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Editors --- "Bruce v Edwards - Case Summary" [2003] AUIndigLawRpr 24; (2003) 8(2) Australian Indigenous Law Reporter 43

Court and Tribunal Decisions – New Zealand

Bruce v Edwards

Court of Appeal of New Zealand (Gault P, Keith and McGrath JJ)

17 February 2003

[2003] NZCA 25

Maori freehold land — change of status to General land — loss of right of first refusal by other members of hapu — appeal against adjournment of application for specific performance of transfer granted — whether leave to appeal to Privy Council available as of right or in exercise of discretion

Facts:

The Maori owners of a farm in Taranaki, Mr and Mrs Edwards, agreed to sell to non-Maori purchasers, Mr and Mrs Bruce, subject to the making by the Maori Land Court of an order changing the land’s status to general land. The Maori Land Court was not told by the Edwards’ solicitor of the intention to sell the land.

While the land remained Maori freehold land, the preferred class of alienees (‘PCA’) had a right of first refusal if it was to be alienated, by virtue of s 147(2) of the Te Ture Whenua Maori Act 1993 (NZ). In this case, the PCA was the Hapu, to which the Edwards belong. The Court did not require notice of the application for change of status to be served on the members of the PCA.

The change of status order was registered against the title to the land under the Land Transfer Act 1952 (NZ). As a result, the land ceased to be Maori freehold land and the right of first refusal no longer applied. Mr and Mrs Bruce paid a substantial deposit to the Edwards, confirmed the sale of their own farm, purchased extra livestock and made ready to move on to the land. On the settlement date, but before settlement could occur, Mr and Mrs Bruce discovered that some members of the PCA had placed a caveat on the title and were applying to the Maori Land Court for a rehearing of the change of status application seeking annulment of the change.

The Maori Land Court decided that there should be a rehearing, but the appellant trustee purchasers sought in the High Court a judicial review of that decision. The appellants counterclaimed seeking an order for specific performance of the sale and purchase contract, which the Edwards did not resist. The High Court set aside the order for the rehearing made by the Maori Land Court on the ground that the Maori Land Court had failed to consider whether the application should be allowed to be brought out of time and had not heard from the Edwards.

The High Court decided that the Maori Land Court should be allowed to consider the application for the rehearing and, if it thought fit, the substantive application to annul the change of status order. It made no decision on the specific performance application, adjourning that matter until the views of the Maori Land Court were known. The High Court ordered that if the Maori Land Court were to annul the change of status order, no party should attempt to register the annulment order until the matter had been referred back to the High Court and it had further considered the specific performance application in light of the decision of the Maori Land Court.

The appellant, supported by the first respondent, appealed to the Court of Appeal against the decision of the High Court to adjourn their specific performance application and was successful. The matter was remitted to the High Court for entry of judgment in favour of the appellant.

The third respondents, members of the PCA, applied for conditional leave to appeal to the Judicial Committee of the Privy Council against the judgment of the Court of Appeal. They wished to protect their rights as members of a PCA who, on the change of status of the land, lost their rights of first refusal and related interests. The appellants (the Bruce trustees), and the first respondents (the Edwards) opposed the application for leave. The second respondents (the Maori Land Court) said it would abide by the decision of the court.

Held (by Gault P, Keith and McGrath J), refusing conditional leave to appeal to the Judicial Committee of the Privy Council:

1. There is no appeal as of right under rule 2 of the New Zealand (Appeals to the Privy Council) Order 1910. The rights asserted by the third respondent are procedural not substantive and therefore cannot be given a cash value, with the consequence that the monetary threshold under rule 2 for appeals as of right cannot be satisfied.

2. As a matter of discretion under rule 2 of the New Zealand (Appeals to the Privy Council) Order 1910, leave to appeal is refused as there is no great general or public importance in the question of law at stake and granting leave to appeal would inflict ongoing hardship on the appellant and first respondent.

Case extract:

Gault P, Keith and McGrath J:

...

4. At the hearing, the applicants invoked both paras (a) and (b) of rule 2 of the New Zealand (Appeals to the Privy Council) Order 1910. The application itself referred only to para (a) – the ‘as of right’ paragraph – and the other parties objected to the addition of the further ground, especially at the last minute. It is clear that we have power to consider the additional ground if the original application was made in time (Commissioner of Inland Revenue v Vela Fishing Ltd [2000] 2 NZLR 635 para [7]) and in the circumstances, including the fact that the other parties were not prejudiced, we do consider that other ground.

