Having a wastrel for a father, Christine and Te Rahui Cowan tried to prevent him selling houses they said should be kept in the family. The High Court said appeals to tikanga relating to papakainga required expert evidence of Maori custom.
Attempts to marry concepts of Maori customary land holding with Pakeha-inspired land law caused problems for brother and sister challenging their father’s behaviour. The High Court was told they were fed up with their father’s failure to provide proper support for his family and his further failure to rearrange family financial affairs as agreed back in 2002.
Evidence was given that their father John Cowan gave up full-time work in the 1990s, trying what was obliquely described as ‘various activities.’ A tax investigation for unpaid taxes forced the sale of property owned by his wife to meet his tax debts. A subsequent family conference produced a written agreement in which John agreed to gift the family home at Lyall Bay in Wellington to daughter Christine and further agreed to having no claim on any future assets coming into the family. Nothing came of this agreement. Some seventeen years later, with John’s wife Marama terminally ill with cancer, a relationship property agreement was prepared for a split of relationship property. Marama signed shortly before her death. John refused to sign, claiming over top of his children’s protestations that he had never agreed to its terms.
On his wife’s death, John became absolute owner of Lyall Bay and a property in Carterton. The High Court was told Carterton was initially owned by son Te Rahui, but had been transferred into his father’s name out of deference to John’s mana as his father. Te Rahui had been living in Carterton for many years and Christine at Lyall Bay for most of her life, both rent free. As occupiers, they had paid bills and maintenance costs for each property’s upkeep. They challenged their father’s right to claim absolute ownership of each property.
In Pakeha-inspired land law, claim to land owned by another requires proof of a constructive trust; proof of contributions to the property (most commonly direct or indirect contributions to the purchase price) such that there is a right to ownership or part-ownership. Associate judge Johnston ruled there was no evidence of such contributions by ether Christine or Te Rahui.
Maori customary law recognises a concept of papakainga; the existence of an original home or home base. To recognise a constructive trust on the basis that John and his late wife had the intention to hold both Lyall Bay and Carterton on trust for their descendants as papakainga required expert evidence of Maori custom, Judge Johnston ruled.
Cowan v. Cowan – High Court (19.02.21)
21.036