Maori Land: re Succssion to Paengahuru

 

Maori custom requiring ancestral land be handed down to direct descendants sees more and more owners having control of successively smaller fractional landholdings with individual ownership interests coming to have no economic value.  Attempts to consolidate individual holdings then become a matter of negotiation between close relatives, and in some cases dispute.

The Maori Land Court refused to amend a 1960s agreement for consolidation of ownership interests over Maori land at Tokaanu, on the southern shores of Lake Taupo, which included allowing the Catholic Church to obtain an interest in local Maori land.

Also in dispute was land in Tokaanu township leased to commercial tenants operating a motel and café.

On death of Paurini Paengahuru in the 1960s, the Maori Land Court was faced with competing applications from extended whanau claiming succession rights.  Multiple court hearings and re-hearings followed, supported by detailed whakapapa proving lines of descent.

A subsequent Maori Land Court order in 1969 carried through what was described then as an amicable agreement between various family interests.

It was agreed, and the Maori Land Court confirmed: rights to separate parcels of land would be consolidated into the ownership of separate families; a part-ownership interest would be assigned to the local Catholic Church; and cash of some $4000 held by the estate paid across to the whanau’s local marae for building repairs.

More than fifty years later, this Land Court order was challenged by one branch of the Paengahuru whanau.

They claimed the 1969 family agreement was unfair; there was a failure to value the separate blocks of land divvied up between families.  In addition, they claimed it was improper to allocate rights over Maori land to the Catholic Church; a church could not whakapapa to the land, not being a living descendant.

Chief Judge Fox ruled those looking to cancel or amend a prior Land Court succession order must prove there was an error or mistake made by the court or by applicants seeking a succession order.

The presumption is that evidence given at time the order was made is deemed to be correct.  These people are closer to the subject matter, both in time and knowledge, she said.

Maori Land Court powers to consolidate rights of succession were properly exercised in this case, Judge Fox said.

Whanau now complaining about merits of these land consolidations provided no evidence in support of their claim, she ruled.

re Succession to Paurini Paengahuru – Maori Land Court (29.08.25)

25.191

Intellectual Property: Fidelity National v. Montoux Ltd

 

It was a case of David against Goliath with Goliath having the upper hand now a full-court press by US technology company Fidelity National has forced Wellington software developer Montoux Ltd into a corner over disputed allegations of copyright infringement and misuse of confidential information.

Fidelity’s annual revenue tops USD ten billion; Montoux’s NZD 2.7 million.

The New Zealand High Court imposed an interim injunction blocking Montoux’s promotion and sale of its specialist software used to price insurance risks, ruling while it is debateable whether Montoux has copied Fidelity National’s product, a related dispute over allegations that Montoux misused confidential information justifies calling a temporary halt on promotion of Montoux’s actuarial software.

Whether Montoux acted improperly has yet to be decided.

Justice Gendall declined to order a priority hearing date for a full trial, allowing only that an ‘early’ hearing date be allocated.

Delays in getting a court hearing date allows Fidelity National to win by default; Montoux is kept out of the market while Fidelity is free to respond to threats it perceives from Montoux’s rival product.

At time of Fidelity National’s legal challenge, Montoux had operating subsidiaries in Australia, USA and UK.

Fidelity National provides back-office support for the insurance, finance and healthcare sectors with transaction processing, record keeping and data analytics.  Its proprietary ‘prophet’ software has some 10,000 users world-wide.

The High Court was told Montoux began offering actuarial modelling software in 2016.  Three years later its set out to design a more open system, taking a view the prophet product in use had too many limitations and was not sufficiently user friendly.  By 2022, clients were being migrated to Montoux’s new platform and further customers acquired, including Amazon Web Services.    

With no warning, Montoux’s US subsidiary was hit in 2024 with a Fidelity National breach of copyright court action.  Montoux says there was no prior ‘cease and desist’ demand and no prior offer of commercial discussions.

In New Zealand, Montoux director Klaas Stijnen claimed in the High Court that Montoux’s product is based on independent technologies; there has been no breach of copyright, he says.

Montoux claims what Fidelity National says is its proprietary source code are simply variables included in the software package; mathematical formulae, part of any standard actuarial calculation, that are not subject to copyright.

