Davis v Whangārei District Council

[2024] NZHC 1899

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2023-488-109

[2024] NZHC 1899

UNDER

the Local Government (Rating) Act 2002

IN THE MATTER

of an appeal against judgment by default awarded in the District Court

BETWEEN

TIMARU AND CHARM DAVIS

Appellants

AND

WHANGĀREI DISTRICT COUNCIL

Respondent

Hearing:	4 March 2024
Appearances:	T Davis as self-represented Appellant L Wiessing for the Respondent
Judgment:	11 July 2024

JUDGMENT OF ROBINSON J

[Application for special leave to extend time to appeal]

This judgment was delivered by me on 11 July 2024 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

Whangārei District Council (R Vertongen) L Wiessing, Maungatapere

Copy to:
Appellants by email

DAVIS v WHANGĀREI DISTRICT COUNCIL [2024] NZHC 1899 [11 July 2024]

Introduction

[1]                 The appellants are the registered proprietors of the residential property at 5A View Road, Hikurangi 0014, situated at Lot 2 Deposited Plan 448665, Certificate of Title (CT) number 568386 (the property). The respondent, the Whangārei District Council, levies rates on the property. The appellant has not paid those rates since 2016.

[2]                 On 24 September 2020, the District Court at Whangārei entered default judgment against the appellants in favour of the Council in respect of unpaid rates. On 16 November 2023, more than three years later, the appellants filed a Notice of Appeal. However, the appellants need special leave to extend the time to appeal because they did not file their Notice of Appeal within 20 working days of judgment being entered.1

[3]                 The appellants are self-represented. They claim to be sovereign citizens. Although they have not made an interlocutory application for special leave for an extension of time to appeal, in their Notice of Appeal they seek relief under r 20.4(4) of the High Court Rules 2016 (HCR). In accordance with Brewer J’s directions at callover on 16 February 2024, they have also filed affidavit evidence and other written material in support of their appeal.

[4]                 I therefore proceed on the basis that the appellants have applied for special leave to appeal out of time. In dealing with that application I will consider the merits of their proposed appeal. The appellants have made written and oral submission in support of their proposed appeal.

Background

[5]                 The appellants purchased the property on 25 July 2014. In her affidavit, Alison Puchaux, the Council’s revenue manager, explains that in March 2015 the appellants signed up to pay land and water rates by direct debit. After five dishonoured direct debit payments between 6 January 2017 and 22 February 2017, the direct debit

1      District Court Act 2016, s 124; and High Court Rules 2016 r 20.4(2)(b) and 20.4(4)).

authorities were stopped. No further payments for land and water rates have been received since then.

[6]                 The Council took various steps to communicate with the appellants. Between 1 December 2014 and 23 July 2018, the Council sent its usual arrears and penalty letters to the appellants. Ms Puchaux explains that arrears letters request immediate payment and warn that further legal action may be taken to collect the outstanding debt. Penalty letters advise the amount of penalty that has been added, and request again that payment is made. All letters invite the ratepayer to contact the Council to discuss payment arrangements if they are having difficulties.

[7]                 On 11 September 2017, the Council involved its debt collectors. Representatives visited the property and met separately with the appellants. They reported that both appellants indicated they would not pay the rates.

District Court Judgment

[8]                 On 3 December 2019, the Council issued proceedings against the appellants in the District Court at Whangārei. The Council sought judgment in the sum of

$8,066.56, being unpaid property and water rates due and owing at that date, together with penalties pursuant to s 12 of the Local Government (Rating) Act 2002 (the Rating Act).

[9]                 There are affidavits of service confirming that on 5 February 2020 the Council served the proceedings on the appellants. The Notice of Proceeding advised the appellants that unless they filed a statement of defence in the Whangārei Registry of the District Court within 25 working days (that is, by 12 March 2020), the Council could proceed to judgment in their absence.

[10]              The defendants did not file a statement of defence in the District Court. In the Notice of Appeal the first appellant states that “I, timaru2:davis [sic], filed various statements of defence directly in the flesh with the Whangarei District Council”. The Council have no record of that, but in any event, and as the Notice of Proceeding explained, any statement of defence must be filed at the District Court, not with a defendant personally.

[11]              On 14 September 2020, the District Court confirmed that the appellants had not filed a defence. On 24 September 2020, the District Court entered judgment in accordance with the statement of claim. Mr Boyce confirms that the judgment was served on the appellants.

[12]              Ms Puchaux explains that on 30 March 2021 the appellants sent the Council’s Chief Executive a proclamation of self-determination and individual sovereignty together with a notice of trespass. In November 2021, December 2021, February 2022, April 2022 and August 2022,  the  Council  also  received  returned  rates  notices. Ms Puchaux explains these were returned unopened with the appellants’ thumbprints on them and references to English legislation dating back to the nineteenth century.

[13]              Ms Puchaux advises that unpaid rates have continued to accrue. She explains that as at 28 February 2024, the arrears balance is $34,658.57 (including the amount of the judgment). Between 15 August 2018 and 30 January 2024, Council has sent the appellants a further 62 arrears and penalty letters.

