Tatahi Ltd v Matauri Bay Properties Ltd [2009] NZCA 178; [2009] 3 NZLR 367 (11 May 2009)

Last Updated: 2 February 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA641/2008
[2009] NZCA 178

BETWEEN TATAHI LIMITED (FORMERLY KNOWN AS TUTANEKAI TATAHI LIMITED)
Appellant

AND MATAURI BAY PROPERTIES LIMITED
First Respondent

AND BURTON & CO
Second Respondent

Hearing: 8 April 2009

Court: Robertson, Ellen France and Baragwanath JJ

Counsel: A I C Denton and J S Langston for Appellant
S A Grant for Respondents

Judgment: 11 May 2009 at 4 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

2. Orders for summary judgment made by Associate Judge Christiansen are confirmed.

100. The appellant must pay the first respondent costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Table of Contents
Para No

Introduction [1]
Background [6]
The case in the High Court [15]
Did the contract require registration of the lease? [18]
Were the leases “long-term” leases in terms of the Act? [21]
If the leases were not in law required to be approved under the Act,
was there nonetheless a contractual obligation upon Matauri to
seek Māori Land Court approval of them? [33]
The vesting order of 17 September 2008 and cl 7.1(d) of the contract [40]
Did the Māori Land Court give its “consent” to “registration”

of the orders? [50]

Discussion [59]
In any event, was informal consent sufficient? [68]

Does the availability of other processes mean that consent was
not “required”? [73]
Conclusion [75]
Result [76]

Introduction

[1] The appellant (“Tatahi”) appeals against the judgment of Associate Judge Christiansen of 18 September 2008 (HC AK CIV 2008-404-2645) that Tatahi had no authority to cancel 13 agreements for sale and purchase which it had entered into with the first respondent, Matauri Bay Properties Limited (“Matauri”) and the consequent declaration made by the Judge that each of the agreements between Tatahi and Matauri remained on foot.
[2] The initial grounds of appeal were challenges to the High Court finding that the relevant leases were not “long-term leases” as defined in s 4 of Te Ture Whenua Māori Act 1993 (“the Act”), and that in the absence of a statutory consent requirement, the contract did not obligate the parties to seek the Māori Land Court’s consent.
[3] After filing its initial notice of appeal, Tatahi made an unopposed application to argue a further ground (which was not argued at the High Court) and which concerned an order made by the Māori Land Court in September 2008 vesting the relevant land in the Public Trustee. Associated with this new ground of appeal are ancillary applications, brought by both Tatahi and Matauri, to adduce further evidence.
[4] The second respondent, which was a stakeholder, has not participated in the proceedings in either the High Court or this Court. It has agreed to abide the Court’s decision.
[5] In the High Court, Tatahi and Matauri each sought summary judgment against the other in respect of the 13 agreements. The Associate Judge dismissed Tatahi’s application, and granted summary judgment to Matauri.

Background

[6] A corporation named Matauri X owned a block of Māori freehold land. In April 2005, Matauri was formed to facilitate the subdivision of this land into 139 residential properties. Matauri X was to transfer the land to the Public Trustee, and Matauri was to lease it from the Public Trustee. Matauri, as lessee, would then sell the individual leases to purchasers.
[7] The sale and purchase deals for the leases were commenced in late 2006, when representatives of Matauri and Tatahi met. Mr Crosbie, a solicitor for Tatahi, had experience of Maori land and expressed concern to Matauri’s solicitors over the possibility of certain commercial problems that may arise because of the land’s Māori status.
[8] Tatahi entered into 13 separate but identical agreements for sale and purchase, relevant terms of which included:

(a) Tatahi agreed to pay $225,000.00 for each lease. A ten per cent deposit was payable to a stakeholder who was to place the deposit in an interest-bearing trust account. The balance was to be paid upon settlement;

(b) The agreements were conditional upon occurrence of the events outlined in cl 7.1 (time being of the essence). They included:

(i) 7.1(c). Matauri obtaining the consent of any relevant authority to carry out the development; and

