Hill v PTW Holdings Limited
[2024] NZCA 648
•10 December 2024 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA439/2024 |
| BETWEEN | KRISTY HIRIA HILL AND TAMA LORENCE HOVELL |
| AND | PTW HOLDINGS LIMITED |
| AND | STEVE KHOV AND KIERAN JONES AS LIQUIDATORS OF TAKIMANO LIMITED (IN LIQUIDATION) |
| Court: | Palmer and Collins JJ |
Counsel: | Applicants in person |
Judgment: | 10 December 2024 at 10 am |
JUDGMENT OF THE COURT
AThe application for an extension of time is declined.
BThe application to review the Deputy Registrar’s decision is declined.
CThe applicants must pay one set of costs to the first and second respondents for a standard application on a band A basis together with usual disbursements.
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REASONS OF THE COURT
(Given by Palmer J)
What happened?
Ms Kristy Hill and Mr Tama Hovell, the applicants, are directors and shareholders of Takimano Ltd (Takimano), a company in liquidation which is represented by the second respondents. Takimano was a tenant on lands in Ōtāhuhu held by PTW Holdings Ltd (PTW), the first respondent. Takimano and PTW had a dispute regarding aspects of the rental of the land, which was resolved by arbitration on 8 June 2023. On 3 November 2023, the arbitral award was entered as a judgment in the High Court.
Ms Hill and Mr Hovell then applied to the Māori Land Court for a determination that the land is Māori land (but not as defined in s 4 of Te Ture Whenua Māori Act 1993 (the Act)), a determination that the land is held on constructive trust for Māori, and injunctive relief. On 20 July 2023, the Court determined that the land was general land, and not Māori land under the Act.[1] Accordingly, the Court lacked jurisdiction to either deal with the land or grant the injunctive relief sought and dismissed the application.[2]
[1]See Te Ture Whenua Māori Act 1993, s 4 definition of “general land”.
[2]Hill v PTW Holdings Ltd (2023) 262 Taitokerau MB 140 (262 TTK 140) at [49], [53] and [67].
Some eight months later, the applicants filed an appeal in the Māori Appellate Court, which sought submissions regarding whether the Māori Land Court, and consequently the Māori Appellate Court, had jurisdiction to hear and determine the claim.[3] The applicants stated the Māori Appellate Court had jurisdiction to hear the appeal “because it is [their] position in tikanga that it does” and disputed the appropriateness of Te Ture Whenua Māori Act.[4] On 24 April 2024, the Court dismissed the appeal on the basis it does not have jurisdiction to hear the matter.[5] The time for appealing the decision to this Court expired on 23 May 2024. On 5 July 2024, the applicants sought an extension of time.
Submissions
[3]Hovell v PTW Holdings [2024] Māori Appellate Court MB 48 (2024 APPEAL 48) at [2].
[4]At [4].
[5]At [7].
In their proposed appeal, the applicants would submit: there are major flaws in the Crown’s system for land and resources in Aotearoa; the appeal is to provide safety to hapū, whānau, and tangata whenua; and space and time should be created for tikanga. The applicants submit that the delay was due to the time needed to determine whether to appeal, since the senior courts lack integrity and do not serve justice, and because a further appeal was lodged with the Māori Land Court which was dismissed. The applicants have also been managing a separation, addressing what they describe as threats by the liquidators, and “[f]inding the words to respectfully express the lack of integrity of the Senior Courts”.
Mr Muir, for the first respondent, submits on the basis of an affidavit that the applicants are using this application as another mechanism to delay the proceedings against them. Mr McDougall, for the second respondents, submits the delay was primarily due to indecision as to whether to appeal, the cumulative delay of the proceeding is more extensive than the delay in filing this appeal, the conduct of the applicants has been poor and is causing prejudice to the respondents, and the proposed appeal lacks any merit.
Should time to appeal be extended?
In Almond v Read, the Supreme Court summarised the principles guiding this Court’s exercise of the discretion to grant or decline an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005.[6] The ultimate question is what the interests of justice require in the particular circumstances of the case.[7] Relevant considerations are likely to include the length of the delay, the reasons for the delay, the conduct of the parties, any prejudice or hardship to the respondent or others with a legitimate interest in the outcome, and the significance of the issues raised by the proposed appeal, both to the parties and more generally.[8] An extension should only be refused for lack of merit where the appeal is clearly hopeless.[9]
[6]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].
[7]At [38].
[8]At [38].
[9]At [39(c)].
The Almond v Read factors count against granting an extension of time in these circumstances. On the basis of the material before this Court, the cumulative delay involved in the proceeding is not insignificant — it has been some 18 months since the arbitral award was made in favour of the first respondent. The applicants’ explanation of the delay is unsatisfactory, and they have already failed or refused to clarify the issue of jurisdiction after being directed to do so by both the Māori Land Court and Māori Appellate Court. The applicants’ behaviour has prejudiced the respondents and this application has all the hallmarks of being designed to achieve further delay.
Furthermore, it is difficult to see any merit in the appeal. The jurisdiction of the Māori Land Court to grant injunctive relief is clearly limited to Māori land or a Māori reservation, neither of which is the subject of this case.[10] The Māori Land Court and the Māori Appellate Court each directed the applicants to address jurisdiction. They did not. The Courts were each justified in their dismissals.
[10]See: Te Ture Whenua Māori Act, s 19.
We do not consider it is in the interests of justice to grant an extension of time and decline the application accordingly.
Should the Deputy Registrar’s rejection of the interlocutory application for filing be overturned?
On 17 September 2024, the applicants and others filed an application for orders that “the māori hapū whānau tāngata whenua joined in this notice are free from application of the Westminster system and English [l]aw”. They want that determined in the Māori Land Court, based on tikanga. On 18 September 2024, the Deputy Registrar rejected the application for filing under r 5A(1)(b)(ii) of the Court of Appeal (Civil) Rules 2005, due to a lack of jurisdiction of the Court to grant the orders sought.
On 7 October 2024, the applicants sought a review of the Deputy Registrar’s decision. Ms Hill provides eight pages of submissions “in opposition to this Court process”, raising a variety of objections to the legitimacy of the courts, liquidators, lawyers and police.
Putting aside the logical difficulty of applying to this Court for orders that it lacks legitimacy, we are confident the Deputy Registrar is correct. The orders sought are not interlocutory in nature — the Court does not have jurisdiction to grant them by way of interlocutory application, if at all. We decline the application to review the Deputy Registrar’s decision.
Finally, we note that Mr Hovell has requested, by email to the Registry, an in‑chambers meeting with the judges to discuss issues of “major sensitivity involving criminality” in relation to this matter. Mr Hovell has not provided any evidence or information about his concerns. We can see no reason for a hearing in relation to the matters before us, which are straightforward.
Result
The application for an extension of time is declined.
The application to review the Deputy Registrar’s decision is declined.
The applicants must pay one set of costs to the first and second respondents for a standard application on a band A basis together with usual disbursements.
Solicitors:
Steindle Williams Legal, Auckland for First Respondent
Holland Beckett, Tauranga for Second Respondents
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