Kent v Upper Hutt City Council
[2017] NZHC 958
•11 May 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-868 [2017] NZHC 958
UNDER the Local Government (Rating) Act 2002,
Rating Powers Act 1988, Rating Valuations Act 1998, Rating Valuation Rules 2008, Resource Management Act
1991, Upper Hutt City Council District
Plan 2001BETWEEN
HARRY DALE KENT Appellant
AND
UPPER HUTT CITY COUNCIL Respondent
Hearing: 10 May 2017 Appearances:
Appellant in person
N Levy for RespondentJudgment:
11 May 2017
JUDGMENT OF FAIRE J
This judgment was delivered by Justice Faire on 11 May 2017 at 4.15 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Counsel: N Levy, Wellington
Copy for: Appellant
Upper Hutt City Council, Upper Hutt
KENT v UPPER HUTT CITY COUNCIL [2017] NZHC 958 [11 May 2017]
The appeal
[1] The appellant, Mr Kent, appeals the judgment of Judge B Davidson delivered on 15 June 2016. The judgment was entered against Mr Kent for unpaid rates in the sum of $7,799.10 plus interest plus costs based on category 2, band B and disbursements as fixed by the Registrar. The judgment was entered as a result of the respondent’s application for summary judgment which had been made in reliance on Part 12 of the District Court Rules 2014.
[2] Mr Kent’s appeal relies on the general right of appeal contained in s 72 of the District Courts Act 1947 which is preserved for the purpose of this appeal by the operation of ss 6 and 262 and cl 5 of the third schedule to the District Courts Act
2016.
The claim
[3] The respondent sought judgment for unpaid rates in respect of a property at
510 Fergus Drive, Upper Hutt. The property is one of several from which a nursery business is operated.
[4] Mr Kent responded to the application with a notice of opposition and an application to strike out the proceeding as disclosing no arguable cause of action.
The defence
[5] The defences relied upon by Mr Kent can be summarised. He does not dispute, and indeed admits non-payment of the rates. He pleads:
(a) that he is not the registered owner of the subject property; (b) he is not the liable rate payer; and
(c) the rates have been unlawfully assessed and levied.
Preliminary matters
[6] Ellis J, at a conference held to give directions for the disposal of this appeal, directed that two matters be heard with the appeal. They were the appellant’s application for special leave to extend the time prescribed for appealing pursuant to r 20.4 of the High Court Rules and the appellant’s application to produce further material which was treated in essence as an application to adduce further evidence on the appeal pursuant to r 20.16 of the High Court Rules.
[7] The respondent’s position was that no consent would be given to either application. In respect of the application for special leave to appeal out of time, Ms Levy saw an advantage in the matter being disposed of, despite the fact that there was no consent because other cases were pending which would be assisted by a ruling in this appeal. I will not analyse the application any further. Suffice to say there is a good practical reason in this case for my determining the appeal on the merits at this time. Accordingly I grant special leave extending the time for the filing of the appeal.
[8] With respect to the application which was effectively to adduce further evidence on a question of fact in the appeal, I record that counsel were content that I park this application simply to see if any particular matter arose in submission which might make it necessary to rule on it. That position was really forced on the respondent because there was no specific piece of evidence by affidavit adduced that might be said to need leave pursuant to r 20.16. Accordingly, I proceed on that basis.
Summary judgment
[9] It is appropriate that I record the jurisdictional basis for a District Court to consider an application for summary judgment. Part 12 of the District Court Rules
2014 is similar, but not identical, to the summary judgment jurisdiction which is prescribed in Part 12 of the High Court Rules. An important difference between the two regimes is that in the District Court a plaintiff may make the application for summary judgment at any time up until the expiry of 10 working days after the date on which the statement of defence is served, or later by leave. Correspondingly in the High Court a plaintiff is required to make the application at the time the
statement of claim is served or later with the leave of the Court. The District Court’s position enables admissions made in a statement of defence to be taken into account when the summary judgment jurisdiction is exercised. In the instant case, the application for summary judgment was in fact filed after the filing of the statement of defence.
