A Person or Persons Unknown v Tea Custodians (Bluestone) Limited
[2011] NZCA 226
•27 May 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA280/2010 [2011] NZCA 226 |
| BETWEEN A PERSON OR PERSONS UNKNOWN |
| AND NGAI-TUPANGO-HAPU INC |
| AND TEA CUSTODIANS (BLUESTONE) LIMITED |
| Hearing: 17 May 2011 |
| Court: Arnold, Stevens and Wild JJ |
| Counsel: D Bongard for Appellants |
| Judgment: 27 May 2011 at 3.00 pm |
JUDGMENT OF THE COURT
AThe application by the first and second appellants for an extension of time for filing a case on appeal and allocating a hearing date is dismissed.
BThe appellants must pay the respondent costs on a standard application on a band A basis and usual disbursements.
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REASONS OF THE COURT
(Given by Stevens J)
Introduction
The appellants applied on 28 January 2011 for an order under r 43(3) of the Court of Appeal (Civil) Rules 2005 (the Rules) for an extension of time to file a case on appeal and allocate a hearing date. An extension of two months was sought on the ground that:
I Ms Bongard, [a lay person representing the appellants] haven’t been able to complete the research in time, due to matters that have arisen concerning my children both in court and in investigations, all of which have left me very busy and emotional.
The application is opposed on various grounds including the lack of standing of the appellants; that there is no sound reason for allowing an extension of time; the appeal is manifestly without merit and has no prospect of success; and that the property the subject of the underlying claim has been sold to a third party.
Factual background
The respondent, TEA Custodians (Bluestone) Ltd (TEA), was the mortgagee of property at 15 Oakleigh Avenue, Takanini. The mortgagor was a company that has now been removed from the Register of Companies. The mortgagor defaulted under the mortgage and TEA wished to exercise its rights as mortgagee. Persons unknown to TEA occupied the property, apparently with the acquiescence of the mortgagor. TEA delivered a Property Law Act notice to the occupants of the property.[1] A short time later TEA received a letter (apparently sent on behalf of the occupants) requesting further information to prove the requirement to repay the mortgage. The letter also asked TEA to show why the mortgage was not null and void by operation of the Te Ture Whenua Maori Act 1993.
[1] Property Law Act 2007, s 119.
TEA did not respond to the letter. Subsequently a notice described as “Notice of Fault and Opportunity to Cure” was then delivered to TEA. The notice stated that there was evidence of a failure to provide the information requested to enable settlement of the issues and gave TEA an opportunity to “cure any alleged mistake in silence”. The notice was signed by Jose Deborah Barnes, Queens Appointed Justice of the Peace. When TEA did not respond to the notice, it received a “Certificate of Default and Protest and Stipulated Agreement”. In essence, this stated that the debt was forgiven due to TEA’s failure to respond.
On 2 June 2009 the mortgagor company was struck off the Register of Companies. The unknown occupants remained on the property. TEA then filed a summary application for possession of land,[2] seeking an order that the occupants vacate the property so that it could be sold and the mortgage redeemed. The application was directed to the occupants of the property who were described as “a person or persons unknown”. It was served on the occupants on 23 February 2010.
[2] High Court Rules, Part 13.
The application for possession came on for hearing in the High Court at Auckland on 18 March 2010. Associate Judge Christiansen gave an oral judgment the same day holding that there was a proper evidential foundation for the application. He also set aside a protest as to jurisdiction.[3]
[3]TEA Custodians (Bluestone) Ltd v A Person or Persons Unknown occupying a property at 15 Oakleigh Avenue, Takanini HC Auckland CIV-2010-404-86, 18 March 2010 at [13] [the March decision].
The history of the proceeding in the High Court is conveniently summarised in a decision of this Court dealing with an application for stay of a judgment of Associate Judge Christiansen.[4] There is no need to repeat the relevant chronology except to note that on 13 April 2010 Associate Judge Christiansen made an order for vacant possession in the terms sought by TEA and dismissed requests by the then respondents for the issue of interrogatories and a stay of proceedings.[5]
[4]A Person or Persons Unknown v TEA Custodians (Bluestone) Ltd [2010] NZCA 211 at [7]–[13].
[5]TEA Custodians (Bluestone) Ltd v A Person or Persons Unknown HC Auckland CIV-2010-404-86, 23 April 2010 [the April decision].
Following delivery of the April decision, the appellants filed an application in this Court for stay of the judgment. The application was dealt with on the papers and in a judgment dated 26 May 2010 the application for a stay was declined.[6]
[6] A Person or Persons Unknown v Tea Custodians (Bluestone) Ltd [2010] NZCA 211.
In dealing with the application, this Court stated:
[16] … the refusal of a stay may render the appeal nugatory because TEA may sell the property before the appeal is heard (we are unsure what the present position is in relation to the caveat). However, neither the occupants nor Ngai-Tupango-Hapu Inc have demonstrated that they have a valid interest in the property, with the result that this factor has much less force than otherwise it might.
[17] In any event, this factor is not determinative,[7] and there are other considerations which support the refusal of the application. In particular, there is no public interest in the proceeding and there are no known third parties affected by it. Moreover, to the extent that it is based on the notion that an alternative legal regime applies to the property in question and to its occupants, the appeal has no prospect of success.
[18] In the application for a stay, the appellant again claims that the dispute has been resolved through arbitration. There was no evidence before the High Court to support that contention, and there is no evidence before this Court which casts doubt on the validity of the finding that no arbitration occurred.
[19] The appellant also submits that the judgments violated the principles of equity, which prevail by reason of s 99 of the Judicature Act 1908. That section provides:
Generally in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter the rules of equity shall prevail.
The short answer to this submission is that the order for vacant possession was lawfully made. The rules of equity do not “trump” statute law.