Justice Gendall commented the technical nature of this evidence made any interim decision ‘somewhat difficult.’  No decision could be made on breach of copyright at this initial stage, he said.  Further evidence is needed.

Justice Gendall ruled that a more pressing legal question was potential misuse of confidential information obtained by Montoux interacting with Fidelity National customers then using customer feedback to build competing software.

In court, Montoux complained Fidelity National is using a vague breach of confidence claim as a weapon; part of a strategy of harassment and oppression, it claims.

Terms of the interim injunction, pending a full trial, block Montoux from promoting or using its rival software, despite no definitive proof to date that its product is in breach of Fidelity National’s claimed copyright.

In the High Court, Justice Gendall commented that Fidelity National has not properly clarified what part of the ‘prophet’ code Montoux has allegedly copied.

Montoux Ltd is in liquidation, with its liquidator contesting Fidelity National’s claims.

Fidelity National Information Systems Inc v. Montoux Ltd – High Court (29.08.25)

25.190

Council: Ohana Ltd v. Far North District

 

What began as a limited resource consent in 2015 to run commercial boat rides from a public pontoon on Kerikeri Inlet subsequently led to a full-blooded turf war between Chris Claydon and Far North District Council with complaints Claydon had usurped Council land for his own commercial benefit.  The High Court heard evidence of Claydon surreptitiously getting power and fibre connected to the pontoon over Council objections, then disputing Council demands he remove infrastructure put on its land.

The High Court refused to block Council demands that Mr Claydon remove a gravelled driveway, power boxes, a security camera and a bollard – all of which gave Mr Claydon’s Electric Boat Company de facto control of public land.

Far North District owns the land in dispute, off Riverview Road.

The court was told one of Mr Claydon’s companies was given a 35 year Environment Court resource consent in 2015 to use and occupy the community pontoon for his commercial boating operation, over top of Council objections to the pontoon being used for commercial purposes.

This consent specifically required the pontoon remain available for use by others at all times, free of charge.

The court was told Mr Claydon sometimes lives on a yacht permanently moored at the pontoon.

In July 2020, Council declined Mr Claydon’s application to trench cables for phone and electricity plus a water supply from Riverview Road to the pontoon, a distance of about two hundred metres.

Despite this refusal, Mr Claydon had one of his companies agree with Chorus for installation of a fibre optic line.

When Council demanded work stop, Mr Claydon’s company sued Chorus in the Disputes Tribunal for breach of contract.  While carefully stating that the case was not about who owned the land, the Tribunal ruled Chorus was liable to complete the contract, or pay $25,000 damages.  It chose to finish the job.

In August 2022, another of Mr Claydon’s companies contracted with NZ Electricity Lines Ltd for installation of power cabling and power boxes.

This deal saw Mr Claydon’s company agreeing to do all the work at its cost, with Electricity Lines directors, families and close friends to have ‘free electric boat rides for life.’

As a matter of routine, Council staff signed off on the proposed works submitted in the name of NZ Electricity Lines with an accompanying traffic management plan.  It was later suggested in court that names of those providing the supposed traffic management plan had been forged.

Mr Claydon applied to Minister of Energy and Resources for approval as an ‘electricity operator’ for the newly installed power service, telling Electricity Lines in December 2022 that ‘the minister must have been in a good mood’ to have granted Mr Claydon’s company ‘operator’ status when there was only one connection in use.

Status as an ‘operator’ gives rights to own the asset.

In the High Court, Justice Johnstone ruled the power cabinets installed had been incorrectly described in permit applications as infrastructure; supposedly as Electricity Act ‘works.’  They are in fact ‘electrical installations,’ which the Council may remove as unauthorised installations, he ruled.

Council took legal action after learning Mr Claydon was widening pedestrian access to the pontoon with a gravelled driveway, blocking public access with a bollard and parking his vehicle on site.

It demanded all unconsented work be removed.

Mr Claydon’s application for an injunction to protect the status quo was dismissed.

He was well aware of Council opposition to his ongoing campaign to upgrade infrastructure around the pontoon, Justice Johnstone said.

Mr Claydon did not have justice on his side, having employed imperfect legal workarounds to override Council objections, he ruled.