[10] A plaintiff’s task in an application for summary judgment is to satisfy the Court that the defendant has no defence to any cause of action in the statement of claim or a particular cause of action. That has been explained in the authorities starting with Pemberton v Chappel.1 As Somers J explained the concept of no defence means “the absence of any real question to be tried”. The onus remains on the plaintiff. However, where the plaintiff ’s unchallenged evidence is sufficient to convince the Court that there is no defence, the defendant will obviously have to respond in order to defeat the application.2
The defences analysed
[11] The first defence raised in the District Court and repeated on this appeal is a claim that Mr Kent was not the registered owner of the property. Judge Davidson noted that Mr Kent is the registered proprietor of the property proved by production of a land transfer search. That is sufficient to comprehensively dispose of that defence.
[12] The second defence advanced is that Mr Kent is not the liable ratepayer. Mr Kent submitted that he is not personally the ratepayer for the purposes of s 10 of the Local Government (Rating) Act 2002 but, rather, an entity or entities which are loosely referred to as Kent’s Nurseries under several names is the ratepayer pursuant to s 11(2)(b)(A) of the Local Government (Rating) Act 2002. The evidential foundation advanced by Mr Kent was not satisfactory either in the District Court or in this Court. In fact, it seems that he has been given considerable licence in the way
he has produced material for his Court cases.
1 Pemberton v Chappell [1987] 1 NZLR 1, (1986) 1 PRNZ 183 (CA).
2 Maclean v Stewart (1997) 11 PRNZ 66.
[13] Ms Levy referred me to material provided by Mr Kent in his submission seeking an extension of time to appeal. She noted that this material is submission, not evidence. Mr Kent’s document states:
13 The various Kent nurseries have leases on the property known as
Kent’s Nurseries;
14 The leases are in accordance with s 11(2) of the Local Government
(Rating) Act 2002:
· The various Kent’s Nurseries were entered in the district valuation rolls as the occupiers of a separate rateable property under the Rating Powers Act 1988 that substantially corresponds with the rating unit entered in the rating information database.
· The party to the leases with the owners was entered into by the owners and the partnerships before 8 August 2001; and remains in force and precludes the renegotiation of rent or any other payments that would allow the owners to be reimbursed if the owners were directly liable to pay the rates due on the unit.
· In the case of leases under subsection 2(b)(iii)(A), the owners have provided a statutory declaration to the local authority that those provisions apply.
15 With the advent of the then new s 45 of the Rating Valuations Act
1998, the Upper Hutt City Council required the holders of leased properties to produce information.
16The leases were last reviewed on 1/9/1980. The term of the leases was for 99 years. Right of renewal was “Renewable in perpetuity”. These leases were a review of previous long-established leases.
17This has been well understood for many decades and confirmed in our various submissions.
18In previous judgments, the property has been known as Kent’s Nurseries for a very long time. I do not understand why the Upper Hutt City Council changed the rating records to the various owners’ names. Because some of the Upper Hutt City Council officers changed their story, that is not necessarily correct.
[14] Ms Levy submitted that the bona fides of the purported leases is questionable but for reasons which I will shortly give, it is not necessary to make a final determination of that. What is important is that the various entities that make up Kent’s Nurseries are admitted by Mr Kent to be partnerships and that in each case he is a partner. Mr Kent’s position is that it is the nursery partnerships which are the ratepayers.
[15] Although the issue was not specifically addressed by Judge Davidson for reasons which I will shortly state, the overall result makes no difference to Mr Kent’s liability for payment of the rates.
[16] Ms Levy referred to s 11(2) of the Local Government (Rating) Act 2002 and in particular the following provisions:
11Entry of ratepayer in rating information database and district valuation roll
...
(2) The name of a person who is a lessee of a rating unit must be entered in the rating information database and district valuation roll as the ratepayer in respect of the unit if—
(a) the name of the person was, immediately before the commencement of this section, entered in the district valuation roll as the occupier of a separately rateable property under the Rating Powers Act 1988 that substantially corresponds with the rating unit entered in the rating information database; and
(b) the person is a party to a lease or licence with the owner—
(i) that was entered into by the owner and the person before 8 August 2001; and
(ii) remains in force; and
(iii) either—
(A) precludes the renegotiation of rent or any other payments that would allow the owner to be reimbursed if the owner were directly liable to pay the rates due on the unit; or
...
