Wirepa v Hill

[2023] NSWSC 1394

Supreme Court

New South Wales

Medium Neutral Citation:

Wirepa v Hill [2023] NSWSC 1394

Hearing dates:

6 & 13 October 2023

Date of orders:

16 November 2023

Decision date:

23 November 2023

Jurisdiction:

Equity

Before:

Slattery J

Decision:

Summons dismissed under Civil Procedure Act 2005, s 61 and under Uniform Civil Procedure Rules 2005, r 12.7. Order that the plaintiff pay 80 per cent of the defendants’ costs of the proceedings on the ordinary basis and may not commence further proceedings seeking relief that is substantially the same as the relief sought in the Summons without first paying the defendants’ costs. On dismissal of the Summons the defendants’ Cross-Claim is transferred to the District Court pursuant to Civil Procedure Act, s 146. The operation of the above orders is stayed until 8 December 2023 upon terms. Liberty to apply is granted.

Catchwords:

LAND LAW - easements – creation of easements – plaintiff’s rural land is only accessible from a nearby public road through the defendants’ adjoining land – plaintiff seeks the grant of an easement under Conveyancing Act 1919, s 88K to regularise her informal use of the defendants’ land pursuant to a licence from the defendants – defendants’ Cross-Claim for trespass and nuisance contends the plaintiff has used the defendants’ property other than for passage to and from the public road and that trespassed upon the defendants’ land and caused nuisance to the defendants.

CIVIL PROCEDURE – Summary Disposal – Dismissal of proceedings – want of due despatch – plaintiff has not taken all ordered procedural steps to progress her Summons to a hearing – plaintiff no longer retains solicitors – plaintiff has not prepared survey documentation, and appears cannot demonstrate an immediate capability to fund the payment of the necessary compensation to the defendants for any grant of relief under Conveyancing Act, s 88K – plaintiff gives undertaking to the Court to prosecute the proceedings with diligence – whether the proceedings should be struck out pursuant to Civil Procedure Act 2005, s 61 or under Uniform Civil Procedure Rules 2005, rr 12.7 or 13.4 – issues on the Cross-Claim raise damages questions that lie within the jurisdiction of the District Court - if the Summons is struck out, whether the Cross-Claim should be transferred to the District Court under Civil Procedure Act, s 146.

Legislation Cited:

Civil Procedure Act 2005, ss 56(2), 98(4)(c), 146

Conveyancing Act 1919, s 88K

District Court Act 1973, ss 44, 46, 140

Uniform Civil Procedure Rules 2005, rr r 7.36, 12.7. 13.4

Cases Cited:

Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43

Horizons (Asia) Pty Ltd v CLC Deliveries Pty Ltd [2021] NSWSC 1486

Nahatav v Robertson [2023] NSWSC 642

Category:

Procedural rulings

Parties:

Plaintiff: Silvana Liliana Wirepa
First Defendant: Christopher James Hill
Second Defendant: David Graham Hill
Third Defendant: Richard Thomas McLeod

Representation:

Counsel:
Defendant: M. Fernandes

Solicitors:
Plaintiff: in person
Defendant: Rob Webb, Watson Webb lawyers

File Number(s):

2022/336079

Publication restriction:

No

Judgment

1. The plaintiff, Ms Silvana Wirepa, and the defendants, Mr Christopher Hill and Mr David Hill (“the Hills”), are neighbours in rural property in the Port Macquarie – Hastings Council area on the mid north coast of New South Wales. Ms Wirepa’s land adjoins Crown land that is wooded with native forest. Her land is only accessible from the nearest public road through the defendants’ adjacent land. The defendants have until now informally licenced her to access her property through their land.

2. In November 2022, Ms Wirepa commenced these proceedings seeking relief under Conveyancing Act 1919, s 88K imposing an easement in the form of a right of carriageway over the defendants’ land and benefiting her land. But Ms Wirepa’s proceedings were deficient in a number of respects and are not presently being prosecuted by her to hearing even though the grant of an easement is not strongly contested. So the defendants have moved to strike out her Summons under Civil Procedure Act 2005, s 61(3)(a) for non-compliance with the Court’s orders, or under Uniform Civil Procedure Rules 2005 (“UCPR”), r 12.7 for her want of due dispatch and r 13.4(1)(a) and (b) for not disclosing a cause of action. Ms Wirepa resists the striking out of her claim on any of those grounds.

