2018 Chief Judge’s MB 31

IN THE MĀORI LAND COURT OF NEW ZEALAND

WAIĀRIKI REGISTRY

A20110006610

CJ 2011/25

UNDER

Section 45 Te Ture Whenua Māori Act 1993

IN THE MATTER OF

Felix Appleton

BETWEEN

KELLEY LOUISE TE RAU AROHA NYMAN

Applicant

AND

VENA MURIWAI APPLETON AND

MICHAEL GEORGE WHARENUI

APPLETON

Respondents

Hearing:

12 June 2015

(Heard at Rotorua 2015 Chief Judge's MB 450-459)

Appearances:

John Chadwick for the Applicant

Judgment:

02 May 2018

RESERVED DECISION OF CHIEF JUDGE W W ISAAC

Copy to: John Chadwick, PO Box 456, Rotorua 3040

2018 Chief Judge’s MB 32

Introduction

[1] This application, filed by Kelley Louise Te Rau Aroha Nyman (the applicant)

pursuant to section 45 of Te Ture Whenua Māori Act 1993, seeks to amend a succession

order issued on 7 February 2006 at 91 Ōpōtiki MB 8-11 relating to the estate of Felix

Appleton also known as Felix Wharenui Appleton or Felix Wharanui Appleton or Pirika

Mio II (the deceased). The deceased was the applicant’s father.

[2] The applicant claims that the said order is erroneous in fact or in law because of a

mistake, error or omission in the presentation of the facts of the case to the Court on the

basis that at the time of the application:

(a) The deceased had left a Will dated 17 December 1997;

(b) The applicant is named as a beneficiary in the Will; and

(c) The applicant was not recorded in the facts presented to the Court as being a

natural child of the deceased.

[3] The applicant seeks to have the succession order1 amended to:

(a) Recognise her as a natural child of the deceased;

(b) Include her as a successor to the deceased’s Māori land interests; and

(c) By adjusting the proportional shares from a 1/2 share to a 1/3 share.

Background

[4] The Registrar’s Report and Recommendation dated 19 February 2015 sets out the

background to the application. The Report is reproduced in full as follows:

1 91 Ōpōtiki MB 8-11 dated 07/02/2006

2018 Chief Judge’s MB 33

APPLICATION UNDER SECTION 45 OF TE TURE WHENUA MĀORI ACT1993 REPORT AND RECOMMENDATION Introduction 1. This application filed by Kelly Louise Te Rau Aroha Nyman (the applicant)

pursuant to section 45 of Te Ture Whenua Māori Act 1993 (the Act) seeks to amend a succession order dated 7 February 2006 at 91 Opotiki MB 8-11 relating to Felix Appleton or Felix Wharenui Appleton or Felix Wharanui Appleton or Pirika Mio II, the applicant’s father.

2. The applicant claims that she has been adversely affected by the order

complained of upon the following grounds:

a) Kelly Louise Te Rau Aroha Nyman is a daughter of Felix Appleton or Felix Wharenui Appleton or Felix Wharanui Appleton or Pirika Mio II.

b) Felix Wharenui Appleton left a Will dated 17 December 1997.

c) She has been excluded from her right to succeed to her father’s Māori freehold land interests.

3. The applicant claims the said order is erroneous in fact or in law because of a

mistake or omission in the presentation of the facts of the case to the Court as the deceased did leave a Will and the applicant was not recorded in the facts presented to the Court as being a natural child of Felix Wharenui Appleton.

4. The applicant seeks to be included in the succession on 7 February 2006 at 91

Opotiki MB 8-11 relating to Felix Appleton or Felix Wharenui Appleton or Felix Wharanui Appleton or Pirika Mio II.

Concise history of Order sought to be amended/cancelled 5. On 7 February 2006 at 91 Opotiki MB 8-11 the Court determined that the persons

entitled to succeed to the interests of the deceased were numbers 1 and 2 as listed below.

