Mulder v Heke [2014] NZHC 2098 (3 September 2014)

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BETWEEN	JEAN RIPEKA MULDER of New South Wales, Australia, Administrator Plaintiff
AND	WINNIE RAHERA HEKE of Perth, Australia, Retired as Administratrix of the estate of the late John Kingi Heke First Defendant JUNE WHAREKAWA of Albury, New South Wales, Australia, Factory Worker _{Second Defendant}

Hearing:	29 August 2014
Appearances:	Mr D J T Taylor for Plaintiff Mr S McKenna for First Defendant
_Judgment:	_{3 September 2014}

[1] The plaintiff is a part owner of a residential property situated in Te Kuiti. She is one of two registered proprietors on the title of that property which was owned by her adoptive mother, Parehuia Heke (“the mother”) who died intestate on

[3] The mother was the registered proprietor of the residential property. She died intestate. On her death the property ought to have passed to her husband John. However John Kingi Heke who is the central figure in the case obtained a grant of administration in his mother’s estate after both she and the father had died, in 1985. He supported his application for a grant of administration by swearing an affidavit stating that he was the lawful son of the mother. Once John Kingi Heke had obtained the necessary status of administrator he transferred the property into his name and that of the plaintiff as beneficiaries of the mother.

[4] The plaintiff later obtained information suggesting that John Kingi Heke was not the child of the marriage of her adoptive parents. She concluded that in fact he came into the family by virtue of an informal whangai adoption. If that was so, he would not have had an entitlement to inherit from his parents.

[5] The plaintiff then took these proceedings against the first defendant and the second defendant. The former is the legal representative of John Kingi Heke who himself has since passed away. She defends the proceedings in that capacity.

[6] The second defendant was also a member of the family but she was not the natural child of the parents and was not legally adopted. She has taken no steps in the proceedings. I understand that she accepts that her status does not entitle her to any interest in the property.

[7] The plaintiff in her statement of claim alleges that John Kingi Heke held the land in trust for the persons entitled to it under the Administration Act 1969, that was the plaintiff alone. She says that her entitlement arises under s 78(1)(a) of the Administration Act.

[8] The first defendant does not dispute that a whangai child would not be entitled to succeed under the Administration Act and would not be entitled to a grant of administration such as the John Kingi Heke obtained in the circumstances of this case.

[9] The question is whether on the evidence that has been put before the Court, the plaintiff has been able to demonstrate that the first defendant has no arguable defence to her claim. The first defendant says that she has a defence to the claim because as the representative of John Kingi Heke, she has a viable argument that he was in fact either the adopted or natural child of the parents.

[10] In his own lifetime John Kingi Heke expressed the view that he had been adopted. He sought a succession order in the Maori Land Court in 1985. He asserted to that Court that he was the only legally adopted child of the parents. He said, correctly, that the adoption would have been ordered by the Maori Land Court which up until 1955 had jurisdiction to make adoption orders. It would seem, though, that he was unable to produce any evidence of the adoption by that Court.

[11] However the Registrar of the Maori land Court on direction from this Court wrote to the plaintiff and to the second defendant inquiring whether or not they were legally adopted. Eventually the Court advised on 14 August 1985 that it could not find any evidence of his being adopted but it did locate the Court records of an order for the adoption of the plaintiff which had been made in 1948.

[12] With that brief description of the background I now consider the single issue that is necessary to determine for the purposes of resolving the summary judgment application which is the question of whether the first defendant has an arguable defence on the question of whether John Kingi Heke was the adopted or natural child of the parents. While John Kingi Heke during his lifetime expressed the view that he

was the adopted child, the first defendant, through her counsel, Mr McKenna, has submitted that she has an arguable defence on the alternative bases of both an adoption and natural parenthood.

[13] Mr Taylor took me carefully through the various pieces of evidence that had been produced. A key piece of evidence is the birth certificate of John Kingi Heke and I will discuss that next.

[14] John Kingi Heke was born 16 July 1936 and the birth certificate records his “Christian or first names” as being Hone Kingi. However his father is described as “Hone Kingi” and his mother is named “Parehuia Kingi”. It will be observed that the names in the birth certificate are very similar to the names of the parents although they are not identical.

[15] The father has been described in official Native Land Court papers as “Hone Kingi Heke” and the mother as “Parehuia Rawiri”. But the parties in the present case agreed that they were more usually known as Parehuia Heke and John Heke. Hone is of course the Maori translation of John. One clear inference that can be drawn from the birth certificate is that it identifies, albeit imperfectly, the natural parents of John Kingi Heke as being John and Parehuia Heke. If they were, then he would be their child and entitled to a beneficial interest in the property together with the plaintiff. The alternative possibility is that the two persons referred to in the birth certificate are the natural parents of John Kingi Heke who were named “Kingi”, and so had a different surname, but had identical first names to the parents into whose family he was eventually taken. The coincidence would extend further than that in that the person identified as the father in the birth certificate used as part of his name the name “Kingi” which is, I have noted, a name that he had been known to use on other occasions.