3. The defendants have also filed a Cross-Claim in the proceedings. They complain that Ms Wirepa has trespassed on their land in breach of their licence to her by her entering it for purposes other than for passage to or from a public road, by allowing her dogs to roam and traverse their property, by leaving chattels and parked motor vehicles on their property and by directing her visitors to do the same. The Cross-Claim seeks relief in the torts of trespass and private nuisance and injunctions to restrain continuation of the conduct of which the defendants complaint.

4. The defendants’ motion to strike out the plaintiff’s proceedings was heard on 6 & 13 October 2023. The plaintiff appeared in person. Mr M. Fernandes of counsel instructed by Watson Webb Lawyers appeared for the defendants/cross-claimants.

5. The Court has decided to grant the relief sought on the motion but has temporarily stayed the grant of that relief, for the following reasons.

Two Rural Properties and An Easement in the Port Macquarie/Hastings Shire

6. The defendants, who are brothers, have only recently come into ownership of their property. It was owned by their father, Mr Graham Hill, until his death in March 2022. The defendants were given the property under their father’s will.

7. It is not necessary in these reasons for the Court to give close consideration to the merits of the plaintiff’s Summons, as the issue presently before the Court is a procedural one. It is also not necessary therefore for the Court to refer to individual lots, the cadastral diagrams and to the two adjoining parcels of land for the pathway through the property which is commonly used by the plaintiff. These reasons will therefore generally only refer to the property owned by the plaintiff as “the plaintiff’s land” or “Ms Wirepa’s land” and the property owned by the defendant as the “the defendants’ land”, or “the Hills’ land”.

8. Mr Graham Hill also originally owned Ms Wirepa’s land. He sold it to her predecessors in title in 1983. At the same time he entered into a written agreement with her predecessors in title to grant them a licence to pass through the defendants’ land, by a route specified in the licence, in exchange for them granting Mr Graham Hill a similar right to pass through their land on another specified route. Under the 1983 agreement the parties purported to grant one another rights by way of perpetual lease. But the period of the perpetual lease may have been void due to uncertainty of term. But it appears to have taken effect nevertheless as a licence between the parties.

9. Ms Wirepa purchased her land in 2013. She is a dog breeder and uses her land for that purpose. Mr Graham Hill kept cattle on their property. The defendants now have about 40 cows on their property.

10. The access arrangements between Mr Graham Hill and Ms Wirepa appeared to have been sufficiently informal to the point that he acquiesced in her not always using the exact licenced route across his property. Since becoming executors of Mr Graham Hill’s estate, the defendants have not objected to Ms Wirepa using either the principal route or an alternative route to pass over their land to reach the public road and they are prepared to continue her licence to do so. The Hills say that they have requested Ms Wirepa not to depart from the principal route or the alternative route or to traverse the rest of the property, other than to facilitate passage between her land and the public roadway. They complain also that Ms Wirepa’s dogs have traversed the property and have not been confined in an enclosed motor vehicle using either the principal route or the alternative route through the property.

The Course of the Proceedings and Ms Wirepa’s Defaults

11. After the Summons was filed on 9 November 2022 it was the subject of 11 sets of orders in the Real Property List up to 21 July 2023, when it was set down for hearing on 6 October 2023. An applicant in by Summons seeking to impose an easement by Conveyancing Act, s 88K should be well positioned to fulfil the requirements of s 88K as soon as the proceedings have commenced. This matter was complicated, to a degree, by the Hills’ Cross-Claim which was filed on 17 March 2023. But reviewing the 11 sets of orders either in the Real Property List or in chambers, the following observations should be made. On 10 March 2023, Ms Wirepa was ordered to serve any lay or expert evidence in chief to support her claim. On 21 April 2023 the plaintiff was permitted to file and serve an Amended Summons before 19 May 2023, and to serve any further evidence in chief before the same date. But even at the hearing on 6 October 2023 Ms Wirepa’s evidence in chief was not all filed.

12. After the Summons was filed on 9 November the Court made consent orders on 17 November 2022. Order 1(a) of the 17 November 2022 orders recorded her undertaking to the Court to "have a survey of the land [title reference not published] conducted and have drawn up all necessary documentation for the registration of an easement and in the nature of a right-of-way, both at her cost". This was a twofold undertaking to conduct the "survey of the land" and to draw up necessary "documentation for the registration of an easement". As it turns out Ms Wirepa has done neither of these tasks. By Order 1(b) of the 17 November 2022 orders, Ms Wirepa also undertook to the Court to "conduct these proceedings expeditiously."