This Court held that in the circumstances TEA was entitled to the fruits of its judgment given in the High Court in the April decision.
[7] Cousins v Heslop [2007] NZCA 377 at [10].
The appellants then applied for leave to appeal the decision refusing the stay to the Supreme Court. The application for leave to appeal was dismissed.[8]
[8]A Person or Persons Unknown v TEA Custodians (Bluestone) Ltd [2010] NZSC 106.
In declining leave the Supreme Court stated:
[2] The second applicant has failed to establish that it represents any persons with rights in the property and has tendered submissions which are at best incoherent. No arguable ground of appeal meeting the criteria required for a grant of leave by this Court is disclosed in them.
[3] We observe that, in so far as the appeal to the Court of Appeal purported to be by a person or persons unknown, it should not have been accepted for filing in that Court in the absence of some identification of those persons and, if necessary, a representation order. Nor should the second applicant have been permitted to intervene without establishing its standing to do so. That said, we are in entire agreement with the substance of the judgment of the Court of Appeal.
The question of stay having been disposed of, that left the appeal itself to be dealt with. The appellants, having filed the appeal on 6 May 2010, did not file a case on appeal or apply for the allocation of a hearing date within the six months time limit provided in r 43 of the Rules. As noted the appellants applied on 28 January 2011 for an extension of time under r 43(3) of the Rules. The application was filed within the three month time limit referred to in that Rule.
Security for costs
Security for costs in relation to the appeal was fixed by the Registrar at $4,740. The appellants had notice of this. On 28 May 2010 Registry sent to “D J Bongard” a notice of filing, stating that the notice of appeal had been filed on 6 May 2010 and that, pursuant to r 35 of the Rules, the appellant must pay security within 20 working days of that date.
As at the date of hearing of the application for extension, the amount fixed for security for costs of $4,740 had still not been paid. Accordingly, under r 37(1) of the Rules, the appellants were vulnerable to an application to have the appeal struck out for failure to pay security for costs.
Submissions on application for extension
When the application was heard on 17 May 2011, Ms Bongard sought to file a further document entitled “(application) seeking answers following synopsis of claims dated 29 March 2011 AD”. The Court received the document. There is no need to deal with it further as it is incomprehensible and irrelevant to the present application.
Speaking for the appellants, Ms Bongard said that the remedy sought in the appeal was the return of the land at 15 Oakleigh Avenue, Takanini to the hapu she represented. The hapu wants a retrial of the case in the High Court or preferably in the Maori Land Court. In terms of the claimed errors in the March and April decisions, Ms Bongard submits that a request to “take into account letters rogatory” was ignored and this meant that the proceeding was a nullity. She submits that the Judge did not address the question of fact relevant to the issues involved.
When questioned by the Court on the issue of security for costs Ms Bongard said that security for costs had not been paid. She claimed not to have received any correspondence from the Registry dealing with the issue of security for costs. She also submits that she needs more time for the reasons set out in the various documents submitted in support of the application.
For the respondent, Mr Wood opposes the extension of time. He submits that no proper grounds have been advanced for allowing an extension. Further, the standing of the respective appellants had not been properly delineated. He emphasises that the property, the subject of the April decision, has now been disposed of by the mortgagee to a third party purchaser for value. In other words, the possibility referred to by this Court in its judgment dealing with the stay[9] has come to pass so that the property is now registered under the Land Transfer Act 1957 in the name of a third party purchaser for value.
[9] At [16].
Finally, Mr Wood submits that the appeal is completely without merit and has no prospect whatsoever of succeeding. Accordingly the extension should be refused.
Our evaluation
This Court has frequently observed that non-compliance with r 43 of the Rules and the resulting need for leave “requires the exercise by this Court of a positive discretion”.[10] Two factors in particular are relevant to the exercise of the discretion, namely, the reasons why the appeal has not been prosecuted diligently and the merits of the case. Plainly, an extension of time under r 43(2) will not be granted for an appeal that is pointless or hopeless.
[10]Russell v Commissioner of Inland Revenue (2006) 22 NZTC 19,807 (CA) at [10]. See also Te Rūnanga O Ngāi Tahu v Attorney-General [2010] NZCA 262, (2010) 19 PRNZ 915 and Hu v Deportation Review Tribunal [2009] NZCA 28.
With respect to the reasons why the appeal has not been prosecuted diligently, we are not satisfied that the grounds advanced by Ms Bongard satisfactorily explain the delay. Issues concerning her children and certain other “investigations” are said to have left Ms Bongard “very busy and emotional”. We agree with the submissions of the respondent that this explanation is inadequate. The further documentation provided by or on behalf of the appellants does not advance further the justification for the delay. Further, the failure of the appellants to pay security for costs shows that the appellants have little commitment to prosecuting the appeal with diligence.
So far as the merits of the appeal are concerned, there is nothing in the further submissions or in the material raised at the hearing that would suggest that the appeal has any merit. The main concern of the appellants is to obtain possession of the land. Now that the property has been sold by the mortgagee to a third party purchaser for value, there is no prospect of the return of the land.
Moreover, we have considered the reasoning of the Associate Judge in both the March and April decisions. It is impossible to fault what he said there.
We would only add that there are of course significant difficulties for the appellants in terms of representation, as observed by the Supreme Court. We did not dwell on this undoubted impediment at the hearing, but preferred rather to endeavour to deal with the application on the merits. In this regard, we consider that the appeal is hopeless.
Result
In all the circumstances we are satisfied that this is not an appropriate case in which to grant an extension under r 43 of the Rules. The application is accordingly dismissed. The effect is that the appeal is to be treated as abandoned under r 43(1) of the Rules.
The respondent is entitled to costs on a standard application band A basis and usual disbursements.
Solicitors:
Sanderson Weir, Auckland for Respondent
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