Henare v Thames-Coromandel District Council HC Hamilton CIV-2010-419-1487

[2011] NZHC 1160

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2010-419-1487

BETWEEN  FRANCES HENARE, BRIAN HENARE, CHARLES HENARE, DEAN HENARE, FAHLEN HENARE, RAYMOND WIKAIRA, DAVID SWINTON AND DANIEL BENSON

Appellants

ANDTHAMES-COROMANDEL DISTRICT COUNCIL

Respondent

Hearing:         13 July 2011

Appearances: D A Benson in Person

M C Frogley for Respondent

Judgment:      29 September 2011

JUDGMENT OF MILLER J

[1]      A road provides public access from the Coromandel – Colville Road to a beach at Papaaroha in the northern Coromandel.  Asserting rights of ownership to the land on which the road lies, the appellants and their supporters occupied it in July

2010 and remained in occupation, erecting tents and a more substantial structure which they described as a meeting house.  They took steps to prevent others using the road.

[2]     The Thames-Coromandel District Council, in which the road is vested, considered this a trespass.   On 20 October 2010 the District Court granted the Council’s  application  for  possession  and  removal  of  the  appellants  and  their structures and personal property.

[3]      The appellants complied.   But on appeal they seek vindication on various grounds, some of which were not advanced in the District Court.  They say that they

FRANCES HENARE, BRIAN HENARE, CHARLES HENARE, DEAN HENARE, FAHLEN HENARE, RAYMOND WIKAIRA, DAVID SWINTON AND DANIEL BENSON V THAMES-COROMANDEL DISTRICT COUNCIL HC HAM CIV-2010-419-1487 29 September 2011

are beneficial owners of the road and they now contend that if the Council has title it was acquired by fraud.  The Council responds that it has an indefeasible title and that is an end of the matter.

The land

[4]      I preface the narrative by noting that although a good deal is now known about dealings with the land the record is still incomplete.   The case has changed shape considerably as more information has come to hand, most recently pursuant to leave reserved at the hearing of the appeal.   Although I heard Mr Benson for the appellants, the proceeding is inapt to deal with some of the allegations and issues now raised by the appellants.  For these reasons it is neither possible nor appropriate to make findings in this judgment on the allegation of fraud, which was not raised initially and for which no attempt has been made in the evidence to lay the necessary factual foundation.   I will outline the background to the extent necessary to make sense of the argument before me.

[5]      The plan below shows the road, which runs alongside the Papaaroha Stream, and the building erected by the appellants.  To the south of the road is a privately owned  camping  ground,  access  to  which  is  gained  via the metalled  access  and bridge.  To the north is a reserve administered by the Department of Conservation.  It is higher ground, and includes an urupa.  I note in passing that the reserve is included in land which is the subject of a Crown treaty settlement offer to Hauraki.   The appellants say that the land which is now the access road was historically also used as a urupa, where bodies were buried initially in the sand to cleanse the bones before final interment in the urupa to the north.   They also say that the road was also traditionally used for papakainga (housing).  The area was known as Takatimu Point, the landing point of the Takatimu Waka, and for that reason it is considered tapu.

[6]      For my purposes the history of alienation of the land began on 26 July 1901, when the Native Appellate Court ordered that  49 named persons were declared owners of the Papaaroha No 1 block, which included the land on which the road lies. The order was made under the Native Land Court Act 1894.  The No 1 block was further partitioned on 14 May 1912 under the Native Land Act 1909, producing Papaaroha No 1C block.  On 10 December 1914 a charging order for the costs of survey was made in respect of the interests of two successors to one of the four owners of No 1C block.

[7]      On 8 December 1916 the owners of No 1C block converted their Māori freehold title to the entire block to a Crown-granted fee simple title under the Land Transfer Act 1915, as they were able to do at that time under s 120 of the Native Land Amendment Act 1913.  The title volume and folio reference was 263/39.  The title recited that the grant was subject to ―any existing right of the Crown to take and lay off roads under the provisions of any Act of the General Assembly of New Zealand…‖.

[8]      The land on which the road lies was part of No 1C block.  It was taken for roading purposes under Proclamation 4576, which was published in the Gazette on 5

December 1918 with effect from 11 January 1919.   It was registered against certificate of title 263/39 on 23 January 1919.  The land was taken by the Crown at the  request  of  the  then  Coromandel  County  Council,  which  gave  notice  of  its intention to do so in the Gazette of 10 January 1918.  The Proclamation recorded that the land was taken under s 19 of the Public Works Act 1908.

