Described variously as a shack, a shed and a house, the dwelling on Maori freehold land in the North Island West Urewera mountains became the central focus in a tug-of-war between members of the extended Martin whanau. Phyllis Nicholas, who renovated and maintained the house, was entitled to rights of occupation extending out to 2066 over the claims of other Martin whanau, the Court of Appeal ruled.
The property was carved out of about one hectare of forestry by Phyllis Nicholas and her husband, the court was told. At that time, the land was leased to the then Ministry of Forests. Ms Nicholas’ wider whanau (the Martin family) are beneficial owners of the land, held by trustees as Maori freehold land.
Evidence was given that after 2003 her brother Reo Martin and his immediate whanau progressively took up occupation of the property, eventually forcing out Ms Nicholas. By 2019, Reo’s son Danny was in occupation. He was removed by police after threatening a cousin who had begun building next door. Phyllis moved back. Escalating disputes over rights to occupy saw trustees ask for a court ruling. They wanted the building removed.
In 1989, Mrs Nicholas and her husband were given informal consent by one of the trustees to move a shed on to the property. The two subsequently upgraded the shed; concreting the dirt floor, adding a kitchen and bathroom, and installing new windows and doors. They and their immediate family were regular visitors, spending time at the property. Extended whanau also stayed for periods. Phyllis paid for power and insurance.
With agreement of the trustees back in 1990, Ministry of Forests as the then leaseholder had issued a licence to occupy recorded initially in the name of Phyllis’ brother Frank, later amended to be in the name of the Martin whanau with Frank specified as the ‘responsible caretaker.’
The Court of Appeal ruled Phyllis Nicholas’ personal right of occupation arose from terms of her original agreement with trustees when negotiating with Ministry of Forests. There was no dispute that she had complied with all the trustees’ requirements, including compliance with Whakatane District building requirements. Having incurred costs in renovating and maintaining the property she was entitled to enforce terms of the occupation licence, giving her rights of occupation through to 2066.
Nicholas v. Te Whaiti-Nui-A-Toi Trust – Court of Appeal (16.02.23)
23.021