(ii) 7.1(d). Matauri obtaining the Māori Land Court’s consent to register the lease and all covenants and other interests required to be registered to give effect to the development pursuant to the Act by six months from the date that cl 7.1(c) was satisfied;
(c) Clause 7.3 provided that either party was entitled to cancel the agreements if cl 7.1(d) was not fulfilled or waived by its date for fulfilment; and
(d) If the agreements were validly cancelled under cl 7.3, then the purchaser, Tatahi, was entitled to get back its deposits and the interest earned on them.
[9] The lease was set out in a schedule to the agreement, and was for a term of 52 years. Under s 4 of the Act, a lease for a term of more than 52 years is a “long-term lease” and required Māori Land Court approval. Tatahi claimed that it was entitled to cancel the agreements because Matauri failed to get Māori Land Court approval for the leases. Central to the appeal, therefore, is whether the leases ought to be characterised as “long-term” under s 4 of the Act.
[10] The condition contained in cl 7.1(c) was satisfied on 28 September 2007. Under the contract, that made the date by which Māori Land Court approvals/consents had to be obtained under cl 7.1(d) 28 March 2008.
[11] At 4.48pm on 28 March 2008, Matauri’s solicitors, Burton & Co, sent a message to Tatahi’s solicitors advising that the Māori Land Court consent required by cl 7.1(d) had been satisfied. Mr Riley, one of Tatahi’s solicitors, phoned Mr Jones of Burton & Co, and asked for a copy of the consent. Mr Riley said he did not have a copy, but had an email from the Public Trustee’s solicitors advising that no consent was required.
[12] Tatahi’s solicitors cancelled the agreement the following day.
[13] On 14 April 2008, Burton & Co sent Tatahi a fax stating that:

The only consent required from the Maori Land Court in relation to our client’s subdivision was the consent to the grant of Maori roadway under the Te Ture Whenua Maori Act 1993. Consent to the grant of the roadway was given by the Court on 1 February 2008.

[14] The roadway referred to was on Māori land, servicing the land being developed. Up until it received the fax, Tatahi had no knowledge of the application made for consent to construct the roadway.

The case in the High Court

[15] In the High Court, there was an issue over the roadway consent, which Judge Christiansen held was not material to the applications before him. Tatahi does not appeal that aspect of his judgment.
[16] The core of Tatahi’s case in the High Court was that Matauri had failed to obtain the consents it was obliged to. The Associate Judge did not accept the arguments put forward by Tatahi.
[17] We consider and discuss below each of the matters addressed by the Associate Judge that are appealed against by Tatahi. We then discuss Tatahi’s new ground of appeal, which concerns a vesting order made by the Māori Land Court on 17 September 2008.

Did the contract require registration of the lease?

[18] There was no dispute that, if the lease was required to be registered under the Act by reason of its being a “long-term” lease in terms of s 4, Matauri had breached the agreement. Tatahi argued that, since the lease provided for a right of renewal at 52 years and a concurrent obligation on the lessor to purchase the fixtures on the land if it did not offer a renewal, the lease was effectively long-term. Associate Judge Christiansen did not accept that argument because the right of renewal was vested solely in the lessor. He considered that, although the Act does not expressly limit the term “right of renewal” to lessees’ rights, a limited interpretation was consistent with the Act’s Preamble and objectives.
[19] Tatahi’s alternative argument was that, even if the Act did not require the lease to be registered, the contract did require it. Tatahi submitted Matauri should at least have applied to the Māori Land Court for consent, and left the assessment as to whether it was required up to the Court rather than simply having decided for itself that consent was not required.
[20] The Associate Judge was not drawn to that argument. He said:

[47] What TTL invites the Court in this instance to do is to interpret the words of cl 7.1(d) by giving them a purely literal meaning. But, the parties’ contract was a commercial undertaking. To the extent there is any difficulty or ambiguity in the language, then its words and terms invite the application of commercial sense. I believe that the clause required registration of interests required to be registered. Clearly, the purpose of obtaining the consent required was to ensure the development would proceed lawfully and in accordance with the Act... It follows the absence of an actual consent (not required by law) does not give rise to a right of cancellation, as the parties’ intention has still been given effect.

...

[49] ... a construction of cl 7.1(d) to the effect that Maori Land Court consent must be sought and obtained, whether necessary or not, is a strained construction that would require expression in much more emphatic terms if it were to override the objectively ascertained commercial purpose of obtaining consent.

