Holmes v Rewi
[2018] NZHC 2103
•16 August 2018
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2017-463-35
[2018] NZHC 2103
BETWEEN COLIN GEORGE HOUSTON HOLMES
Plaintiff
AND
EDWARD CHARLES REWI
First Defendant
EDWARD CHARLES REWI, EARL HAARE REWI, KAREN AMOKURA CARSON and PRUDENCE REWI
Second Defendants
MEI QUEENIE HEREWINI and IVAN HARE REWI
Third Defendants
ANDREW TE AMO AUBREY KOHUNUI, DOUGLAS REWI, KENE OLSEN and
ROBERT McMAHON
Fourth Defendants
Hearing: 16 August 2018 Appearances:
M P Ward-Johnson for Plaintiff
J Koning for the First and Second Defendants W Te Are representing those with beneficial
interests in the Third Defendants’ land C M Bidois for the Fourth Defendants
Judgment:
16 August 2018
ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL
HOLMES v REWI [2018] NZHC 2103 [16 August 2018]
[1] Mr Holmes, the plaintiff, applies for orders allowing him to go onto properties of the defendants and inspect them with consultants whom he wishes to call as witnesses in this proceeding. The properties are:
(a)two properties owned by the first defendant, one called the “home block” of 129.4235 hectares, Section 6-7, Block XIII, Ahikereru Survey District in identifier SA25A/1105 and an unnamed block of 50.6869 hectares on Minginui C Block in identifier SA7D/666;
(b)the second defendants’ property called the “Prentice block” of 95.79 hectares on Section 8, Block XIII, Ahikereru Survey District in identifier SA35D/1;
(c)the third defendants’ property of 22.0426 hectares on the Minginui D Block in identifier SA15B/1193, referred to as the “54 block”; and
(d)the fourth defendants’ property called the “air strip block” comprising 9.3775 hectares on the Te Whaiti W Block in identifier 259693.
The air strip block is Maori freehold land. All the other properties are in general title. The defendants’ properties are all in the Minginui area. I was advised that this is rolling countryside used for dry stock farming.
[2] Mr Holmes wants to go onto these properties with his proposed expert witnesses, an agricultural consultant and a rural valuer, to inspect them with a view to information gained being used in evidence for the substantive hearing.
[3] Mr Holmes is a farmer and developer. His case is that in 2009 he negotiated a lease of the land owned by all four defendants with Mr Edward Charles Rewi, the first defendant. He pleads that the core terms of an oral agreement to lease were that the lease would be for a minimum of 12 years. In consideration for his leasing the land he would undertake development of the land at his own cost. The lease was for all the properties I have referred to above. He would pay the rates on the properties. He says
that the properties were all farmed as one block, and had been farmed as one block for many years.
[4] Mr Holmes says that he took possession of the land and carried out improvements, which he describes:
(a)clearing scrub, bush regrowth and weeds from areas which were no longer good for grazing;
(b)cultivating and regrassing those areas, plus other parts of the farm;
(c)under sowing some paddocks which did not require cultivation with better types of grass;
(d)improving the pastures and grazing areas with a system of races so that access to all paddocks was provided;
(e)putting in a reticulated water system to allow 90 per cent of the paddocks to have trough water which allowed greater subdivision; and
(f)refencing about 60 per cent of the properties.
He puts his costs of development at about $600,000. He also pleads that he has paid rates on the properties.
[5] He says that the first defendant had obtained benefits from the work he had done because the first defendant ran 120 head of stock on the farm for seven years. Mr Holmes was given notice and required to leave the property before the lease was up.
[6] While he accepts that the arrangements he made with Mr Rewi were oral, he relies on the doctrine of part performance to say that the arrangements he made were enforceable. He seeks an order for specific performance of the oral lease agreement. In his second cause of action, he makes a claim for unjust enrichment – in effect, seeking restitution for the value he has added to the defendants’ properties. He also
makes a claim for breach of the oral lease by the actions of Mr Rewi in grazing his own cattle on the properties.
[7] I understand the position of the defendants to be that the arrangements were no more than an informal grazing arrangement and did not amount to a formal lease; and that an informal grazing arrangement is terminable on reasonable notice being given.
[8] I note some procedural matters. The people named as third defendants have both died. Mei Queenie Herewini is recorded as having died on 2 December 2007. Ivan Hare Rewi died intestate on 2 November 2015. Until there is a grant of administration, their estates vest in the Crown under s 22 of the Administration Act 1969. Today, Mr Te Are sought leave to appear to represent those with beneficial interests in the estate of Ivan Rewi. I understand that an application is to be made for a grant of letters of administration by Emerson Wiremu Harehare Rewi, the son of Ivan Rewi. Given the obvious interest of the beneficial owners of the estate in this matter, I granted leave to Mr Te Are to appear on their behalf. Mr Ward-Johnson advises that the Crown has been served but has taken no steps.