Ohana Ltd v. Far North District Council – High Court (28.08.25)

25.189

Receivership: Jacobsen v. Hoole

 

Property developer Marcus Jacobson employed Matt Blomfield’s litigation support service to assist with re-negotiation of a multi-million debt owed off-shore financiers, then disputed steps taken to freeze all his personal assets following unpaid Blomfield Consulting invoices totalling some $40,000.  The High Court refused to intervene.  Doing so would negate Blomfield’s business model requiring high risk clients offer rock-solid security before work starts.

The court was told terms of contract for Blomfield Consulting Ltd included power to enforce a Personal Properties Act general security agreement over Mr Jacobson’s personal assets should he fail to pay invoices.

These general security agreements allow all assets owned by a debtor at time of default to be seized.

Notice warning future creditors of a prior secured charge is achieved by registering agreements on the Personal Properties Securities Register.

Evidence was given that Mr Jacobson asked Blomfield Consulting for help in dealing with financier Arena Finance, in particular ferreting out information that could be used as leverage against Arena.

This work did lead to a complaint about Arena being drafted, intended for filing with Serious Fraud Office.

Consulting work for property developers is a high-risk business.  Non-payment of invoices is a common commercial risk, Mr Blomfield said.  He demands security upfront, to protect his business.

Mr Jacobson challenged Blomfield Consulting’s enforcement of its general security agreement, freezing his bank accounts.

He disputed liability on unpaid invoices, saying they were charges for work never done and that some of the work done was in fact work done on behalf of Arena.

Justice Wilkinson-Smith said Mr Jacobson belatedly challenged the amount due only after Blomfield Consulting appointed its receiver.  Blomfield’s terms of contract state clients have seven days to dispute invoices, otherwise invoices are deemed accepted.

She declined Mr Jacobson’s request the personal property receivership be put on hold.  Doing so would destroy Blomfield Consulting’s business model, she said.

Mr Jacobson’s complaint that receivership would destroy his business reputation was overstated, she said.   

The court was told Mr Jacobson has been director of six companies put into receivership or liquidation in the last four years.

Jacobsen v. Hoole – High Court (28.08.25)

25.188

Maori Land: Stafford v. Attorney-General

 

Final compensation following 180 years of ongoing breaches for a Maori land contract has inched closer with the High Court deciding government stock interest rates should be used as proxy for the opportunity cost on rental income lost because of successive governments’ failures to honour an 1845 South Island agreement to set aside land for local Maori: the ‘Nelson Tenths.’

Failing to honour its contractual promise, colonial governments rode roughshod over an 1845 agreement that promised one tenth of the 151,000 acres sold by iwi for colonial settlement around Nelson would be reserved for local Maori.

Some 5100 acres were allocated for use by local iwi; the remaining 10,000 acres never were, gradually nibbled away for other uses.

Complaints were ignored.

It was not until 2017 that a Supreme Court ruling definitively stated the Crown was in breach of contract.

Levels of compensation are still disputed nearly a decade on from this court decision, compounded by other compensation payouts, for unrelated breaches of the Treaty of Waitangi.

The Nelson Tenths dispute is not a Treaty claim.  It is a breach of contract claim.  In legal jargon, the Crown is being held liable for breach of fiduciary duty in its failure to properly perform the 1845 agreement.

A fiduciary duty claim contains elements of trust law, and with it a cornucopia of remedies which are primarily at the discretion of the courts.

Local iwi claim they are entitled to between $4.4 billion and $6 billion.

In the High Court, Justice Edwards said payment is likely to be a significant amount of money, but substantially less than one billion dollars.

At issue is the current capital value of land wrongly retained and not transferred to local iwi (valued variously between $264 million and $548 million) and income lost over the last 180 years.

The court ruled compensation for lost income is to be calculated as interest on the rentals which would otherwise have been received if the misapplied land had been left under control of local iwi.  This assessment raises economic issues of the opportunity costs of income foregone and the time value of money, given that lost income spans back more than a century.

Justice Edwards ruled interest is to run from only 2010, the date iwi filed their court case.

Nelson Tenths’ success was novel.  Successive governments had previously refused direct compensation, relying on past case law precedent holding the Crown immune from equitable claims for breach of fiduciary duty.  In government’s view, the Nelson Tenths outcome came as a complete surprise.

