David McCormick who is in a legal claim involving his land on Old Te Atatu Road, Te Atatu. 31 July 2015 New Zealand Herald Photograph by Dean Purcell.
David McCormick who is in a legal claim involving his land on Old Te Atatu Road, Te Atatu. 31 July 2015 New Zealand Herald Photograph by Dean Purcell.
He says, "I've cleared a path." Dave McCormick leads his visitor - the first person he's had in the house for years - through the back door of his house in Te Atatu. Everyone on the peninsula knows his house. It looks massively interesting, like an adventure has taken place.It looks like a shipwreck, something that has washed up to rest in a sea of grass. The curtains are torn rags. The weatherboards have long ago lost their paint, and even the borer has just about lost interest in the damp, shredded wood. He says, "It's just the way I live."
The section - "a full half-acre", as Dave records it, or more than 2000sq m - has become a shipyard to old sailing boats. They are on blocks and in the grass. They are as battered as the house.
To see his property is to enter into a kind of dream. It looks like nothing real. It looks like nothing else in Auckland. It looks strange, possibly haunted - it is a mystery. Who lives there? How come he hasn't sold? It is surrounded by townhouses, faintly depressing slabs built after 2000, with their security gates and their money trees on the doorstep. No character. His house interrupts the monstrous sameness of the street, gives it a sense of the past, makes it vivid. Passers-by sometimes drop notes in Dave's letterbox. "I bet there's not many houses that get love letters," he says. The letters all express the same message: I love what you haven't done to the place.
He's mopped the kitchen floor. That is the path that allows access and a place to sit in his kitchen.
"Boats, boats, boats," says Dave. "It's all just boats." The house is full of bits and pieces of boats; they've taken over, crowded every room. Next to the kitchen a handsome pair of sliding glass doors, frosted with sailing boats, opens into what used to be the sitting room. It is now a boatyard.
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Dave has a full head of white hair, and sea-blue eyes. He is a cheerful and practical man, very thoughtful. He says, "Yes, right in there. I was born at teatime. Five o'clock. June 24th, 1938. No, 1937! It was right by the fireplace. My great-aunt did the assisting. I was the youngest; my sister Bernadette died 23 years ago. I've been overseas on my ocean sailing trips, but I've never lived anywhere else.
"The house was built in 1933. My parents got married on Auckland Anniversary Day, 1934. They came into the house on the first night of their wedding, and they went away the next day for a trip north. Our family always had cars.
"My great-grandfather bought land here in 1867. He had the choice of buying Herald Island, or here in Te Atatu. My great-grandmother contracted TB, and the doctors suggested she live by the seaside. They built a bach by the water, but it burned down a few years ago. Arson, they think.
"His son, my grandfather, was a blacksmith by trade. There was no work in Auckland, so he took a trip to Hobart. No work there either. My great-grandfather said to him, 'Well, I think you should go out to that land and knock yourself out a farm.' All the way from here down to the water used to be the family farm."
Dave and six other families have lodged what may be the largest land claim in New Zealand outside of the Treaty of Waitangi. On August 12-13, at the Court of Appeal in Wellington, Justices Harrison, French and Mallon will listen to the honeyed tones of well-known litigator Colin Carruthers QC as he fights last year's High Court decision, which ruled against the claim. In essence, seven families are demanding that Auckland Council return 60ha of Te Atatu harbour view real estate worth an estimated $60 million.
It was acquired by the Auckland Harbour Board in the early 1950s to build a port. The families didn't want to sell, but the board applied pressure; the land was needed for "essential works". It was all for nought. The port never happened.
Ownership of the seven parcels of land passed to the Auckland Council. The families argue the land should have been offered back to them by law in 1982, when an amendment to Section 40 of the Public Works Act was passed. The legislation ordered government agencies to offer land back to the original owners when it was no longer required for "essential works".
Carruthers is acting on behalf of the families. He says, "The whole purpose of the Act was to make right what was wrong. Local authorities and the Crown were taking land intended for one purpose, but then not developing it for that purpose, and just holding on to it ... I've seen a lot of examples where the authorities have simply ridden roughshod over the rights created by the Act."
The value of the land, as suggested by the claimants in court proceedings, should be set at 1982 prices. Dave and the other families signed over their rights to the land to a litigation funder, S40 Limited, which will pay them a set fee if they win the case. Carruthers is listed in the Companies Office as a shareholder of S40 and directors include Herne Bay businessman Brian Fitzgerald.
The Te Atatu land claim has been going through the courts since 2005. A trial was held in the High Court last year. Justice Fogarty's ruling is an extraordinary document. As a narrative, it reads like a thrilling, almost violent essay, which clubs Auckland Council to near-death. Council, as the defendant, raise nine objections. The first eight are thrown out with force. "The High Court," seethes Justice Fogarty, "will not stand by and tolerate illegal conduct in government." Time and time again, he favours the claim made by Dave and the other families, and dismisses council's objections with furious distaste.
But the ruling has a shock ending, and reading it is like being witness to a marvellous sleight of hand.
"The defendant has succeeded by reason of only one of its many defences ... The plaintiffs' actions fail for a single reason." Fogarty invokes something called the Auckland Harbour Board and Waitemata City Council (Te Atatu) Empowering Act 1983, and blandly concludes, "It ended the obligation to offer back the land."