Were the leases “long-term” leases in terms of the Act?

[21] Section 150A of the Act provides that the trustees of an ahu whenua trust (of which Matauri X is one) may alienate all or part of land vested in them only in accordance with the section. We set out s 150A in full at [47] but, specifically, the section provides:

150A Alienation by trustees

(1) The trustees of a trust constituted under Part 12 must not alienate Mäori freehold land vested in them as trustees –

...

(b) by long-term lease, unless the Court, in its discretion, approves and the long-term lease has the consent of –

(i) at least half of the owners, if no owner has a defined share in the land; or

(ii) the persons who together own at least 50% of the beneficial freehold interest in the land.

...

[22] “Long-term” lease is defined in s 4 of the Act as follows:

4 Interpretation

In this Act, unless the context otherwise requires, –

...

long-term lease means a lease –

(a) for a term of more than 52 years; or

(b) for a term that would be more than 52 years if 1 or more rights of renewal were exercised]

[23] The lease agreements between Tatahi and Matauri are for terms of 52 years. But, cl 13.1 of the lease agreements provides as follows:

The Lessor shall not less than three (3) years prior to the expiry date of the Term of this lease give a written notice to the Lessee advising the Lessee as to whether or not the Lessor wishes and is able, subject to all approvals being obtained, to relet the land. If the Lessor is able to and wishes to relet the Land, it shall grant a new lease to the Lessee on the same terms as are set out in this Lease (except as may be required to be modified to comply with any relevant law) and with the commencement rent to be the current market rent and including this provision.

[24] Mr Denton for Tatahi contended that this right of renewal, which the agreements provide is exercisable only at the discretion of the lessor, makes the leases “long-term” under s 4 of the Act. Mr Denton submitted that the Associate Judge placed an unwarranted gloss on the section by limiting rights of renewal to lessees’ rights and that the consequence of the gloss was to preclude the Māori Land Court from considering certain leases into which it ought to enquire.
[25] Mr Denton submitted that the objectives of the Act were best promoted by interpreting the s 4 definition as applying to both lessees’ and lessors’ rights, since that would ensure maximal Māori Land Court supervision over contracts for alienations of Māori land, in keeping with the purpose of the Act. It would also not require putting a textual gloss on the Act’s apparently plain words.
[26] Mr Denton argued that the Associate Judge improperly fettered the Māori Land Court’s jurisdiction over alienations of Māori land, and that in any case in which a lease might possibly be long-term under the Act, the approval of the Māori Land Court should be sought, whether or not it in fact turned out to be required.
[27] Like the Associate Judge, we reject Mr Denton’s contended interpretation of the s 4(b) definition. The Act protects Māori land and Māori land-owners: the Preamble states that the Act is meant to “promote the retention of [Māori] land in the hands of its owners, their whanau and their hapu”. The Māori Land Court is charged with supervising particular kinds of alienation that could dilute control by Māori over their own land. That includes leases for prescribed, or effective, terms of more than 52 years.
[28] If a lease contains a right of renewal exercisable at the discretion only of the lessor, which (as in this case) is a Māori trust/incorporation, then there is no risk that the lessor will suffer loss of control over its own land. All the rights in respect of the lease and its renewal or non-renewal are conferred on it. In light of the Act’s purpose, we consider Associate Judge Christiansen was correct to conclude that the lessor-only right of renewal in the contract between Tatahi and Matauri was not the kind of right contemplated by ss 4 and 150A of the Act.
[29] When a right of renewal is exercised it confers the grant of a new lease. It is not the same as a right to extend the lease which extends the term of the original contract. It is consistent with the requirement that the Māori Land Court must approve a long-term lease that approval may be required upon renewal of a lease if the renewed term were longer than 52 years: the Māori Land Court’s jurisdiction is not forever excluded just because an initial lease term does not require its consideration or approval.
[30] Finally on this ground, Mr Denton submitted that because the lease required Matauri to pay compensation if it chose not to renew the lease, in real commercial terms Matauri would not be able to refuse a renewal, making the lease long-term in fact. We find that argument unconvincing. A market disincentive not to renew the lease is not the same as a de facto perpetual lease, although the situation may be different if the compensation clause were penal in nature.
[31] It is relevant also that the term of the leases was precisely 52 years. It would be odd to conclude that the term was chosen for any reason other than to avoid the requirement for registration. It is an irresistible inference that one of the commercial purposes of the chosen 52-year term was to place the lease agreements outside the Māori Land Court’s jurisdiction.
[32] We are satisfied that on this point the Associate Judge was correct.

