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Don McMorland on slowing down, growing old and securing the future of Sale of Land

10 Nov 2022

| Author: Reweti Kohere

For almost six decades, Don McMorland and the law have been inseparable.

The 79-year-old is perhaps best known for writing and publishing the seminal legal textbook Sale of Land, now in its fourth edition. Equally, his surname and contributions are a big part of Hinde McMorland and Sim Land Law in New Zealand. He has written legal opinions as a barrister, lectured at Auckland University, edited Butterworths Conveyancing Bulletin for 40 years and helped to decriminalise homosexuality in the 1980s. McMorland’s impact transcends his magnus opus.

But as 2023 looms on the horizon, and with it his 80th birthday, the land law specialist is reclaiming more time. Six years ago, he stopped writing opinions. And since the end of 2021, a new editor has taken the reins of the conveyancing bulletin.

McMorland hasn’t left entirely (he’s still a consulting editor) and he’s writing chapters on easements, covenants and licences for Hinde McMorland and Sim. But he wants the chance to get away from Auckland for a few days or listen to Bach and his contemporaries or spend time reading books such as Cicero’s How to Grow Old: Ancient Wisdom for the Second Half of Life.

“You want not to stop entirely but certainly to slow down,” McMorland tells LawNews. “It’s what everybody, I think, must do. You want a retirement.”

Just a paper

We’re sitting in the living room of his retirement village apartment on Auckland’s North Shore. It’s a blazing spring day outside, so cool, calm conversation is welcome respite. A quick glance at the bookcase framing the couch McMorland is sitting on throws up an eclectic mix of works: New Zealand historians Michael King and James Belich, Gore Vidal’s memoir, Stonewall and Oscar Wilde and Palgrave’s Golden Treasury of English poetry.

“Shall we start at the beginning?” McMorland responds, having been asked why he chose land law. I half-expected him to characterise the subject as a long-standing passion but back in 1963, it wasn’t a “deliberate” choice on his part.

Auckland University students at the time had a list of nearly 20 papers they had to work through, unlike my generation who enjoyed some variety in the latter stages of our degrees and could be selective about our interests. In his case, passion gave way to realism. “At the time it was just a paper, just compulsory,” he says. “You had to do it and pass it and move on.”

Even when he’d chosen an academic’s life over the life of a law partner, circumstances outside his control largely led to McMorland continuing with land law. A master’s degree was a prerequisite for becoming a law lecturer. Besides McMorland, the only other LLM student was Sir Peter Blanchard (who would choose the partner life). Yet their postgraduate studies depended on the willingness of a faculty professor to offer them a course. The late professor Frederic “Jock” Brookfield, an expert in constitutional law and land law, stepped up and offered land law. McMorland would follow that with a PhD from Cambridge.

Dr George Hinde, emeritus professor of law at Auckland University, who had taught McMorland land law in his undergraduate days, approached his former student to help write a new book upon his return home from Cambridge in 1973. Hinde, McMorland and Sim was the result.

By the 1980s, McMorland was teaching at Auckland University. About the same time, he thought a more complete textbook was needed, drawing on Blanchard’s earlier handbook on vendor and purchaser law. McMorland approached his old master’s colleague about collaborating. Blanchard agreed to help. “We would’ve done it but as we were about to start [in the early 90s], he was appointed to the High Court bench and that’s a full-time job,” McMorland says.

Frustration

It took McMorland three years to write and publish first edition of Sale of Land. “I had slogged my way through 430-odd pages of text, plus the table of contents and the index and the table of statutes and the table of cases,” he says. “But people knew my name at that stage…so marketing it and so on wasn’t a problem. And eventually it sold out. And then I did a second edition and a third edition.”

Peek inside the most recent edition’s cover – with its light blue shade a nod to Cambridge and the calligraphic scrawl of a 1986 deed a gesture to history – and you’ll notice how much contract law underpins the sale and purchase of land. As McMorland explains in the preface, much has changed since the third edition was published in 2011, including the accumulation of 11 years of case law, a compilation of all the statutory contract law into one piece of legislation and a new, revised REINZ-ADLS agreement form.