5. Under rule 2(a) the appeal is of right if the appeal involves directly or indirectly a claim or question to or respecting property or a civil right amounting to or of the value of more than $5,000. There is no dispute that the farm in question is worth more than $5,000, being apparently worth around $3 million. The applicants do not claim ownership of the land itself, but rather rely on their statutory rights in relation to the land as members of the PCA. They say that those claims amount to ‘some claim or question to or respecting’ the land, and indeed directly so: the ultimate question is whether the land should stay with the Bruce trustees or the whole status and transfer process be redone with a potentially different outcome. The word ‘indirectly’, they say, puts the matter beyond doubt. The argument continues that the statutory rights in respect of alienation are of themselves of no obvious cash value, but it would be a nonsense to say that they have no significant value.

6. The applicants also say that they have a ‘civil right’, being the statutory rights of first refusal and to be notified of and heard on any proposal to alienate, including a change of status for the purpose of alienation. The value of that civil right must be assessed by reference to the value of the property in respect of which the right attaches in the present case.

7. As counsel for the Edwards emphasised, we must begin with the judgment subject to the application. This Court was essentially concerned with the Bruce trustees’ appeal against the High Court adjournment of their application for specific performance. That appeal succeeded on the basis that they had an untainted equitable interest in the land and that as a consequence of the making and registration of the status order the PCA themselves no longer had any competing equitable interest (and that on assumptions favourable to the PCA); and s 88 operated to protect the Bruce trustees’ equitable interest against the consequences of any reversal or annulment of the change of status order at a rehearing.

8. As Mr McIntosh for the applicants frankly recognised, the right which his clients were attempting to protect in the appeal in this Court was the right to be heard on an application for a rehearing and not even the right to be heard on the substantive application to annul the change of status order. Those matters are essentially discretionary. Those rights, in terms of the decision of this Court in Vela Fishing paras [24], [28]–[29], being rights of procedure as opposed to substantive rights cannot be given a cash value, as indeed the applicants’ submissions in part recognise. For that reason alone, the application cannot be brought within the scope of para (a) of rule 2.

9. But should leave to appeal be granted under the discretionary head of para (b) of rule 2?

10. The applicants say that it should because of the degree of indigenous public interest considerations affecting the common law of New Zealand. This case involves, the submissions contend, a number of important issues of that nature including:

(a) The extent to which Parliament intended to enable Maori to protect their land.

(b) The jurisdiction of the Mâori Land Court as a forum for that protection. The capacity of Mâori to seek redress via the Court has both symbolic and practical importance to Mâoridom. TTWMA represents the single strongest articulation of the principle of protection of Mâori land. The preamble contains an affirmation of the rangatiratanga of Mâori in respect of their land and acknowledges that land is taonga tuku iho. Intertwined with the language and imagery is the establishment of a Court whose primary purpose is the protection of Mâori freehold land.

(c) The statutory right against alienation, which as noted in this Court’s judgment at ... is a continuing right which runs with the land. The ‘sorrow’ noted ... [in the judgment] is not simply for the ownership of the land, but also for the loss of ancestral and future connecting with the land.

(d) The priority and/or precedence of indefeasibility and other fundamental legal rights as against (c).

11. The response is that those issues simply do not arise on this appeal ... In particular there is no issue as to jurisdiction of the MLC in this case. The reason the matter was not sent back to the MLC was that because of s 88(1) no annulment order made by the MLC could ever have been registered. Similarly the case is not about indefeasibility but about the much narrower question of whether s 88(1) applies to order made under s 43(5).

For these reasons it is submitted that the case does not have such public or general importance that it ought to be carried further.

12. We agree with that assessment. We agree in particular, in the absence of any evidence on the matter, that the point of law (about s 88) is of no great general or public importance. It is a narrow legal point. Had it been necessary, we would also have given weight to the ongoing serious impact of the litigation on the Bruces and the Edwards, given as well Mr McIntosh’s frank and proper acknowledgement on behalf of the applicants that they do not know whether they will be able to proceed.

13. The application for conditional leave to appeal is accordingly refused.

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