Hill v Māori Trustee
[2016] NZHC 2074
•2 September 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-497 [2016] NZHC 2074
BETWEEN FREDRICK PIRIPI KINGI HILL
Applicant
AND
MĀORI TRUSTEE First Respondent
LAND INFORMATION NEW ZEALAND
Second Respondent
Hearing: 15 August 2016 Appearances:
F Hill in person
C Reuhman for the first respondent
No appearance for the second respondentJudgment:
2 September 2016
JUDGMENT OF ASSOCIATE JUDGE SMITH
[1] Mr Hill applies under s 145A of the Land Transfer Act 1952 (the Act) for an order that caveat no. 9887823.1 (the caveat) registered by him on the title to a block of land known as Mangatainoka 1BC 2B3 (the Land) not lapse. The registered proprietor of the Land is the Māori Trustee as responsible trustee representing the interests of some 96 owners. Mr Hill is not one of those owners, but he has been occupying the Land.
[2] Mr Hill’s application was first called in this Court on 26 July 2016. A notice of opposition had been filed by the Māori Trustee, and Ms Reuhman appeared for the Māori Trustee that day. But there was no appearance by Mr Hill. He had earlier been in touch with the registrar by email, saying that he assumed no attendance would be required but that he would be on standby, to participate by conference call,
if the matter required a hearing. The notice of the hearing sent to Mr Hill did
HILL v MĀORI TRUSTEE [2016] NZHC 2074 [2 September 2016]
describe the 26 July 2016 date as a “Mention Only” hearing, and I considered that he might not have understood that he needed to be present. I adjourned the hearing to
10.00am on 27 July 2016, and made an interim order that the caveat not lapse, pending further order of the Court.
[3] Mr Hill did not appear when the case was called again on 27 July 2016. However he provided a written submission asking for an adjournment. He explained that he had left voicemail messages with the registrar about the 26 July hearing and had not received any response. He said that he was travelling north to Hamilton, and would not be able to appear at the 27 July hearing.
[4] Ms Reuhman opposed any further adjournment, but to avoid any risk of injustice to Mr Hill I further adjourned the hearing to 15 August 2016. The interim order that the caveat not lapse was to remain in place in the meantime.
Background
[5] The Māori Trustee leased the Land to Mr Hill by unregistered memorandum of lease dated 17 May 2007 (the Lease). There have been ongoing and substantial disputes between the Māori Trustee and Mr Hill since then. Mr Hill did not pay rent for long periods, and eventually the Māori Trustee obtained judgment against him in the District Court at Palmerston North for the unpaid rent. The District Court
judgment, dated 23 February 2015, included an order for cancellation of the Lease.1
[6] Mr Hill filed an appeal to the High Court, contending (amongst other things)
that a counterclaim he had made in the District Court had not been properly heard.
[7] Mr Hill’s appeal was dismissed by Dobson J in a judgment given in this
Court on 4 March 2016.2
[8] The caveat is dated 5 November 2014. It forbids the registration of any
“instrument, order having the effect of charging or transferring or otherwise affecting the estate/lease/trust property/security protected by this caveat, except as stated
1 Māori Trustee v Hill DC Palmerston North CIV-2011-054-533, 23 February 2013.
2 Hill v Māori Trustee [2016] NZHC 364.
below, until this caveat is withdrawn by the caveator, removed by order of the High
Court of record with peers. The exceptions are NIL.”
[9] Mr Hill’s interest in the land is stated in the following terms in the caveat:
Memorandum of Lease No. B303104.1/93 at Wellington dated 17 May 2007 a caveatable interest, secured interest UCC 2013-263-0603-0 over private property on land or implied.