[9]      The Proclamation was supported by a survey plan number 17427 which was prepared by T J Mountain, registered surveyor, and dated much earlier, 22 April

1913.  He certified it correct.  The plan contained several memorials.  One recited that the land was to be taken under s 389 of the Native Land Act 1909.  Another certified, over a signature which does not appear to be that of Mr Mountain, that no building, garden, orchard, plantation, village or burial ground was included in the road line.

[10]     As noted, the land on which the road lies was initially vested in the Crown under the Public Works Act 1908.  It does not appear that a separate title was ever issued for it, although several chains of title can be traced back to 263/39, which was cancelled in 1921.  A title was not necessary, for s 19 itself prescribed that the land became vested in the Crown in fee simple.

[11]     The fee simple was vested in the Coromandel County Council under ss 191 and 191A of the Counties Act 1956, and in the present respondent by s 316 of the Local Government Act 1974.

[12]     I am given to understand that the road and the reserve are now the only parts of Papaaroha No 1C block remaining in public ownership.

The District Court proceeding

[13]     Following the occupation the Council moved for possession of the land and removal of unlawful structures, and the appellants met the claim by asserting customary title.  In the District Court it seems to have been common ground that the

road was taken by proclamation, that it was correctly surveyed, and that the land had been taken when it was subject to the Native Land Act 1909. The Judge found that any customary title had been surrendered in exchange for the fee simple title, and that the land was taken under the Public Works Act 1908. He also found that because the land was also taken under s 389 of the Native Land Act 1909 no compensation was payable. The fee simple is vested in the Council under the Local Government Act. Under s 240 of the Public Works Act 1981 the Council was entitled to possession as against any person (including a former owner) in occupation of the land. The Judge further found that the appellants were trespassers, and that their structures had been built contrary to the provisions of the Building Act 2004. Further, their activities such as camping and obstruction of the beach access were in breach of various Council bylaws. Possession was granted, and supporting injunctions were issued.

The appeal

[14]     The appellants filed a notice of appeal advancing 17 grounds, most going to the District Court Judge’s conclusion that the road was vested in the Council.  The Council responded that most of them were both new and indisputably wrong.  In a minute of 4 February Keane J directed that some grounds could be pursued, and others not.   He excluded an argument that the survey plan underpinning the 1918 proclamation  was  deficient,  in  that  it  was  not  publicly  notified,  noting  that  it depended on facts not in evidence.  The grounds remaining are broadly:

a)       That the land was taken unlawfully by proclamation in 1918 because it was subject to s 390 of the Native Land Act 1909, which stated that no road might be laid out under that Act upon the site of any building orchard, plantation, village or urupa;

b)        That the land has no title issued under the Land Transfer Act;

c)       That the Native Districts Regulation Act 1858 relevantly remains in force, precluding taking of land under subsequent legislation.

[15] I did not understand Mr Benson to pursue two other grounds of appeal; namely that the plan at [5] above was unreliable to prove occupation of the road as it included no tangents or points of measure, and that the appellants were given inadequate time to respond in the District Court. As to the first, the point was in any event hopeless; the evidence clearly established that the plan was properly surveyed and a copy of the plan with the points of measure has been produced on appeal. As to the second, the case was brought on quickly as the appellants were said to be disrupting activities at the campground and Labour Weekend was imminent, which may explain the incomplete nature of the record, but Mr Benson accepted that the hearing itself was fair. On appeal both parties supplemented the evidence with additional information, without objection on either side. Nor is there anything in peripheral points raised in the submissions, notably whether the Public Works Act

1908 ever received the Royal Assent.

[16]     However, Mr Benson did seek to renew and expand upon his challenge to the

1918 proclamation.  He observed that while land taken under the Native Lands Act

1909 was taken without compensation, land taken under the Public Works Act 1908 had to be paid for.   He argued that if the land was in fact taken under the Public Works Act 1908, payment was not made, nor was notice of the taking given.

[17]     It is appropriate to begin by recording my conclusions, on the material now before me, about how the land was taken.