[16] If the birth certificate can be read as referring to John and Parehuia Heke as the parents that does of course raise questions of why they (or whoever supplied the registrar of births with the evidence for inclusion in the birth certificate) used the

surname “Kingi” for that purpose. It could have been a simple error or misunderstanding. But however it happened, I regard it as being a compelling piece of evidence because if the names John and Parehuia in the birth certificate referred to the natural parents of the child, it was a striking coincidence that the parents by whom he was informally later adopted also had exactly the same first two names.

[17] It is necessary to briefly review the other evidence. The first was a whakapapa which the plaintiff produced to the Court which shows that Ture and Makereti Wharekawa had as a descendant a child called “Hone Kingi”. That whakapapa therefore is evidence that the child who the parents took in as one of their own was actually a child of the Wharekawa family (and, it would seem, an uncle of the second defendant).

[18] As well, there is other circumstantial evidence which takes the form of various Facebook and other computer screen shots which shows that on social and other occasions, members of the Wharekawa family treated the deceased as part of their family. If that were so, then it would give rise to an inference that he was not a natural member of the parents’ family.

[19] Mr Taylor for the plaintiff also emphasised that there were no records of the Maori Land Court establishing that John Kingi Heke was ever adopted. Certainly his succession order does not establish that the Court ever located an adoption order for him with the Registrar advising that despite a search, none had been located.

[20] On the other hand, while this factor is undoubtedly of relevance, a Court at trial could conceivably take the view that the failure to locate an adoption order that was some 50 years old at the time when the Court reviewed its records does not necessarily prove that such an order was never made. But given that the first defendant has not been able to put forward any evidence affirmatively establishing that an adoption order was made, it might be that the Court would regard an alleged adoption of John Kingi Heke as being unproved.

[21] That would mean that his association with the Heke family and the parents was to be explained by his being either their natural child (in regard to which the birth certificate is relevant) or as a whangai adoption. The Court determining the facts in the matter might take the view that the whakapapa showing John Kingi as the member of the Wharekawa family outweighs any inference that the birth certificate gives rise to. That would leave as the only remaining explanation for this association with the Heke family had been by way of a whangai adoption. One matter that would be taken into account in resolving the question would be the probative effect that the Court was prepared to attach to the whakapapa. While it may be that the whakapapa was based upon clear evidence, it is correct that, as Mr McKenna submitted, that it is a hearsay document. It would not be possible to confidently judge what weight could be attached to it in the limited knowledge that the Court has of the whakapapa at this stage of the proceedings.

[22] Under r 12.2 of the High Court Rules, the plaintiff is required to satisfy the Court that a defendant has no defence to a cause of action in the statement of claim or to a particular part of a cause of action. The applicable principles are well settled and are set out by the Court of Appeal in Krukziener v Hanover Finance Ltd:¹

The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated. The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable. In the end the Court's assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it.

[24] It is not the role of a Court hearing a summary judgment application to attempt to resolve conflicts of evidence. The Court is required to determine the question of whether there is an arguable defence to the plaintiff’s claim. That requires the Court to focus on whether there are arguable factual contentions that merit resolution at trial. If the alleged factual dispute is one that the Court is able to dismiss as having no substance, on grounds, for example of inconsistency with previous evidence that witnesses have given, inconsistency with contemporaneous documents or inherent improbably or for some other reason, then the summary judgment application can be allowed. But if the position at which matters come to rest is short of what I have just described, then resolution of the disputed facts must be a matter reserved for trial.

[25] In my assessment, the possibility that John Kingi Heke was the natural child of the parents is not one that can be dismissed as having no substance or basis to it. It may be that at trial the Court will conclude on the balance of probabilities that any probative effect associated with the birth certificate is overcome by other evidence available to the Court. That is a question though for another day and not one that is able to be conclusively resolved on a summary judgment application. For those reasons the summary judgment application is dismissed.

[26] The parties should confer on issues that need to be resolved from this point. Those issues include the question of costs on this application. As well, the parties should confer on the matter of discovery and within 15 working days, advise the Court of what agreement they are able to reach on the question of discovery or, alternatively, advise that the Court’s intervention is required in which case the proceeding is to be placed in the first available chambers list by the Registrar. While on the question of discovery, I would suggest that in order to keep delays and expense to a minimum, the parties should consider whether any further discovery is going to be helpful and if so, how discovery can be sensibly limited in its scope and range.

[27] The parties should also confer on the question of how evidence should be produced to the Court at trial. This may be a case where the most efficient and cost effective way of dealing with the matter is for the affidavits to be the primary source of evidence with that evidence being supplemented to the extent necessary by additional affidavits. The question of which deponents will be required to be available for cross-examination on their affidavits, if such an approach is warranted, should be discussed. As well there should be a discussion about the proposed duration of the trial and the parties should indicate what the earliest practical date a

High Court of New Zealand Decisions

Mulder v Heke [2014] NZHC 2098 (3 September 2014)