[10] Mr Hill has refused to give up occupation of the Land, notwithstanding the District Court order cancelling the Lease and the dismissal of his appeal against that order. He applied for leave to appeal to the Court of Appeal against the judgment of Dobson J dismissing his appeal against the District Court judgment, but his application for leave to appeal was dismissed by Dobson J on 9 August 2016.3
[11] An order had earlier been made in this Court (on 13 May 2016) refusing an application by Mr Hill for a stay of execution.4 Mr Hill filed an appeal against that decision, and a hearing of that appeal took place on 1 August 2016. That appeal was dismissed on 9 August 2016 by the Court of Appeal.5
[12] Mr Hill filed a further application for leave to appeal, this time in the
Court of Appeal, on 15 August 2016.
[13] The Lease came to the end of its term on 10 December 2015. Since then, Mr Hill has asked the Māori Land Court to grant an injunction permitting him to remain on the Land, and to direct that a meeting of the owners of the Land be called to allow Mr Hill to put his case for a new lease to the owners.
[14] In a judgment dated 14 June 2016, Judge Doogan noted Mr Hill’s application was opposed by the Māori Trustee.6 The Judge recorded the Māori Trustee’s advice that Mr Hill had ceased paying rent and rates for the land in 2009, and that there were other alleged breaches by Mr Hill, including failure to control gorse on the
Land.
3 Hill v Māori Trustee [2016] NZHC 1874.
4 Hill v Māori Trustee HC Palmerston North CIV-2015-454-49, 13 May 2016.
5 Hill v Māori Trustee [2016] NZCA 380.
6 Hill v Māori Trustee 50 Tākitimu MB 28 A201600001786, 14 June 2016.
[15] Judge Doogan recorded that Mr Hill’s initial application had stated that the purpose of the proposed meeting of owners was to renegotiate the terms and conditions of the Lease. The Judge noted that Mr Hill proposed to put a number of propositions to the owners, including a request for a new five year lease at no rental (but with certain other considerations to be provided by Mr Hill, including the completion of re-development work to a value of $6,000.00 per year, which would include more bridging, new fencing and gorse eradication).
[16] Judge Doogan noted that Mr Hill had no specific finance arrangement in place to fund the proposed development work (Mr Hill had told the Court that he had
20,000 shares in an Incorporation, but he was unsure of the current value of that shareholding). Mr Hill told the Māori Land Court that he believed he had made an error when he agreed to take the Lease at an annual rental of $5,500.00 – given what he now knew about the Land and its problems with gorse and access, he had come to the view that that figure was too high. Mr Hill told the Māori Land Court that he believed he had a basis to counterclaim against the Māori Trustee for developments and improvements that he had made on the Land, at least during the initial three year term of the Lease.
[17] Judge Doogan noted that applications to summon a meeting of owners under s 173 of the Te Ture Whenua Māori Act 1993, were usually straightforward and were seldom declined. But the calling of a meeting was not something an applicant in Mr Hill’s position was entitled to as of right. There had to be some utility in the proposal. In dismissing Mr Hill’s application, Judge Doogan noted that Mr Hill had deprived the owners of income from the land since 2009, and had failed to pay rates and manage the gorse on the Land.
[18] The Judge stated that it was “clear that the retention, use, development and control of the land by the Māori owners would be more effectively promoted by severing Mr Hill’s hold on the Land, not by providing opportunities to extend it”.7
[19] As noted above, the term of the Lease came to an end on 10 December 2015. The Māori Trustee now considers that, regardless of whether the decision cancelling
7 Hill v Māori Trustee, above n 6, at [16].
the Lease was properly made by the District Court in February 2015, Mr Hill can no longer have any continuing equitable interest in the Land which would be sufficient to support the caveat: the Lease has expired.
[20] The Māori Trustee applied to the District Land Registrar under s 145A of the Act for the caveat to lapse. The Land Registrar gave notice of that application to Mr Hill, and Mr Hill applied, in time, for an order under s 145A(3) that the caveat not lapse.
[21] The Māori Trustee filed a notice of opposition to Mr Hill’s application, but failed to serve the notice of opposition within the ten working days allowed by r 7.24 of the High Court Rules.