Tairawhiti District

Blocks Shares

Whakapaupakihi 2

Whapapaupakihi 6,7 (Aggregated)

Whakapaupakihi 6,7 (Aggregated)

1.121

969.0035

123.057

Waiariki District

Blocks Shares

Iwiroa 9

Matapapa 2A 1

Opape 28 (Being Lots 1-11 on Deposited Plan 8776)

Opape No 3A Balance No 1B Sec 2, Opape No 3A Balance

No 1B Sec 3, Opape No 3A Balance No 1B Sec 4

Pohaturoa (Church Site and Urupa)

Te Kaha 34B 1

Te Kaha 34B 2B

16.39

0.75

886.82

886.82

1.0

1.0

1.97879

2018 Chief Judge’s MB 34

Te Kaha 52B 2

Te Kaha A1

Te Kaha A3

Te Kaha B 6Z 1

Te Kaha B6B

Te Kaha B6B

Te Kaha B6V

Tunapahore B2B

Tunapahore B2B

Waioeka 435

Waioeka Parish 419

Waioeka Parish 419

Waiotahi 393G

Waiotahi Parish Lot 391C

Waiotahi Parish Lot 391C

Whangaparaoa 3B

Opape 17

4.0

6.0

6.0

11.5

1.0

0.5

28.0

4.0

2.5

4650.0

246.66136

526.08829

568.31

0.010415

0.07084

10.0

3.06

Successors/Beneficiaries

Name Sex Proportion

1 Vena Muriwai Appleton F 1/2

2 Michael George Wharenui

Appleton

M 1/2

Identification of evidence that may be of assistance in remedying the mistake or omission 6. The applicant has provided the following documents in support of her application:

a) A photocopy of her Birth Certificate showing her to be a child of Jeanette Claudina Nyman, the fathers details are not recorded;

b) A certified copy of the original Will of Felix Wharenui Appleton dated 17

December 1997;

c) Whakapapa where it shows her to be a child of Felix Appleton as set out below:

2018 Chief Judge’s MB 35

d) Copies of the minutes and orders complained of; and

e) A copy of the minute and order made at 6 Waiāriki MB 74-75 dated 19 April 2010 upon succession to Mary Appleton also known as Mary Mio or Pau Mio or Pau Wharenui.

7. Evidence given on 7 February 20062 records that the deceased left no Will and

no assets that required a Grant of Administration.

8. The applicant has produced a certified copy of the Will of the deceased dated 17 December 1997 where it names the Public Trustee as the executor and trustee and Vena Appleton as an advisory trustee.

9. In his Will the deceased had inserted a clause which is reproduced as set out

below: 4.0 I give:

(1) The interest which I own at my death in any Māori freehold land; and

(2) The beneficial interest in land which forms part of any Māori

Incorporation to be divided equally among my children, Vena Muriwai Appleton, Michael George Wharenui Appleton and Kelley Nyman living at my death.

10. In her supporting correspondence to the Court, the applicant submits that the

deceased is not recorded on her Birth Certificate however she believes that the Will confirms his parentage by naming her a beneficiary. She also states that she is willing to undertake blood tests if necessary to confirm her parentage.

Details of subsequent Orders affecting lands to which application relates 11. At 298 Rotorua MB 21 dated 20 April 2006– succession to the deceased’s

interests in the Orete Incorporation;

12. At 6 Waiāriki MB 74-75 dated 19 April 2010 – further succession to Mary Appleton also known as Mary Mio or Pau Mio or Pau Wharenui;

13. At 304 Aotea MB 136-144 dated 24 May 2013 – constitute the Taimana and Pirika

Appleton Whānau Trust; and

2 91 Ōpōtiki MB 8-11

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14. At 323 Aotea MB 158-176 dated 18 July 2014 – constitute the Heeni Taimana

Pirika Wharenui Whānau Trust. Details of payments made as a result of the Order 15. On 8 August 2011 letters were sent to the Māori Trustee Wellington and to the

Orete II and Other Blocks Incorporation to confirm holds being placed over the client accounts affected by this application and to provide what payments (if any) have been made to date.

16. Orete II & Other Blocks Incorporation: On 19 August 2011 correspondence was received from the Incorporation confirming that a hold had been placed on the following shareholder accounts pending the outcome of the application:

Name Shares held Funds awaiting distribution

Michael George Wharenui Appleton

48.34204 $107.77

Vena Muriwai Appleton 48.34204 $107.77

17. Māori Trustee Wellington: On 14 September 2011 in a letter to the Court, the

Māori Trustee advised that they currently administer two Māori land blocks noted on the order complained of namely; Opape 17 and Waiotahi 393G and confirm that holds have been placed over the client accounts.

Reference to areas of difficulty 18. The deceased’s name is not recorded on the applicant’s Birth Certificate.

19. The Will had not been produced to the Court. Consideration of whether matter needs to go to full hearing 20. The evidence provided show that an error was made in the presentation of the

facts of the case to the Court that the deceased did not leave a Will.