If the leases were not in law required to be approved under the Act, was there nonetheless a contractual obligation upon Matauri to seek Māori Land Court approval of them?

[33] Mr Denton argues that, even if Matauri was not legally obliged to obtain Māori Land Court approval of the leases, it was contractually obliged to do so. He submitted it was possible the Māori Land Court would interpret the renewal provision as falling within s 4(b), and that Matauri was obliged diligently to resolve that possibility for certain through the Court.
[34] At the time the contract was concluded, Tatahi’s solicitor, Mr Crosbie, raised with Mr Burton a concern that the effect of the renewal clause might be to require Māori Land Court approval. Mr Crosbie said in evidence that Mr Burton then pointed to cl 7.1(d) and said that consent would be obtained. Mr Burton’s version of events is that he pointed to cl 7.1(d) and said that necessary consents would be obtained. Mr Denton submitted before us that the Associate Judge concluded in favour of Mr Burton’s evidence, and that since that must have entailed an implicit finding against Mr Crosbie’s evidence, summary judgment was not appropriate because the Judge was faced with a conflict of evidence.
[35] Notwithstanding this conflict in the evidence, Mr Denton submitted that the proper interpretation of cl 7.1(d) is ascertainable on normal principles of contract interpretation. He submitted that the leases might in law have been long-term under the Act and that Mr Burton in his affidavit implies that he was unsure whether or not approval would be required. Since there was uncertainty over the approval requirement Mr Denton submitted that Matauri ought to have applied to the Māori Land Court for resolution of the matter. It is not permissible to construe the requirement to seek consent, he argued, with the actual legal requirement for consent as it eventually transpires, since that would be to interpret Matauri’s contractual obligations in light of post-contract conduct/events.
[36] Mr Denton suggested the time and date stipulation (28 March 2008) indicated that some categorical event, such as a Māori Land Court approval order, was required by the contract, and cited Valentines Properties Ltd v Huntco Corporation Ltd [2003] 3 NZLR 305 at 313 (PC). He argued that if the contract was concerned only with actual lawfulness, rather than the performance of some event to confirm or certify lawfulness, then there would have been no specified time and date requirement. He submitted that certain knowledge of the project’s lawfulness could only be achieved by Māori Land Court order or judgment.
[37] There is an attractive simplicity in Mr Denton’s submission that cl 7.1(d) was intended to give all parties to the contract certainty as to the lawfulness of the project so that everyone knew by 28 March where they stood. However, the clause is not worded to that effect. On its face it obliges Matauri only to obtain necessary consents. Unless Matauri failed to obtain any particular necessary consent by 28 March 2008, it would have fulfilled its contractual obligations. That ordinary reading of cl 7.1(d) is not weakened simply because a consent for which Matauri did not seek approval turned out, fortuitously, not to require approval.
[38] 28 March 2008 was not stated to be the date on which Matauri was to demonstrate conclusively the lawfulness of the project. It was stated to be the date on which Matauri was to have obtained required consents. That distinction cannot be ignored.
[39] We do not accept that the clause as written required Matauri to apply for all possible consents, no matter how remotely likely to be necessary, and we agree with the Associate Judge that Matauri’s inaction in this regard did not create a basis for cancellation of the contract.