Mr Hill’s application and submissions
[22] Mr Hill’s application is based on the following grounds:
(a) the disputed judgment (the judgment of Dobson J given on
4 March 2016) is currently the subject of an application for leave to appeal to the Court of Appeal;
(b)Mr Hill was not served with any instrument to be registered which would have affected the caveat, under s 145(1) of the Act. Nor did the notice he received from the Land Registrar, dated 13 June 2016, refer to any such instrument;8
(c) Mr Hill responded to the Land Registrar on 29 June 2016 stating that he had not given any consent to the removal of the caveat, and nor had there been any order of the High Court removing the caveat. An application would be made to the High Court. Mr Hill stated that “it appears that the Land Registrar vehemently believes that the Caveat is
subject to lease interests solely. In that respect [Mr Hill] is preparing
8 The notice dated 13 June 2016 from LINZ referred expressly to s 145A of the Act, and advised Mr Hill that “application has been made by the Māori Trustee to lapse the caveat/Notice of Claim 9887823.1 lodged by you.”
a meeting of owners to continue lease arrangements, is currently still in occupation …”.
(d)Mr Hill asked for an interim order that the caveat remain registered until his Court proceedings had been resolved, or until a determination had been made at a meeting of owners he had called for 24 July 2016 “with regard to current and future lease arrangements and other matters impacting [the Māori Trustee] pursuant to the conditions stipulated on the registered instrument”.
[23] Mr Hill made written submissions on 25 July 2016, 26 July 2016, and
5 August 2016. In his submission dated 25 July 2016, Mr Hill submitted that the Māori Trustee’s notice of opposition was out of time, and should not be considered. He had called his own meeting of owners, and he advised that the meeting, which took place at Levin on 24 July 2016, resulted in the following resolutions and minutes:
(a) that Mr Hill retain possession and occupation of the Land for a period of two months to allow for a second meeting of owners to be called “to finalise a new lease or other details to be determined”. The second meeting would allow the Māori Trustee and advisory trustees (who were not present at the meeting on 24 July 2016) to be heard;
(b)that the meeting had been called by Mr Neville Hurunui, one of the beneficial owners; and
(c) remission of rents and the Māori Trustee continuation as responsible trustee were discussed. A decision would be made at the next meeting on those matters.
[24] In his submission dated 26 July 2016, Mr Hill submitted that the Court should sustain the caveat until the outcome of the second owners’ meeting and completion of the process (approval of any new lease by the Māori Land Court, or by the Court of Appeal on determination of any appeal from the Māori Land Court’s
decision). Mr Hill also challenged, apparently for the first time, the validity of the Lease, stating that an owner had made available to him a copy of a Trust Deed affecting the Land, and that it appeared from this document that the Māori Trustee had wrongly entered into the Lease in 2009 without obtaining prior advisory trustee approval.
[25] In his submission dated 5 August 2016, Mr Hill referred to alleged “equitable interests guarded by the caveat”. He referred to the “registered conditions of removal” set out in the caveat document itself, submitting that none of the exceptions and conditions of the registered caveat had been complied with. Nor had service of the notice to lapse by the Land Registrar been served as prescribed by Mr Hill in the caveat.9
[26] Mr Hill further contended that there had been an “oral consensus at the owners’ meeting on 24 July 2016 that a fresh lease interest be established effective immediately from 1 December 2015”. He noted that powers conferred on owners in meetings under part 9 of the Te Ture Whenua Māori Act 1993 include remission of lease rent, together with any other matters of common interest, to be presented for an order of the Māori Land Court.
[27] Mr Hill referred again to the absence of any notice of a registerable interest being presented by the Māori Trustee to the Land Registrar, sufficient to trigger s 145(1) of the Act.
[28] Developing his argument that the Māori Trustee acted unlawfully in entering into the Lease in 2009, Mr Hill submitted that the Māori Trustee cannot enter any dealings without convening a meeting with beneficial shareholders, resulting in consensus by a minimum of two advisory trustees. He submits that there was no
consensus by advisory trustees when the Lease was entered into.
9 Referring to s 137(2)(f) of the Act. That subsection provides that a caveat must contain “an address for service for the caveator”.