13. The Hills contend, and the Court accepts, that Ms Wirepa has contravened her undertaking in both Order 1(a) and (b) of the 17 November 2022 orders. The Court is not presently determining whether those contraventions are a contempt of Court. The Hills have not sought to charge Ms Wirepa in a manner which would ground a finding of contempt. Nor have they gathered the necessary evidence to ground an inference beyond reasonable doubt that Ms Wirepa engaged in intentional conduct to contravene her undertakings. But short of establishing a formal charge of contempt, the contravention of the 17 November 2022 undertaking is relevant to the issues now before the Court.

14. Contravention of Order 1(a) is established by Ms Wirepa’s failure to produce any proper survey of the land in question. Ms Wirepa has not advanced any document like a survey using proper survey points and dimensions. Nor has she produced the other documents necessary for registration of an easement created under Conveyancing Act 1919, s 88K, such as a plan to satisfy s 88K(3). Ms Wirepa has only advanced what could best be described as a sketch of the proposed burdened land, the Hills land. This document is quite inadequate for registration purposes.

15. Ms Wirepa gave various excuses for not having produced a survey or other documents necessary for registration of the easement. One of these was that she could not afford to pay the surveyor. Another was that she thought that the sketches she produced was a survey. Yet a third was that she was waiting on the surveyor to produce the plan. These various excuses are internally inconsistent and give the Court little confidence that Ms Wirepa has a real grip upon the obligations that she faces to obtain relief under Conveyancing Act, s 88K.

16. Ms Wirepa has also breached Order 1(a) by failing to draw up "all necessary documentation for the registration of an easement in the nature of the right-of-way”. It is necessary for Ms Wirepa to commission the drawing up for registration of a s 88K(3) plan and to record the terms of the easement. Not only has this not been done but Ms Wirepa is without legal advice to have it completed.

17. Her lack of appreciation of these obligations is unsurprising given she has not engaged and is not presently being advised by solicitors. Unless that situation changes, the Court has little confidence that she is capable of fulfilling her obligations as a plaintiff to bring to completion a Conveyancing Act, s 88K application. Her interactions with the Court demonstrate little grasp of what is really required.

18. Ms Wirepa has also breached the undertaking recorded in Order 1(b) of the 17 November 2022 consent orders. She has failed to conduct these proceedings expeditiously. This is demonstrated by her defaults in the procedural orders set out above. It is further demonstrated by the contravention of the 17 November 2022 undertaking. And it is demonstrated by Ms Wirepa's inability to set out a concrete plan for bringing these proceedings to a conclusion. Such a plan would include clear arrangements to settle the consideration payable to the Hills for the easement, a sum said to be in the order of about $25,000.

19. Most of these problems would be soluble should Ms Wirepa 's financial position and resources change. But as at the dates of hearing no such change had occurred.

20. Ms Wirepa terminated the services of her solicitors on 9 February 2023. She was then in contravention of the 17 November 2022 undertaking. The following day, 10 February 2023, the Court made orders foreshadowing that the Hills may bring an application for summary dismissal. Therefore, since mid-February 2023 Ms Wirepa has been on notice of that possibility.

21. A Court annexed mediation took place on 9 June 2023. At the conclusion of the mediation, consent orders were made providing for the matter either to be settled, or to proceed to a final hearing through mechanism which was designed to overcome some of the prior defaults that have occurred by embedding a degree of co-operation between the parties. The Orders of 16 June 2023, relevantly provided as follows:

“1.   All parties are to do all things necessary by way of cooperation to comply with these orders, including that each order be performed within time.

2.   By 4pm on Monday, 19 June 2023, the plaintiff shall provide to the first and second defendants’ solicitors a complete copy of the survey prepared by Hopkins Consultants Pty Ltd in PDF form, failing which the first and second defendants have leave to file a Notice of Motion seeking dismissal of the plaintiff’s Summons and/or summary judgment of their Statement of Cross-Claim.

3. If the plaintiff complies with order 2, then orders 4 – 9 take effect.

4.   By 4pm on Wednesday, 21 June 2023, the parties jointly request the President of the Institution of Surveyors NSW to nominate a surveyor who is able and willing to conduct, with reasonable promptness, surveys of:

a.   Lot 170 in DP [not published], owned by the plaintiff and Richard McLeod (Plaintiff’s Land);

b.   the following land owned by the first and second defendants (Defendants’ Land):

c.   Lot 123 in DP [not published];

d.   Lot 30 in DP [not published]

e.   Lot 1 in DP [not published]; and

f.   Lot 18 in DP [not published];

g.   the plaintiff’s proposed easement over the Defendants’ Land as indicated in the survey prepared by Hopkins Consultants Pty Ltd.

