Nuku v Taylor [2014] NZHC 37 (3 February 2014)

Last Updated: 11 March 2014

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2014-443-000001 [2014] NZHC 37

IN THE MATTER of Section 143 of the Land Transfer Act

1952

BETWEEN JEAN TE URUHAU NUKU Plaintiff

AND LOMA EMIRI TAYLOR and PETER DAVID TAYLOR

Defendants

Hearing: 30 January 2014

Appearances: G J Toebes for Plaintiff

R T Wilson for Defendants

Judgment: 3 February 2014

_{REASONS JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 3 February 2014 at 3.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date..............................}

NUKU v TAYLOR [2014] NZHC 37 [3 February 2014]

Introduction

[1] On 30 January 2014 I dismissed an application by the plaintiff, Jean Te Uruhau Nuku, for an order for the removal of a caveat.¹ The matter was heard urgently because Mrs Nuku had committed herself to agreements to sell 236 Smart Road and purchase another property. Both transactions were due for settlement on

31 January 2014. I gave my decision with reasons to follow. These are my reasons.

[2] Mrs Nuku is the registered proprietor of land contained in certificate of title TN243/73 in the Taranaki registry. She and her three brothers acquired the land as joint tenants from their mother, Mereaina Taylor shortly before she died in 1985. There was no mention in the evidence as to consideration for the transfer and I infer from the circumstances of the transfer that there was no monetary consideration. Mrs Nuku’s brothers have since died, leaving her the sole owner by virtue of survivorship.

[3] The issue on the application was whether it was reasonably arguable that Mrs Nuku held the land on constructive trust for the wider whanau. A person claiming to be entitled to or beneficially interested in any estate in land may lodge a caveat against dealings.² A caveatable interest for this purpose includes a beneficiary under a trust. It is not necessary that the claimed interest be registerable. On an application under s 143 it is for the caveator to justify the continued existence of the caveat by showing that there is a reasonably arguable case for the claimed interest.³

[4] The first defendant, Loma Emeri Taylor, is the widow of Mrs Nuku’s brother, Michael Taylor. The second defendant is Michael’s son, Peter Taylor. They claim an interest in the land as beneficiaries of a constructive trust that precludes Mrs Nuku dealing with the land for her own benefit. The constructive trust asserted by the caveators is said to have arisen from the circumstances in which Mrs Taylor transferred the land. They say that she did so in the belief that the property could be treated as Maori land and would be maintained for the benefit of the whanau as if it

_{were Maori land and that this was well known to her children, including Mrs Nuku.}

¹ _{Section 143 Land Transfer Act 1952.}

² _{Section 137 Land Transfer Act 1952.}

³ Sims v Lowe [1988] 1 NZLR 656 at 660.

[5] The claimed interest is described in the caveat as:

... together with Jean Te Uruhau Nuku and other children of the said Jean Te Uruhau Nuku, Donald Andrew Taylor, Michael Taylor and Tukitahi Taylor are beneficiaries of a constructive or resulting trust created when Mereaina Taylor transferred the land to her children Jean Te Uruhau Nuku, Donald Andrew Taylor, Michael Taylor and Tukitahi Taylor in April 1985 and in respect of such trust the registered proprietor, Jean Te Uruhau Nuku is the remaining trustee following the deaths of Donald Andrew Taylor, Michael Taylor and Tukitahi Taylor.

Is it reasonably arguable that Mrs Nuku is a constructive trustee?

[6] Mrs Taylor acquired the property in 1959. I infer that it was Maori freehold land within the meaning of the Maori Affairs Act 1953 because in 1968 a declaration was made under Part 1 of the Maori Affairs Amendment Act 1967 (MAAA) that the status of the land was to cease being that of Maori land. Thereafter it became general land. That declaration was registered on the title. There was no evidence before me as to whether Mrs Taylor sought this declaration; it seems unlikely, given the procedure set out in the MAAA. However, such declarations were required to be notified and there is no reason to think that this was not done.

[7] The change in the status of the land meant that any transfer to joint tenants would result in the surviving joint tenant acquiring the beneficial interest. Even if Mrs Taylor was aware of the declaration on the title it is, nevertheless, uncertain whether she understood the implications of the change in the status of her land and of any transfer to joint tenants. The defendants say she did not.