The 1918 Proclamation

[18]     As noted, the District Court Judge found that the land was taken under the Public Works Act 1908 but also under the Native Land Act 1909, s 389 of which provided that roads would be taken without compensation.  In this he appears to have adopted the parties’ consensus, which was mistaken.

[19]     It is correct that under s 389 of the Native Land Act 1909 land subject to the Act might be taken for a road without compensation.   Further, the Act did not authorise the laying out of any land upon the site of any building, garden, orchard, plantation, village, or burial ground.   However, it is now clear that s 389 was not

invoked, perhaps because the land to be taken exceeded a five per cent threshold, or perhaps because the right to invoke s 389 subsisted under the legislation for only 15 years after the first issue of an instrument conferring title.  The land had by the time it was taken in 1918 ceased to be customary land.  Hence the conflicting memorials on the face of Mr Mountain’s survey plan.

[20]     There can be no doubt that the proclamation invoked s 19 of the Public Works Act 1908, and further that as title had been conferred under the Land Transfer Act 1915 the land was susceptible to the taking.  Under the Public Works Act 1908 there was no prohibition on taking land that was the site of housing or a urupa or a garden.    And under s  19  the road  became  vested  in  the Crown  in  fee simple, discharged from all claims, estates or interests of whatever kind, squarely precluding

any claim to customary title.1

[21]     However, notice must be given.  Section 18 prescribed that notice must be given in the Gazette and further that the Minister of Public Works or the local authority, depending on whether the works were Government or local, must serve notice of the works and the land to be taken upon the owners and occupiers of the land and any other person having an interest in it, so far as they might be ascertained. I have observed that notice of the Council’s intention to have the land taken was gazetted, which would have sufficed had it been taken under the Native Land Act

1909.2      But,  Mr  Benson  argued,  notice  was  not  served  upon  the  owners  and

occupiers as required under the Public Works Act 1908.  Further, compensation must be fixed and paid under s 35 of that Act, but it was not.

[22]     Mr Benson was prepared if necessary to characterise both alleged omissions as fraudulent.  Both rested on facts not in evidence.  Mr Benson explained that he relied for his submissions on oral history which might have been, but was not, recounted by kaumatua.  He also pointed to well-documented historical evidence of irregularities in the taking of Māori land for public works,3  and invited me to infer

from the reference to s 389 of the Native Land Act 1909 on Mr Mountain’s survey

1   Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA) at [34], [42]-[44], [47] per Elias CJ, [99]

per Gault J, [147] per Keith and Anderson JJ, and [183]-[186] per Tipping J.

2   A proclamation was required under s 389 of the Native Land Act 1909.

3   Waitangi Tribunal The Hauraki Report Volume 3 (Legislation Direct, Wellington, 2006) at ch 23.

plan that those involved proceeded on the basis that personal service and compensation were not necessary.

[23]     For its part, the Council understandably had made no attempt to search its records to prove either notice or payment.  Mr Frogley invited me to infer from the proclamation that all necessary conditions precedent to the taking had been met, invoking ss 138 and 142 of the Evidence Act 2006.   Neither section goes so far, however, and in any event I would not be prepared to draw that inference in all the circumstances.

[24]     Since the hearing both parties have filed memoranda and historical research. Neither party has found a record of compensation being paid, or of notice being given to all the owners of the land.  However, there was evidence of communications between the owners and various bodies about the taking.  In November 1914 two of the owners, Hohepa Kapene and Rehara Kapene, and four others petitioned the Minister of Native Affairs, requesting that the Minister order the road not to be taken, noting it crossed a urupa.   This sparked a Ministerial investigation into the proposed taking.  The Registrar of the Waikato-Manipoto District Māori Land Board wrote to the Minister in January 1915, noting that the road had not been legalised and the land to be taken from Papaaroha 1C exceeded the five per cent threshold. Further communications occurred between the Minister, the Land Board and Hohepa Kapene and others culminating in the Minister recommending that Hohepa Kapene apply to the Council.

[25]     Throughout 1915, the Council received conflicting advice from the Chief Surveyor to the effect that the road was yet to be legalised and that land to be taken from Papaaroha 1C exceeded the five per cent threshold.  Nevertheless, the proposed taking was gazetted under the Public Works Act 1908.  It is not known whether all of the relevant owners were notified.  However, Messers McCall and Winstone, who had interests in the property, were notified and objected to the proposed taking.  At a hearing in July and August 1918 the Council heard these objections, Mr McCall withdrawing his.   On 21 October the Council passed a resolution to take the land under the Public Works Act 1908 despite objections.