21. The applicant has provided a certified copy of the Will for the deceased, which names her as one of the beneficiaries and as a child of the deceased.

22. Taking the above matters into consideration, it is the Case Manager’s

recommendation that the order made at 91 Ōpōtiki MB 8-11 dated 7 February 2006 be amended by including Kelley Louise Te Rau Aroha Nyman as being entitled to succeed to the Māori land interests of the deceased and amending the proportional shares in the successors from 1/2nd to 1/3rd share.

Recommendation of course of action to be taken 23. If the Chief Judge is of a mind to exercise his jurisdiction, then it would be my

recommendation that:

a) A copy of this report be sent to all affected parties to give them an opportunity to object or respond, in writing, within 28 days of the date of this Report; and

b) If no objections are received, then order be made pursuant to section 44(1) of Te Ture Whenua Māori Act 1993 amending the order complained of at 91 Ōpōtiki MB dated 7 February 2006 by:

2018 Chief Judge’s MB 37

i. Including Kelley Louise Te Rau Aroha Nyman as being entitled to succeed to the interest of the deceased’ and

ii. Amending the proportional shares of the successors from 1/2nd to 1/3rd share.

c) And a further order to be made pursuant to section 47(4) of Te Ture Whenua

Māori Act 1993 making all other consequential amendments.

d) If objections to the Report and Recommendation are received, then the matter should be set down for hearing before the Chief Judge in the Waiāriki District.

Procedure

[5] The Registrar’s Report was distributed to parties on 19 February 2015 with written

responses or objections to be filed no later than 20 March 2015.

[6] On 20 March 2015, the Registrar received a written objection from Vena Appleton

(daughter of the deceased) on the grounds that she was present when her father made his

Will and the applicant was not named as her father’s daughter. She also disputes the Will

dated 17 December 1997.

[7] On 6 April 2015, I directed that this matter be set down for hearing in Rotorua on

12 June 2015.

Hearing

[8] At the hearing the applicant’s counsel, Mr John Chadwick, submitted that clause

4.0(2) of the Will of the deceased clearly named Kelley Nyman as a child of the deceased.

The Will was not probated and therefore the validity of clause 4.0(2) has not been subjected

to legal rigour, however, the validity of the certification of the Will should be accepted by

the Court.

[9] Vena Appleton stated that she wanted to hear evidence that Kelley Nyman is her

sister and that the deceased never told her that Kelley was her sister.

[10] On the day of the hearing the Court received an email from Taiawhio Waititi who

had lodged the 2005 succession application to the deceased. In his submission to the Court,

Mr Waititi stated:

2018 Chief Judge’s MB 38

20 Insofar as my testimony relates to there being no Will, I accept now that that

was incorrect, and I acknowledge the existence of a Will;

21 However, in reliance on the kōrero of my grandmother, insofar as my

testimony relates to the children of the deceased, I stand by my evidence that,

to the best of my knowledge, and that of my family, the deceased had only

two children, being the respondents, Vena Muriwai Appleton and Michael

George Wharenui Appleton.

DNA Testing

[11] At the conclusion of the hearing3 I directed that both parties consent to undergo

DNA testing for the purpose of determining the applicant’s claim of being a natural child

of the deceased.

[12] This took place and on 5 August 2016 the DNA Report recorded the following

findings:

DNA Diagnostics has carried out the testing as described below and have

obtained results which are inconclusive as to the level of relatedness of the

full siblings Michael George Wharenui APPLETON and Vena Muriwai

APPLETON to Kelley Louise Te Rau Aroha NYMAN

…

The results from these analyses provide support for the full siblings Michael

George Wharenui APPLETON and Vena Muriwai APPLETON as having the

same biological father as Kelley Louise Te Rau Aroha NYMAN, however,

the weight of the evidence measured by a value of 3 is not sufficiently strong

to exclude the possibility of a false outcome and hence we consider the result

to be inconclusive.

[13] In an email sent to Vena Appleton on 18 August 2016 DNA Diagnostics advised;

For a standard paternity test with an alleged father, child and mother we have

a threshold of at least 100,000 for DNA evidence to support the person as the

biological father. As for sibling testing when we do not have both parents for

testing the results will be greatly reduced. For a conclusive result, we require

a value at least over 100 to support siblings to have the same biological father.

In your particular case the value is 3 which is not sufficiently strong enough

to obtain a conclusive result therefore, the result was inconclusive, that is, we

cannot confirm whether you and Michael Appleton have the same biological

father as Kelley Nyman.

