205 Waikato Maniapoto MB 202 · that Ian Walsh was recorded on the certificate of title as the sole registered proprietor of Puketiti 2B2B1. [15] On 20 of May 1982 Ian Walsh entered

205 Waikato Maniapoto MB 202

I TE KOOTI WHENUA MĀORI O AOTEAROA

I TE ROHE O WAIKATO-MANIAPOTO

In the Māori Land Court of New Zealand

Waikato-Maniapoto District

A20200003682

A20200003661

WĀHANGA

Under

Sections 18(1)(h) and 131(1), Te Ture Whenua

Māori Act 1993

MŌ TE TAKE

In the matter of

Part Puketiti 2B 2B 1 Block and Lot 1 Deposited

Plan South Auckland 33533

I WAENGA I A

Between

PHILLIP PEACOCKE, SUSAN PEACOCKE

AND CR REJTHAR TRUSTEES LIMITED AS

TRUSTEES OF THE TOTORO TRUST

Ngā kaitono

Applicants

Nohoanga:

Hearing

25 June 2020, 205 Waikato-Maniapoto MB 138-168

(Heard at Tauranga)

Kanohi kitea:

Appearances

J Koning for the Applicants

J Neverman for the Interested Parties

Whakataunga:

Judgment date

3 July 2020

TE WHAKATAUNGA Ā KAIWHAKAWĀ JUDGE S R CLARK

Judgment of Judge S R Clark

Copies to: John Koning, Barrister, Commerce Lane Chambers, PO Box 5, Te Puke 3153, [email protected] John Neverman, Neverman Bennett Lawyers, PO Box 1559, Waikato Mail Centre, Hamilton 3240, [email protected]

mailto:[email protected]


He tīmatanga kōrero-Introduction

[1] The applicants are Phillip Peacocke, Susan Peacocke and CR Rejthar Trustees

Limited. They are trustees of the Totoro Trust, the registered proprietors of Part Puketiti

2B2B1 Block (Part Puketiti)1 and Lot 1 Deposited Plan South Auckland 33533 (Lot 1).2

[2] The trustees of the Totoro Trust entered into an unconditional agreement for sale and

purchase of Part Puketiti and Lot 1 to the trustees of the Russell and Mavis Proffit Trust (the

Profitt Trust). Settlement was due on 14 June 2019. Prior to settlement the E-Dealing for

Part Puketiti could not be pre-validated as Land Information New Zealand (LINZ) had

flagged the property as potentially having Māori freehold land status.3 No such flag has

been raised in relation to Lot 1.

[3] The Proffit Trust have been in possession of Part Puketiti and Lot 1 pursuant to an

informal arrangement with the applicants since 14 June 2019. Both the applicants and the

trustees of the Proffit Trust wish to settle the unconditional agreement for the purchase of

both blocks.

[4] The applicants have applied to the Māori Land Court seeking the following:

(a) A declaration pursuant to s 18(1)(h) of Te Ture Whenua Māori Act 1993 (the

1993 Act) that the blocks are General land; and/or

(b) An order pursuant to s 131(1) of the 1993 Act that the blocks have the status

of General land.

Kōrero whānui-Background

[5] On 19 May 1921 the Native Land Court made a partition order constituting the title

for the Puketiti 2B2B1 block.

1 Land Information New Zealand, Record of Title SA30A/85. This block is 17.5755 hectares in size. 2 Land Information New Zealand, Record of Title SA30A/84. This block is 3.9740 hectares in size. 3 Land Information New Zealand, Pre-validation Report Instrument No 11443839.1.


[6] On 3 May 1976 a consolidated order was made by the Māori Land Court vesting

Puketiti 2B2B1 in Puku Doherty as to 9.1875 shares and Raimona Lee as to 44.8125 shares

out of a total of 54 shares.4

[7] In early June 1980 Raimona Lee signed an agreement to sell her shares in the block

to Ian Walsh for $17,430.00. At the same time, together they filed an application for

confirmation with the Māori Land Court.

[8] On 9 July 1980 Judge Cull heard applications for an exemption to file a special

valuation and confirmation. He granted confirmation of the transfer.5

[9] On 6 August 1980 Raimona Lee and Ian Walsh signed a memorandum of transfer,

which records Raimona Lee as “the registered proprietor in fee simple as a tenant in common

as to 44.8125 shares out of a total of 54 shares”.

[10] On 26 August 1980 Judge Cull endorsed the transfer with a certificate of

confirmation.

[11] By late September 1980 the Māori Land Court had arranged for the consolidated

order and partition order to be forwarded to the Land Transfer Office (LTO).

[12] On 10 October 1980 the District Land Registrar:

(a) Embodied the partition order in the Provisional Register under PR277/43; and

(b) Registered the consolidated order against the Provisional Register, the

relevant memorial being H.310387.2. The Provisional Register recorded that

the owners were Puku Doherty (9.1875 shares) and Raimona Lee (44.8125

shares).

4 94 Otorohanga MB 326 (96 OT 326). Raimona Lee was also known as Ramona Lee, Puku Doherty was

also known as Paku Doherty. 5 98 OtorohangaMB 250-253 (OTR 250-253).


[13] On 31 October 1980 the District Land Registrar:

(a) Registered the transfer against PR277/43, the relevant memorial being

H.313608.1; and

(b) Issued a certificate of title for Puketiti 2B2B1- SA26C/629.