[26]     The narrative suggests that the taking was controversial, and that formal processes were being followed.   Beyond that, I am not prepared to draw any conclusions.

The absence of any certificate of title

[27]     The  appellants  also  contend  that  the  taking  of  the  land  was  incomplete, because no certificate of title was ever issued for the road.  Mr Benson referred to s

47 of the Public Works Act 1981, which relevantly provides as follows:

47     Issue of certificates of title to land held for public work

(1)     Except as provided in subsection (4) [which provides for other Acts issuing certificates of title for land vested in the Crown] of this section, where any land has become vested in the Crown or a local authority under this Act or any former Act relating to public works, the District Land Registrar, on the completion of such surveys (if any) as may be necessary, shall at the request of the Minister or local authority issue a certificate of title for the estate in the land or part of the land specified in the request in the name of the Crown or local authority, as the case may require, and that certificate of title shall include a reference to the purposes (if any) for which the land is held, and may be subject to any relevant encumbrances or restrictions.

(2)     Any instrument which relates to the land in any such certificate of title and which  is  duly  executed  by  a  person  having  the  necessary  authority  may thereafter be registered in accordance with the provisions of the Land Transfer Act 1952.

...

[28]     However, this section, and its predecessor, s 19 of the Public Works Act

1952, were included to clarify the Registrar’s powers in response to uncertainty about the Crown’s ability to hold land in fee simple.4     The legislation does not require that a certificate of title be issued for every block of land taken under a Public Works Act, but it does create a mechanism for certificates of title to be issued. It has been described as ―merely procedural‖.5    The Proclamation was gazetted and registered against the existing certificate of title, which was sufficient for title to pass

under the Public Works Act 1908.6

4   Waitakere City Council v Registrar-General of Land [2003] NZRMA 464 (HC) at [21]-[26].

5      By the Hon A P D Friedlander, then Minister of Works and Development, discussing the Public Works Amendment Bill: (1  November 1983) 454  NZPD 3527-3528 cited in  Waitakere City Council at [25].

6   Sections 22 and 24.

[29] Section 316(1) of the Local Government Act now vests the road in the Council in fee simple. I include in the quote ss (2) and (3) for reasons explained at [33] below:

316     Property in roads

(1)       Subject to section 318 of this Act, all roads and the soil thereof, and all materials of which they are composed, shall by force of this section vest in fee simple in the council of the district in which they are situated....

(2)       At the request of the New Zealand Transport Agency, a council may accept or relinquish its property, or any part of its property, in a State highway.

(3)      If a council acts under subsection (2),—

(a)       the property in the State highway vests in the council or in the Crown (as the case may be) without any instrument of transfer;  and

(b)      on presentation of an authenticated copy of the relevant resolution, the Registrar-General of Land must alter the register accordingly.

....

Challenge to Council’s title

[30]     I  heard  the  parties  on  Mr  Benson’s  argument  that  the  title  might  be impeached for fraud, but having done so I accept Mr Frogley’s submission that, following the ruling of Keane J, with which I agree, neither absence of notification to the native owners nor absence of compensation is strictly a live issue on this appeal.  Those arguments can only be mounted in a proceeding which confronts the Council’s title directly.  Both also depend on facts which were not in evidence in the District Court.   And both are central to the appellants’ attempt to impeach  the Council’s title.

[31]   The Council does argue that it enjoys indefeasible title based on the proclamation registered against title 293/39, and that this is a complete answer to any attempts by the appellants to impeach title.  It is appropriate to say something about that argument.   Section  35 of the Land  Transfer Act 1952  defines  a registered proprietor as follows ―[t]he person named in any grant, certificate of title, or other

instrument so registered as seised of or taking any estate or interest shall be deemed to be the registered proprietor thereof.‖  The Council lacks a certificate of title for the land, though the Public Works Act 1981 allows for one to be issued.  The certificate of title against which the 1918 proclamation was registered has been cancelled.  On the face of it, then, the Council is not a registered proprietor.