5.   Within 7 days of the President of the Institution of Surveyors NSW nominating a surveyor, the parties jointly instruct that surveyor, including by providing all necessary documents and instructions.

6.   In the first instance, the plaintiff pay the surveyor’s fees within 14 days of the surveyor issuing an invoice, which is to be made out to the plaintiff (but also emailed to the first and second defendants’ solicitor, Watson Webb).

7.   Within 7 days of the survey having been received, the parties jointly request the President of the Real Estate Institute of NSW to nominate a valuer who is able and willing to conduct, with reasonable promptness, the following valuations:

a.   a valuation of the amount of compensation that should be paid to the first and second defendants by virtue of the imposition of the proposed easement sought by the plaintiff on each of the parcels comprising the Defendants’ Land;

b.   a current market valuation of the Plaintiff’s Land both in its current state (without any easement) and on the basis it did have the easement.

8.   Within 7 days of the President of the Real Estate Institute of NSW nominating a valuer, the parties are jointly to instruct the valuer, including by providing all necessary documents and instructions.

9.   In the first instance, the plaintiff pay the valuer’s fees within 14 days of the valuer issuing an invoice, which is to be made out to the plaintiff (but also emailed to the first and second defendants’ solicitor, Watson Webb).

10.   If the plaintiff fails to comply with order 1 such that by virtue of her inaction any deadline set in the other orders is not met (such as by promptly consenting, or suggesting alterations, to the first and second defendants’ proposed communications to the relevant persons), then the first and second defendants have leave to file a Notice of Motion seeking dismissal of the plaintiff’s Summons and/or summary judgment on their Statement of Cross-Claim.

11.   List the matter for directions on Friday, 4 August 2023 for further directions.

12    Liberty to apply on 3 days’ notice.”

22. It turned out that the document Ms Wirepa later produced in attempted compliance with Order 2 of the 16 June 2023 Orders was only a sketch, not a proper survey. Other steps consequential on a survey have therefore not been taken. The Hills claimed non compliance with Order 2 of the 16 June 2023 Orders and took up the leave granted by Order 10 and filed their 5 July 2023 motion for dismissal. These reasons show that their claim was justified.

23. On 21 July 2023 Ms Wirepa was ordered to serve any evidence on which she relied in response to the Motion before 4 August 2023. This provided her an opportunity to file all the evidence in support of her claim, which would have been a basis for resisting dismissal of her Summons on the grounds of want of due dispatch. But her evidence presently incomplete. She has still not put forward a survey, a Conveyancing Act, s 88K(3) plan and has not indicated any capacity to compensate the defendants/cross-claimants for their legal costs related to the Summons or in consideration of the grant of an easement over the Hills’ land.

Consideration

24. Civil Procedure Act, s 61(3)(a) provides as follows:

“61.   Directions as to practice and procedure generally

…

(3)   If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following--

(a)   it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim,”

…”

25. The power to dismiss proceedings under Civil Procedure Act, s 61(3)(a) should be exercised in accordance with the overriding purpose of the “just, quick and cheap” resolution of the dispute within Civil Procedure Act, s 56(2).

26. The Hills referred to a number of similar cases in which summary dismissal has taken place under Civil Procedure Act, s 61, cases such as Horizons (Asia) Pty Ltd v CLC Deliveries Pty Ltd [2021] NSWSC 14686. Comparison with individual cases in which s 61 has been applied can be of some assistance, every case has its own features that guide the Court’s exercise of discretion.

27. In this case circumstances clearly call for the Court to exercise the discretion to dismiss the Summons under s 61(3)(a). The following factors weigh in favour of that exercise of discretion:

1. The long time during which Ms Wirepa has defaulted in filing all her evidence in chief;

2. Ms Wirepa’s contravention of her 17 November 2022 undertaking to the Court;

3. Ms Wirepa's failure to move the matter forward immediately after the June 2016 mediation to take advantage of the cooperation the Hills had then offered;

4. Ms Wirepa’s continuing failure to retain solicitors, making it unlikely that she will be able to take the steps necessary to complete the proceedings;

1. Ms Wirepa’s failure to demonstrate sufficient financial resources to give the Court confidence that she can either engage solicitors or pay the necessary compensation to the Hills, or to fund the payment of legal conveyancing costs and surveying fees to gain the relief that she seeks.