[9] Mr Bidois advised that the fourth defendants, the owners of the air strip block, have leased that property to the first and second defendants. Accordingly, as his clients are not in possession, they could not give consent to access to the air strip block. Mr Koning confirmed that his clients have taken a lease of the air strip block.
[10] As grounds for the application, Mr Ward-Johnson relied on the court’s inherent jurisdiction. That is not necessary. Rule 9.34 of the High Court Rules 2016 gives the court the power to order access to a property for the purpose of enabling the proper determination of any matter in question in a proceeding. For that, the court has power to authorise entry onto land and to allow for inspection of the property, the taking of samples and making observations, taking measurements and taking photographs.
[11] I am satisfied that the proposed entry and inspection sought by the plaintiff is required to enable a proper determination of matters in issue in this case. Mr Holmes says that he carried out extensive development and made improvements which added value to the properties. That will clearly be in issue in the proceeding. There will a
contest as to the extent of the work he carried out and its value. The court’s assessment will be better informed if both sides have independent experts who will be able to give informed appraisals of the extent and value of any work carried out. I note that the defendants appear to have retained their own experts. Likewise Mr Holmes ought to be able to retain experts to give informed evidence as to matters in issue.
[12]The real contest came down to the terms of access to the properties.
[13] For the defendants, it was submitted that only one day would be required for Mr Holmes’ experts to come onto the properties and carry out an inspection. They pointed out that someone on their side would need to be present. Requiring someone to take time off to deal with a visit by the plaintiff and his expert would disrupt their farming commitments.
[14] For Mr Holmes it was submitted that more than one day would be required. Mr Holmes has engaged a farm consultant and proposed to engage a rural valuer. I envisage that each will need to spend at least five hours a day on the properties. The time required to go over everything in detail may require more than one day. Mr Holmes’ estimate is that a minimum of two days will be required, with the possibility of a third day.
[15] On this matter, it is really for the plaintiff to assess how long he may require to go over the farm properly. It is an extensive property. Mr Holmes’ statement of claim alleges improvements over large areas. I am satisfied that it would not be unduly disruptive to the defendants if the plaintiffs had more than a single day in which to make their visit and carry out their inspections. If anything, it is preferable that there be an inspection which may extend up to three days, so that everything is completed in that time rather than coming back later if there are further afterthoughts.
[16] I set out matters which were discussed to guide the parties as to how the inspection should be carried out.
(a)Notice will need to be given. I suggest that the plaintiffs contact the defendants one week before, to give notice of dates for a proposed
inspection. Dates should be agreed. In other words, if the defendants have genuine other commitments which mean that they will not be available on the proposed dates, the plaintiff should be able to accommodate that. The arrangements should also be confirmed on the day before the first visit.
(b)I was advised that the people to be contacted are Robyn Wharton and her husband, Graham, who currently live on the farm.
(c)Access onto the farm should be through the main entrance to the farm. That is apparently known to Mr Holmes.
(d)Those who may come onto the farm are Mr Holmes, his agricultural consultant and a rural valuer, and any other person required to assist – for example, to take measurements or assist in inspection.
(e)When they arrive, they should bring with them forms of identification, preferably to show that they have expertise in the areas in which they practise.
(f)They may be accompanied by representatives of the defendants while they are on the properties, but the representative should not be within earshot, so as to allow Mr Holmes and his consultants to confer with each other without being overheard. These are privileged communications under s 56 of the Evidence Act 2006.
(g)The purpose of the visit is to allow inspection of the property, to allow photographs to be taken, and to take measurements – for example of areas where fences were renewed, where tracks were laid. Soil samples may also be taken if that is required – for example, to assess the extent of benefits from applying fertiliser.
(h)The defendants submitted that it should be sufficient for Mr Holmes and his consultants to stay on the races and tracks. Mr Holmes seeks
more extensive access. I accept his position that it may be necessary to leave the races and tracks to inspect the land more closely and access is granted accordingly.
(i)Mr Holmes and his consultants must not interfere with the current farm operation on the properties.
[17] Leave is reserved to apply further if there are any difficulties. Costs on the application are reserved. That is because this application is analogous to the court giving case management directions on discovery. Case management directions do not normally carry costs orders.
[18] The Registrar is to allocate a case management conference in the week of 25 September 2018. It is envisaged that inspection will be completed by then. I hope that by that stage trial directions can be given.
……………………………….
Associate Judge R M Bell
Solicitors:
Hamertons Lawyers Limited (S R Franklin), Whakatane, for the Plaintiff
Koning Webster Law (J Koning), Papamoa, Tauranga, for the First and Second Defendants Te Are Law (W Te Are), Rotorua, for the Third Defendants
East Brewster (C M Bidois), Rotorua, for the Fourth Defendants
Copy for:
M P Ward-Johnson, Tauranga, for the Plaintiff
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