[32]     However, the road is vested in the Council, in fee simple, under s 316 of the Local Government Act, which confers a statutory right.   Courts have recognised three  classes  of  such  rights,  each  of  which  interacts  differently  with  the  Land Transfer Act 1952.7    The first comprise statutory rights that confer title but are not registered;  these  conflict  directly with  the  Land  Transfer  Act  principle  that  the register is paramount.  The second comprise rights for which registration is provided for in the statute but serves an evidential purpose only; the title so conferred does not derive from registration, and it conflicts with the register in that even if unregistered, it may defeat a bona fide purchaser for value without fraud.   The third comprise

statutory rights that rest on registration for their effectiveness against a bona fide purchaser for value without fraud.

[33]     It is implicit in Mr Frogley’s argument about s 316 that the Council enjoys a right of the first or second type; that is, it overrides the Land Transfer Act 1952.  It may be that the Public Works Act 1908 provided for the second type of right.   It specified that  the proclamation  passed title,  but  provided for registration  of the Minister’s interest.8   Section 316(1) of the Local Government Act states simply that all roads shall by force of that section vest in fee simple in the Council.   This unequivocal language may point to a right of the first type.   It contrasts with ss

316(2) and (3), which provide that a transfer of title to State Highways between the Crown and a council will vest title without an instrument but that the transfer may be noted on the register, which appears to be an example of the second type.9   However,

neither party addressed the type of statutory right that the Council enjoys, or its

7   G W Hinde (ed) Hinde, McMorland and Sim Land Law in New Zealand (looseleaf ed, LexisNexis)

at [9.058].

8   Sections 20, 22 and 24(3).

9      I have not overlooked s 77 of the Land Transfer Act 1952, which provides that an unauthorised registration of an instrument claiming title to a road, or the unauthorised inclusion of a road on a certificate of title, does not confer any rights to the road.

consequences for the appellants’ attempts to impeach title, and I need not take the issue further.

The Native Districts Regulation Act

[34]     The appellants argue that the Native Land Court lacked jurisdiction over Papaaroha 1C, and that the Public Works Act 1908 did not apply, for the land was within a Native District, over which only the Native Circuit Courts had jurisdiction.

[35]     In 1858 a trio of Bills were passed: the Native Territorial Rights Act, the Native Districts Regulation Act 1858 and the Native Circuit Courts Act 1858.  The first of these, the Native Territorial Rights Act was disallowed and later succeeded by the first of the Native Land Acts.10     It would have allowed the Governor in Council to grant certificates of Native title over land in which customary title was not extinguished, to individuals, tribes or communities who had the exclusive use and occupation of that land according to tikanga.11   Section 8 would have reserved to the Native Circuit Court jurisdiction over questions of title:

It is hereby declared that no Court of Law or Equity within the Colony hath, or ought to have, cognisance of any question of or affecting the Title or right of occupancy of the Aboriginal Natives, as amongst themselves, to or over any Lands or Hereditaments over which the Native Title is not extinguished, except so far as the Native Circuit Court may have such jurisdiction under and by virtue of any regulation made in pursuance of ―The Native Districts Regulation Act, 1858.‖

[36]     Finally  for  my  purposes,  the  Act  would  further  have  provided  that  the Governor could authorise Crown grants of land over which Native title had been extinguished, to individual Māori.12    These land grants would have been subject to restrictions.13

[37]     The Native Districts Regulation Act allowed for the Governor in Council to make regulations in Native Districts that superseded the laws of any other legislative

body,  excepting  the  laws  of  the  General  Assembly,  on  ―matters   of  Local

10    Richard Boast and others Māori Land Law (2nd ed, LexisNexis, Wellington, 2004) at 71.

11    Section 1.

12    Section 9.

13    Sections 10 and 11.

concernment,  or  relating  to  the  Social  Economy  of  the  Native  Race‖.14      The Governor in Council could declare land to be a Native District where Native title had not been extinguished; it would cease to be a Native District upon notification in the Gazette that Native title had been extinguished.15    Regulations could be made for

―the protection of Public property and the Common property of Tribes or Communities‖ and the enforcement of native rights and duties in relation to ―the use, occupation and receipt of the Profits of Lands and Hereditaments‖.16

[38]     The Native Circuit Courts Act likewise empowered the Governor in Council to declare Native Districts; again, notification in the Gazette would end the declaration.17   It established a court of record in Native Districts, the Native Circuit Court.  Its civil jurisdiction was set out in s 13:

The Court shall have jurisdiction to hear and determine all complaints of a Civil nature, where both parties are of the Native Race, and the party sought to be charged resides or carries on business or is served with the process of the Court within the District in which the Action is brought, or where both parties are of the Native Race, and the cause of Action has arisen either wholly or in some material point, within such District: Provided that the Governor in Council may from time to time, limit the Civil jurisdiction under this Act of any such Court to cases in which the debt or damage claimed, or other matter in dispute, does not exceed in amount or value such sum as may be in that behalf fixed by the Governor in Council, and may vary or revoke any such limitation.