The vesting order of 17 September 2008 and cl 7.1(d) of the contract

[40] This was an issue not considered in the High Court and is therefore not a matter in respect of which there was a right of appeal. However, the parties were of the shared view that leave should be granted for the Court to deal with this point because time is critical as the lease agreements are due for settlement in July. Priority had been granted for the High Court hearing and for the appeal, and a ruling was urgently needed. With some reluctance we agreed, but the course of action was not without its problems. During the hearing it became obvious that further submissions were needed, and supplementary material was subsequently filed by both parties.
[41] This was an appeal against the grant of summary judgment, but we were persuaded that the new issue was also a matter amenable to summary judgment. We proceeded to deal with it, at the request of the parties, and as they agreed after admitting additional evidence tendered by each of them.
[42] Tatahi’s argument was that two orders obtained by Matauri from the Māori Land Court (the first of which constituted the Matauri X Ahu Whenua Trust, and the second of which vested title to the land in the Public Trust as responsible trustee of the Matauri X Ahu Whenua Trust) were within the scope of cl 7.1(d) and ought to have been obtained by 28 March 2008. The application for the vesting order was not filed until 8 July 2008, and the order was not made until 17 September 2008. Mr Denton argued that this was a further basis upon which Tatahi was entitled to cancel the contracts, even though it was not known to it at the time the contract was cancelled.
[43] Mr Denton submitted that neither the application for the order nor its passage through the Māori Land Court was known to Tatahi at the time of the High Court hearing, and hence was not raised in the initial summary judgment application.
[44] It was not disputed by Ms Grant that it was necessary, prior to settlement, for the Public Trustee to be on the title to the land, or capable of getting on the title, because the Public Trustee was to grant the lease interests to Matauri, and Matauri would then sell them to purchasers like Tatahi. However, Ms Grant argued that, although the Public Trustee’s title had to be formalised by the time of settlement, it did not need to be formalised by 28 March. That was so either because:

(a) the vesting process did not require the Māori Land Court’s consent and the subsequent orders were not capable of registration (per s 219 of the Act). On that basis, cl 7.1(d) was not engaged; or

(b) cl 7.1(d) obliged Matauri to seek only actual, not formal, consent, which was obtained; alternatively

(c) it was open to Matauri X to sell or gift the land to the Public Trust and such a course would have required the confirmation, but not the consent, of the Māori Land Court. Strictly, therefore, even if the Court’s consent was required for the route actually chosen, there were other “non-consent” processes available.

[45] Matauri X, to effect the contractual arrangement, had decided to transfer the land to a trust, with the Public Trustee appointed as responsible trustee so as, according to Mr Gillespie’s evidence, to allay potential purchasers’ concerns over the subdivision properties being lengthy leases of Māori land.
[46] Part 12 of the Act governs trusts. Section 215 provides for the constitution of ahu whenua trusts, but s 219 provides that no trust order made under the Act shall be capable of registration. Under s 222, the Public Trustee may be appointed trustee of an ahu whenua trust.
[47] Section 150A of the Act (under Part 7, which covers alienation of Māori land) deals with alienation of land by trustees. That section provides:

150A Alienation by trustees

(1) The trustees of a trust constituted under Part 12 must not alienate Maori freehold land vested in them as trustees—

(a) by sale or gift, unless the sale or gift has the consent of—

(i) at least three-quarters of the owners, if no owner has a defined share in the land; or

(ii) the persons who together own at least 75% of the beneficial freehold interest in the land:

(b) by long-term lease, unless the Court, in its discretion, approves and the long-term lease has the consent of—

(i) at least half of the owners, if no owner has a defined share in the land; or

(ii) the persons who together own at least 50% of the beneficial freehold interest in the land.

(2) Subsection (1) and section 147A do not apply if the Court is satisfied that it is necessary for the trustees to sell part of the Maori freehold land to make minor boundary adjustments.

(3) The trustees of a trust constituted under Part 12 who execute an instrument of alienation of Maori freehold land must,—

(a) if the alienation is by way of sale or gift, get the instrument confirmed by the Court under Part 8; and

(b) if the alienation is by way of lease, licence, or forestry right, for a term of more than 21 years (including any term or terms of renewal), or mortgage, send a copy of the instrument to the Registrar for noting; and the Registrar must note the contents of that instrument.]

[48] The Court has the sole ability to constitute, set out the terms for, and vest land in, trusts under the Act: s 211. But, as noted above, no Māori Land Court trust order can be registered under the Land Transfer Act 1952. Importantly, certain alienations (including a lease that is not a long-term lease) by trustees of freehold land vested in them as trustees, are permitted by s 150A.
[49] Ms Grant submitted it is significant that in this case the application for the creation of the Matauri X Ahu Whenua Trust, and the subsequent Māori Land Court orders, were made under Part 12 of the Act. Ms Grant submitted that under Part 12 the Māori Land Court is empowered to constitute, and vest land in, trusts, but not to perform a consent or approval function.