[29] Mr Hill then submitted that the Lease, being for a term exceeding three years and being unregistered, was null and void from inception insofar as it purported to constitute a transfer of a leasehold estate.
[30] Mr Hill submitted that the Māori Trustee has suffered no prejudice by the registration of the caveat, and would not be prejudiced if the registration were allowed to continue. The Māori Trustee had not applied or notified to register any instruments. It had failed to register the Lease, but gave the impression that it had done so in the course of Mr Hill’s appeal.
[31] Mr Hill emphasised that his “substantive claims in equity” were still in process in the courts. He submitted that “the questions seemingly unanswered are that, in law, no leasehold estate existed, arguably by misrepresentation or mistake flowing into part performance and the narrow remedies of the Walsh v Lonsdale10 doctrine of specific performance and without prejudice to others in the category of contract law, fair trade, compensation and damages.” He submitted that any
equitable interest in the Land would support a caveat, including equitable liens and charges (referring to his invoices to the Māori Trustee for goods and services supplied to the Land, those invoices being the invoices he had relied upon in the counterclaim he had filed in the District Court).
The Māori Trustee’s notice of opposition and submissions
[32] The Māori Trustee submitted simply that, as the Lease is at an end, Mr Hill’s caveatable interest in the Land must also be at an end. He is no longer a person who is:11
… entitled to, or (to be) beneficially interested in, the land or estate or interest by virtue of any unregistered agreement or other instrument or transmission or of any trust …
[33] The Māori Trustee submitted that none of the matters referred to by Mr Hill could give rise an interest in the Land that would support a caveat.
10 Walsh v Lonsdale (1882) 21 Ch D 9 (CA).
11 Land Transfer Act 1952, s 137(1)(a).
[34] Ms Reuhman acknowledged that there was late service of the Māori Trustee’s
notice of opposition. She stated that service was effected two days late on
21 July 2016. She submitted that the late service could be cured under r 1.5 of the High Court Rules, in circumstances where the late service of the notice had in no way disadvantaged Mr Hill, particularly given the adjournments which had the effect of putting the hearing date back to 15 August 2016. Ms Reuhman submitted that it was in the interests of justice that the Māori Trustee’s arguments be available for consideration. She referred to the following statement of Thomas J in McEvoy v
Dallison:12
Moreover, it has frequently been recognised that the objective of the efficient administration of the Courts’ business must not be permitted to prejudice a party’s right to a full and fair disposition of his or her cause. The dictates of fairness must prevail over the demands of efficiency.
Further affidavit presented at the hearing by Mr Hill
[35] At the hearing, Mr Hill tendered a further affidavit which he had affirmed earlier that day. In this affidavit, he asserted copyright in his name, and contended that he had not given any consent to the Māori Trustee or the Courts to use that copyright. The affidavit then set out various contentions relating to Mr Hill’s identity, which was said to be “derived from statutes used in Equity by the Crown”. He stated that this identity was “all that the Crown can claim jurisdiction over pursuant to consent and Tiriti o Waitangi 1840”.
[36] Mr Hill also referred to his various attempts to meet with owners and the
Māori Trustee; he said that he had been denied an audience.
[37] He attached an invoice dated 15 February 2010 for $16,000.00, being for replacement and improvement works allegedly carried out by him on the Land. He also attached a further document filed by him in the Court of Appeal. This appears to be an appeal against the very recent decision of the High Court declining Mr Hill’s application for leave to appeal to the Court of Appeal against the judgment of Dobson J. In this document, Mr Hill seeks a number of directions from the
Court of Appeal, including a direction allowing him to present new evidence. He
12 McEvoy v Dallison [1997] 3 NZLR 11, (1997) 10 PRNZ 291 (CA) at 301.
also seeks from the Court of Appeal a stay of execution of the judgment or
enforcement “resulting from the miscarriage of justice”.