[14] Neither memorial H.313608.1 or the certificate of title SA26C/629 reflect the fact

that the transfer was intended to be a part only of the legal fee simple estate. The result was

that Ian Walsh was recorded on the certificate of title as the sole registered proprietor of

Puketiti 2B2B1.

[15] On 20 of May 1982 Ian Walsh entered a memorandum of transfer to Falkirk Farms

Limited. The transfer was registered against the certificate of title on 5 July 1982 – memorial

H.417572.4.

[16] On 1 of July 1983 Puketiti 2B2B1 Block was subdivided into two blocks being Part

Puketiti (SA30A/85) and Lot 1 (SA30A/84).

[17] Following subdivision Part Puketiti has been transferred on several occasions,

namely:

(a) Memorandum of transfer from Falkirk Farms Limited to Neville and Beverly

Booth dated 20 October 1987, registered against the certificate of title on 1

December 1987 – memorial H. 765664.3;

(b) Memorandum of transfer from Neville and Beverly Booth to Phillip and

Susan Peacocke dated 15 January 1992, registered against the certificate of

title on 12 February 1992 – memorial B.065915.2; and

(c) On 26 September 2006 from Phillip and Susan Peacocke to the trustees of the

Totoro Trust–memorial 7036407.2.


[18] Following subdivision, Lot 1 has also been transferred on several occasions, namely:

(a) Memorandum of transfer from Falkirk Farms Limited to Craig and Linda

Boyte and Brian Daniell dated 3 August 1983, registered against the

certificate of title on 24 August 1983 – memorial H.482573.1;

(b) Memorandum of transfer from Craig and Linda Boyte to Brian Daniell dated

4 April 1985, registered against the certificate of title on 24 June 1985

memorial– H.596725.3;

(c) Memorandum of transfer from Brian Daniell to Neville and Beverley Booth

dated 2 November 1990, registered against the certificate of title on 23

November 1990 – memorial H.992281.2;

(d) Memorandum of transfer from Neville and Barbara Booth to Phillip and

Susan Peacocke, registered against the certificate of title on 12 February 1992

– memorial B.065915.2; and

(e) On 26 September 2006 from Phillip and Suzanne Peacocke to the trustees of

the Totoro Trust–memorial 7036407.2.

[19] In 2008 a Deputy Registrar of the Māori Land Court filed applications in relation to

Puketiti 2B2B1. The applications were filed as part of what was known as the ‘Māori

Freehold Land Project’. An aim of the project was, where possible for the title records of

the Māori Land Court and those of LINZ to match. This involved the Māori Land Court

sending numerous orders for registration against the LINZ titles. Additional goals of the

project were to ensure that if possible, Māori land blocks without a certificate of title

obtained one, and clarification of the status of blocks, where there was uncertainty whether

they were Māori freehold land or General land.

[20] In relation to Puketiti 2B2B1, on 11 May 2009 Judge Carter gave directions to Māori

Land Court staff. He traversed the background history of the block and noted that because

of the incorrect recording of the transfer to Ian Walsh that the other owner Puku Doherty

“has lost his 9.1875 shares in the land”. Judge Carter went on to state that the loss was not


the fault of the Māori Land Court but rather through error by the LTO. He opined that the

error was an administrative one and possibly one of policy and directed that a copy of his

memorandum and comments be forwarded to the Chief Registrar and the Chief Judge for

comment.

[21] On 16 February 2011 Judge Carter dismissed an application seeking a consolidation

order and determination of status.6

[22] The current records of the Māori Land Court for Puketiti 2B2B1 do not match the

LINZ records. The list of current owners records that Ian Walsh is an owner. The Court has

made several succession orders in relation to Puku Doherty and his descendants.7 The full

list of owners for the block are: Charvet Mason; Gabrielle Harerangi Mason; Ian Robert

Walsh; Iris Arihi Whenuaroa; Lequan Kotene Mason; Lewis Harry Docherty and Te Rini

Kotene Rapana, as tenants in common in unequal shares.

Ngā korero e pā ana ki te tono nei – Procedural history

[23] The application was filed on 26 February 2020. At the same time counsel for the

applicants sought a conference to deal with preliminary procedural matters and timetabling

directions.

[24] The application was initially set down for a telephone conference on 24 March 2020.

However, once it became obvious that the country was moving to Level 4 of the Covid-19

Alert system, the conference was adjourned.

[25] A telephone conference was eventually held on 6 May 2020.8 Directions were made

for the applicants to serve the Registrar-General of Land and those descendants of Paku

Doherty, listed as owners in records of the Māori Land Court.

6 18 Waikato Maniapoto MB 11-12 (18 WMN 11-12). 7 302 Aotea MB 10-12 (302 AOT 10-12) and 412 Aotea MB 214-218 (412 AOT 214-218). Puku Doherty

died on 27 February 1970. 8 202 Waikato Maniapoto MB 34-38 (202 WMN 34-38).


