Horowhenua 11 (Lake) Part Reservation Trust v Taueki

[2017] NZHC 4

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2016-454-38 [2017] NZHC 4

IN THE MATTER OF

an application for an arrest order pursuant

to Part 17, Subpart 7 of the High Court
Rules

BETWEEN

HOROWHENUA 11 (LAKE) PART RESERVATION TRUST

Entitled Party

AND

PHILIP DEAN TAUEKI Liable Party

On thePapers:
Counsel:	A Hall for Entitled Party
Judgment:	10 January 2017
Reissued:	17 January 2017

JUDGMENT OF CLARK J

Pursuant to r 11.5 of the High Court Rules I direct the Registrar to endorse this

judgment with a delivery time of 4.00 pm on 17 January 2017.

HOROWHENUA 11 (LAKE) PART RESERVATION TRUST v TAUEKI [2017] NZHC 4 [10 January 2017]

[1]      The entitled party has requested the issue of an arrest order pursuant to which the liable party:

(a)       would be arrested;

(b)      brought before the Court at a specified date and time; and

(c)       kept in prison until that time.

[2]      An arrest order is one of the six methods of enforcing judgments provided in r 17.3 of the High Court Rules.  An enforcement process may be issued as of right unless leave is required under r 17.9.1    Rule 17.9 requires the Court to grant leave before issuing an arrest order.

[3]      An applicant for an arrest order must establish that:2

(a) the terms of the original Court order were clear and unambiguous; (b) the party sought to be arrested was served with the original Court

order; and

(c) that party has not complied with the order, in a manner which shows wilful and inexcusable disregard of the order.

[4]      In support of the application an affidavit has been filed by Mathew Sword who is the Chairman of the Horowhenua 11 (Lake) Part Reservation Trust, the entitled  party.    I  refer  to  those  passages  of  Mr  Sword’s  evidence  which  have

particular relevance to this application.

1      High Court Rules, r 17.8.

2      Rule 17.84 and the commentary in McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR17.84.01] citing Soljan v Spencer [1984] 1 NZLR 618 (CA); Burslem Holdings Ltd v GB & JM Bockett Ltd (1989) 4 PRNZ 616 at 619; Pegasus Automotive Services Ltd v Pegasus Rental Cars New Zealand Ltd HC Wellington CIV-2005-442-172, 20 February 2007; Summer & Winter Fuels Ltd v Pickens (1990) 4 PRNZ 621 at 623-624; Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 9 July 2007 at [48] onwards.

(a)      On 4 November 2015 in the Māori Land Court of New Zealand Aotea District, the entitled party obtained an injunction against the liable party in the following terms:

(a) That the Respondent, Philip Dean Taueki (together with his agents, servants, invitees, licensees or workmen) immediately remove themselves and their possessions, chattels and materials from, on or under the Horowhenua 11 (Lake) block, including the buildings known as the Nursery.

(b) That  the  Respondent,  Philip  Dean  Taueki  (together  with  his agents, servants, invitees, licensees or workmen) are prohibited from taking up the future possession of Horowhenua 11 (Lake) block including the buildings known as the Nursery on a permanent or temporary basis unless authorised to do so by the trustees of the Horowhenua 11 Part Reservation Trust.

(c)  That  on  and  from the  date  of  this  order  the  trustees  of  the Horowhenua 11 Part Reservation Trust are entitled to vacant possession of the Horowhenua 11 (Lake) block including the buildings known as the Nursery.

(b)An appeal against the injunction was filed on 5 November 2015 and dismissed on 12 April 2016 following a hearing on 16 February 2016.

(c)      On 4 November 2016 the entitled party obtained a possession order from the High Court authorising and requiring the Bailiff to:

Cause to be delivered to: Horowhenua 11 (Lake) Part Reservation Trust vacant possession of the property situated at the Lake Horowhenua Domain, Queen Street West, Levin known as Horowhenua 11 (Lake) block, including the buildings known as the Nursery, for that purpose to eject Philip Dean Taueki (together with his agents, servants, licensees and workmen) and remove their possessions, chattels and materials from the said Horowhenua 11 (Lake) block, including the buildings known as the Nursery.