Discussion and conclusions
Preliminary issue – late service of notice of opposition
[38] I accept Ms Reuhman’s submission on this point. The essential matter is that the issues between the parties must be determined fairly, and in circumstances where the application was filed in time (and served only a few days late) and Mr Hill has failed to point to any prejudice caused by the late service, it would not be fair to exclude the Māori Trustee’s opposition. I take into account also the fact that Mr Hill was himself granted an indulgence when his application was adjourned when he failed to appear at the first call, and was subsequently granted another adjournment to permit him to appear and make oral submissions.
[39] I make an order extending the time for service of the Notice of Opposition to the date of actual service on Mr Hill.
Application for orders preventing caveats from lapsing – legal principles
[40] Mr Hill’s application is to be dealt with under s 145A(3) of the Act. Section 145A of the Act provides:
Early lapse of caveat against dealings
(1) The registered proprietor of any estate or interest in the land protected by a caveat against dealings (other than a caveat lodged by the Registrar) may apply to the Registrar for the caveat to lapse.
(2) The Registrar must give the caveator notice of an application under subsection (1).
(3) The caveat lapses with the close of the prescribed period after the date on which the notice under subsection (2) is given unless—
(a) the caveator has earlier given to the Registrar notice that an application for an order to the contrary has been made to the High Court; and
(b) an order to that effect has been made and served on the
Registrar within the prescribed period after the date on
which the notice under paragraph (a) is given to the
Registrar.
[41] The general approach to such applications was settled in Sims v Lowe:13
The caveator seeks to clog or fetter the proprietary interest of another. As a matter of principle it seems right that he must justify the continued existence of his caveat. He will do that if he can show he has a reasonably arguable case for the interest he claims.
[42] In Philpott v Noble Investments Ltd, the Court of Appeal said:14
(1) The onus is on the applicants to demonstrate that they hold an interest in the land that is sufficient to support the caveat, but they need not establish that definitively;
(2) It is enough if the applicants put forward a reasonably arguable case to support the interest they claim;
(3) The summary procedures involved in applications of this nature are not suited to the determination of disputed questions of fact. An order for the removal of a caveat will only be made if it is patently clear that the caveat cannot be maintained – either because there is no valid ground for lodging it in the first place, or because such ground no longer exists; and
(4) When an applicant has discharged the burden upon it, the Court retains discretion to remove the caveat which it exercises on a cautious basis. Before it does so the Court must be satisfied that the caveator’s legitimate interest would not be prejudiced by removal.
(footnotes omitted)
[43] A personal or contractual right is not enough. The caveator must show an existing entitlement to a beneficial interest in the land under the caveat.15
Mr Hill’s claim to an equitable interest in the Land as lessee under a lease
[44] I do not believe Mr Hill has any reasonable argument that he still has an equitable interest in the Land as lessee, whether under the Lease or on any other basis. The Lease was cancelled by the District Court on 23 February 2015, and Mr Hill’s various attempts to challenge that decision have all been unsuccessful. As
recently as 9 August 2016, the Court of Appeal, in rejecting Mr Hill’s application for
13 Sims v Lowe [1998] 1 NZLR 656 (CA) at 660.
14 Philpott v Noble Investments Ltd [2015] NZCA 342 at [26].
15 Ma v Ma [2016] NZHC 1426 at [4], citing Guardian Trust and Executors Company of
New Zealand Limited v Hall (No 2) [1938] NZLR 1020 (CA) at 1025.
a stay of the proceeding pending the determination of his application for leave to appeal the decision of Dobson J given on 4 March 2016, stated:16
Mr Hill lacks any present tenure in the land. He is in law a trespasser. He may have hopes of negotiating a new lease, but he will have to deal with the Māori Trustee. The prospects of re-negotiation between these parties appear slight indeed. Review of the judgments below indicate that any prospects of success on the substantive appeal are slim, in the event leave to appeal is granted.
[45] Mr Hill’s application for leave to file a second appeal against the District
Court judgment was itself rejected in a short judgment given by Dobson J on
9 August 2016. The learned Judge noted that the Lease had expired on
10 December 2015, and stated that any reversal of the findings made in the District Court and the High Court against Mr Hill could not now be a means by which he could retain possession.17 The Lease did not contain any right of renewal beyond the 10 December 2015 expiry date.
