Khov v Hovell

[2024] NZHC 3301

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-470-112

[2024] NZHC 3301

UNDER

Part 12 of the High Court Rules 2016

IN THE MATTER OF

an application for summary judgment for possession of land and sale orders

BETWEEN

STEVEN KHOV and KIERAN JONES as

liquidators of Takimano Limited (in liquidation)
Plaintiffs

AND

TAMA LORENCE HOVELL and KRISTY HIRIA HILL

First Defendants

PERSONS UNKNOWN, being any other occupiers of 115 Waitao Road, Waitao, Tauranga

Second Defendants

Hearing:	6 November 2024
Counsel:	J McDougall/S Mossman-Young for the Plaintiffs No appearance for the Defendants
Judgment:	7 November 2024

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 7 November 2024 at 2.30 pm.

Pursuant to Rule 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

Solicitors/Counsel:
Holland Beckett, Tauranga

KHOV and JONES v HOVELL [2024] NZHC 3301 [7 November 2024]

Introduction

[1]                  The plaintiffs, Steven Khov and Kieran Jones, are the liquidators of Takimano Ltd (in liquidation) (Takimano). The liquidation order was made by the Court on the application of Carters Building Supplies Ltd, a trade creditor of Takimano.

[2]                  The first defendants, Tama Hovell (Mr Hovell) and Kristy Hill (Ms Hill) are shareholders of Takimano. Takimano  is  the  registered  owner  of  a  property  at 115 Waitao Road, Waitao, Tauranga, comprised in two titles (the property). The titles are general freehold land.

[3]                  In this proceeding, the liquidators seek an order for possession of the property, to enable them to fulfil their functions as liquidators to realise the assets of Takimano and pay creditors. The liquidators intend to sell the property.

[4]                  Ms Hill has filed an appearance objecting to the jurisdiction of this Court, on the ground that the proceeding involves the application of tikanga, which must be referred to the Māori Appellate Court. The liquidators have applied to set aside the appearance, on the grounds that the Court has jurisdiction to hear this proceeding.

[5]                  Ms Hill has not filed a notice of opposition to the liquidators’ application to set aside her appearance. However, she has filed a memorandum dated 3 October 2024 which sets out her arguments. Ms Hill did not appear when this matter was heard on 6 November 2024.

[6]                  The sole issue for determination is whether this Court has jurisdiction to hear the liquidators’ application for an order requiring the shareholders of Takimano to surrender possession of the property to the liquidators.

Ms Hill’s challenge to jurisdiction

[7]                  Ms Hill challenges the “application of the Westminster system and English Law to Māori hapū whānau tangata whenua.” She asserts that “the system” is incompatible with tikanga. Ms Hill asks for the case to be referred to Māori hapū

whānau tangata whenua, or to the Māori Appellate Court. The only ground advanced in support of the argument is that the property is a “space for Māori hapū whānau tangata whenua from across the region”. Ms Hill has not provided any detail of the tikanga supposedly engaged by the liquidators’ claim in this proceeding.

Context provided by the liquidators

[8]                  Takimano was placed into liquidation by the High Court on 9 December 2022. In March 2023, Mr Hovell and Ms Hill applied to the Māori Land Court for orders in respect of land in Ōtāhuhu leased by Takimano, and an order restraining the liquidators from performing their functions. The application was dismissed on 20 July 2023.1

[9]                  Mr Hovell and Ms Hill filed an appeal with the Māori Appellate Court. The appeal was dismissed on 24 April 2024, on the grounds that the Court did not have jurisdiction to hear the appeal.2

[10]              The liquidators say that, since their appointment, Mr Hovell and Ms Hill have made various allegations in court applications, pleadings and affidavits, including that:

(a)the courts of New Zealand and other institutions of government exercise their power in a “shadow dimension”; and

(b)the “doctrine of discovery” is being deliberately maintained and applied against the interests of Māori.

[11]Ms Hill makes similar claims in her memorandum filed in this proceeding.

Legal principles

[12]              This Court’s jurisdiction derives from statute and its inherent jurisdiction. The Court has unlimited general jurisdiction and the ability to hear any matter put before

1      Hill v PTW Holdings Ltd – 587-591  Great  South  Road  (2023)  262  Taitokerau  MB  140  (262 TTK 140).

2      Hovell v PTW Holdings Ltd – 7 Piki Thompson Way [2024] Māori MB 48 (2024 APPEAL 48).

it unless some other statutory provision confers exclusive jurisdiction upon another court or tribunal.3

[13]              The Court has a statutory supervisory jurisdiction over liquidations under s 284 of the Companies Act 1993 (the Act), and inherent jurisdiction to supervise liquidations.4

Discussion

[14]              The property that is the subject of this proceeding is general freehold land. Mr Hovell and Ms Hill elected to incorporate a company and to register that company under the Act. In doing so, they created a legal entity, Takimano, that is subject to the Act.

[15]              As directors, they directed Takimona to acquire ownership of the property, and to be registered on the register of land under the Land Transfer Act 2017.

[16]              The liquidators have been validly appointed under the Act. They must comply with the duties conferred on them by the Act. They are required to realise Takimano’s assets, including the property.5

[17]              There is no doubt that this Court has jurisdiction to make an order giving the liquidators vacant possession of the property. Whether that order should be made is to be determined by the liquidators’ application for summary judgment. There is no basis for Ms Hill’s protest to jurisdiction.

Orders

[18]              The notice of appearance by Kristy Hiria Hill objecting to the jurisdiction of the Court is set aside.

3      Senior Courts Act 2016, s 12; Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [113]; Mafart v Television New Zealand Ltd [2006] NZSC 33, [2006] 3 NZLR 18 at [15]; and Taylor v Attorney-General [1975] 2 NZLR 675 (CA) at 681 and 682.

4      Re Securitibank Ltd (in liq) [1978] 1 NZLR 97 (SC) at 106; ANZ National Bank Ltd v Sheahan [2012] NZHC 3037 at [129]; Commissioner of Inland Revenue v Livingspace Properties Ltd [2020] NZHC 1434 at [168].

5      Companies Act 1993, s 253.

[19]              Kristy Hiria Hill shall pay costs to the plaintiffs on a 2B basis of $7528.50 plus disbursements of $857.

[20]              The liquidators’ application for summary judgment is adjourned for call in the Summary Judgment List on 9 December 2024 at 10.30 am.

[21]              If Kristy Hiria Hill wishes to oppose the application, then she shall file and serve a notice of opposition, and any supporting affidavits, by 18 November 2024.

[22]The plaintiffs may file and serve any affidavits in reply by 2 December 2024.

Associate Judge Brittain