[26] At the conference I also appointed John Neverman, solicitor of Hamilton, to act for

the descendants of Puku Doherty.9

[27] Mr Neverman was asked to provide a submission to the Court addressing the

following matters:

(a) The effect of the transfer from Raimona Lee to Ian Walsh – transfer

H.313608.1;

(b) The effect of recording Mr Ian Walsh as the sole registered proprietor of

Puketiti 2B2B1 – SA26C/629;

(c) The effect of the subsequent transfers from Mr Ian Walsh to successive

registered proprietors;

(d) The applicability of s 2(2)(f) of the Māori Affairs Act 1953;

(e) Whether the successors to Puku Doherty have any legal avenues to pursue in

relation to Record of Title Identifier – SA30A/85; and

(f) Any other relevant matters.

[28] Counsel for the applicants duly served the Registrar-General of Land and those

descendants of Puku Doherty whom the Court held address details for.

[29] On 8 June 2020 Mr Neverman filed a submission and bundle of documents in

support. On the same day, Mr Koning for the applicants filed a memorandum of counsel

requesting an amendment to the application to include Lot 1. I indicated to counsel at the

hearing that I would do so.

9 Mr Neverman was appointed pursuant to s 70(3)(b) of the 1993 Act. He was formerly employed by the

LTO and was the District Land Registrar South Auckland for several years. After graduating in law Mr

Neverman went into the private practice as a lawyer. That has included being a partner in the Hamilton

law firm McCaw Lewis Chapman and he is currently a partner of Neverman Bennett Lawyers of

Hamilton, specialising in property matters. Mr Neverman frequently appears as counsel for both private

clients and by Court appointment before the Māori Land Court in relation to property and title issues as

they effect Māori land- See 205 Waikato Maniapoto MB 160 (205 WM 160).


[30] The Registrar-General of land was sent a copy of Mr Neverman’s submissions and

bundle of documents on 11 June 2020. On the same day the Court received advice that the

Registrar-General of Land would abide the decision of the Court.

[31] On 15 June 2020 Mr Koning filed submissions on behalf of the applicants.

[32] On 16 June and 19 June 2020 Charvet Mason and Lequan Mason, persons recorded

as owners of Puketiti 2B2B1 in the Māori Land Court records, filed emails with the Court

objecting to the application. Harry Docherty attended the hearing. He is the grandson of

Puku Doherty and a son of a person recorded in the Māori Land Court list of owners, namely

Lewis Harry Docherty.

Ngā tāpaetanga – Legal submissions

[33] Counsel agree that at the date the consolidated order was made on 19 May 1976

vesting the block in Puku Doherty and Raimona Lee, Puketiti 2B2B1 was Māori Freehold

land.

[34] Counsel also agree that the LTO acted in error in issuing a certificate of title, SA

26C/629 recording Ian Robert Walsh as the sole registered proprietor.

[35] Mr Koning for the applicants relies upon s 2(2)(f) of the Māori Affairs Act 1953

which reads:

2 Interpretation

…

(2) Unless expressly provided in this or any other Act with respect to any

specified or defined area, and notwithstanding anything in the foregoing

definition of the term “land” or in any of the subsidiary definitions included

therein,—….

…

(f) Māori freehold land the legal fee simple in which has been transferred

otherwise than by an order of the Court [or of a Registrar] shall, except where

it appears on the face of the instrument of transfer that the land has remained

Māori freehold land, be deemed to be [General Land] until either –

(i) An order is made by the Court under paragraph (i) of subsection (1)

of section 30 of this Act determining that the land is Maori freehold

land; or


(ii) Any other order is made by the Court as a consequence of which the

land becomes Maori freehold land.

[36] Counsel also relies upon the Māori Appellate Court decision of Haddon v Rahui Te

Kuri Inc – Pakiri R.10 In that case the Court said that:

The effect of Section 2(2)(f) as Judge Russell stated, is to apply an irrebuttable

presumption that the land is to be treated as general land irrespective of its true status.

A transferee may avoid that presumption by having it noted on the transfer that the

land remains Māori Freehold Land. Alternatively he may seek an order of the Court

under Section 30(1) (i) determining the land to be Māori land in which case the

presumption or “deeming” remains in effect until such order.

[37] Mr Koning submitted that all the requirements of the 1953 Act that needed to be met

were completed. The transfer was correctly executed, and confirmation was obtained from

the Māori Land Court. Notwithstanding any error on the part of the LTO, the applicants

were entitled to rely upon s 2(2)(f) of the 1953 Act and the irrebuttable presumption outlined

in Haddon.

[38] Mr Koning contrasted the facts of this case with those cases in which confirmation

either from the Court or Registrar of the Court had not been obtained. In this case

confirmation was obtained. He submitted that there was nothing on the face of transfer from

Raimona Lee to Ian Walsh to indicate that Puketiti 2B2B1 was to remain Māori freehold and

that the Māori Land Court had not made any subsequent orders under s 30(1)(i) of the 1953

Act or any other order determining the block as Māori freehold land.

[39] In addition, Mr Koning submitted that if for some reason s 2(2)(f) did not apply to

the transfer between Raimona Lee and Ian Walsh, the subsequent transfers which took place

prior to the commencement of Te Ture Whenua Māori Act in 1993 cured any defect. In 1982

Mr Walsh transferred the block to Falkirk Farms Limited. In turn they subdivided the block

into Part Puketiti and Lot 1. Following subdivision those blocks were subsequently

transferred a further two and four occasions respectively, prior 1 July 1993. None of the

subsequent transfer documents, starting with the transfer to Falkirk Farms Limited, have any

indication or endorsement on the face of them that the lands were to remain Māori freehold

land. To complete that submission, if as at 1 July 1993 the status of both blocks was General

land, that status continued after 1 July 1993 pursuant to s 129(3) of the 1993 Act.