(d)On 15 November 2016 the Bailiff attended the Nursery buildings with two trustees and members of the Police and provided vacant possession.  Doors to the property were removed.

(e)      On 20 November 2016 Mr Sword visited the Nursery buildings with other  trustees  and  observed  that  the  doors  had  been  put  back. Mr Sword, with other trustees, removed the doors and windows.

(f)       On 22 November 2016 Mr Sword again visited the Nursery buildings.

The liable party was present with others including a glazier.   New windows and doors were being fitted.  Mr Sword contacted the Police following which he completed trespass orders against the liable party.3

Mr Sword deposes that the Police informed him that “they were not prepared to enforce the trespass notice”.

(g)On 26 November 2016 the liable party emailed the solicitor for the Trust.  A copy of that email is attached as an exhibit to Mr Sword’s affidavit. As Mr Sword observes, the liable party makes it clear in his email that he considers the vacant possession order and injunction do not apply to him.

(h)On  13  December  2016  the  liable  party’s  sister  applied  for  an injunction in the Māori Land Court prohibiting the Trust from dealing with the Nursery Buildings.

[5]      Given the obvious implications an arrest order has for the liberty of the person who is the subject of such an order the applicant for an arrest order must establish beyond reasonable doubt that the three pre-requisites4  for the issue of an arrest order are met.

[6]      The first of the requirements is that the terms of the original Court order were clear and unambiguous.  In this case the original Court order sought to be enforced is the  injunction  order  issued  by  Judge  Doogan  of  the  Māori  Land  Court.    The injunction order was transmitted to the High Court by the Chief Judge of the Māori Land Court on 20 March 2016 pursuant to s 85(1) of the Te Ture Whenua Māori Act

1993.  Consequently, by operation of s 85(2) of that Act, the injunction is deemed to have been issued by the High Court and may be enforced in accordance with the

practice of the High Court.

3      I assume Mr Sword meant to say he completed a written trespass notice rather than “orders”.

4 Set out above at [3].

[7]      By the injunction order Philip Dean Taueki (who is the liable party in this proceeding) was to remove himself and his possessions, chattels and materials from on or under the Horowhenua 11 (Lake) Block including the buildings known as the Nursery and is “prohibited from taking up future possession … on a permanent or temporary basis unless authorised to do so by the trustees …”   I am satisfied the terms of the Court order are clear and without ambiguity.

[8]      Secondly, there can be no doubt that the liable party had notice of the Court order.   He appealed it – unsuccessfully.   I have had regard to that decision5  in considering the present application.

[9]      Finally, affidavit evidence establishes that the liable party has not complied with the Court order, in a manner showing wilful and inexcusable disregard of the order.

[10]     The grounds for the issue of an arrest order are established.

[11]     Although the entitled party has established its entitlement to an arrest order, so that the liable party may have a final opportunity to obey the terms of the Court order, I propose a delay of some six weeks before an arrest order may be issued. This is consistent with the approach commonly taken under r 608 (which was the predecessor to r 17.84) whereby a writ of arrest was directed to lie in the registry for a specified time.6

Result

[12]     The entitled party has established the grounds for the issue of an arrest order to enforce the Court order.

[13]     An arrest order may not be issued before 10 March 2017 on which date (or following) the liable party may be arrested and kept in safe custody for the purpose

of bringing him before the High Court in Wellington on 13 March 2017 at 10:00 am.

5      Taueki v Horowhenua 11 Part Reservation Trust–Horowhenua 11 (Lake) Block (2016) Māori

Appellate Court MB 184 (2016 APPEAL 184).

6      See for example the Court of Appeal’s acknowledgement of this course in Soljan v Spencer

[1984] 1 NZLR 618 (CA) at 623–624.

Karen Clark J

Solicitors:

Fitzherbert Rowe, Palmerston North