And yet previous decisions throughout the 10-year court battle have rejected any possibility of council using the Empowering Act to win the argument. A 2008 Court of Appeal decision, in fact, flatly contradicts Fogarty's ruling. Back then, council submitted that Parliament must have taken into account that the land wouldn't be subject to any offer-back obligations when it passed the Empowerment Act, which could have led to commercial development of the site. Appeal judges responded, "We do not attach weight to this submission ... It is equally likely that the issue was simply overlooked."
This week's Court of Appeal hearing is scheduled on Wednesday and Thursday. A decision is expected within about six weeks. If it overturns the High Court ruling, and council is forced to offer the land to the original owners, S40 will give Dave $2 million.
For various reasons Dave went without power from April to November last year. It's possible he rather enjoyed the challenge. He hooked up fluorescent lights, and fried sausages on a gas cooker. The electric stove looks kaput. There is a broken kettle by the sink. In the sitting room where he was born, a stack of Max Bygraves albums is one of the few signs of civilisation.
The family ran dairy cows on its Te Atatu farm. Dave says, "I was eight, nine months old when my father died. It was April 7th. He was coming up over Waikumete hill, and was right outside the cemetery gates when the truck broke down. He got out and was in front of the back wheels. It was about five o'clock at night and this guy came up the road, possibly with the sun in his eyes, and pranged into the back of the truck.
"Mum needed to get away for a while. She took Bernadette to Western Australia. I was looked after by a friend of my mum's who died a month ago. She was 105. She told me at her 100th birthday party that I used to call her my aunty mummy.
David McCormick who is in a legal claim involving his land on Old Te Atatu Road, Te Atatu. 31 July 2015 New Zealand Herald Photograph by Dean Purcell.
"Was it a sad house? No. But there was one thing. Nobody ever said anything about my father to me. We'd constantly go to Henderson, for church, and be among people who knew my father. They never said, 'Oh I remember him this, or I remember him that.' My mum was often talking about him. But people who knew him - even my aunties, and he was their brother - they never said anything. It was as just as though he never existed."
There is something innocent about Dave, almost holy. He says he's never married. Neither did his sister. They had their mum. She had trouble sleeping; sometimes she'd go to bed at 5am, after staying up all night cleaning. "All my clothes were got ready, and tea was cooked every night." She died in 1982.
Dave puts it like this: "I was 45 when my mum left."
He says, "My actual philosophy in life is that I can't actually understand or even believe how men and women can live in the same house. How does it work? But you see, neither my sister or I ever lived in a two-parent house. We didn't see any nice times or goings-on between man and woman. Mum was there, and mum did everything. Mum was a good mum.
"I got engaged once, and there was a woman who I went dancing with much later on. She was a widow, a good Catholic lady. But she was wanting some action." The word sounds startling coming from Dave; he explains, "She wanted marriage. The girl I was engaged to wanted action, too. I was 28, and she was 18. But I had all this ocean sailing I wanted to do first. That was my first love. It was my dream.
"I had a boat, Kahua, a 28ft ketch; she helped me paint it. But she was quite marriage-minded. As a teenager, she had her glory box, and she was buying linen. She couldn't wait for me to do my boat trip and come back. But once I started, I certainly didn't want to give it up. We broke up about Christmas and by April I was on my first ocean trip. My mum encouraged me all the way to go ocean sailing. I did lots and lots of trips. I've been to America. Japan. Guam ... "
The distant shores sound exotic in the dark house. There is a small bed and a wardrobe in his bedroom; it looks like a cabin on a sailing boat. Dave has worked as an electrician, and only recently retired. He says, "Now I'm home every day I'm thinking, 'What a hell of a mess.' I've got all this stuff! Everything I look at is boats."
Real estate agents in Te Atatu value his land at about $1.5 million. His visitor asks if he'd ever sell.
He says, "Why should I? It'd be a pain to leave my old home. It's like my truck out there. That was my only vehicle for years. People say, 'Well, if you don't use it, why don't you sell it?' And I say, 'Well, it's there, it's paid for, if it ate the grass I'd be happier, but every time I want it, even if it's just once a year, it's there.'"
He keeps busy repairing his boat Serenity at the boatyard on the nearby Whau River. He says, "It's interesting. Apparently my father's dream was when he retired, he was going to sail around the world. My mum said, 'Great! I'll meet you in every port.' But it wasn't to be.
"My father took me sailing once. We went away for Christmas, at holiday time. Cow time. He took my mum, and my sister and I to Waiheke. I was put in an old wooden butter box. I was just a baby, of course."
His father's name was Henry. Everyone called him Mick.
There are heavy cobwebs in the windows, and paintings of Christ and ships. Dave says, "The biggest disappointment of my life is that I've never been in a life-threatening storm. I've never seen the sea at its worst."
• Te Atatu identity Dave McCormick is part of a group of local families making a legal claim for 60ha of land on the West Auckland peninsula, which they used to own.
• The former Auckland Harbour Board bought the land from the families under the Public Works Act in the 1950s, for a port which was never built.
• The families say the land should be sold back to them because its current owner, Auckland Council, is not using it for "essential works", as required under the act.
• The long-running case goes to the Court of Appeal in Wellington this week.