(4) For the purposes of subsection (2), it is sufficient evidence, unless the contrary is proved, that the person referred to in that subsection must be named in the rating information database and the district valuation roll if,—
(a) in the case of a lease under subsection (2)(b)(iii)(A), the owner has provided a statutory declaration to the local authority that those provisions apply:
...
[17] Ms Levy noted that if Mr Kent could establish:
(a) that Kent’s Nurseries is a person or persons who were at 30 March
2002 entered on the valuation roll as the occupier and as a party to a lease with the owner that was entered into before 1 August 2001; and
(b)it remains in force and precludes a renegotiation allowing reimbursement of the owner; and
(c) was required to pay the rates, and Mr Kent has provided a statutory declaration to the local authority that those provisions apply;
Then he would be assisted by s 11.
[18] Ms Levy submitted that Mr Kent has not satisfied those requirements. In particular, no statutory declaration has been provided to the respondent.
[19] Mr Kent in his submissions to me drew attention to a statutory declaration. He could not point specifically to any piece of evidence to the effect that he had physically provided the statutory declaration to the local authority. He told me from the bar, however, in fact he had.
[20] This may well be an area which could have been the subject of the application to adduce further evidence. That is not determinative of this application. Mr Kent acknowledges that he is one of the partners of the various nursery partnership lessees who he claims are the responsible ratepayers in this case. Having regard to that concession, and bearing in mind the provisions of s 12 of the Partnership Act 1908, he and his partners are jointly liable for the rates. As such
judgment may be entered against him as one of the persons who are jointly liable.3
[21] Without doing any violence to this case, the position can easily be covered by an amendment being granted to the respondent to the statement of claim so that an
alternative cause of action alleging that Mr Kent is a partner of the lessees
3 Makatu Contractors Ltd v Makatu Transport Ltd (1994) 7 PRNZ 553 (CA).
concerned. It is unnecessary in this judgment that I set out the precise wording of the alternative cause of action. Suffice to say an amendment to the present [2] and a deletion of the present [3] would form part of that alternative cause of action.
[22] The alternative cause of action would simply need to refer to the various Kent Nurseries as the ratepayers in respect of the property and that they are obliged to pay the rates and that, in each case, Mr Kent is a partner in those nursery partnerships.
[23] Accordingly, in one or other of those alternative routes, Mr Kent is either directly the person liable to pay the rates or is liable as a partner of the entity to pay rates. Accordingly, there is simply no basis for upholding the second ground of appeal that was advanced.
[24] On the third ground of defence raised, the Judge dealt with that as follows:
[8] As to the third, there is absolute nothing raised by the defendant in either his statement of defence, his dismissal application, his summary judgment opposition or his affidavits in support that has not been raised and rejected during the course of the rating objection litigation I have briefly outlined between 2012 and 2014. In other words, his longstanding attack on the lawfulness of the rates has been heard and rejected on many occasions. There is simply no basis for a collateral attack on the rates in these proceedings. That is reinforced by s 63 Act which empowers a local authority to recover unpaid rates as a debt.
[9] More than that any recent objection lodged (I note one as recently as
3 February which was rejected as being out of time) cannot and does not operate as a bar or stay to any proceedings for recovery of rates.
[25] His Honour’s assessment in summary of the position has not been shown to be incorrect in any way. That is sufficient to dispose of the third ground.
The result
[26] The respondent was able to satisfy the Judge that Mr Kent had no defence to the rates claimed. Out of an abundance of caution, I allowed an amendment which simply signals if there is a need to record the various nurseries as the ratepayer, Mr Kent is a person jointly liable as he admits that he is a partner of each of the nurseries concerned. The Council is entitled to enforce the outstanding rates against
him as such. Accordingly, I conclude the judgment entered was properly entered and dismiss the appeal.
[27] I note that in the hearing conference, the Judge directed that this was a category 2 case. Accordingly, I order that Mr Kent pay the respondent’s costs based
on category 2, band B together with disbursements as fixed by the Registrar.
Faire J
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