[46] Mr Hill referred in his submissions to an oral agreement to lease, but there is no evidence of any oral agreement which would entitle him to remain on the Land. And in any event I am concerned here only with the rights asserted by Mr Hill in the caveat, which referred only to a particular form of Memorandum of Lease, to an unspecified “implied” interest in the Land, and to a claimed “secured interest UCC
2013-263-0603-0”. The caveat did not identify any oral agreement which might have conferred on Mr Hill an equitable interest in the Land.
[47] Mr Hill’s discussions with the beneficial owners of the Land have clearly not given rise to any equitable interest in the Land18 – the Māori Trustee was not even represented at the meeting of owners to which Mr Hill refers. And even if there had been some agreement to enter into a new lease to Mr Hill, the interest created by such an agreement would be a different interest from the interest protected by the
caveat.
16 Hill v Māori Trustee, above n 5, at [11].
17 Hill v Māori Trustee, above n 3.
18 As the Court of Appeal noted in Philpott v NZI Bank Ltd (1989) 1 NZ ConvC 190, 246 at 190,
248), a potential future interest is not enough to create an equitable interest in the land.
[48] Mr Hill has not provided any evidence to support the claimed “implied” interest in the Land, still less evidence that any such “implied” interest, if it existed, extended beyond the 10 December 2015 expiry of the Lease.
[49] There is no arguable interest in the Land based on Mr Hill having part- performed on oral agreement with the Māori Trustee to take a lease of the Land. Even if there was some oral agreement (and there is no evidence of such), there is nothing to suggest that the term of the (orally agreed) lease extended beyond the expiry date of 10 December 2015 stated in the Lease.
[50] The Lease has expired. Mr Hill no longer has any equitable or beneficial interest in the Land.
Mr Hill’s claim to an equitable interest in the Land arising from the contributions allegedly made by him to the Land
[51] These appear to be the same claims which Mr Hill advanced unsuccessfully by way of counterclaim in the District Court and on appeal before Dobson J. The learned Judge in the High Court concluded that the improvements in question were the responsibility of Mr Hill as lessee.19
[52] And again, the caveat does not identify any interest in the Land (equitable lien, constructive trust or otherwise) arising out of contributions to the Land allegedly made by Mr Hill. I am only concerned here with the caveat, and whether the interests in the Land which are claimed in the caveat are sufficient to support it. On that basis there is no need to consider Mr Hill’s claims based on alleged improvements made by him to the Land. His submissions under this head are rejected accordingly.
Mr Hill’s claim that service of an instrument was required under s 145(1)
[53] Mr Hill’s allegations with respect to s 145(1) of the Act are unfounded. The relevant provision is s 145A, and it does not require the registration of any instrument or notice of the registration of any instrument.
Māori Trustee entered into the Lease unlawfully
[54] There are two strands to Mr Hill’s argument under this head. First, he says that there was no consensus between the Māori Trustee (as responsible trustee) and at least two advisory trustees, when the Lease was entered into. Mr Hill has not identified any “consensus obligation” in the Lease or in a “Trust Deed” affecting the Land (which he has not provided in evidence) or in Te Ture Whenua Māori Act
1993. He has further provided no evidence of any lack of consensus (if such was required). I note also that s 224 of Te Ture Whenua Māori Act 1993 provides that “the responsible trustees may consult the advisory trustee on any matter relating to the trust” (emphasis added). I have not been referred to any provision or authority which would elevate what is apparently a discretion to consult into an obligation to consult. Section 157(3) (of the same Act) provides that the Māori Trustee can act as the agent of owners or their trustees. Again, there is no evidence here to suggest that the Māori Trustee did not act within its powers.
[55] The second strand to Mr Hill’s argument that the Lease was unlawfully entered into is that, because the Lease was for a period exceeding three years, the Lease was null and void from inception. Mr Hill is presumably relying on s 115(1) of the Land Transfer Act 1952, which provides:
Form and registration of leases
(1) A lease instrument is required for the purposes of registering under this Act the lease or demise of any land.