[8] The evidence was that Mrs Taylor’s first language was Maori and that she lived very much in the Maori world. There was no evidence as to what legal advice she was given at the time; her solicitor did not provide an affidavit but I was advised from the bar that he does not have a clear recollection. The file is no longer available. The evidence of valuer John Mason, who worked in the Maori Affairs Department in the 1970s and is familiar with the provisions relating to the change in the status of Maori land deposed that many Maori did not understand the effect of the law change or the implications of joint tenancy.

[9] Mrs Nuku maintained that there was no evidence of any mistake on her

mother’s part as to the nature of the ownership she was conferring on her children in

1985 and that statements by Mrs Taylor as to how the land was to be used are properly regarded as wishes which were not binding on her children and that there is no barrier to her exercising the rights of ownership. Mrs Nuku said of the transfer to her and her brothers that:

It is my recollection that [Mrs Taylor] took this step so that each of her four children could share in this homestead property but only while each of them were alive. I further understand that it was another intention of her to avoid fragmentation of interests in the future in respect of this general land block. It is my further recollection that she took this step so as to take this property away from her will she being aware at the time that she was dying ...

There was never any mention to me at the time of the transfer of the property to myself and my three siblings of any trust.

[10] As against this evidence is that of several of Mrs Taylor’s relatives as to her attitude towards her property and her statements as to how it was to be used in the future. The deponents included the defendants and some grandchildren, Mereana Taylor, Robert Weir, Aronuku Taylor and Kalven Taylor.

[11] In her evidence the first named defendant, Loma Taylor, said that:

Mereaina always told me that the homestead on 236 Smart Rd, New Plymouth must never be sold as it is here for all her whanau to come home at any time when in financial or emotional situations or when there is a death in the family.

[12] The second named defendant, Peter Taylor, deposed that:

Nan worried about her whanau and worked hard to ensure they would never be homeless.

Nan did not understand the pakeha world view ... Nan would say the land

was important and our Papakainga would keep us all dry and warm ....

Every time we spent with our grandmother Mereaina Korotaiki Taylor, referred to as “Nan” by her mokopuna, she would tell us all, “The land is Mäori land and the papakainga will be for my mokopuna for ever and ever!” Papakainga is a homestead, a home base for the whanau.

[13] On Mr Taylor’s evidence he spent every school holiday with his grandmother at Smart Road and heard her state many times that her land was to be secured for whanau. He said:

Our Nan originally put four names on the title of ownership for 236 Smart Road, New Plymouth. Michael Taylor (Dad), who had eight children, Uncle (Bub) Tukitahi, who had no issue, Uncle Don (Andrew), who had no issue to Nan’s knowledge, and Jean Nuku, who at the time had one surviving son out of three sons. Nan trusted that the four inheritances would look after it. The idea was that my father and his children became “the rock”, owning 236

Smart Road for all.

Our Dad, Michael Taylor died 3^rd September 1990, he did not have a paper WILL at his time of death, but did consult with whanau his wishes before he passed. Jean Nuku would have been consulted.

The understanding we have as a whanau is all Dad’s entitlements were given overe to our mum, Loma Mary Taylor, as a life member until her death, then gifted to their children as his descendants. We would then hold it as beneficiaries and Kaitiaki (guardians) of all assets left behind in their name.

[14] A granddaughter said that:

My grandmother Mereaina Taylor told all of her mokopuna that our papakainga 92A (236) Smart Rd, New Plymouth is our home and will always remain as a home for all generations to come.

[15] A grandson, Kalven Taylor, said:

I returned home two weeks prior to my father’s death. During my time with

my father he had spoken to me about our papakainga (236 Smart Road).

My father Michael Taylor new [sic] how much 236 Smart Road meant to me and our family. He often spoke about the history of this place and the importance it held within the Taylor family ...

My father mentioned that he had talked to my other siblings regarding 236

Smart Road; he advised me that I was the last one to visit him and that it was important that they understood that 236 Smart Road can never be sold.