Enforcement

[14]              Because the appellants had not paid the judgment debt within three months of judgment being entered, the Council was entitled to apply to the Registrar of the High Court to have the judgment enforced by way  of sale of the property.2   However,   Ms Puchaux explains that at various times the Council suspended debt recovery and enforcement action due to the COVID-19 pandemic.

[15]              In November 2021, the Council applied to the Registrar of the High Court for enforcement of the judgment by sale. On 8 December 2021, the Registrar gave the appellants notice that the property would be sold at public auction after six months if the judgment debt and all outstanding interest, costs, and expenses were not paid, together with all other rates due at the date of payment.3

[16]              On 26 July 2022, Martyn Boyce of Debt Management Central wrote to the appellants explaining that the Council could apply to the High Court to sell the

2      Local Government (Rating) Act 2002, s 67.

3      Local Government (Rating) Act, s 68.

property. Mr Boyce advised the appellants that to avoid the property being sold they must pay all outstanding rates and costs immediately.

[17]On 30 November 2022, the Council applied to proceed with the sale.

[18]              On 14 November 2023 the appellants sent the Council a notice to cease and desist and a trespass order after they had been contacted by a real estate agency seeking to carry out an appraisal of the property. Mr Boyce responded that day, confirming his instructions to continue with a rating sale. He advised the appellants to obtain legal advice as to the steps they would need to take to halt the sale.

[19]              On 17 November 2023, the appellants filed this appeal. On 22 November 2023, the Council responsibly requested the Registrar to suspend the rating sale of the property pending the outcome of the appeal.

The appeal

[20]The appellants’ Notice of Appeal states that:

However I, timaru:davis [sic], filed various statements of defence directly in the flesh, with the Whangārei District Council;

Out of time factor cannot be considered because:
High Court rule 20.9 part 2 subpart B has been revoked, and;

Certificate of Title is not valid:

The title is not valid as at, 2019 to 2023, 2024; Appendices:

[21]              In the appendix to the Notice of Appeal the appellants refer to (amongst other things):

1817 Geo III Cap.53 (Parliamentary Archives [UK]) 1823 Geo IV Cap.96 (Parliamentary Archives [UK]) 1828 Geo IX Cap. 83 (Parliamentary Archives [UK]) :

1834 Te Kara National Flag March 20 (Admiralty, Maritime, Financial)

1835 He wakaputaunga ote Rangatiratanga o Nu Tireni i raro mai Hauraki me tauiwi o runga:

1840 Correspondence Relative To (New Zealand) 13th April Abridged [Memorandum Enclosure No.38 pages 68-69 Emphasis] Pages 33-38

1872 Pacific Islanders Protection CH.19.

1875 Pacific Islanders Protection CH. 51. 38 & 39 VICT s7 [Emphasis]

1988 Imperial Laws Application Act, Schedule 1, Constitutional enactments, Magna Carta 1297

…

Cf. 2003 Ngati Apa vs Attorney General [Paragraph 140 Emphasis] the defacto Supreme Court case precedent

also requires a hearing in terms of its applicability to this matter;

Relief Required:

HC Rules 20.4 (2) (b),(3) (a), (b) & (4)

Leave to Appeal by way of revocation:

Rule 20.9(2):

Rule 20.9(3):

…

[22]              The appellants also filed various authorities and statutes in support of their submissions that: the chiefs who signed Te Tiriti o Waitangi did not cede sovereignty to Great Britain; therefore customary or aboriginal title has not extinguished; and as a result the Ratings Act is unconstitutional and does not empower the Council to levy rates over the appellants’ land. They submitted that pursuant to a long legislative history the Rating Act is, for present purposes, null and void.

[23]              On 23 February 2024, the first appellant filed additional material: challenging the lawfulness of statutes “imposed upon Tangata Whenua or Whenua Taonga Tuku Iho”; disputing that native title over their property had ever been extinguished; and questioning how “subordinate expost defacto and defacto legislation [sic] stand up against Sovereign Independent Power and Authority?”.

Legal principles

The Council’s authority to levy and recover rates

[24]              The Council’s authority to levy rates and recover unpaid rates is well established.4

4      Auckland Council v CP Group Ltd [2023] 1 NZLR 35, [2023] NZSC 53; New Zealand Forrest Owners Association Inc v Wairoa District Council [2023] 3 NZLR 476, [2023] NZCA 398; and Meridian Energy Company v Wellington City Council [2017] NZHC 48.

