BETWEEN CLARENCE JOHN FALOON First Appellant AND JILLIAN GAEL PIESSE

[2001] NZCA 452

IN THE COURT OF APPEAL OF NEW ZEALAND  CA 121/97 CA 122/97

BETWEEN      CLARENCE JOHN FALOON

First Appellant

AND                JILLIAN GAEL PIESSE

Second Appellant

ANDTRADE LINES LIMITED (IN LIQUIDATION)

First Respondent

ANDTHE DISTRICT LAND REGISTRAR (WELLINGTON REGISTRY)

Second Respondent

Hearing:  10 December 2001

Coram:Richardson P Tipping J Anderson J

Appearances:             First Appellant in person

No appearance for Second Appellant No appearance for First Respondent J A L Oliver for Second Respondent

Judgment:                 13 December 2001

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1]        This is an application by the second respondent for an order striking out the appeals for want of prosecution and on the further ground that, for the reasons appearing in the course of this judgment, the appeals are incapable of succeeding.

[2]        The subject of the appeals is a judgment of the High Court, delivered on     27 May 1997 ordering the removal of caveats against land of which the first respondent was the registered proprietor, and further ordering Mr Faloon to pay costs to the first respondent. The judgment was sealed on 29 May 1997. By memorials of that same date the caveats were removed from the title and there were registered a transfer and a mortgage to parties not involved in this litigation.

[3]        Notices of appeal against the High Court judgment were filed on 11 June 1997. Mr Faloon was adjudicated bankrupt on 17 December 1997 and remained undischarged until 17 December  2000.  The  appeals  were  not  advanced  before Mr Faloon’s adjudication and the Official Assignee took no steps to prosecute the appeals during the period of Mr Faloon’s bankruptcy. Nor have the appeals been prosecuted since the discharge from bankruptcy.

[4]        It is the case that on 1 February 1999 Mr Faloon forwarded to this Court a document which he termed a “Notice of Plea in Ampliation” along with an affidavit in support. “Ampliation” is the deferring or prolonging of judgment or trial until a cause is further examined. The Oxford English Dictionary, Second Edition,  indicates occasional use of the term between the 17^th and 19^th Centuries and it may still have currency in some foreign jurisdictions. But there is no such appeal procedure in New Zealand as “A Notice of Plea in Ampliation”. The filing of such a document does not constitute a step in the prosecution of the appeals. By its very nature an ampliation of an appeal connotes the delaying, not the prosecution, of the same.

[5]        The Notice of Plea in Ampliation and supporting affidavit were referred to a Judge of this Court who caused certain advice to be given to Mr Faloon. An officer of this Court wrote to Mr Faloon on 8 February 1999 pointing out that the documents were not appropriate and that the appeals ought to be advanced in the proper way in accordance with the Practice Note or be abandoned. As the documents appeared to be seeking permission for Mr Faloon to advance the appeals in his own name, although now bankrupt, the difficulties of that course were pointed out. A further difficulty brought to Mr Faloon’s attention was that since the judgment under appeal

was delivered the caveat had gone and instruments had been registered. Despite this advice the appeals were never advanced nor abandoned.

[6]        There have been further dealings with the subject land since the appeals were filed. These include the cancellation of the original certificate of title on 2 July 1997 and the issuing of new certificates of title in connection with the subdivision of the land. There is nothing before us suggesting any derogation from the presumed indefeasibility of the title of the current registered proprietors. To the extent that the present appeals seek the restoration of the caveats their objective is unattainable.    Mr Faloon is confronted by the same insuperable impediment as the unsuccessful appellant in Cotton v Keogh & Others [1996] 3 NZLR 1.

[7]        These appeals must be struck out. They have languished, inexcusably, for more than four years and they can serve no useful purpose.

[8]        Before leaving this matter we feel bound to make admonitory remarks for the benefit of Mr Faloon. He lodged, or caused to be lodged, four caveats against the land in less than a year. Each has been found unjustified and removed by order of  the High Court. By virtue of s146 of the Land Transfer Act 1952 any person lodging any caveat without reasonable cause is liable for damages.

[9]        We do not doubt the sincerity of Mr Faloon’s underlying grievance in connection with the land, the nature of which it is neither necessary nor expedient to examine in this judgment. But we feel bound to remark that the lodging of any further caveat against the titles would be mischievous in its effect and thwarted in its aspiration.

[10]      The appeals are struck out accordingly. Costs were not sought and there will be no order for them.

Solicitors

Crown Law Office, Wellington for Second Respondent