10 Haddon v Rahui Te Kuri Inc – Pakiri R (1994) 3 Appellate MB 178 (3 APWH 178) at [25].


[40] Mr Neverman takes a different view of the effect of the transfer from Raimona Lee

to Ian Walsh. He acknowledges that the LTO treated the transfer as including all the entire

legal fee simple, not part. Nevertheless, he points to the words of s 2(2)(f) which refer to

“Māori freehold land the legal fee simple in which has been transferred otherwise than by

order of the Court…”. He points to the fact that the intention was to transfer the shares

owned by Raimona Lee only. The transfer did not and could not transfer the shares owned

by Puku Doherty. Effectively he submitted that the LTO error could not be saved by s 2(2)(f)

and that at the time Ian Walsh became the owner of Puketiti 2B2B1 the status remained

Māori freehold land.

[41] Mr Neverman referred the Court to the Provisional Register. He noted that the first

memorial H.310387.2, which records the entry of the consolidated order, records that there

were two owners of the block, Puku Doherty as to a 9.1875 share and Raimona Lee as to a

44.8125 share. He contrasted that with the memorial which immediately follows and records

the registration of transfer. He submitted that memorial was incorrect as it did not accurately

record that what was supposed to be transferred to Ian Walsh was part only of the legal fee

simple, the 44.8125 shares owned by Raimona Lee.

[42] Mr Neverman goes on to submit that subsequent transfers which occurred prior to 1

July 1993 were either recorded incorrectly by the LTO or registered incorrectly by the LTO

in breach of the requirements of the 1953 Act and accordingly the blocks have Māori

freehold land status.

Ngā kēhi mō te wāhanga 2(2)(f) o te Ture Whenua Māori 1953 – Case law concerning

section 2(2)(f) of the Māori Affairs Act 1953

[43] Haddon v Rahui Te Kuri Inc – Pakiri R concerned a case stated to the Māori Appellate

Court.11 It involved the non-noting of a transfer in the records of the Court as required by s

233 of the 1953 Act.

[44] Two questions were asked of the Court. The first was whether the registration of a

transfer pursuant to the law prior to and subsequent to the passing of Te Ture Whenua Māori

Act 1993 had the effect of changing the status of the land to General land.

11 Haddon v Rahui Te Kuri Inc – Pakiri R (1994) 3 Appellate MB 178 (3APWH 178) at [25].


[45] The Court held that registration of a transfer pursuant to law has the effect of

changing the status of the land from Māori freehold land to General land except where it was

apparent on the face of the transfer that the land was to remain Māori freehold land.

Furthermore, that the status of the land is deemed to be that of General land until there was

an order under s 30(1)(i) determining the land to be Māori freehold land or some other order

of the Court whereby the land becomes or is deemed to become Māori freehold land.

[46] The second question concerned the effect of any failure to note a transfer in the

records of the Māori Land Court as required by s 233 of the 1953 Act.

[47] In answer to that question the Court held that until registration against the Land

Transfer title, the transfer is of no force or effect. However, upon registration of the transfer

in the LTO with or without noting by the Registrar, the transferee acquires an indefeasible

title to the land, irrespective of the state of the Māori Land Court title.

[48] In Haddon the Court drew attention to the fact that the question before it related to

the effect of the non-noting of a transfer in the records of the Court and not the effect of a

non-confirmation of a transfer that was required to be confirmed. They said the latter

question could give rise to a different question of law.12

[49] That very issue came before Judge Ambler in two cases, Deputy Registrar – Te Keti

A213 and Dobson – Ahipara 2B 47 Block.14 Both involved a pre-1 July 1993 transfer which

had not been confirmed by the Court and was in breach of s 224(1) of the 1953 Act. After

referring to Haddon, earlier decisions of the Māori Land and the High Court, Judge Ambler

held that:

(a) The registration of a transfer under the Land Transfer Act 1952 gives rise to

an indefeasible interest, even if the transfer had not been confirmed by the

Registrar as per s 224(1) of the 1953 Act;15

12 Above n 11 at [34]. 13 Deputy Registrar – Te Keti A2 (2011) 15 Taitokerau MB 76 (15 TTK 76). 14 Dobson – Ahipara 2B 47 Block (2014) 74 Taitokerau MB 139 (74 TTK 139). 15 Above n 13 at [22].


(b) Registration under the Land Transfer Act 1952 does not automatically change

the status of Māori freehold land. Registration of a void instrument does not

cloak that instrument with indefeasibility for purposes beyond the Torrens

system;16

(c) Section 2(2)(f) which deems transferred Māori freehold land to be General

land unless the instrument of transfer states otherwise, must be disregarded

because the underlying instrument of transfer was of no force or effect;17 and

(d) The 1953 Act defines Māori freehold land as land owned “by a Māori”. As

the transfer of the land was to a non-Māori, the status of the land changed

from Māori freehold to General land, simply by virtue of it being transferred

to a non-Māori.18

[50] In Moore v Oakura F2A, Judge Wara had a situation before her involving a 1988

transfer from trustee owners of a block of Māori freehold land to a non-Māori.19 The 1953

Act required the transfer to be endorsed by a Registrar of the Court pursuant to s 233. The

transfer was not endorsed and thus was of no force or effect.20 There was nothing on the

face of the transfer to indicate that the land remained Māori freehold land. The transfer was

registered pursuant to the Land Transfer Act 1952 and the land transferred to the non-Māori

owner.