Land law took on another dimension during the covid-19 lockdowns of 2020 and 2021; people found it difficult to satisfy their contractual obligations, McMorland says. “So, what’s the effect on the contract? Was it frustrated totally? All we have is an old Frustrated Contracts Act of about 1944.”

The shifting sands of the pandemic frustrated him too as they prolonged the book’s finishing date on account of necessary updates to the sale and purchase agreement form. Contractual frustration, though, can do with some attention. “There has never been a revised frustration of contracts Act. There still isn’t.”

A legal classic

Reforming other areas of the law has shaped McMorland’s legacy. The landmark Homosexual Law Reform Act 1986, which decriminalised sexual relations between men aged 16 and over, was based on a private member’s bill that McMorland and Auckland barrister Alan Ivory had drafted, and which second-term Labour MP Fran Wilde introduced to Parliament.

A few months after starting as a High Court judge in mid-1992, Blanchard remembers presenting McMorland with an award from the queer community recognising his work in helping to effect change in the law.

I ask the former Supreme Court judge about his prophecy in March 1994. In a foreword to the first edition of Sale of Land, Blanchard said the textbook would prove to be “a most valuable addition” to New Zealand’s library of legal literature. Nearly 30 years on, Blanchard says: “I was right about that.”

The pair of master’s students would take turns drafting an essay every second week during their master’s course, which would be up for discussion. Blanchard “quickly realised that Don was very, very good at putting words on paper in connection with land law”. That realisation is evident in Sale of Land; McMorland’s clear, thorough prose and deep legal knowledge has repeatedly proved the textbook is a legal classic. It’s a great reference point for practitioners too. “If you’re trying to research an area, he usually will give you the answer,” Blanchard says.

The textbook was frequently cited in submissions and oral argument while Blanchard was on the bench. Plus, McMorland’s occasional appearance at hearings was just as helpful, whether he was presenting an argument or had shared it with counsel. “It was a comfort that we weren’t going to be lead astray,” Blanchard says, “and we certainly weren’t going to be in a situation where we were left ignorant of one of the authorities or of an argument that could be made.”

Leaving legacies

Of course, in slowing down, McMorland is untying the knots that have kept him connected to the law. Sale of Land – that most tangible piece of his legacy – isn’t off limits either. The fourth edition is his last but he’s keen to know future versions are assured.

I ask about succession. “I have plans afoot for that, which I hope stay together,” he says. “But I have initiated them [and they are] being discussed with me at this stage. I can’t put it any further than that.”

When the handover day does come though, there’s a sense that McMorland won’t be troubled. “You reach a stage of life where you’re happy to let things go, provided you see some future for them. That’s why I want to secure the future of the book now, while I’m still alive.”

As he says this, he points to a corner of his living room where a small table made in dark wood stands, a brass bowl affixed on top. McMorland’s maternal grandparents bought the piece in the early 1900s while living in India. His mother then inherited it and he’s been its keeper since.

The keepsake triggers a memory. His mother was born on a British army base near Darjeeling, up in the foothills of the Himalayas. For much of his adult life, McMorland never got the chance to see her birthplace. But in December 2019, he travelled back in time with the help of his Indian friend.

It took the pair three hours to “gently” persuade several ranks of military personnel to let them in. A commanding officer eventually agreed to the request, provided they took no photographs. McMorland, escorted by a soldier, stood in the exact spot where his grandparents were photographed, in front of their now-demolished bungalow, decades earlier.

In the picture, a dog sits at his grandfather’s feet and his grandmother cradles his mother in her arms. As he shares the experience, McMorland’s eyes become glossy and wet, and emotion catches his voice. A smile spreads across his face in the end. “We got there. And the poor old driver is sitting out there,” he chuckles heartily. “I had a happy ending.”

Much like the brass heirloom perched in his living room, Sale of Land is something to pass on to the next generation. McMorland may be slowing down, but his legacy will be ensuring the legal profession and land law remain inseparable – just as he has for all this time. ■

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