Given this change to established legal precedent, it is equitable that interest should run only from the date court proceedings were filed, Justice Edwards ruled. 

Assessment of lost income is complicated by the fact not all the misapplied 10,000 acres would have been used to generate commercial income; it would have included future use as roading, schools, medical services, churches and other community assets.

Setting out principles for calculating interest on ‘lost rentals,’ Justice Edwards ruled interest is to be calculated at contemporary government stock rates on a simple interest calculation.

The capital sum on which interest is to be calculated was disputed.

Government said rural land values will suffice.  Local iwi said it lost areas of both rural land and land in what became suburban Nelson.

Justice Edwards said government had the chance to dispute this issue at the earlier ‘breach of contract’ hearing.  It did not do so.  It now had to accept capital values adopted by valuers at that trial, she said.

Where it is proposed government-owned land is to be transferred to local iwi in partial satisfaction of cash compensation, disputes are likely to arise in determining what is being compensated: rural or suburban land lost.

Justice Edwards indicated an appeal is likely over her compensation decisions.

Government also argued allowance should be made for compensation paid to local iwi as part of earlier Treaty land claims, otherwise there would be double-counting of compensation.

Local iwi accepted up to fifty per cent of its earlier Treaty settlement included compensation claimed for shortfalls in the Nelson Tenths land allocation.

To avoid double-counting, Justice Edwards ruled $48 million is to be deducted from the assessed total of Nelson Tenths compensation due local iwi.

Stafford v. Attorney-General – High Court (27.08.25)

25.186

NF Global: NF Global Ltd v. Oberto

 

Liquidators PWC have accepted claims totalling $59.1 million from customers of failed online payment platform NF Global Ltd, with cash recoveries so far of a little over three million dollars.  Auckland-based NF Global director Claude Oberto is facing legal claims for the shortfall.  Liquidators allege multiple breaches of Companies Act duties owed company creditors by Oberto, including reckless trading and failing to keep proper records.  He admits to accounting chicanery, designed to deceive banking regulators.

With Mr Oberto subsequently claiming NF Global had no creditors, merely acting as a trustee holding funds on behalf of customers, PWC have added a further legal claim against Mr Oberto: failure to comply with Trusts Act rules governing use of trust funds.

All these claims have yet to be heard.

NF Global Ltd promised customers an efficient online platform for transferring funds internationally coupled with an ability to handle currency conversions.

Liquidators are chasing around the world to find Global assets, learning some Global subsidiaries are themselves being wound up insolvent in other jurisdictions.

In preliminary legal jousting, Mr Oberto asked that liquidators’ claims be split into two separate hearings: first to decide the legal relationship between NF Global and its customers; second to decide the extent of his personal liability, if any.

Having two separate trials will delay markedly any final resolution.  The cumulative effect of waiting a trial date for the first issue, awaiting a court ruling following this trial, then awaiting a court date for any necessary second personal liability trial, and then a further period after this trial before a ruling on liability is handed down, would stretch into infinity in the eyes of unpaid Global NF customers.

In the High Court, Associate Judge Brittain ruled against any split trial; both hearings would cover much the same facts, he said.  Having two separate hearings would waste time; evidence for any subsequent liability hearing duplicating the first.

Mr Oberto’s split trial application was without merit, Judge Brittain said, ordering Mr Oberto pay increased costs to PWC for failing to act reasonably.

As part of its argument against a split trial, PWC provided evidence of Mr Oberto giving conflicting explanations for NF Global transactions, including his admission that related party loans recorded in NF Global accounts were a fiction intended to deceive UK and European banking regulators.

NF Global Ltd v. Oberto – High Court (27.08.25)

25.187

Land Compensation: Andrew v. Sidwell Developments

 

Forcing the Andrew family to remove a land covenant blocking intensive subdivision on neighbouring land near Orewa on Auckland’s North Shore entitled them to compensation, but not to capture all the profits to be earned on the neighbouring subdivision, the Court of Appeal ruled. 

With new planning rules allowing intensive subdivision on what was once rural land, local land values have escalated dramatically.

In 2007, the Andrews purchased a four hectare lifestyle block on Endsley Rise. It is on the western side of the northern motorway, opposite Millwater subdivision, near Orewa.