[51] Judge Wara considered the Deputy Registrar-Te Keti A2 decision. For the most part

she endorsed the approach taken by Judge Ambler but disagreed with his determination that

status of the land changed by reason only of the transfer to a non-Māori. Her view was, that

if the transfer was void then s 2(2)(f) is to be disregarded. There was nothing to effect a

change of status. For a change of status to have occurred the conditions set out in the 1953

Act must be satisfied.21

16 Above n 13 at [30]. 17 Above n 13 at [36]. 18 Above n 13 at [37]. 19 Moore v Oakura F2A (2019) 2004 Taitokerau MB 64 (204 TTK 164). 20 Māori Affairs Act 1953, s 233(1). 21 Above n 19 at [19].


[52] That decision was appealed. In Moore – Part Oakura F2A the Māori Appellate Court

agreed with the approach taken by Judge Wara, which was that the status of a block of land

could not change merely by definition and a transfer to a non-Māori.22 They held that the

definition of Māori freehold land in the 1953 Act was not a substantive or operative provision

that acted to change the status of the land.23

[53] The Court played close attention to the scheme of the 1953 Act and s 2(2)(f). At

paragraph [23] the Court set out the passage from Haddon referring to the irrebuttable

presumption. They also noted the statutory exceptions contained in s 2(2)(f), namely where

the transfer occurred by order of the Court or Registrar or where the transfer was clear on its

face that the land remained Māori freehold land.24

[54] The Court also examined the meaning of the words “shall have any force or effect”

in s 233(1). They reached the position that the “scheme of the 1953 Act did not contemplate

or provide for the situation in which transfers in violation of the 1953 Act would

automatically change the status of the land”.25

[55] The underlying point highlighted by these decisions is that, while a transfer registered

in breach of the provisions of the 1953 Act passes indefeasible title, a transfer in breach of

the 1953 Act does not automatically trigger s 2(2)(f).

Te whakawhitinga mai i a Raimona Lee ki a Ian Walsh – The transfer from Raimona

Lee to Ian Walsh

[56] The facts in the above cases are subtly different to that which are before me. In those

cases, the transfer had not been confirmed or noted under the 1953 Act. In the case before

me the transfer was confirmed.

[57] The error arose when the LTO transferred the entire legal fee simple to Ian Walsh

rather than part of it. Therefore, the questions for me to decide are:

22 Moore – Part Oakura F2A (2020) Māori Appellate Court MB 209. 23 At [15]. 24 Above n 23 at [24] and [25]. 25 Above n 23 at [30].


(a) In a case where a transfer has been confirmed by the Court, however, the LTO

incorrectly transferred the entire legal fee simple rather than part only, what

effect does that have on the status of the blocks; and

(b) What was the effect of the subsequent transfers from Ian Walsh and others on

the status of the blocks?

[58] Before going on to answer those questions it needs to be stated that they relate to the

issue of status as opposed to legal ownership and indefeasibility of title. There is no doubt

that following the transfer from Raimona Lee, Ian Walsh became the registered proprietor

of the entire legal and beneficial interests in Puketiti 2B2B1. That meant Puku Doherty’s

legal and beneficial interests were extinguished. In turn title was transferred to various

registered proprietors down to the applicants.

[59] This case is not about examining the legal ownership of either block or attempting to

restore Puku Doherty’s ownership interests. Nor is it about providing a remedy to those

descendants of Puku Doherty whom are described as owners in the records of the Māori

Land Court. They may potentially have remedies against LINZ, which Mr Neverman has

outlined in his submissions, however this Court does not have the jurisdiction to entertain

those questions. The questions before the Court relate solely to an issue of status.

[60] Pursuant to the 1953 Act a Māori could alienate or dispose of their land or any

interests in the same manner as a European. This included an undivided interest.26

Therefore, Raimona Lee was entitled to transfer her part interest in the block.

[61] In the case of an agreement to alienate by way of transfer, it had to be signed by all

parties to that agreement.27 In this case the transfer was signed by both Raimona Lee and

Ian Walsh.

[62] The transfer had “no force or effect” unless it was confirmed by the Māori Land

Court.28 Confirmation was obtained on 9 July 1980.

26 Māori Affairs Act 1953, s 211. 27 Māori Affairs Act 1953, 222(1). 28 Māori Affairs Act 1953, s 224(1).


[63] Furthermore, confirmation had to be granted by a certificate of confirmation

endorsed or otherwise written on the transfer under the seal of the Court and the hand of the

Judge.29 A certificate of confirmation was endorsed on the transfer, dated 26 August 1980

and was signed by Judge Cull.

[64] The relevant section of the 1953 Act dealing with the effect of confirmation was s

226(2). That section reads:

226 Effect of confirmation

…

(2) On confirmation being granted the instrument of alienation shall (if

otherwise valid) take effect according to its tenor, subject to the requirements

(if any) of registration under the Land Transfer Act 1952, as from the date on

which it would have taken effect if no such confirmation had been required.

