Accident Compensation Corporation v Stafford

[2018] NZHC 488

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2018-485-000047

[2018] NZHC 488

UNDER

The Land Transfer Act 1952 and Part 19 of the High Court Rules

IN THE MATTER OF

an application under s 143 of the Land Transfer Act 1952 for an order that a caveat be removed

BETWEEN

ACCIDENT COMPENSATION CORPORATION

Applicant

AND

RORE PAT STAFFORD

Respondent

Hearing:

14 March 2018

Counsel:

D A Laurenson QC and R L Roff for Applicant K S Feint and M S Smith for Respondent

D J Goddard QC and J R Gough for Attorney-General

Judgment:

21 March 2018

JUDGMENT OF COLLINS J

[Reasons]

Introduction

[1]On 14 March 2018, I heard two applications under urgency:1

(1)An application by Mr Stafford to stay my judgment of 22 February 2018, pending an appeal to the Court of Appeal. The effect of a stay

1      Accident Compensation Corporation v Stafford [2018] NZHC 429.

ACCIDENT COMPENSATION CORPORATION v STAFFORD [2018] NZHC 488 [21 March 2018]

would be that Mr Stafford’s caveat over the ACC property would remain in force pending further order of the Court of Appeal.

(2)An application by ACC to recall part of my judgment of 22 February 2018. The aim of that application was to remove the caveat lodged by Mr Stafford against the ACC property before it lapsed on 22 March 2018.

[2]        Because the parties needed an almost immediate answer I issued a results judgment stating that:

(1)Mr Stafford’s application for a stay was granted and that his caveat would remain in place until further order of the Court of Appeal.

(2)It was not necessary to deal with the recall application.

(3)I made no order requiring Mr Stafford to provide an undertaking as to damages.

[3]        This judgment explains the reasons  for  the  results  decision  delivered  on 14 March 2018 and should be read in conjunction with my judgment of 22 February 2018, in which I explain the background to this litigation, the legal issues and the reasons why I did not think Mr Stafford’s  caveat should remain in place beyond     22 March 2018.

Reasons for issuing a stay

[4]        As explained in my judgment of 22 February 2018, this proceeding concerns a commercial property in central Nelson purchased by ACC in 2008, which it has now proposed to sell to Cephas Property No 1 Ltd (Cephas). Settlement is scheduled for 29 March 2018, although it is possible Cephas may now exercise an option to cancel the contract in light of the notice of appeal from my judgment of 22 February 2018.

[5]        Mr Stafford reached agreement with the Registrar-General of Lands allowing him to register a caveat against the title to the ACC property in the expectation that

ACC would then apply to set aside the caveat. It was that application that was addressed in my judgment of 22 February 2018.2

Bona fide appeal

[6]        Mr Stafford’s claim to a beneficial interest in the ACC property raises complex constitutional and legal questions that need to be viewed in the context of New Zealand’s ongoing efforts, on both legal and political fronts, to address historic grievances over the way in which Māori were deprived of some of their land. The Supreme Court’s judgments in Proprietors of Wakatū v Attorney-General3 and Ririnui v Landcorp Farming Ltd,4 which underpin Mr Stafford’s claim to the ACC property, illustrate how New Zealand’s law has evolved in this complex field.

[7]        While I have ruled that Mr Stafford does not satisfy the requirements of s 137 of the Land Transfer Act in order to maintain his caveat over the ACC property, it is conceivable that a superior court will take a different view. In those circumstances, I am satisfied Mr Stafford is pursuing a bona fide appeal that engages novel and complex issues of public interest. These factors favour the granting of a stay.

Appeal rights should be preserved

[8]I also accept that:5

… when there is an appeal about to be prosecuted the litigation is to be considered as not at an end, and that being so, if there is a reasonable ground of appeal, and if not making the order to stay the execution of the decree or the distribution of the fund would make the appeal nugatory, that is to say, would deprive the Appellant, if successful, of the results of the appeal, then it is the duty of the Court to interfere and suspend the right of a party who, so far as litigation has gone, has established his rights.

2      In [57] of my judgment of 22 February 2018 I mistakenly said: “On 29 January 2018, the parties reached an agreement whereby ACC accepted that the Registrar-General could register the caveat and ACC would apply under s 143 of the Land Transfer Act to have it removed”. ACC did not consent to the lodging of the caveat, but the caveat was lodged by Mr Stafford in anticipation of ACC applying to have it set aside. The parties agreed that I should correct this aspect of my judgment of 22 February 2018 when delivering this judgment.

3      Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423.

4      Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056.

5      Polini v Gray (1879) 12 Ch D 438 (CA) at 446; New Zealand Insulators Ltd v ABB Ltd (2006) 18 PRNZ 459 (CA) at [19].

[9]        If a stay were not granted, Mr Stafford’s caveat would lapse on 22 March 2018 and ACC would be free to sell its property, thereby depriving Mr Stafford of any opportunity to pursue his  claim  to  a  beneficial  interest  in  the  ACC  property.  Mr Stafford’s appeal rights would be rendered nugatory. This concern is particularly pertinent as all accept there is a significant shortfall between Crown land in central Nelson and the amount of land that Mr Stafford claims he and his supporters have been deprived of as a result of the Crown’s alleged breaches of the fiduciary duties it owes to the claimants in the Wakatū proceeding. The need to preserve Mr Stafford’s appeal rights is therefore a factor that weighs heavily in favour of the granting of the stay.

Prejudice to ACC

[10]      There is no doubt ACC will be prejudiced by the issuing of a stay. There is a possibility Cephas will cancel the contract and, if so, ACC may be required to pay Cephas damages. On the other hand, Mr Stafford claims a beneficial interest in the ACC property dating back to approximately 1850.

[11]      While I am concerned about the prejudice that ACC will suffer, that prejudice is not determinative and, in my assessment, does not outweigh the factors that tilt the decision in favour of a stay.

Undertaking as to damages

[12]      Normally I would require a caveator to provide an undertaking as to damages as a condition to the caveat remaining in place. I gave consideration to making such an order, but ultimately decided not to do so because, although Mr Stafford’s claim is based on private law principles, he is pursuing an issue of major importance to descendants of Māori, who claim to have been deprived of significant tracts of land through the Crown’s failure to honour its fiduciary obligations to the claimants in the Wakatū proceeding. It is the public interest dimension to this proceeding that has caused me to decline ACC’s request that Mr Stafford be required to give an undertaking as to damages.

D B Collins J

Solicitors:

Accident Compensation Corporation, Wellington for Applicant Pitt & Moore, Nelson for Respondent

Crown Law Office, Wellington for Attorney-General