim for a resulting trust rests on the basis that the transferof the land occurred without complying with the legal requirements for that transfer.80 Equity responds by imposing a resulting trust when property has been transferred to another andit can be said that the provider did not intend to benefit the recipient: Robert Chambers ResultingTrusts (Oxford University Press, Oxford, 1997) at 2–3.The starting principle is that, upon registration, Wamoana obtained an indefeasibletitle despite any defects in the transferor's authority to transfer the title or the processby which the transfer occurred.81 A resulting trust, giving rise to an in personam claim,is not imposed against a bona fide purchaser for value without notice of the matter saidto give rise to the invalidity of the transfer.82[163] There is no basis to find that Wamoana had notice of the defects in the processhere. She instructed appropriate advisers (a surveyor and a lawyer) who were of theview that a partition and resource consent were not required. They were not alone inthat view, the Principal Assistant Land Registrar agreed. The Incorporation's lawyerswere involved in the transfer and could be expected to have considered whether therewas appropriate authority from the Incorporation to transfer the title. In thesecircumstances, the Incorporation cannot establish a cause of action for a resulting trust.[164] Further, to defeat an indefeasible title it must be unconscionable for Wamoanato rely on her indefeasible title. I do not accept that any unconscionability exists.83There is no identifiable wrongdoing, impropriety, misuse of power, misrepresentation,or lack of probity in the process by which the land was partitioned and Wamoana wasregistered on the title. Wamoana, and her agents, acted conscientiously andtransparently. They communicated with officers of the District Land Registrar andfollowed their direction. The Incorporation's lawyers were not only apprised of thesteps being taken to transfer the land, they participated in those steps.[165] For these reasons I conclude the Incorporation is not entitled to a declarationthat Wamoana holds Lot 1 under a resulting trust for the benefit of the Incorporation,nor an order requiring the return of Lot 1 to the Incorporation.81 See the discussion above at [156] and the authorities cited above at n 77.82 Resulting Trusts, above n 80, at 35, 125 and 132. See for example Kukutai v Dyer (2008) 9 NZCPR803.83 See, for example, Dollars & Sense Finance Ltd v Nathan [2007] NZCA 177, [2007] 2 NZLR 747at [30]–[32] per William Young J and [138]–[139] per Glazebrook J (with Robertson J agreeing).The Supreme Court did not consider the issue on appeal: Dollars & Sense Finance Ltd v Nathan[2008] NZSC 20, [2008] 2 NZLR 557 at [51].Limitation Act[166] As the acts relied on by the Incorporation occurred before 1 January 2011, theLimitation Act 1950 applies.84 Subject to some limitations that are not presentlyrelevant, this Act applies to Māori land. Section 7(2) of the Act provides that no actioncould be brought "to recover any land after the expiration of 12 years from the rightof action accrued to him". By s 10(1), s 7(2) applied to equitable interests in land inlike manner as they apply to legal estates. By s 8, the cause of action accrued whenthe person bringing an action to recover land that he or she has been in possession of,has been dispossessed of that land.85[167] The defendant submits the Incorporation's cause of action arose when it wasdispossessed of the land with the registration of the transfer on 5 March 1993. Thismeant the Incorporation's proceeding needed to be filed by 5 March 2005. As it wasnot filed until 7 October 2013, it is now out of time.[168] The Incorporation submits the limitation period was extended by s 28(1). Thissection provides that, where the action is for relief from the consequences of a mistake,the limitation period does not begin to run until the Incorporation has discovered themistake, or could with reasonable diligence have discovered it. The Incorporationsubmits it was not until 2010 when it received the letter from Burnard Bull with thecertificate of title that the Incorporation was on notice that the land had beentransferred to Wamoana.[169] I do not accept this submission. I have found that representatives of theCommittee reached an oral agreement with Wamoana and Parekura to sell the land toWamoana. The Incorporation's solicitors were involved in the steps necessary toeffect the transfer. There was no mistake about the intention to transfer the land toWamoana. The Incorporation has been on notice from this time. Moreover, even ifthat was not so, the Committee was aware of the transfer on 21 July 1999 when, in thecontext of the succession of Wamoana's shares, they discussed the fact that the shares84 Limitation Act 2010, s 59.85 See Kukatai v Dyer, above n 82, at [97]–[102].had not been adjusted for the land that had been transferred.86 That would mean theproceeding needed to be brought before 21 July 2011 and it was not so brought.What about the shares?[170] In the alternative, the Incorporation seeks an order vesting in it the shares (andaccumulated dividends) in the Incorporation held by Renata. That is not appropriategiven that the land transferred to Wamoana was significantly less than WharekahikaA15 in which, through succession, Renata's shareholding is derived. At best, thisorder would be confined to the proportionate value that the transferred landrepresented as against the Incorporation's total assets as valued in 1993. The agreedvalue of the transferred land was $26,000 at that time. The value of the Incorporation'stotal assets in 1993 would need to be assessed. The audited 1993 accounts provide abasis for this assessment to be made.[171] A claim for breach of the agreement to pay the agreed consideration has beenbrought too late. An action upon a deed must be brought within 12 years from whenthe cause of action occurred. However, there may be an argument that there was nobreach. Rather, the transfer was agreed and, as such, by s 41(7) of the Māori AffairsAmendment Act 1967, the shares were deemed to be held by the Incorporation onbehalf of the shareholders. It was then for the Incorporation to take the necessary stepsto adjust the shareholding in accordance with s 41(7) at the end of the next financialyear.[172] If that is correct, it is still open to the Incorporation to make this adjustment.This would mean that Wamoana may have received more dividends than she wasentitled to from 1993 onwards. It should be possible for an accountant to calculate thedividends Wamoana ought to have received on her reduced shareholding entitlementfollowing the land transfer as against the dividends she actually received. The amountshe received above her entitlement could then be deducted from her (Renata's) shareof the retained dividends (also to be calculated based on Renata's reducedshareholding). It seems to me that this would be a fair way to resolve this dispute,which has been around since 1999.86 Refer [65] and [87] above.Result[173] The claim for a declaration that the Te Kani land is held on a resulting trust forthe benefit of the Incorporation is dismissed. The associated claim for a return of theTe Kani land is also dismissed.[174] The adjustment of Renata's shares in the Incorporation remains outstanding.The parties are to have the opportunity to attempt to resolve this on the basis discussedat [170]–[172] above. Because of the Christmas period, they have until 31 January2020 to do so (they can seek leave to extend this period if necessary). The parties areto advise the Court by that day if they have resolved the matter.[175] If they have not been able to resolve the matter, and do not obtain leave toextend the period for a resolution, they will then have until 14 February 2020 to makesubmissions as to whether it is open to me to make orders directing an adjustment ofthe shares and dividends in the manner discussed at [170]–[172] above or whethersome other form of relief is available to regularise the share and dividend position.Costs[176] My preliminary view is that costs should lie where they fall. If the parties havea different view, they may submit brief memoranda by 31 January 2020.Mallon J