28. These considerations would also justify dismissal under UCPR, r 12.7. It is not necessary to consider the other claimed ground for summary dismissal under UCPR, r 13.4. The Hills contend that Ms Wirepa’s proceedings disclose no reasonable cause of action, or they are frivolous or vexatious. It is true that a Court cannot determine a s 88K application, if a plaintiff fails to provide a proper survey and a proper registrable instrument of easement, and applications are dismissed on the basis: Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43; Nahatav v Robertson [2023] NSWSC 642 (“Nahatav”) at [51] – [57]. Moreover, here the plaintiff's case lacks evidence that the proposed easement is reasonably necessary because alternative routes are not preferable: in the Nahatav at [64]. The Hills’ evidence suggests that some alternatives may be available.

29. But the Court would not dismiss these proceedings on this basis. If the plaintiff gets her procedural house into order and the missing evidence can be obtained, the proceedings would not be characterised as frivolous or vexatious. They disclose a cause of action that is known to law. But they presently lack sufficient evidence to establish that cause of action.

30. The Court decided on 6 October 2023 to give Ms Wirepa an opportunity to get her legal house in order. The nature of the discussion on that day appears sufficient from the orders made on that date.

31. The Court made the following orders and directions on 6 October 2023.

“1. The Court being satisfied it is in the interest of the administration of justice due to the limited liquid assets of the plaintiff Silvana Liliana Wirepa and the difficulties of her otherwise obtaining legal assistance in time for the conclusion of these proceedings, order pursuant to Uniform Civil Procedure Rules 2015, Division 9, r 7.36, that the plaintiff be referred to the Registrar for referral to a barrister or solicitor on the Court’s pro bono panel for legal assistance.

2.   Note that on one view of these proceedings the defaults which have occurred by the plaintiff in complying with the Court’s timetables to date may be related to her limited liquid funds to satisfy liabilities arising out of the Court’s orders.

3.   Note that the plaintiff believes that liquid funds will become available to her in the near term from the sale of certain family property in Rotorua New Zealand of which she holds an interest of 71 percent (“the New Zealand property”) the subject of proceedings in the High Court of New Zealand, Wirepa v Wirepa 2023 - 46310 and those proceedings are listed for hearing on 26 October 2023 after which it is expected that the New Zealand property would be sold.

4.   Note that the proceeds of sale of the New Zealand property are expected to exceed $200,000 net to Ms Wirepa and that it may be possible to apply some of those funds so the plaintiff can satisfy and implement the Court’s orders in these proceedings.

5.   Adjourn these proceedings to Friday, 13 October 2023 at not before 12 noon (“the adjourned hearing”).

6. Before the adjourned date the plaintiff is directed to provide to the defendants/cross-claimants evidence concerning or a clear proposal concerning how the funds from the sale of NZ property will be made available to facilitate the progress of the plaintiff’s claim for relief under s 88K and the implementation of the orders already made in these proceedings (“the proposal”).

7.   Note that the Court expects the proposal to be substantiated by correspondence from Nicola Robertson of Sanderson Weir Solicitors of Auckland.    

8.   Grant liberty to apply for the plaintiff to contact the Registrar in relation to her obtaining pro bono assistance pursuant to these orders.

9.   Note that if pro bono assistance is not available to the plaintiff she is expected to approach Dalzell Law solicitors to ascertain whether they will be prepared to assist her in implementing the existing orders of this Court for the plaintiff.

10.   Notes that the cross-claimant is no longer moving for summary judgment on the Cross Claim so the Court directs the parties to put oral submissions on 13 October as to why the Cross Claim should not be referred to the District Court or the Local Court.

11. The Court notes that the issues in this case may be able to be resolved with minimal further costs to the parties if the plaintiff is able to funded to execute the existing orders and the Court: (a) exhorts the parties from this time forward to minimize legal expenditure in the proceedings consistent with maintaining their own interests; and (b) to the extent that it will assist in the quelling of the disputes between these parties the Court notes it is minded to make a Civil Procedure Act 2005, s 98(4)(c) lump sum costs order so the parties have certainty as to what costs would be ultimately payable and the Court will scrutinise the costs in light of the observations made in this order.”

32. As Ms Wirepa was not legally represented, the Court pointed out to her practical options for obtaining legal advice. These included approaching her solicitor in the family law proceedings, Ms Elle Dalzell, to seek her assistance with advice relevant to these proceedings. These also included recommending that she have the benefit of the pro bono legal assistance panel pursuant to UCPR, r 7.36. Her potential for accessing funds seems to have precluded this, as she has not been able to access pro bono legal representation. She is for example able to mortgage her existing rural property, which is said to be valued at about $110,000.

33. Ms Wirepa has immediate cash flow problems. These have impacted upon her capacity to conduct these proceedings. Whilst the blame for her defaults are not the responsibility of the defendants in any sense, a short analysis of her financial position goes some way towards explaining why she has fallen into default in the Court’s timetables. The reasons for her default are in part financial.

