A Person or Persons Unknown v Tea Custodians (Bluestone) Ltd - [2010] NZCA 211

IN THE COURT OF APPEAL OF NEW ZEALAND
CA280/2010
[2010] NZCA 211
BETWEENA PERSON OR PERSONS UNKNOWN

First Appellant
ANDNGAI-TUPANGO-HAPU INC

Second Appellant

ANDTEA CUSTODIANS (BLUESTONE) LTD

Respondent

Court:O'Regan, Arnold and Ellen France JJ
Counsel:D J Bongard in person for Appellants

D A Wood for Respondent

Judgment:26 May 2010 at 10.30 am
(on the papers)

JUDGMENT OF THE COURT

The application for a stay is declined.
REASONS OF THE COURT
(Given by Arnold J)
Introduction
[1]        This is an application for stay of a judgment of Associate Judge Christiansen in which he gave an order for vacant possession of a property at Takanini.[1] The application is brought by persons known as Te-Awhina and Kingi-Kingi-Hori on behalf of the occupants of the property and Ngai-Tupango-Hapu Inc.
Background
[1]TEA Custodians (Bluestone) Ltd v A Person or Persons Unknown HC Auckland CIV-2010-404-86, 23 April 2010 [April decision].
[2]        The respondent, TEA Custodians (Bluestone) Ltd (TEA), is mortgagee of the property. The mortgagor is a company, which has now been removed from the Register of Companies.
[3]        Following a default under the mortgage, 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[2] to the occupants on 8 May 2008. On 12 June 2008 TEA received a letter (apparently on behalf 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 Te Ture Whenua Māori Act 1993.
[2]Property Law Act 2007, s 119.
[4]         TEA did not respond to the letter. A “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 mistaken silence”. The notice was signed by “Jose Deborah Barnes, Queens appointed Justice of the Peace.”
[5]         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.
[6]        On 2 June 2009 the mortgagor company was struck off the Register of Companies. The unknown occupants remained on the property.
Proceedings in the High Court
[7]        TEA filed a summary application for possession of land[3] so that the occupants would vacate the premises, the property could be sold and the mortgage could be redeemed. The application was directed at the occupants of the property, who were described as “a person or persons unknown”, and was served on them on 23 February 2010.
[3]High Court Rules, r 13.4.
[8]        The person known as Te-Awhina (the name on her birth certificate is Dianna Jane Bongard) appeared on behalf of the occupants. She opposed the application, claiming that there was no jurisdiction and that in any event the dispute…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NZCA 211
Decision Date: 26 May 2010

CaseChat Overview and Summary

The appeal was brought by persons unknown and Ngai-Tupango-Hapu Inc, referred to as the appellants, against Tea Custodians (Bluestone) Ltd, the respondent. The dispute related to the respondent's claim for vacant possession of a property in Takanini, which was subject to a mortgage. The Court of Appeal of New Zealand heard the appeal against a decision of an Associate Judge, who had ordered vacant possession of the property in favour of the respondent. The legal issues the Court was required to decide included whether the appeal had a reasonable prospect of success and whether there were any grounds to stay the execution of the order for vacant possession. The Court considered the factors to be taken into account in deciding whether to stay proceedings, such as the strength of the appeal, the effect on third parties, and the overall balance of convenience. The Court found that the appeal was unlikely to succeed, as the appellants had not demonstrated a valid interest in the property and the appeal was based on an alternative legal regime that had no prospect of success. The Court also rejected the argument that the order for vacant possession violated the principles of equity. Therefore, the application for a stay was declined, and the Court upheld the order for vacant possession in favour of the respondent.

Orders