Did the Māori Land Court give its “consent” to “registration” of the orders?

[50] The most elemental issue under this head of appeal is whether the constitution of the trust and the subsequent vesting order constituted a “consent” of the Māori Land Court. Mr Denton submitted that the term “consent” in cl 7.1(d) was a shorthand expression for all types of Māori Land Court deliberation. He submitted that includes “confirmation” of an application. He emphasised that neither an ahu whenua trust nor a vesting order sought through the Māori Land Court can be made without at least the Court’s deliberation. He submitted that the Court’s intervenor role in that regard meant that the trust orders were to be characterised as “consents” for the purposes of the contracts.
[51] There was a degree of confusion, during the hearing, as to the relevance of s 150 of the Act, which prescribes the manner in which “undivided interests” may be alienated. That section provides:

150 Manner of alienation of undivided interests

(1) No undivided interest in any Maori freehold land may be alienated otherwise than by a vesting order made by the Court under Part 8 of this Act, unless the Court is of the opinion that the arrangement or agreement of the parties should be given effect to by memorandum of transfer, and so orders.

(2) Nothing in subsection (1) of this section applies in relation to the alienation of:

(a) Shares in a Mäori Incorporation:

(b) Interests in shares in a Mäori Incorporation:

(c) Beneficial interests in land that, by virtue of section 250(2) of this Act, remain vested in the several owners of that land despite the vesting of the legal estate in fee simple in that land in a Maori Incorporation.

[52] Under Part 8 of the Act, the Māori Land Court may make a vesting order for the transfer of any Māori freehold land or any undivided interest only if it is satisfied of certain matters (ss 152, 158 and 164). However, as both parties accepted in their supplementary submissions, s 150 does not apply in this case. The section applies only to undivided interests in land, which are interests held under the same title by two or more persons. In this case, Matauri X was the only title-holder.
[53] The Matauri X Ahu Whenua Trust was constituted and the land vested with the Public Trustee appointed under Part 12. The question is whether that vesting process is within the scope of cl 7.1(d).
[54] Mr Denton pointed to the word “may” used in the Act, and submitted that word indicated that the Māori Land Court has discretion which, if exercised in an applicant’s favour, became the Court’s “consent”. He noted that under s 215(1) the Māori Land Court “may” constitute an ahu whenua trust and that the Court shall not grant the application unless satisfied of particular matters. He directed us to the terms of s 222, under which the Court “may” appoint particular trustees and “may” confer powers on those trustees as the Court considers appropriate. In respect of registration, he submitted that, under s 123(2), once the vesting order is made, it must be transmitted to the District Land Registrar. That transferral, he submitted, requires the District Land Registrar to note the order on the folium, which amounts to an adjustment of the register to record that the legal title is in the name of the Public Trust (and that the beneficial interest is not).
[55] Ms Grant submitted that the making of vesting orders under Part 12 is not an approval or consent process, but a matter of facilitating the wishes of Māori owners. She sought to distinguish the Māori Land Court’s “approval” function from its “confirmation” function. Confirmation, she submits, is no more than a formal procedure, with no scope for discretionary refusal of applications (provided all prescribed criteria are met). Ms Grant relied on the decision of this Court in Bruce v Edwards [2002] NZCA 294; [2003] 1 NZLR 515, in which Blanchard J noted, in respect of the repeal of ss 153 and 154 of the Act (Part 8), that (at 521):

... the Maori Land Court’s residual discretion to refuse consent to an alienation has been removed. It must now grant consent if the conditions in the section, including the right of first refusal, which is now found in s 147A, have been satisfied.