[65] The question that arises is what was the Court confirming? In this respect I pay close

attention to those words in s 226(2) which stipulate that the transfer “shall… take effect

according to its tenor…” (emphasis added).

[66] There are no authorities that have considered the meaning of s 226(2). There are

several examples of the phrase “according to its tenor” in both the 1953 and 1993 Acts.30

However, the phrase is not defined in either Act.

[67] The Butterworths New Zealand Law Dictionary defines tenor as “the pervading note

of a document or an utterance”. 31 A tenor of a deed is defined as “the matter contained

therein, according to the true intent and meaning thereof”.32

[68] Similarly, the Black’s Law Dictionary defines tenor as “an exact copy of an

instrument”; “the exact words of a legal document, especially as cited in a pleading”; and

“the meaning of a legal document”.33

29 Māori Affairs Act 1953, s 226(1). 30 See Māori Affairs Act 1953, ss 34,179,191,332,408,413,425,434A,435,438,442 and 446. See also Te Ture

Whenua Māori Act 1993, ss 25,41,295,307,308,313,324,333. 31 Peter Spiller Butterworths New Zealand Law Dictionary (6th ed, LexisNexis, Wellington,2005) at 307. 32 At 307. 33 Bryan A Garner (ed) Black’s Law Dictionary (9th ed, Thomas Reuters,USA,2009) at 1607.

https://www.westlaw.co.nz/maf/wlnz/app/document?docguid=I6446fa38e03b11e08eefa443f89988a0&&src=rl&snippets=true&startChunk=1&endChunk=1&isTocNav=true&tocDs=AUNZ_NZ_LEGCOMM_TOC#anchor_I63cb2d32e00611e08eefa443f89988a0


[69] There are several decisions of the Employment Court, its predecessor the Labour

Court and the Employment Tribunal, that have examined the phrase “according to its tenor”.

However, I do not propose to outline those in any detail given the differing context of the

cases before those respective Courts. Suffice to say, however that the phrase while capable

of more than one meaning, has generally been held to mean either the exact or precise

language of a document, or its necessary intendment, purport or effect.34

[70] In the circumstances before me, the transfer was not intended as a transfer of the

entire legal fee simple of Puketiti 2B2B1. What was being transferred was the part of the

legal fee simple owned by Raimona Lee. There is nothing on that document, which

confirmed the transfer of either that part of the legal fee simple owned by Puku Doherty or

the entire legal fee simple of Puketiti 2B2B1 to Ian Walsh.

[71] The Māori Land Court could only grant confirmation in relation to the subject matter

of the transfer before it. Based on that transfer it could not, indeed did not, go beyond the

ownership interests of Raimona Lee and transfer the shares of Puku Doherty. To do so would

have meant the Court acted beyond its powers. In summary:

(a) There was no transfer before the Court purporting to transfer the entire legal

fee simple;

(b) The Court confirmed the transfer of Raimona Lee’s interests only;

(c) The Court did not confirm any transfer of Puku Doherty interests;

(d) The Court did not confirm the transfer of the entire legal fee simple in Puketiti

2B2B1 to Ian Walsh.

[72] I have had the benefit of access to an historic file, 17-2367, concerning the Puketiti

block. That file includes the agreement for sale and purchase and the application for

confirmation. Both documents were signed by Raimona Lee and Ian Walsh. What was

34 New Zealand Central Region etc Local Government Officers’ Union v Levin Borough Council [1989] 2

NZILR 692; Central Clerical Workers’ Union v Victoria University Students’ Assn [1990] 2 NZLR 294;

Northern Local Government Officers’ v Ruapehu District Council [1991] 3 ERNZ 194 at 218; Hands v

Wel Energy Group Ltd [1992] 1 ERNZ 796 at 812-813.


intended was the sale of a part interest in Puketiti 2B2B1 only, the 44.1825 shares owned by

Raimona Lee. Mr. Walsh also signed a declaration in support of the application for

confirmation dated 10 June 1980. The declaration refers to Ian Walsh as acquiring 44.8125

out of 54 shares.35

[73] I have read the minutes of the confirmation hearing before Judge Cull.36 Raimona

Lee was called to give evidence. She explained the background to the sale. She referred to

the fact that there was another owner, Puku Doherty, who was deceased. She stated that she

had written to Mr. Doherty’s wife, whom she thought lived at Whanganui. She said, “I am

sure Mr. Walsh will make some endeavors to contact the widow”.37

[74] On 15 August 1980 the Registrar of the Māori Land Court wrote to the solicitors

acting for both Raimona Lee and Ian Walsh. The Registrar advised them as follows: “With

regard to Puketiti 2B2B1, as you know this land will remain Māori Freehold land until the

remaining interest has been purchased”.

[75] I have referred to those documents because it is crystal clear that what was intended

to be transferred from Raimona Lee to Ian Walsh was part only of the legal fee simple. If

the transfer had taken place as intended or to put it another way “according to its tenor”, two

things would follow. First, only Raimona Lee’s shares would have transferred to Ian Walsh.

Second, the certificate of title would have recorded the fact that there were two registered

proprietors of Puketiti 2B2B1 one of whom, Puku Doherty, was Māori.