34. Following her recent divorce, Ms Wirepa applied for relief by way of property settlement in the Family Court of Australia, sitting in the Hunter region. She claims an interest in certain matrimonial real property situated in Kotara, near Newcastle. She says the real property is worth $1 million and that she has been advised her claim against her former spouse may be worth $400,000. Her Family Court property settlement proceeding will not be heard until December this year. Even if Ms Wirepa is successful, she would not enjoy the fruits of that action until some time in the first half of 2024.

35. Ms Wirepa is also the beneficiary of the deceased estate of her late uncle. His estate is being administered in named proceedings that Ms Wirepa has brought in the High Court of New Zealand at Rotorua (“the New Zealand proceedings”). By the time of the adjourned 13 October hearing the Court had the benefit of a letter dated 11 October 2023 from the solicitor for Ms Wirepa in the New Zealand proceedings, Ms Nicola Robertson, of the New Zealand legal firm Sanderson Weir. The content of Ms Weir’s correspondence is not disputed on this application.

36. The New Zealand proceedings are an application for sale of a jointly owned property in Opotiki, a town in the Eastern Bay of Plenty, in the North Island of New Zealand (“the New Zealand property”). Ms Wirepa owns 71% of the New Zealand property. Ms Wirepa unsuccessfully attempted to negotiate the sale of the New Zealand property with the administrator of the estate of her late uncle. But the administrator did not complete the administration before he died in June 2022. The property is unencumbered and was valued in January this year at NZ$342,000.

37. The New Zealand proceedings were filed in May 2023 and have been served on all co-owners and interested parties. A “formal proof” hearing was set down in the New Zealand proceedings on 26 October 2023. Ms Wirepa is seeking relief against her co-owners for the sale of the New Zealand property. The relief being applied for appears like that available in this State under Conveyancing Act, s 66G and therefore very few defences can be fielded against it. Ms Wirepa is likely to be successful in these proceedings given their nature.

38. Ms Robertson explains that once the New Zealand property is sold the proceeds of sale will only be available subject to the deduction of conveyancing costs and expenses. These include the costs of the sale, outstanding outgoings charged on the property, conveyancing costs, reimbursement for the legal costs and disbursements in the New Zealand proceedings, and reimbursement of NZ$25,008.63 to Ms Wirepa for her expenditure on the property. After the deduction of those amounts the balance of the proceeds of sale will be divided to the account of the owners, with Ms Wirepa receiving her 71% and the other owners 29%. Most of these various classes of costs have not been quantified. But upon the assumption that the costs will be reasonably proportionate to the estimated value of the New Zealand property is not unreasonable to assume that a sum in a range of NZ$150,000 to NZ$200,000 may yet be available to Ms Wirepa to deploy towards the resolution of these proceedings.

39. In her letter dated 11 October 2023, Ms Robertson confirms she has instructions from Ms Wirepa to offer a solicitor’s undertaking to hold Ms Wirepa’s share of the net proceeds of sale of the New Zealand property on trust and not to release those funds until Sanderson Weir is ordered by this Court to pay all or part of the funds in Sanderson Weir’s hands to the Hills or their solicitors at the conclusion of these proceedings pursuant to an order of the Court or under a settlement.

40. Ms Robertson’s correspondence paints a picture of Ms Wirepa’s high regard for procedural obligations, which contrasts strikingly with the history of her default in these proceedings. Accepting that Ms Robertson is acting for Ms Wirepa and is putting the best light upon her client’s position, she makes the following comment in the letter dated 11 October 2023 to the solicitors for the defendants, Watson Webb Lawyers:

“In relation to the New Zealand proceedings, we note that our client has worked hard to take the steps to commence the New Zealand proceedings to enable the property to be sold, without assistance from the co-owners. Our client is a very limited means but has worked hard to meet a payment arrangement with our firm to paid towards the fees and disbursements that we have incurred.”

41. This gives some hope that with a timetable which takes realistic account of Ms Wirepa’s true financial position that she may yet be able to meet her procedural obligations in these proceedings if their dismissal is temporarily stayed.

42. Ms Wirepa needs time to realise funds from these sources to engage solicitors. But the defendants need certainty after Ms Wirepa’s recent procedural defaults. The correspondence from Ms Robertson gives some ground for optimism that Ms Wirepa may soon have sufficient financial resources to fund her financial obligations to obtain the relief that she seeks in these proceedings. But there is still uncertainty for the defendants, which cannot go on without the wasteful expenditure of further costs. These two legitimate objectives are in tension and must be resolved. The Court has decided to resolve them by staying its dismissal orders for a short period until 8 December to allow Ms Wirepa to remedy the procedural defects identified here and engage lawyers. The orders made below provide for this.

