Botros v Clist

[2004] NZCA 196

IN THE COURT OF APPEAL OF NEW ZEALAND

CA124/04

BETWEENFIKRY FOUAD BOTROS AND MERVAT GEORGES GABRIEL

Applicants

ANDJUDITH CLIST

Respondent

Hearing:16 August 2004

Coram:McGrath J
Hammond J
Chambers J

Appearances:  Applicants in person

D M Kessell-Haak for Respondent

Judgment:23 August 2004 

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction

[1]       We have before us an application for special leave to appeal to this Court and, if leave to appeal is granted, an application for a stay of execution and an application for an order dispensing with security for costs.

Background

[2]       The intending appellants (the applicants) bought a house in Lower Hutt from the developers of the site.  The property was to be subdivided into two flats, with common areas and areas of exclusive use as between these two properties.

[3]       The agreement under which the applicants purchased Flat 1 provided for cross leases, and for a deposited plan to be prepared.  For their part, the applicants relied on the sketch plan that had been prepared by the developers.

[4]       Flat 2 was then purchased by a Mr and Mrs Eggels.  They held the property only for a brief time (about a month), and then sold to the respondent, Ms Clist.

[5]       Differences arose between the applicants and Ms Clist as to what was the common area.  The applicants were referring to what they understood to be the effect of the sketch plan on the basis of which they had purchased; Ms Clist produced copies of the deposited plan and title documents on which she relied.

[6]       Relations between the parties deteriorated.  There were complaints to the police and claims of harassment.  Ms Clist then sought summary judgment on a number of grounds, including trespass and breach of contract.  The applicants counterclaimed, under a number of heads.

[7]       Ms Clist’s summary judgment application proceeded to a hearing.  In a considered decision delivered on 20 June 2002, Judge Tuohy allowed summary judgment to go in favour of Ms Clist on her trespass and contract causes of action.  Her other causes of action were considered to be unsuitable for summary judgment.  The breach of contract claim rested on the installing of a gate across part of the common driveway area, in breach of the cross leases.  The trespass claim was based in part on the installation of the gate, but also on entry by the applicants onto Ms Clist’s exclusive area and using the driveway other than for the purposes of ingress and egress.

[8]       Essentially, the District Court Judge took the view that the dispute was a most unfortunate one which necessarily had to be resolved on the basis of the strict legal rights of the parties.

[9]       Ms Clist has now sold her property, and there is a new owner of Flat 2.

The appeal to the High Court

[10]     The appeal against the entry of summary judgment was heard by France J on 17 March 2004.  Her Honour delivered a reserved judgment on 21 April 2004.

[11]     For present purposes it is sufficient to note that, after fully canvassing the history of the formal dealings with the title to these parcels of land, the Judge concluded, as had the District Court Judge, that the results of the registrations were that Ms Clist had exclusive use of an area designated “C”; the applicants had exclusive use of area “A”; both parties had rights to the use of an area “E”, but neither party formally could use area “D”.  The Judge held that, that being the formal registration position under the Land Transfer Act 1952, the respective rights and obligations of the parties had to be ascertained on the basis of their respective registered titles.  This was the view which had also been taken in the District Court.

[12]     The applicants had sought to surmount that legal difficulty by alleging fraud against Ms Clist.  The District Court Judge had found Ms Clist was a bona fide purchaser for value after the flat had been built and the titles created in their registered form.  In the view of the District Court Judge there was no evidence that Ms Clist was aware of any problem until some considerable time after she had purchased the property.  France J (agreeing with Judge Tuohy) could identify no relevant evidence to support the applicants claims of fraud.  France J therefore upheld the trial court finding that the fraud exception could not avail them in this particular instance.

[13]     France J also noted (as again the District Court Judge had done) that it is most unfortunate in this case that the registered titles do not match up with the physical situation or the sketch plan and so do not reflect what the applicants considered they had agreed to buy.  However, in New Zealand, the fundamental importance attached to certainty of title under the Torrens system is such that that discrepancy could not raise, in law, a defence to the application for summary judgment.

[14]     France J accordingly dismissed the appeal.

The application for leave to appeal

[15]     The applicants applied timeously for leave to appeal from that judgment.  They also made consequential applications for orders dispensing with security for costs on the appeal to this Court, and for an order rescinding the order for costs made in the District Court.

[16]     That application for leave was declined by MacKenzie J on 25 June 2004.

[17]     After setting out the circumstances of the application (which we will not traverse, for they are adequately summarised in what we have said as to France J’s judgment) MacKenzie J correctly noted that the granting of leave for a second appeal is to be considered in the light of the observations of this Court in Waller v Hider [1998] 1 NZLR 412. That is, the appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal (per Blanchard J at 413).

[18]     It appears that it was put to MacKenzie J by the applicants that there is a public interest in an appeal because “there are problems in the current system of cross leasing”.  The Judge did not accept that a problem of general application arose in this case.

[19]     MacKenzie J also correctly noted that, if leave were granted, in a practical sense it would not solve the problem which had arisen for even a favourable judgment for the applicants could not determine the issues arising out of the boundary discrepancies.

[20]     As to the nature of the issues which had been litigated in the District Court, the Judge said that they involved a “somewhat technical trespass”.  This meant that the repercussions of the judgment in the District Court - though plainly real enough to the applicants on a day-to-day basis - were not of such a character as to warrant a second appeal.

[21]     Finally, and with respect responsibly, MacKenzie J urged on the applicants the desirability, in their own interests and those of the other affected landowner, of turning their endeavours to a constructive course of action which would resolve the underlying problem.  It was apparent to us from observations made to the Bench during the course of the hearing, both by the applicants, and Miss Kessell-Haak in her helpful submissions, that at least some possibilities had been put forward for tidying up the present unfortunate situation.  But these had not been taken up, in whole or in part by the applicants.  Instead, they have chosen to pursue the line that, effectively, the sketch plan on which they rely relating to their purchase should prevail in all respects over the registered titles.

[22]     In the result, MacKenzie J declined leave for a second appeal.

The application in this Court

[23]     In our view the Judge was entirely correct to decline such leave.

[24]     First, no question of law is raised, or at least none which is in any wise a tenable proposition.  The applicants do not challenge the registered titles as such, and it is simply not maintainable as a matter of law that they can set up the unregistered sketch plan against the registered titles.  There is therefore no prospect whatsoever of success under this head, on appeal.

[25]     Secondly, on the question of fraud, the applicants face the insurmountable hurdle that there are concurrent findings of fact in both the District Court and the High Court that Ms Clist was a bona fide purchaser for value without knowledge of the matters now complained about.  There are no matters of bona fide or serious argument which can be advanced under this head, let alone anything which outweighs the costs, delay and expense of a second appeal.

[26]     It follows that the application for special leave must be, and is, declined.

[27]     That leave application having been declined there is no need for us to deal with the other two applications.

[28]     The respondent will have costs of $2,500 together with reasonable disbursements.  If those disbursements cannot be agreed, they are to be fixed by the Registrar.

[29]     In the unfortunate circumstances arising in this case we can only reinforce the observations of MacKenzie J that the applicants should now accept that the legal process has run its course.  The title and day-to-day problems they face ought to be resolvable by negotiation.  The titles are then capable of being attended to, formally, in a way that would resolve the issues which have arisen, for the future.

Solicitors:
Kensington Swan, Wellington for Respondent