[76] The definition of Māori freehold land is set out in s 2 of the 1953 Act as follows:

Maori freehold land means land other than General land which, or any undivided

share in which is owned by a Maori for a beneficial estate in fee simple whether legal

or equitable:

…

35 Copies of those documents were made available to counsel prior to the hearing. 36 Above n 5. 37 Above n 5 at 252-253.


[77] If the transfer had taken effect according to its tenor by virtue of the fact that Puku

Doherty was Māori, the status of Puketiti 2B2B1 would have remained as Māori freehold

land. The Land Transfer system did not permit a single block to have two different statuses.38

[78] I reach the position that the transfer did not take effect according to its tenor in

accordance with s 226(1). Had it done so then the LTO should have endorsed PR277/43 as

recording a transfer to Ian Walsh of 44.8125 shares only. Furthermore, certificate of title SA

26C/629 should have recorded the registered proprietors as being Puku Doherty and Ian

Walsh.

[79] Mr Koning for the applicants submitted that the Court must have regard to s 2(2)(f).

He respectfully contended that what has occurred in the recent case law I set out above, is

that a gloss has been placed on the actual words of s 2(2)(f) and the Haddon decision. He

submitted that the Court should look at not only the transfer document itself but also

memorial H.313608.1 and the certificate of title SA26C/629. In combination they effected

the transfer of the legal fee simple. He went on to submit that the Court is faced with a

situation in which rightly or wrongly a transfer of the entire legal fee simple estate has in

fact occurred and none of the statutory exceptions apply. In those circumstances he

submitted the Court must give effect to the words “deemed to be General Land”, as they

appear in s 2(2)(f).

[80] I disagree. If that approach was followed, then the words of s 226(2) are glossed

over. They provide that a transfer once confirmed must take effect according to its tenor.

The transfer did not take effect according to its tenor. The agreement for sale and purchase,

application for confirmation, declaration in support, the transfer and minutes of the

confirmation hearing make it very clear that Raimona Lee, Ian Walsh and Judge Cull all

understood that only one owner was transferring their interests, not both.

[81] The transfer violated the provisions of s 226(2) of the 1953 Act. It did not take place

according to its tenor and if it had done so then only the interests of Raimona Lee would

have transferred to Ian Walsh and the block would have remained Māori freehold land. In

my opinion s 2(2)(f) was not intended to capture a situation in which a transfer did not take

38 Short v Stowers-Tumu Kaituna 14 (2018) 199 Waiariki MB 188 (199 WAR 188) at [32].


place in accordance with what was intended. Therefore, I conclude that following the

transfer to Ian Walsh, Puketiti 2B2B1 remained Māori freehold land.

[82] Reaching this conclusion is consistent with the Māori Appellate Court’s findings in

Haddon. The irrebuttable presumption they refer to arises only when registration of a

transfer has taken place “pursuant to the law under the Maori Affairs Act 1953”.39 The

transfer did not take place pursuant to law under the 1953 Act as it breached s 226(2).

[83] In addition, I raise the question of whether the transfer of that part of the legal fee

simple owned by Puku Doherty was in violation of the 1953 Act? There is no doubt that the

LTO wrongly transferred Puku Doherty’s interests to Ian Walsh. However, where was the

necessary confirmation of the transfer of Puku Doherty’s interests? Of course, there was

none. It would be flawed logic indeed to rely upon confirmation granted in respect of

Raimona Lee’s interests, as somehow also capturing Puku Doherty’s interests.

[84] Further, pursuant to s 224(1) of the 1953 Act no alienation of Māori land by way of

transfer “shall have any force or effect unless and until it has been confirmed by the Court”.

No confirmation was obtained, therefore the transfer violated s 224(1). Based on the

authorities set out earlier, even though the transfer of Puku Doherty’s interests gave rise to

an indefeasible interest, the transfer was void for status purposes.

[85] As an alternative to the above I pose an additional question, admittedly somewhat

tentatively, of whether there was enough of an indication on the face of the transfer that

Puketiti 2B2B1 was to remain Māori freehold land? That of course is one of the exceptions

provided for in s 2(2)(f). I ask the question because as we know the transfer:

(a) Referred to a partition order of the Māori Land Court dated 19 May 1921;

(b) Referred to the partition order being embodied in PR 277/43;

(c) Referred to confirmation being obtained from the Māori Land Court on 9 July

1980;

39 Above n 11 at [33] and [65].


(d) Contained a certificate of confirmation endorsed on the transfer and signed

by a Māori Land Court Judge on 25 August 1980;

(e) Was of Māori freehold land; and

(f) Was of part of the legal fee simple only.

[86] Everyone dealing with the transfer knew or ought to have known, including the LTO

that there was another owner. That was self-evident by reading the memorial recording the

entry of the consolidated order on PR 277/43.40 It was also self-evident on the face of the

transfer when it referred to the Raimona Lee owning 44.8125 shares out of a total of 54

shares as a tenant in common. What more was needed to alert the LTO officials that there

was another owner?

[87] Therefore, I ask in those circumstances, did the transfer necessarily need a specific

endorsement on it stating “following transfer this block shall remain Māori Freehold land”

or words to that effect? That was not necessary because all concerned would have expected

the transfer to take place according to its tenor, resulting in there being two owners recorded

on the certificate of title, Ian Walsh and Puku Doherty, one of whom was Māori. If that had

happened the block would have remained Māori freehold land.41

[88] What actually happened was that a perfectly valid transfer of part of the legal fee

simple was incorrectly registered by the LTO and then compounded by the issuing of a

certificate of title wrongly describing Ian Walsh as the sole registered proprietor.