This lifestyle block is part of a six-lot 1970s subdivision of what was then rural land.  Restrictive covenants on each lot prevent further subdivision and requires any dwelling constructed on the property to exceed an inflation-proofed value.  The adjusted figure as at 2023 was some $715,000.

Five decades later, the district is no longer rural.

The area is now intensively subdivided, with Council rules allowing ‘precinct’ development, requiring integration of residential building and infrastructure.

The Court of Appeal was told a McConnell joint venture has precinct approval for a development near the Andrew’s property allowing a 74 lot subdivision, including two high-rise apartment blocks.

Owners of land to be subdivided, and other near neighbours, have all agreed to remove their existing restrictive covenants, allowing the joint venture project to proceed.  Earthworks have started.

The Andrew family refused approval, stating they intended to keep their property as a lifestyle block and would enforce their rights to block development of neighbouring land in breach of their covenant.

As the one affected landowner not to agree, the Andrew family could block the entire project.

This led to McConnell’s Property Law Act application, forcibly removing the Andrew’s covenanted rights on grounds the ‘character of the neighbourhood’ had changed, making the existing restrictive covenants no longer appropriate.

Andrew family appealed a High Court refusal to award compensation.  The trial judge said removing the covenant made their own land more valuable, since it too could now be subdivided.  This was compensation enough.

On appeal, the Court of Appeal ruled Property Law Act compensation is payable.  Further evidence is needed.  Courts have a discretion as to the amount of compensation.

Past practice has seen compensation calculated at twenty to thirty-six per cent of the increased value accruing to neighbouring land on removal of a restrictive covenant.

On their calculation, Andrew family are looking to claim twenty to thirty million dollars.

In the Court of Appeal, Justice Muir said they cannot claim anything approaching that amount when removal of the covenant also benefits them.  Their land can now be subdivided, regardless of their claims of having no intention to do so.

A decision on the amount of compensation was referred back to the High Court.

Andrew v. Sidwell Developments Ltd Partnership – Court of Appeal (21.08.25)

25.185

Relationship Property: 'Houser' v. 'Houser'

 

A husband’s financially catastrophic purchase of a second home post-separation adversely affected his estranged spouse’s relationship property payout with her having to share the mortgage expense.  In turn, he complained she had not maximised her earning potential by failing to progress a medical career.

All names were anonymised by the Family Court.

Evidence was given that the two married in 2006, separating fourteen years later.

He works in IT.

She trained as a doctor, working initially fulltime at several District Health Boards.  She turned down the opportunity for specialist training; a sensitivity to blood causing her to faint.   

After taking on locum work, she later retired from the medical profession to raise their four children.  By time of the Family Court hearing in 2025, the children’s ages ranged from sixteen to nine.

The biggest relationship property issue in dispute at the Family Court was the status of two properties.

The family home occupied by the wife post-separation was valued at between $2.6 million and $2.8 million.  She has primary responsibility for the children.

The second property, occupied by the husband, was purchased post-separation; funded in part by an inheritance from his father, the balance with $1.2 million mortgage finance.

This purchase was, in part, designed to provide a stable environment for shared custody of their children.

The court was told it has been a catastrophic investment.  To date of the court hearing, its value had dropped some $700,000 to around $1.15 million.  Mortgage interest was running at nine thousand dollars per month, paid solely by the husband.

The loan used to buy this second property was secured against both homes.  The wife said she had been dead against the purchase; her spouse should have rented, she said.

Both agreed the primary family home had to be sold; to clear the mortgage.

No agreement could be reached on who would assume full ownership of the second property, and at what price.  In a falling market, there was no certainty as to current prices.

To break the deadlock, Judge Muir imposed a ‘Russian Roulette’ auction.

The husband was given two weeks to make a written offer as to the price he is willing to acquire the property he currently occupies.

She was given two weeks to then decide whether she accepted a sale at that price, or instead, was willing to take ownership, buying at the offered price.

Russian Roulette ensures a fair price is put forward, given that the person setting the offer price may end up as either buyer or seller.

The flaw is that Russian Roulette assumes each side has sufficient financial resources to complete a purchase at the offer price.  

As part of the relationship property wash-up, Judge Muir ruled the wife was liable to compensate her husband for half the mortgage costs he had been paying, continuing until the mortgage was cleared with sale of their primary family home.