3 2015 Chief Judge’s MB 450-459 dated 12 June 2015

2018 Chief Judge’s MB 39

Overall, we have no evidence to exclude the biological father of Michael and

Vena Appleton as the biological father of Kelley Nyman, however, the

statistical analysis has returned an inconclusive value.

Submissions of the Applicant

[14] On 15 September 2016 Mr Chadwick filed submissions in response to the DNA

Report. Mr Chadwick sets out the following submission on behalf of his client.

3 The parties agreed to undergo DNA testing. Both defendants and the applicant

provided swab samples. The result of that test (attached hereto) has been referred

to the Court. The analysis of the test reveals two things. Firstly, Felix Appleton

cannot be excluded as the father of the applicant. Secondly, Felix Appleton cannot

conclusively be shown to be the father of the applicant.

4 The second conclusion is not surprising given that a DNA sample from Felix

Appleton was not available because he is deceased. The applicant therefore relies

on (1) the first conclusion (2) the further evidence provided in the affidavits of the

applicant and her mother Jeanette Claudina Nyman filed herein; and (3) clause

4.0(2) of the Will of Felix Appleton dated 17 December 1997.

5 The evidence of Jeanette Claudina Nyman is not only unequivocal as to paternity,

it is corroborated by clause 4.0(2) of the Felix Appleton’s Will where he identifies

the applicant in the words “my children”. It is noted that she also maintains that

both respondents and their mother were informed by the deceased (when he was

alive) that he was the father of the applicant. Again, that is corroborated by the

inclusion of the applicant as a beneficiary in his Will.

6 In paragraph 20 of her affidavit, the applicant deposes that Vena Appleton told her

that her own mother mentioned in her Will that the applicant was the daughter of

Felix Appleton.

7 In Vena Appleton’s letter to the Court of 20 March 2015 (in which she objects to

the applicant’s claim) she says she was present when her mother made her Will at

the Guardian Trust office in Rotorua. She says “Kelley Louise Te Rau Aroha

Nyman was not named as my father’s daughter.” This is, of course, at odds with

my previous submission in 6 above. The simple solution would be for Vena

Appleton to produce her mother’s Will. There are however, two responses:

(a) In the case of her father it [sic] correct that he did not use the words “my

daughter” in his Will – instead he used the words “my children” and then he named

the applicant. (c) Production of her mother’s Will may or may not

add to the evidential mix and in any event it is not fatal to the applicant’s claim.

8 In the same letter Vena Appleton states “I dispute the Will dated 17th December

1997”. This is her father’s Will she is talking about. She does not state just what

she is disputing, the whole of it or part of it or whether he had testamentary

capacity. In any event, that is a matter for the High Court and not this Court which

can only deal with what is in front of it.

2018 Chief Judge’s MB 40

9 I submit that the evidence submitted on behalf of the applicant meets the evidential

threshold for the Court to make a finding that the applicant is the daughter of Felix

Appleton. …

Submissions of the Respondent

[15] On 16 September 2016 Vena Appleton filed with the Court, her submission in

response to the DNA Report as follows:

My brother and I have read the reports provided by Patricia Stapleton and

although we sympathise with Kelley and her application to the Court, we accept

the scientific evidence has not determined conclusively, a biological relationship

exists between her and ourselves, or our father, thereby precluding her claim to

property rights.

The Law

[16] The Chief Judge’s jurisdiction to amend or cancel an order of the Māori Land Court

is set out in section 44(1) of the Act:

44 Chief Judge may correct mistakes and omissions

(1) On any application made under section 45, the Chief Judge may, if satisfied

that an order made by the court or a Registrar (including an order made by a

Registrar before the commencement of this Act), or a certificate of

confirmation issued by a Registrar under section 160, was erroneous in fact

or in law because of any mistake or omission on the part of the court or the

Registrar or in the presentation of the facts of the case to the court or the

Registrar, cancel or amend the order or certificate of confirmation or make

such other order or issue such certificate of confirmation as, in the opinion

of the Chief Judge, is necessary in the interests of justice to remedy the

mistake or omission.