My family and I always believed that our papakainga will always be there for our family. My grandmother always said that the door will forever be open to family who need to come home, that this house is going to always be there for us.

[16] Another deponent, Robert Weir, was an adopted son of Mrs Taylor and his evidence reflects that of Mrs Taylor’s direct descendants. Mr Weir spent a good deal of time with Mrs Taylor and this was his description of her intentions for the property:

In her later years it was important to Nan who got what. We had a close spiritual connection. Nan was brought up and educated in the way of the Mäori whare wananga ...

Looking for signs she was watching all her moko diligently the sign she was looking for was FIRE (AHI) which in Maoridom gave you the automatic administration into the whare wananga or whare-tu-taua ...

So as to Smart Road Nan’s thinking was “Maori and Traditional”. She knew in time to come that her grandchildren and great-grandchildren would need a place to come too [sic] instead of roaming the streets or sleeping under the bridge and that times will get hard.

She was interested in picking a mokopuna to act as kaitiaki guardian of the place who were Michael’s children who had the biggest number of grandkids and the Taranaki Connections but it was for all the mokos to have a place to come in times of hardship and NOT TO BE SOLD EVER.

[17] Following Mrs Taylor’s death in 1985 the property was used very much as a home base, available to any of the whanau who might need it, including during the sixteen years for which Mrs Nuku has been the sole registered proprietor. Following the death of her last remaining brother, Andrew, Michael Taylor moved into the house at Mrs Nuku’s invitation in 1997 and has lived there until very recently:

Then Jean Nuku visited me in hospital after I had a work force accident and offered me and my whanau to reside in the papakainga at 236 Smart Road, New Plymouth. The only condition was that we paid the house insurance every month. I have done that. The rates were paid from income from the farm land that was adjacent to the house.

Jean Nuku also stated that nothing was to be altered or changed in the house as she wanted it left the same way as our Nan had it.

I accepted Jean Nuku’s offer as I understood my Dad was also on the title and an owner on this property. I understood that as his son I too had an interest in our father’s title of ownership on 236 Smart Road. I understood that as title owners to the papakainga and whanau I had been given the kaitiaki (guardian) responsibilities until death.

[18] Mr Taylor also says that while he lived at the property he had an open door to all whanau who wanted to visit, stay, have support or just a meal.

[19] In addition, the various deponents refer to the traditional burial of their and their children’s placentas at the property. A number referred to Mrs Taylor’s expressed desire for this because she believed that a piece of them should always remain within her home.

[20] Mrs Nuku did not seek to challenge the evidence that I have referred to, though that may have been the result of time pressure. Nevertheless, on the evidence before me it is clearly arguable that Mrs Taylor did not appreciate or intend that the transfer of her land to her children as joint tenants would have the result of conferring beneficial ownership on the ultimate survivor to the exclusion of other members of the family.

[21] It is also clearly arguable on the evidence that all the children, including Mrs Nuku, understood Mrs Taylor’s intentions and accepted the transfer on that basis. Given the evidence as to Mrs Taylor’s view of her son Michael as katiaki it seems likely that, had Mrs Taylor appreciated that the surviving child would not necessarily regard themselves as bound to or willing to implement her wishes the transfer would have been in entirely different terms.

[22] Mr Toebes argued that, even if Mrs Taylor had been mistaken as to the effect of the transfer, there was no remedy available now. The limitation period precludes consideration of any such mistake. The Perpetuities Act 1964 precluded treating the land as being held on the kind of trust available for Maori land. However, the essence of the case for the caveators is that Ms Nuku took title to the land in the knowledge that her mother believed that it could be treated as Maori land and required that to happen. Had Mrs Nuku not been prepared to abide by that requirement Mrs Taylor could have taken other steps, either through the establishment of an express trust or by application under s 433A of the Maori Affairs Act 1953 to have the status of the land restored to Maori land. Whether such an order would have been made is not certain. But the defendants’ argument is that there existed the means by which Mrs Taylor could have ensured that the land was managed so as to benefit the widest number of her descendants as possible.

[23] For these reasons I concluded that it is reasonably arguable that Mrs Nuku took the property on the basis offered by her mother and it is not open to her now to

_{go back on that acceptance.}

P Courtney J