[56] But s 115 of the Land Transfer Act is concerned with the particular requirements for registration of a lease under that Act, and it does not affect rights and liabilities as between the Māori Trustee and Mr Hill under the Lease. An unregistered memorandum of lease for a term of not less than three years has the effect of a deed between the parties, and the lessee normally has the right to sue for specific performance of the unregistered lease.20 In such a case the lessee does
acquire an equitable interest in the land.21 The result is that the parties’ rights and
liabilities are determined according to the unregistered memorandum of lease (which
is in writing and is enforceable under s 24 of the Property Law Act 2007). The Lease was not void from inception.
[57] I conclude that there is no merit in Mr Hill’s arguments that the Lease was entered into unlawfully. There is no evidence of any invalidity, but even if there were the result would presumably be that Mr Hill acquired no caveatable interest in the Land, and certainly none which would have extended beyond the expiry of the term of the Lease.
Mr Hill’s arguments that he should be entitled to pursue his discussion with the beneficial owners, and that the Māori Trustee will not be prejudiced if the caveat is sustained.
[58] There is no merit in these submissions. The Lease has expired, and even if the District Court and the High Court decisions (respectively cancelling the Lease and upholding that cancellation) were somehow overturned by the Court of Appeal (a prospect I think can fairly be described as remote), the term of the Lease would not be extended beyond its 10 December 2015 expiry date. The discussions Mr Hill has had with the beneficial owners have not conferred on Mr Hill any new equitable or other interest in the Land, and even if such an interest were created in the future, any such interest would be a new interest, different from the interests claimed in the caveat.
[59] As already addressed by Judge Doogan, the calling of a meeting is not something Mr Hill is entitled to as of right.22
Other issues
[60] Mr Hill submits that the notice from the second respondent under s 145A of the Act was not properly served on him. I do not think there is anything in this. While s 137(2)(f) of the Act does provide that a caveat must contain an address for service of the caveator, it is clear in this case that Mr Hill received the required notice and responded to it in a timely fashion by filing his application for an order that the caveat not lapse. I am satisfied that there was sufficient service, but even if
there was not Mr Hill’s application for an order that the caveat not lapse effectively amounted to a waiver of any defect.
[61] I note that Mr Hill refers in the caveat to “secured interest UCC2013-263-
0603-0”. Mr Hill has not explained the nature of this “secured interest”, and he placed no reliance on it in his submissions or at the hearing. In the circumstances it cannot add anything to his application.
Mr Hill’s late affidavit
[62] Nor does the late affidavit add anything to Mr Hill’s case. There is no evidence that he owns copyright in his name, but even if he did, copyright is not infringed by anything done for the purpose of judicial proceedings.23 Mr Hill’s contentions relating to his identity have already been considered and rejected by Dobson J,24 and they appear to overlook the fact that this is Mr Hill’s own application, in which he is inviting the Court to make an order sustaining a caveat which he himself lodged.
[63] I have already addressed Mr Hill’s arguments relating to his current discussions with the beneficial owners, and his claims for $16,000 relating to work he says he carried out on the Land. And I do not see any realistic prospect of Mr Hill’s most recent filing in the Court of Appeal producing any outcome that might suggest that he has an arguable case for an order sustaining the caveat. The Court of Appeal has already expressed the view that Mr Hill is a trespasser on the Land.
Result
[64] For the foregoing reasons, Mr Hill’s application for an order that the caveat not lapse is dismissed. I make consequential orders revoking the interim order that the caveat not lapse made on 26 July 2016 and continued on 27 July 2016.
[65] The Māori Trustee is entitled to costs. Memoranda may be filed on costs if the parties cannot agree. Any memorandum by the Māori Trustee is to be filed and served within fifteen working days of the date of this judgment. Any memorandum by Mr Hill in reply is to be filed and served within fifteen working days of his
receipt of the Māori Trustee’s memorandum.
Solicitor:
Associate Judge Smith
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