[39]     The Act also provided that the Court had jurisdiction for cases arising under regulations made pursuant to the Native Districts Regulation Act, regardless of the race of the parties, though this jurisdiction could be subject to limitations.18

[40]     The appellants contend that the Native Land Court had no jurisdiction over a Native District.  They refer to a paper presented to Parliament in relation to the Right of Aboriginal Natives to the Elective Franchise, which indicates that it was assumed the Queen’s Court did not have jurisdiction over property in a Native District in the

context of a discussion of electoral rights.19   They also refer to the Native Territorial

14    Long Title and s 5.

15    Sections 1 and 9.

16    Section 2.

17    Sections 1 and 3.

18    Section 23.

19    Appendix to the Journals of the House of Representatives, of New Zealand 30 July – 5 November

1860 (E-No 7) at 8.

Rights Act, which provided that only the Native Circuit Courts had jurisdiction over any Native Districts.  Though the Native Territorial Rights Act did not receive Royal Assent, this was because it provided insufficient protection for Māori.

[41]     Mr Benson next pointed out that Hauraki and the Coromandel were declared Native Districts in 1864 and 1865 respectively under the Native Districts Regulation Act, and that Hauraki was also declared a Native District under the Native Circuit Courts Act.  This was done by the mechanism of Orders in Council.  He recognised that these Acts were repealed by the Repeals Act 1891, but pointed to the savings provision, s 6, which states:

6This Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered;

Or any existing status or capacity;

Or any status or capacity acquired by any person under any repealed enactment, or any status or capacity derived from or through any such person by any other person;

Or any right or title already acquired or accrued, or any remedy or proceeding in respect thereof;

Or any release or discharge of or from any debt, penalty, claim or demand;

Or any indemnity;

Or the proof any past act or thing:

Nor shall this Act revive or restore any jurisdiction, office, duty, drawback,  fee,  payment,  liberty,  custom,  right,  title,  privilege, claim, restriction, exemption, usage, practice, procedure, or other matter or thing not now existing or in force.

[42]     Mr Benson submitted that this section means a gazette notice must have been issued declaring the land to no longer be a Native District, and as this has not happened the land remained in 1901, and still remains, part of the Native District, safely beyond the jurisdiction of the Native Land Court which purported to alienate it.

[43]     But for whatever reason, the Native Territorial Rights Act never became law, while the Native Land Acts did.  For this Court’s purposes the reasons are strictly

irrelevant.   It cannot possibly be said that anything done under the Native Circuit Courts Act and Native Districts Regulation Act  had the effect of depriving the Native Land Court of jurisdiction.  In any event, the savings provision in s 6 of the Repeals Act applies to acts done under the legislation; it does not protect delegated legislation such as Orders in Council.   It is a principle of general application that, absent  a  specific  saving,  delegated  legislation  such  as  regulations  or  Orders  in

Council fall away when their empowering Act  is repealed.20     There is no such

specific saving here.

Decision

[44]     It has been necessary to traverse a good deal of historical material.  But in the end this appeal comes down to a single question;  has the Council title to the land on which the road lies?  If so, it may recover the land under s 240 of the Public Works Act 1981.  I am satisfied that it does have title.  In 1916 the land was brought under the Land Transfer Act 1915 and transformed into a Crown grant in fee simple, extinguishing any claim to customary title.   The fee simple is now vested in the Council under s 316 of the Local Government Act.  The District Court Judge was right to order the appellants to relinquish possession under s 240.

[45]     The appeal is dismissed.

[46]     If any issue arises as to costs Mr Frogley may file a memorandum within 21 days.  The appellants must respond within a further 21 days.

Miller J

Solicitors:

Brookfields, Auckland for Respondent

20    J F Burrows and R I Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at

624.