[25]All land is rateable unless the Rating Act or another Act states that it is not.5

[26]              The land described in pt 1 of sch 1 of the Rating Act is non-rateable.6 This includes Māori customary land7 and Māori freehold land that is non-rateable by virtue of an Order in Council made under s 116 of the Rating Act.8

[27]              The ratepayer for a rating unit is liable to pay the rates.9 A ratepayer is the person named as such in the rating information database and the District Valuation Roll.10 In the present case the owner of the rating unit is to be recorded as the ratepayer.11 An owner is the person who, whether jointly or separately, is seized or possessed of or entitled to any estate or interest in land constituting a rating unit.12

[28]              A person cannot refuse to pay rates on the ground that the rates are invalid unless he or she brings judicial review proceedings in the High Court on the basis that the Local Authority is not empowered to set or assess rates on that particular rating unit.13

[29]              A Local Authority can issue proceedings in the District Court to collect rates unpaid for four months.14 I accept Ms Wiessing’s submission for the Council that Parliament intended rate collection through the District Court to be a straightforward process.15

Appeals

[30]              A party to a proceeding in the District Court has a general right of appeal to the High Court.16 As mentioned previously, an appeal must be brought within 20

5      Local Government (Rating) Act, s 7.

6      Local Government (Rating) Act, s 8(1).

7      Local Government (Rating) Act, sch1, clause 11.

8      Local Government (Rating) Act, sch1, clause 14.

9      Local Government (Rating) Act, s 12.

10     Local Government (Rating) Act, s 10.

11     Local Government (Rating) Act, s 11(1).

12     Local Government (Rating) Act, s 5.

13     Local Government (Rating) Act, s 60; Rogan v Kaipara District Council [2018] NZCA 478, [2019] NZAR 425 at [26].

14     Local Government (Rating) Act, s 63(1) and (3).

15     Local Government (Rating) Act, ss 3(a)(i), 60 and 63.

16     District Court Act, s 124.

working days after the decision appealed against is given. The High Court may, by special leave, extend the time for appealing.17 An extension of time is an indulgence, and will not be granted as a matter of course. The Court will consider: the length of the delay and the reasons for it; the parties’ conduct; the extent of the prejudice caused by the delay; the prospective merits of the appeal; and whether the appeal raises any issue of public importance.18

Discussion

[31]              I have considered the appellants’ written material and oral submissions made by them (and in support of them). For the following reasons I do not consider their appeal has any prospect of success.

[32]              First, the land is general land, rateable in accordance with the Ratings Act. There is nothing on the CT or elsewhere to indicate that the land is Māori customary land, Māori freehold land, or any other category of land that is non-rateable under the Ratings Act. The appellants are the registered proprietors of the land. They are therefore the owners of the land and the ratepayers liable to pay rates in respect of it.19

[33]              As noted, the appellants challenge the validity of the CT to their land. They question whether the Council can establish that native title (by which I take them to mean, for the purposes of the Rating Act, Māori customary title) was ever extinguished. They say that before a local council can levy rates, it is incumbent on them to ensure that native title to the rating unit has been validly extinguished.

[34]              I do not agree. I accept Ms Wiessing’s submission that councils and the rating system generally relies on the records of title contained in the land registration system administered by Land Information New Zealand and the Registrar-General of Land. When administering the rating system councils are not required to go behind the land registration system in order to satisfy themselves that any particular CT is “correct”. They can take the CT and other registered documents at face value. If local councils

17     High Court Rules, r 20.4(3).

18     Almond v Reid [2017] NZSC 80, [2017] 1 NZLR 801; and My Noodle Ltd v Queenstown Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 (CA).

19     Local Government (Rating) Act, ss 5, 11 and 12.

(and others) could not rely on the accuracy and validity of CTs in order to identify rateable land then the rating system would grind to a halt.

[35]              In any event, s 60 of the Rating Act makes clear that a person cannot refuse to pay rates on the ground that the rates are invalid unless they bring judicial review proceedings in the High Court challenging the Local Authority’s power to set rates in relation to a particular rating unit. In oral submissions the appellants suggested this is what they were doing by pursuing their appeal. That is not correct. An appeal of a District Court judgment is not a judicial review proceeding for the purposes of s 60 of the Rating Act. Judicial review proceedings and appeals from the District Court are procedurally and substantively very different.

[36]              The appellants also rely on the Court of Appeal’s judgment in Ngati Apa v Attorney General20 in which Keith and Anderson JJ referred21 to the Privy Council’s decision in Tāmaki v Baker 22 and a Lands Claim Ordinance of 9 June 1841.

[37]              Again, I do not consider that this provides the appellants with a defence to the Council’s claim for unpaid rates levied in respect of the property. As registered proprietors of the property the appellants, and only the appellants, are entitled to sell it, lease it, gift it, grant a mortgage over it, or declare that they hold it on trust for others. They are also obliged to pay the rates that the council levies in accordance with the Rating Act.

Outcome

[38]              The substantive appeal cannot succeed. If special leave was granted to extend the time to appeal, the appeal would be dismissed. Therefore, the application for special leave to extend time is dismissed.

20     Ngati Apa v Attorney General [2003] 3 NZLR 643.

21 At [140].

22     Tāmaki v Baker [1901] AC 561 (PC).

Result

[39]              The appellants’ application for relief under r 20.4(4) of the HCR (special leave to extend time to appeal) is dismissed.

[40]The Council is entitled to costs on a 2A basis.

Robinson J