[56] Counsel also noted two decisions of the Māori Land Court (Re Waipuka 2R3-BC200392575 MLC TAKITIMU DISTRICT A 20010002187 MB174 NA71 11 November 2003; Jason Richard Te Whata BC200894487 MLC TAITOKERAU DISTRICT A20070003363 11 October 2007 and 8 July 2008) in both of which it was said that there is a distinction in the Act between what may be sought from the Court as of right by Māori land owners, and what engages the Court’s discretion. Ms Grant submitted that the vesting process is a right of Māori to order their affairs so as to promote and facilitate the use and administration of land in the interests of those that are beneficially entitled to it. She pointed in addition to s 220(2) as support for the submission that making a vesting order is administrative, rather than substantive or discretionary.
[57] Ms Grant adverted to the apparently special position of Māori incorporations in the Act, and their essentially autonomous powers of alienation (ss 147E, 150(2) and 150B). She noted that if a Māori incorporation alienates land other than by sale, gift or a lease of longer than 21 years, it is unconstrained. From this she posited that a Māori incorporation may, without constraint, alienate land to a trustee to hold on trust for the incorporation, the trustee merely holding the land for the benefit of the incorporation.
[58] Finally, Ms Grant noted that, under s 219 of the Act, no Trust order shall be capable of registration under the Land Transfer Act 1952. That, she submitted, placed the vesting process squarely outside the scope of cl 7.1(d).

Discussion

[59] The Act is emphatically non-paternalistic. The Preamble provides that the Court’s role is to facilitate the use of Māori land for its owners and to establish mechanisms to assist Māori to that end. Section 17 outlines the Act’s objectives, which are facilitative (and even at their highest only protective of potentially vulnerable groups):

• to give effect to the wishes of Māori land-owners (s 17(2)(a));
• to provide a means and a forum to keep land-owners informed of proposals relating to their land (s 17(2)(b));
• to determine or facilitate settlement of disputes (s 17(2)(c));
• to protect minority interests (s 17(2)(d)); to ensure fairness in dealings with owners of land in multiple ownership (s 17(2)(e)); and
• to promote practical solutions (s 17(2)(f)).

[60] Under Part 12, as long as an application meets the statutory criteria, the wishes of Māori in respect of their own land will be given effect. This was noted by Judge Ambler in Jason Richard Te Whata at [38] in respect of the role of the Court under s 152 of the Act, and by Judge Carter in Jason Richard Taiaroa MLC (2003) 703 SI 174, when he noted that:

The Act, as it now stands, provides that the Court must confirm an alienation where the provisions of Section 152 have been satisfied. It gives the Court no discretion. These mandatory requirements provide all the more reason for the Court to ensure that the provisions of the Act are properly complied with before it confirms a resolution.

[61] Ms Grant is correct that Māori incorporations are accorded a great deal of latitude to alienate land. That must be even more so when the alienation involves the transfer of land to a trust which is to hold the land for the benefit of the incorporation, as occurred here.
[62] We acknowledge that, as Mr Denton submitted, vesting the land in the Matauri X Ahu Whenua Trust and appointing the Public Trustee were necessary steps in the completion of the whole business development. Having the Public Trustee on the title was, as Mr Gillespie acknowledged, commercially necessary to make the leases “safe bets” from a purchaser’s point of view.
[63] However, the question we have to determine is not whether the vesting process involved the Māori Land Court, but whether the process engaged cl 7.1(d). That clause provided:

7.1 This agreement is conditional upon:

...

(d) The Vendor obtaining the consent of the Maori Land Court to the registration of the Lease and of all such covenants or other interests required to be registered to give effect to the Development pursuant to the Te Ture Whenua Maori Act 1993 by the date being 6 months from the date that the condition clause in 7.1(c) is satisfied.