[89] For the reasons I have outlined above at paragraphs [85]-[87] I reach the tentative

conclusion that there was enough of an indication on the face of the transfer that following

the transfer of Raimona Lee’s interests, Puketiti 2B2B1 would remain Māori freehold land.

40 Consolidated Order, Provisional Register 277/43, H.310387.2. 41 Māori Affairs Act 1953, s 2. See s 2 for the definition of Māori freehold land.


Ētahi atu whakawhitinga - The additional transfers

[90] What then was the effect of the subsequent transfers which occurred prior to 1 July

1993? I have looked at all of them. None of them contain any indication or endorsement

that the blocks remained Māori freehold land.

[91] The starting point is that following the transfer to Ian Walsh, the status of Puketiti

2B2B1 was Māori freehold land. Subsequent transfers had to be confirmed pursuant to s

224(1) of the 1953 Act. If not s 224(1) provides that no transfer “shall have any force or

effect unless and until it has been confirmed by the Court”. None of the transfers were ever

confirmed, as they should have been.

[92] The Māori Appellate Court decison of Moore is useful in this regard. The facts of

the case before the Court in Moore involved a transfer from trustee owners to a non-Māori

which was not endorsed by a memorial that it had been produced to a Registrar and noted in

the records of the Court as required by s 233(1) of the 1953 Act. In those circumstances s

233(1) provides that the transfer “shall [not] have any force or effect…”.42

[93] Although the Māori Appellate Court in Moore was examining the words of a different

section, that is s 233(1) as opposed to s 224(1), the words under scrutiny are still the same

“shall have any force or effect”. The Māori Appellate Court at paragraphs [29] and [30]

reached the following conclusions:

[29] Finally, in enacting the 1953 Act, Parliament must surely have assumed that

its provisions would be complied with. It seems contrary to this intent if a transfer

that violated the 1953 Act could, by virtue of the application of a definition, and in

the face of an alternative specific and detailed statutory process, change the status of

Māori Freehold land.

[30] We therefore determine that the scheme of the 1953 Act did not contemplate

or provide for the situation in which transfers in violation of the 1953 Act would

automatically change the status of the land….

[94] On this point the approach taken by the Māori Appellate Court in the Haddon and

Moore decisions are consistent. In Haddon the second question the Court addressed was the

effect of a transfer which did not comply with s 233 of the 1953 Act. Their answer was that

upon registration of the transfer the transferee acquires an indefeasible title. They made no

42 At paragraph [27] the Māori Appellate Court refers to s 223(1) of the 1953 Act. That appears to be a

typographical error. The section should read s 233(1) of the 1993 Act.


comment about status. Their findings concerning status related solely to the first question

before them which concerned a transfer that complied with the provisions of the 1953 Act.

[95] I start with the fact that Puketiti 2B2B1 remained Māori freehold land following the

transfer to Ian Walsh. That meant that for subsequent transfers confirmation had to be

obtained pursuant to s 224(1). Confirmations were not obtained as required by the 1953 Act.

Therefore, the transfers were of no force or effect as far as status was concerned.

[96] In reaching that conclusion I agree with the findings in Te Keti and by both the Lower

Court and Māori Appellate Court in Moore, that registration of a void transfer with the LTO

did not validate it for purposes beyond the Land Transfer Act 1952. Parliament must have

expected that the provisions of the 1953 Act would be complied with and that transfers in

violation of the 1953 Act did not automatically change the status of the land.

[97] On 1 July 1993 the registered proprietors of both Part Puketiti and Lot 1 were Phillip

and Susan Peacocke. At that time the status of both blocks was Māori freehold land.

Following the commencement of Te Ture Whenua Māori Act on 1 July 1993, land which

had Māori freehold land status immediately prior to the commencement of that Act remained

Māori freehold land.43

[98] I reiterate that this decision does not have any impact upon the ownership of either

title. The applicants are the registered proprietors of both blocks and Puku Doherty’s

interests in the block have been extinguished. Those interests were extinguished by the

errors made by the LTO, not the Māori Land Court.

Ngā ōta - Orders

[99] I make the following orders pursuant to Te Ture Whenua Māori Act 1993:

(a) Section 37(3) amending application A20200003682 to include Lot 1

Deposited Plan South Auckland 33533;

43 Te Ture Whenua Māori Act 1993, s 129(3).


(b) Section 18(1)(h) determining that Lot 1 Deposited Plan South Auckland

33533 (ROT Identifier SA30A/84) and Part Puketiti 2B2B1 Block (ROT

Identifier SA 30A/85) are Māori freehold land; and

(c) Section 131(1) determining and declaring that Lot 1 Deposited Plan South

Auckland 33533 (ROT Identifier SA30A/84) and Part Puketiti 2B2B1 Block

(ROT Identifier SA30A/85) are Māori freehold Land.

Pronounced in open Court in Hamilton at am/pm on this 3rd day of July 2020.

S R Clark

JUDGE

Documents

205 Waikato Maniapoto MB 202 · that Ian Walsh was recorded on the certificate of title as the sole registered proprietor of Puketiti 2B2B1. [15] On 20 of May 1982 Ian Walsh entered