43. Ms Wirepa needs legal advice for another reason. To her own disadvantage she is engaging in aggressive correspondence against the lawyers acting for the Hills, Messrs Watson Webb. One example of this will suffice. Watson Webb made an offer without prejudice save as to costs on 21 March 2023 in which the Hills consented to the grant of an easement upon terms that included the payment of a proportion of their costs. The Watson Webb offer was made in reasonable, courteous and civil terms. But it received on 6 April 2023 a surprising response from Ms Wirepa, which was also copied into the chambers of Peden J, the Real Property List judge.

44. Several comments should be made about this. First, judges’ chambers should not be copied into this kind of correspondence, in which parties are negotiating settlements. Ms Wirepa went beyond the bounds of proper conduct by litigants in doing so. Second, Ms Wirepa made a series of unfounded allegations in her reply correspondence. She accused Watson Webb of having an excessive number of lawyers working on the case, "unnecessarily driving up the costs", engaging in "unfounded bullying that has been undertaken by your client and from your firm", and declaring that she will "not bear the burden of any costs associated with bullying behaviour that has occurred". She concluded by contending to Watson Webb:

"Your client has proven himself to be untrustworthy and it brings into question the continued bullying if I pursue the s 88K. When does the bullying end?"

45. Ms Wirepa undoubtedly has legal rights to scrutinise the costs that are claimed by Watson Webb. Any excessive claims for costs can be reduced on a costs assessment. But there is no evidence in the correspondence that Watson Webb have engaged in any form of improper conduct or bullying behaviour. It is unhelpful for Ms Wirepa to make allegations of this kind, but she seems to have a propensity to do so. This is another reason why Ms Wirepa’s case would be assisted by her engaging a legal firm to act for her.

Formulating Orders

46. The Court is prepared to stay an order for dismissal, but only on the basis: that Ms Wirepa advances concrete evidence that she has engaged a surveyor to undertake the necessary survey task to gain a s 88K relief; that she engages lawyers to assist her to fulfil her survey and her registration tasks to secure s 88K relief; and, that she has available to her the funds to meet the defendants reasonable legal costs and easement transfer consideration that is likely to be awarded should s 88K relief be granted.

47. In the event that the Summons is dismissed, the question arises as to what should happen to the Hills’ Cross-Claim. The Court has reviewed some of the video evidence of trespass and nuisance complained of in the Cross-Claim. The range of damages that is likely to arise should those torts be established would be well within the damages jurisdiction of the District Court in civil proceedings. If the Hills only wish to pursue a damages claim in respect of past instances of nuisance and trespass, or an injunction arising out of that alleged conduct, then it is appropriate for the matter to go to the District Court and the orders made provide for this.

48. The judges of the District Court have broad power to grant injunctions by way of ancillary relief in common law actions, such as proceedings for damages, for trespass of land or in nuisance: see District Court Act 1973, ss 44 and 46. There is therefore no obstacle to these proceedings being transferred to the District Court. The only objection might be that the Hills wish to obtain declaratory relief on the Cross-Claim. But there is no demonstrable need for the defendants to take that course. The District Court can provide all the practical remedies that the Hills need and the conduct of the balance of these proceedings would be more economical in the District Court.

49. The Hills also seek orders for the payment of their costs on an indemnity basis either from 21 March 2023 or 19 May 2023. This contention is based upon Calderbank letters which had offered to settle the proceedings sent on those dates. It is premature for the Court to consider that application until it is clear whether the proceedings will continue, or whether they will be dismissed. The Court will adjourn the matter to 8 December 2023, and grant liberty to apply. If the proceedings are dismissed on that date then the Hills can renew their application for an indemnity costs order.

50. If the proceedings are dismissed pursuant to these orders the question also arises as to what order for costs should be made. Some of the Hills’ costs have been incurred in pursuit of their Cross-Claim rather than by way of defence. The Cross-Claim would not be dismissed. Doing the best that it can, assessing the overall expenditure of costs on the Hills’ side, in the Court’s view approximately 20 per cent of their costs have been spent on the Cross-Claim and therefore they should have an order for 80 per cent of their costs if the proceedings are dismissed. The orders below reflect this.