[17] For the benefit of the parties it is necessary to set out the principles that are applied

to s 45 decisions. These are to be found in the judgment Ashwell – Rawinia or Lavinia

Ashwell (nee Russell) where the Chief Judge summarised certain principles relating to s 45

applications as follows:4

• When considering s 45 applications, the Chief Judge needs to review the

evidence given at the original hearing and weigh it against the evidence

provided by the Applicants (and any evidence in opposition);

• Section 45 applications are not to be treated as a rehearing of the original

applications;

4 Ashwell – Rawinia or Lavinia Ashwell (nee Russell) [2009] Chief Judge’s MB 209 (2009 CJ 209) at [15].

2018 Chief Judge’s MB 41

• The principle of Omnia Praesumuntur Rite Esse Acta (everything is presumed

to have been done lawfully unless there is evidence to the contrary) applies to

s 45 applications. Therefore in the absence of a patent defect in the order,

there is a presumption that the order made was correct;

• Evidence given at the time the order was made, by persons more closely

related to the subject matter in both time and knowledge, is deemed to have

been correct;

• The burden of proof is on the applicant to rebut the two presumptions above;

and

• As a matter of public interest, it is necessary for the Chief Judge to uphold the

principles of certainty and finality of decisions. These principles are reflected

in section 77 of the Act, which states that Court orders cannot be declared

invalid, quashed or annulled more than 10 years after the date of the order.

Parties affected by orders made under the Act must be able to rely on them.

For this reason, the Chief Judge’s special powers are used only in exceptional

circumstances.

[18] Section 45 explicitly refers to situations where the Court has made an incorrect

decision due to a flaw in the evidence presented, or in the interpretation of the law, and it is

necessary in the interests of justice to correct this. For this reason, s 45 applications must be

accompanied by proof of the flaw identified, through the production of evidence not

available or not known of at the time the order was made.

[19] As stated in Tau v Nga Whanau o Morven & Glenavy – Waihao 903 Section IX

Block,5 the Chief Judge must exercise his jurisdiction by applying the civil standard of proof

on the balance of probabilities having regard to that standard’s inherent flexibility that takes

into account the nature and gravity of the matters at issue. This means that the applicant

must establish on the balance of probabilities that there was a mistake or omission.

Discussion

[20] The issue to determine in this case is whether the succession order relating to the

estate of Felix Appleton was made as a result of a mistake, error or omission in the

presentation of the facts of the case to the Court and whether it is necessary in the interests

of justice to remedy the mistake, error or omission by cancelling or amending the order.

5 Tau v Nga Whanau o Morven & Glenavy – Waihao 903 Section IX Block [2010] Maori Appellate Court

MB 167 (2010 APPEAL 167) at [61].

2018 Chief Judge’s MB 42

[21] The applicant has provided me with the Will of the deceased which clearly sets out

the intention of the deceased. The Will was not presented to the Court when the order

complained of was made which was clearly an error in the presentation of the evidence to

the Court.

[22] Notwithstanding the existence of the Will and its contents, the respondents still

oppose the applicant’s inclusion on the basis that she was not a child of the deceased.

[23] The parties agreed to undergo DNA testing. However, the results were not

conclusive. The DNA report concluded that although the analysis provided support for the

full siblings Michael George Wharenui Appleton and Vena Muriwai Appleton as having the

same biological father as Kelley Louise Te Rau Aroha Nyman, the weight of the evidence

(measured by a value of 3) however was not sufficiently strong to exclude the possibility of

a false outcome, making the findings of the DNA report inconclusive.

[24] It therefore becomes important to look behind these results.

[25] First, the will itself. The deceased names Kelley as one of his children. Not as his

step child, adopted child but as one of his children. So the deceased believed Kelley to be

his child.

[26] Next, the affidavit evidence of Kelley’s mother Jeanette Nyman dated 14 September

2016. This affidavit confirms Kelley’s mother’s view that the deceased Felix Appleton was

Kelley’s father.

[27] This evidence is compelling and in my view the respondents have not presented any

cogent evidence to dispute it.

Orders

[28] I therefore grant this application and amend the order complained of at 91 Ōpōtiki

MB 8-11 dated 7 February 2006 as follows:

(a) Including Kelley Louise Te Rau Aroha Nyman as being entitled to succeed to

the interest of the deceased, and

2018 Chief Judge’s MB 43

(b) Amending the proportional shares of the successors from 1/2 to 1/3 share.

[29] And a further order be made pursuant to section 47(4) of Te Ture Whenua Māori Act

1993 making all other consequential amendments.

[30] The foregoing orders are to issue forthwith pursuant to rule 7.5(2) (b) of the Māori

Land Court Rules 2011.

[31] A copy of this decision is to be distributed to all parties.

Dated at Wellington this 2nd day of May 2018

W W Isaac

CHIEF JUDGE