As at date of the court hearing, her accrued half share of mortgage interest paid was $117,000.

In turn, the husband was ordered to pay her $478,000: half the value of his Kiwisaver account ($130,000) and a section 15 adjustment ($348,000).

Section 15 of the Property (Relationship) Act allows adjustments for disparity in income-earning potential when spouse has sacrificed career prospects to care for children.

Courts refuse to analyse the reasons behind couples’ allocation of domestic and childcare duties, looking instead at how these duties were allocated.

Section 15 compensation is then awarded to the spouse sacrificing career for family; what an economist would recognise as compensation for the opportunity cost of giving up career advancement.

This compensation is a capital sum intended to recognise the lesser income now available post-separation.  In court, what commonly follows is arguments about potential post-separation job prospects.

The husband said his spouse could easily return to a well-paying medical job.

Judge Muir said that is not plausible.

Her medical registration has lapsed.  Re-registration requires full-time supervised work; an activity not possible with her current childcare responsibilities.

The court was told she currently works part-time on an informal temporary contract as an administrator.  Name of her employer was suppressed in the publicly issued court judgment.

Justice Muir ordered payment of $348,000 section 15 compensation.

The all-up effect of these Family Court calculations is to have the husband receive about 40 per cent of their net assets by value; his spouse receiving some sixty per cent.

‘Houser v. Houser’ – Family Court (20.08.25)

25.184

Lease: Bush Inn v. Big Daddys Ltd

 

Removing unsold stock and walking away from rented retail space does not at law amount to surrender of a lease; the lease still runs and rentals accrue unless the landlord in some manner accepts the lease is at an end.

Hardeep Singh’s Christchurch liquor business, at Riccarton’s Bush Inn shopping centre, was forced into liquidation for unpaid rentals in excess of $170,000.

Mr Singh claimed Bush Inn had taken back the lease by agreement and there was no ongoing rental commitment.

This lease is in name of Mr Singh’s Big Daddys Ltd.  As guarantor, he is on the hook personally for unpaid rent.

The High Court was told Bush Inn management expressed concern in early September 2024 after finding all stock and the tenant’s fixtures had been removed over one weekend from Big Daddys rented retail space.

The lease had been running for a little over two years.  In that time, Bush Inn had been forced twice to take legal action to force payment of rent arrears.

Mr Singh claimed the lease was now at an end, some six years prior to its 2030 previously agreed termination date.

He said a Bush Inn employee had asked for return of the keys; evidence that Bush Inn accepted surrender of the lease, Mr Singh said.

Bush Inn said no surrender had been accepted.  Mr Singh misrepresented circumstances surrounding a request for the keys, it claimed.  Keys were needed to allow access for routine air conditioning maintenance.

There had been no surrender, Associate Judge Paulsen ruled.

Surrender requires actions by a landlord inconsistent with a tenant’s ongoing occupation, such as a landlord re-taking possession, advertising for a new tenant, or re-letting the property.

Big Daddys liability on the lease continued despite its departure.

The court was told Mr Singh has personally guaranteed payment of Big Daddys’ lease rentals.

Bush Inn Shopping Centre Ltd v. Big Daddys Ltd – High Court (20.08.25)

15.183

Restraint of Trade: Booths Logistics v. Millard

 

Three years after selling their Central Otago trucking business for $12.3 million, Ross Millard and spouse Barbara are being sued by Palmerston North purchaser Booths Logistics alleging they failed to stop family setting up a rival business in breach of a restraint of trade agreed on sale.

The Millards claim they have done nothing wrong and that any complaints about Booths loss of local business is its own fault.

The High Court refused an injunction to immediately enforce the disputed restraint of trade.

Justice Harland said preliminary evidence indicated Booths Logistics Ltd has a valid complaint, but a further court hearing is needed to establish the full facts.

Booths alleges Mr Millard actively assisted daughter Ashley and son-in-law Rick Rodgers in setting up a rival trucking business after the 2022 sale to Booths.  It claims he helped finance their company, MELX Linehaul Ltd, and at times helped out as a driver.

The Rodgers had previously worked for the Millard family trucking business, then known as Summerland Express Freight.  They carried on working for Booths for a period after the sale.