51. The award of 80 per cent of costs also reflects another important consideration: the Hills did not ultimately press for the summary judgment sought in their Motion. Claims for trespass and nuisance to the Hills’ land always seemed to be unlikely candidates for summary judgment. Ms Wirepa submitted that she would be contesting that claim in a number of ways. The Court raised the difficulty with the Hills’ claim for summary judgment with their counsel and it was sensibly withdrawn. That aspect of the case will go to final hearing if it is to be separately pursued.

52. The letter from Sanderson Weir also alludes to the advantages of this Court making an order for the fixing a specified gross sum instead of assessed costs under Civil Procedure Act, s 98(4)(c) in these proceedings to provide certainty of costs in resolving the proceedings if funds are used from the proceeds of sale of the New Zealand property to proceed with the Summons. This case is yet another example of the useful situations in which the Court can fix a specified gross sum instead of assessed costs under Civil Procedure Act, s 98(4)(c). Fixing the Hill’s legal costs at this point will reduce uncertainty and set the precise figure that Ms Wirepa will need to meet to pursue her Conveyancing Act, s 88K application to finality. Depending on what happens on 8 December 2023 such an order may yet be appropriate.

53. On 13 October the Court told Ms Wirepa that she can “regard the clock as ticking” from that point. The Court will give her until 8 December, before dismissing these proceedings. This is ample time for her to engage lawyers. This judgment should guide any new lawyers as to the next steps required.

Conclusions and Orders

54. For these reasons the court makes the following orders and directions:

1. For the purpose of these orders (a) “the Land” means all the land in title references 123/DP [number not published], 1/DP[number not published], 30/CD[number not published] and 18/DP [number not published], (b) “the Summons” means the Summons filed by the plaintiff on 9 November 2022, (c) the Cross Claim means the Cross Claim filed by the defendants/cross claimants on 17 March 2023, (d) “the Motion” means the defendants’ Notice of Motion filed on 5 July 2023, and (e) “the easement” means the easement claimed in prayer for relief 9 in the Summons.

2. The plaintiff’s Summons is dismissed on the following grounds, namely:

1. That the plaintiff is a party to these proceeding to whom the Court has given a direction (by means the Court accepting the undertaking of the plaintiff in the Court’s consent orders dated 17 November 2022) that the plaintiff will at her cost:

1. conduct a survey of the Land that is sufficient to enable the easement to be registered (“the survey task”); and

2. have drawn up all necessary documentation for the registration of the easement in the nature of a right of way (“the survey and registration undertaking”) but the plaintiff has failed since 17 November 2022 to complete a survey task, or have the necessary registration documentation drawn up.

2. under Uniform Civil Procedure Rules 2005 (“UCPR”), r 12.7 because the plaintiff has not conducted the proceedings with due dispatch by reason of the conduct identified in sub-paragraph (a) of this order, by failing to comply with the survey and registration undertaking.

3. Order that the plaintiff (a) shall pay 80% of the defendants’ costs of these proceedings on the ordinary basis; and (b) may not commence further proceeding seeking relief substantially the same as the relief sought in the Summons, without first paying the defendants costs ordered in (a).

4. Note that the defendants no longer seek the relief sought in the prayer for relief 1 of the Motion.

5. Upon the dismissal of the Summons pursuant to Order 2 of these orders, the defendant’s Cross Claim will also be transferred to the District Court for hearing and determination, pursuant to Civil Procedure Act 2005, s 146.

6. Stay the operation of Orders (1) – (5) until 8 December 2023.

7. The stay provided for in Order (6) may be ordered to continue and then these proceedings may be listed for hearing, if the plaintiff can satisfy the Court on the basis of evidence filed and served on or before 8 December 2023 that:

1. the plaintiff has engaged a surveyor to undertake and complete the survey task and the plaintiff has set aside or secured sufficient funds to pay that surveyor;

2. the plaintiff has engaged lawyers to assist the plaintiff to fulfill the survey and registration undertaking and has set aside or secured sufficient funds to pay those lawyers; and

3. the plaintiff has paid into Court, or otherwise set aside or secured, sufficient funds to meet,

1. the defendants’ reasonable costs of registering the deposited plan to create the easement; and

2. the consideration for the transfer of the easement to the plaintiff.

8. Note that the defendants have stated to the Court [at T11 on 13 October 2023] that the defendants will not stop the plaintiff from accessing her property to and from the public road along the existing track over the Land provided she does not disturb the defendants’ cattle and dogs and shuts the gate.

9. Grant liberty to apply.

10. Adjourn these proceedings for further mention to 8 December 2023 at 9.30am or such other time as is arranged with the Associate to Slattery J.

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Decision last updated: 23 November 2023