[64] The clause required Matauri to obtain Māori Land Court consent for those interests that were required to be registered to give effect to the Development under the Act. “Development” was defined in the agreement to mean “the Vendor’s subdivision and development of the Land to create the Lot together with all associated works (including earthworks and siteworks) on the Land necessary to give effect to any consent(s) of any Relevant Authority to the Development”. (“Land” was stated to be a 90.87 hectares more or less of the “Lot”, which in turn was the “estate in leasehold under and by virtue of the Lease in the Lot(s) described in the Particulars and Conditions of Sale”.) “Development” within the clause is therefore restricted to the actual development of the land, making the “interests” required to be registered under the clause those that pertained to the physical development of the land.
[65] The Matauri X Ahu Whenua Trust, once constituted, could not be registered under the Act (s 219). Not only was the Trust order not required to be registered, it was prohibited from being registered by the Act.
[66] We are further satisfied that s 150A of the Act permits, without the Māori Land Court’s consent, an alienation by a trustee of land vested in him or her, by way of a lease of 52 years or less. Under s 150A, the Māori Land Court’s consent is required for alienations by sale or gift (s 150A(1)(a)) or long-term leases (s 150A(1)(b)). Leases that are not long-term are outside the scope of the section, and therefore outside the class of alienations by trustees for which the Māori Land Court’s consent must be obtained. We have concluded, above, that the lease agreements in this case were not “long-term”. The consent of the Māori Land Court was not, therefore, statutorily required, and the vesting process on which Tatahi bases this ground of appeal was not within the scope of cl 7.1(d).
[67] The activity involved in the Court’s order of 17 September 2008 did not engage cl 7.1(d) of the agreement, and therefore the fact that the process occurred after 28 March 2008 did not provide Tatahi with a reason to cancel the agreements.

In any event, was informal consent sufficient?

[68] Ms Grant submitted that even if the substance of the September orders was within the scope of cl 7.1(d), consent was in any event informally obtained much earlier than the formal orders were issued. She submitted the informality of that consent ought not to count against Matauri because it was of no detriment to Tatahi.
[69] She referred to comments made by Judge Spencer outside of Court to the effect that the proposed trust structure and role for the Public Trustee were sound, and that the Māori Land Court would simply give effect to them when the appropriate occasion arose.
[70] Mr Denton responded that informal indications or comments made by a Judge outside of Court cannot be construed as judicial consent, because that would raise natural justice concerns, and provide no opportunity for formal and reasoned consideration of the criteria required to be satisfied.
[71] There can be no question that informal or passing comments made by a Judge could not comprise consent. Section 66 of the Act provides that Judges of the Māori Land Court may conduct proceedings in a way that, in their opinion, avoids unnecessary formality. But informal proceedings must still be judicial proceedings with proper opportunity for parties to be heard and to make appropriate contributions. If the Court’s involvement is required for any given aspect of Māori submissions. If the Court’s involvement is required for any aspect of the conveyance of Māori land, it must cohere with basic judicial norms, including provision of a dedicated hearing – however informally conducted.
[72] If the vesting process had fallen within the scope of cl 7.1(d), Matauri would have to have demonstrated that it had obtained the necessary consent through the Court. Out-of-Court interactions are not an available means of obtaining a court’s consent. There was no suggestion that Judge Spencer considered that any out-of-court casual comment by him was a judicial act. Given our conclusion above, however, that the vesting process did not engage cl 7.1(d), that is not an issue material to the resolution of this case.

Does the availability of other processes mean that consent was not “required”?

[73] Ms Grant also argued that it was significant that Matauri could have sold or gifted the land to the Public Trustee, rather than vesting it by way of an ahu whenua trust. She submitted that form of disposition would have required only the approval of 75 per cent of the shareholders and the confirmation of the Māori Land Court, but not its consent. She argued that since there was a mechanism other than vesting that would have achieved the same result – disposition of the land in favour of the Public Trustee – consent to registration cannot be said to have been “required”. She also emphasised that because Matauri X could have vested the land in the Public Trust after issuing the leasehold titles, the development could have been effected without the vesting order.
[74] This issue is not, given our conclusion at [67] above, material to the disposition of the dispute before us. Having concluded that the vesting process did not engage cl 7.1(d) of the agreements, we do not need to consider whether the availability of alternative avenues of disposition – for which consent was not required – may be said to render consent unnecessary in terms of the agreement.

Conclusion

[75] We are satisfied that, on the grounds that he considered in his judgment, the Associate Judge was correct, and that Tatahi did not, on those grounds, have reason to cancel the agreements. We are satisfied in addition that the September 2008 vesting process was not within the scope of cl 7.1(d) and was not a further and alternative ground on which Tatahi was entitled to cancel the agreements.

Result

[76] The appeal is dismissed.
[77] The orders for summary judgment made by Associate Judge Christiansen are confirmed.
[78] The appellant must pay the first respondent costs for a standard appeal on a band A basis and usual disbursements.

Solicitors:
Wilson Harle, Auckland, for Appellants
Burton & Co, Auckland, for Respondents