They claim Booths Logistics at all times agreed to their MELX operations, with the two businesses often working in tandem to complete contract work.

In the High Court, Booths Logistics says a specific clause in the sale contract requires the Millards as vendors to ensure relatives do not set up in competition with Booths for a period of six years from date of sale.

Whether the Millards did breach their contract has yet to be decided.

Booths Logistics Ltd v. Millard – High Court (19.08.25)

25.181

Body Corporate: Bremner v. Body Corporate 51615

 

Failure by owners of six houses in a Lower Hutt development to agree on body corporate policy saw the High Court appoint an independent administrator to make all body corporate decisions for an initial three year period, overriding infighting between residents.

Willing to take on the role was property manager Everything Body Corporate Ltd, based hundreds of kilometres away in Tauranga, charging a base annual fee of $4600 for admin costs plus an hourly rate for all other work.

Justice Gendall gave owners an opportunity to see sense and to achieve a working relationship; they can at any time apply to have this court-imposed administration terminated.       

The property on White Lines West in Woburn consists of six single-storey standalone units built in the early 1980s with individual titles held under the Unit Titles Act.

Evidence was given of unit owners operating as though they were independent freehold owners: no body corporate meetings were held; no long-term maintenance plan drawn up; a suggested need for drainage inspection shelved; and one instance of an owner constructing a shed on what is common land owned by all.

The High Court was told of resident owner Adrienne Bremner seeking to bring order to this legal morass.  Her efforts were met with combinations of indifference and hostility.

It took an application by her to the Tenancy Tribunal to force removal of the misplaced shed.  

A 2022 residents meeting saw a majority of owners vote down a proposed long-term maintenance plan, with a decision not to set up a body corporate bank account.

Ms Bremner’s request for reimbursement of legal fees for the earlier Tenancy Tribunal application was voted down.

A further meeting three months later decided on a $16 body corporate weekly levy, payable by owners of each of the six properties.  A dispute followed that this levy was not properly calculated according to the ownership interest of each.    

Appointing Everything Body Corporate as administrator, Justice Gendall ruled the history of dysfunctional behaviour was such that an independent administrator be appointed to ensure Unit Titles Act rules are followed.

Between owners, most contentious was the need for and content of a long-term maintenance plan and associated funding.

The Unit Titles Act allows body corporate members by special resolution to decide not to establish a long-term maintenance fund.

There was no evidence that the owners considered this option, Justice Gendall said.

Bremner v. Body Corporate 51615 – High Court (19.08.25)

25.180

Co-owners: Barry v. Harris

 

The High Court ordered mother-in-law of Lower Hutt mayor Campbell Barry vacate a jointly-owned family property at Wainuiomata and be paid out her share at a valuation yet to be fixed.  Interminable family wranglings compounded by her marriage break-up led Justic Grau to rule a Property Law Act buy-out was the only solution.

The High Court was told of mother-in-law Debra Harris’ involvement in public denouncements of her son-in-law with what proved to be unfounded allegations against the mayor of fraud, corruption, unlawful building work and mistreatment of animals   – much of it published on social media and some of it actively promoted by his political rivals.

Mr Barry elected not to stand for re-election in the 2025 local body elections.

Evidence was given of a five hectare Wainuiomata property purchase by the Barry and Harris families in 2019, jointly purchased by Campbell Barry and spouse Laura; plus John Harris and spouse Debra – Laura’s mother.

One dwelling was on site.  A second stand-alone ‘off-grid’ dwelling was built subsequently, for John and Debra.

John separated from Debra in 2022.  He is now living and working overseas.

The High Court was told of family relationships between the Barrys and Debra Harris breaking down completely.

At heart, she complained the Barrys had not paid their fair share of joint costs in purchasing the property and building the second dwelling.  Evidence to the contrary was dismissed.

Debra’s beliefs are intractable, even when they are demonstrably mistaken, Justice Grau said.

Having Debra remain co-owner of the five hectare property caused ongoing commercial problems for the Barrys.  They could not borrow against security of the property without her consent.

Seeking to finance establishment of her law practice, daughter Laura was forced to borrow at higher rates from a third-tier lender because no mortgage security could be offered. 

Sharing a driveway raised potential for further conflict.

With no end in sight for ongoing conflict, Justice Grau ordered Debra’s share be bought out and that she leave the property.

