July 2011 Hōngongoi – Contents

Māori Appellate Court

Easements – sufficiency of support to be determined on a case by case basis - Smith v Courtney – Ohuirua No 2 Block [2011] Māori Appellate Court MB 284

Stay - appeal would not be rendered nugatory if stay was not granted - Naera v Fenwick – Whakapoungakau 24 Trust [2011] Māori Appellate Court MB 301

Māori Land Court

Injunction – respondents to remove encroaching structures – Pue v Tapatu - Okawa A1B (2011) 268 Aotea MB 93


Easements – sufficiency of support to be determined on a case by case basis – Smith

Smith v Courtney – Ohuirua No 2 Block

[2011] Māori Appellate Court MB 284 (2011 APPEAL 284)

8 July 2011

Appeal against a decision of the lower Court to decline an application for easements over Ohuirua No 2 Block. The Appellate Court dismissed the application, agreeing with the lower Court that the appellant was unable to attract sufficient support.

Download Smith v Courtney – Ohuirua No 2 Block here (208 KB PDF).

Overview and result

Easements – sufficiency of support to be determined on a case by case basis
Date 8 July 2011
Case Smith v Courtney – Ohuirua No 2 Block (208 KB PDF)
Citation [2011] Māori Appellate Court MB 284 (2011 APPEAL 284)
Court Māori Appellate Court
Judge(s) Chief Judge Isaac; Judges Milroy, Clark and Coxhead
Earlier/later decisions Smith – Ohuirua No 2 (2009) 142 Whangarei MB 287 (142 TTK 287)
Legislation cited Te Ture Whenua Māori Act 1993, ss 2, 17, 285, 286, 287, 315, 315A, 316, 317
Cases cited Brown v Maori Appellate Court [2001] 1 NZLR 87; Kacem v Bashir [2010] NZSC 112; Cumming & Ors – Omaio 8 and Omaio 45 (2009) 12 Waiariki Appellate MB 299 (12 AP 299)
Overview and result Mrs Smith applied to the lower Court for access, electricity, telecommunications and water easements over Ohuirua No 2 Block in favour of Otaika 4C West No 1 Block, a block of general land. Mrs Smith owns 10 out of 30 shares in the Ohuirua No 2 Block. The lower Court dismissed the application, influenced heavily by the fact two-thirds of the owners opposed the easements. Further, the lower Court stated its view that the development of general land is not a primary objective of the Act. Mrs Smith appealed that decision. Held, appeal dismissed. In determining sufficiency of support for roadways and access easements the Māori Land Court must first consider the number of owners both on a head count and shareholding basis who indicate their support or otherwise for the application. That support or opposition must then be weighed having regard to the nature and importance of the matter. There is no hard and fast rule that a majority or certain percentage based purely on a mathematical basis will carry the day; sufficiency of support needs to be determined on a case by case basis. The Appellate Court noted it did not agree with the submission that the Court needs to go behind an owner’s stated opposition and examine it in detail, unless of course owners had been approached to provide an opposition based on misleading, factually incorrect or totally irrelevant information. In this case the lower Court correctly identified there was significant opposition to the application from the owners and there was no error in its decision to dismiss the application for want of support. The Appellate Court noted its agreement with the lower Court’s finding that the consent required for easements other than access easements is no different to that required for access easements under s 317(1). The Appellate Court also dismissed Mrs Smith’s argument that an easement in favour of a neighbouring block already exists and therefore there is a precedent which the Court should follow. Every easement application must be dealt with on its merits and on a case by case analysis. What may have historically occurred in the granting of an easement in relation to another block has little weight. Further, applications must be dealt with based on the current facts. The Court should not take into consideration what Mrs Smith might subsequently do sometime in the future with the adjoining general land block she owns and should not be asked to grant easements on the basis of some future hypothetical situation. The Appellate Court also agreed that it is not a primary objective of the Māori Land Court to promote and assist in the effective use, management and development of general land.

Stay – appeal would not be rendered nugatory if stay was not granted – Naera

Naera v Fenwick – Whakapoungakau 24 Trust

[2011] Māori Appellate Court MB 301 (2011 APPEAL 301)

13 July 2011

Application for stay dismissed. The appeal would not be rendered nugatory if the stay was not granted. Section 56 provides the Appellate Court with broad powers to remedy the situation should the appeal be successful.

Download Naera v Fenwick – Whakapoungakau 24 Trust here (118 KB PDF). read more

Injunction – respondents to remove encroaching structures – Pue v Tapatu

Pue v Tapatu - Okawa A1B

Māori Land Court (2011) 268 Aotea MB 93 (268 AOT 93)

8 July 2011

Injunction granted requiring the respondents to remove encroaching structures from the applicant's land. Registrar directed to take steps to prosecute one respondent for contempt of Court.

Download Pue v Tapatu - Okawa A1B here (165 KB PDF). read more