One complication is an ongoing relationship property dispute between Debra and estranged husband, John.

Justice Grau asked the warring sides to agree whether the Harris’ half share should be bought out by the Barrys, or Debra Harris’ quarter share be bought out by the remaining three co-owners: John Harris and the Barrys.

The property was valued in early 2024 at $1.62 million.

Justice Grau asked if either side wanted an updated valuation.

The court was told Debra had previously agreed to sell her quarter share to John at the 2024 valuation, but backed out two days later, claiming possible Council rezoning could see the property increase in value.

Barry v. Harris – High Court (19.08.25)

25.182

Bankrupt: Lister v. Sadiq

 

Mohammed and Shamina Saqiq were bankrupted following failure to pay a $286,000 deposit on an Auckland house purchase.  The High Court dismissed as unconvincing their claim of being able to pay soon, having millions held in an offshore bank account awaiting clearance through a newly developed ‘quantum financial system.’

Mr Sadiq told the High Court he has for the last twelve years been working on projects to repatriate historical objects.  He said some sixty projects are currently underway.  He produced documents on the letterhead of a ‘United States Historical Program’ indicating he was owed money for his services.

Confidentiality requirements prevented him from providing details, Mr Sadiq said.

He provided bank statements to the court, supposedly from an off-shore bank account he controlled, recording a current balance of USD one billion.

Mr Sadiq said he was awaiting payment to be actioned through a ‘denominated quantum financial system.’

Bankrupting both Mr and Mrs Sadiq on the unpaid debt, Associate Judge Brittain said the two can later apply for annulment of their respective bankruptcies should the expected payments arrive and all debts be cleared.   

Annulment is retrospective; the debtor is treated as never being bankrupt.

Lister v. Sadiq – High Court (18.08.25)

25.179

Maori Land: re Round Corner Ltd

 

Wellington property developers Mark and Anna Rudings failed in their Maori Land Court challenge over the status of prime development land at Otaki, claiming a four decades old administrative mistake listing Maori freehold land as general land should stand.

Maori freehold land has limited commercial value because of constraints on ownership.

Through their company Round Corner Ltd, the Rudings purchased the Otaki land in 2021 with plans for a mix of retail and residential lots.  They thought it was general land.

Later learning it was in fact Maori freehold land, they challenged Maori Land Court moves to correct the land register.

The court acknowledged the Rudings difficulties were just one of many where Land Court administrative errors have seen confusion over the status of land sold, leading to onerous commercial consequences.

Maori freehold land is a subset of Maori land where common ownership is registered in the names of individuals of Maori descent who on sale must first offer this land to relatives.

This constraint on sale affects both sale prices and the ability to raise finance; what is described as a ‘status discount.’  Lenders taking security over Maori freehold land face a limited pool of potential buyers in a forced sale.

The Rudings said Round Corner’s plans for redevelopment were potentially affected by any reinstatement of the land as Maori freehold land.

What started out with best intentions to harmonise the Maori Land register (overseen by the Maori Land Court) and the general land register (overseen by Land Information New Zealand) has seen a bureaucratic muddle.

An unknown number of Maori freehold titles have been recorded on the Land Information register with no notation recording the status of this land as Maori freehold land.

In these cases, buyers searching only the Land Information register assume the property is general land.

A separate Maori Land register search is needed to learn the land’s status is Maori freehold.

Lawyers acting for the Rudings company, Round Corner Ltd, did not search the Maori land register.

Round Corner Ltd is a corporate.  It never had Maori Land Court consent for its Otaki purchase.

Round Corner could not rely on the common legal maxim concerning title to land, that ‘the register is everything:’

Land Transfer Act rules confirming title to land do not guarantee status of the land.  Just because title to the Otaki property was listed on the general register did not promise it was not Maori land.

In the Maori Land Court, Judge Thomas determined the Otaki land purchased by Round Corner Ltd remained Maori freehold land, despite no ‘Maori flag’ noted on the Land Information register.

She invited the Rudings to return to the Maori Land Court should this decision negatively impact on their proposed development.

The court was told development plans had been paused while the Rudings awaited final government plans to re-route state highway one around Otaki.

re Round Corner Ltd – Maori Land Court (14.08.25)

25.178