Kilmister v Kiwa

[2012] NZHC 193

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2011-470-1098 [2012] NZHC 193

BETWEEN  LEO JAMES KILMISTER Plaintiff

ANDJOHN WAYNE KIWA AND ALIC HELEN KIWA

Defendants

Hearing:         17 February 2012

Appearances: Mr D M Calderwood for plaintiff

Mr J Kiwa and Mrs A Kiwa in person

Judgment:      17 February 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE

Solicitors:

Bush Forbes McLeod, P O Box 526, Tauranga – by email: [email protected]

Mr J and Mrs A Kiwa, Tauranga – by email: [email protected]

KILMISTER V KIWA HC TAU CIV-2011-470-1098 17 February 2012

[1]      An application for summary judgment was called before me today –   17

February 2012.  The plaintiff/applicant seeks summary judgment against Mr and Mrs Kiwa in terms of which an order is sought requiring the defendants and any other occupants of the property to deliver possession to the plaintiff within seven days. The property, according to the affidavit and title information on the file, was subject to a security held by the first mortgagee, Westpac New Zealand Limited.  Westpac exercised its power of sale under its mortgage.  The plaintiff, or more accurately his son, Richard James Kilmister, made an offer for the property which was accepted. Under the terms of that offer Mr Kilmister the plaintiff was nominated as the purchaser and it is in that right that he now seeks to enforce the contract of sale.  I understand that Mr and Mrs Kiwa refuse to relinquish possession of the property so that the Kilmister’s can settle their agreement for sale and purchase with Westpac.

[2]      Prior to the matter being called in my Court, Mr Kiwa filed at the Registry a document intituled “appearance objecting to jurisdiction of Court” it was intended that this document would be the basis of opposition by Mr and Mrs Kiwa to the plaintiff’s application for possession of the property, however the document was rejected.  The position therefore was that when the matter came before me today its status was as an unopposed application for summary judgment.   Notwithstanding that, I agreed to hear Mr and Mrs Kiwa when they appeared when their case was called.  They addressed me concerning what they considered were substantive rights of defence that they had which they should be able to put forward in answer to the plaintiff’s claim.  I was prepared to do that notwithstanding the fact that there had not been strict compliance with the rules in the matter of filing an opposition in the absence of which parties generally have no right to address the Court.  Mr and Mrs Kiwa were assisted by a McKenzie friend, Mr Helmbright.  I have listened carefully to what they have told me.  There are a number of strands to their submission.  One of them is that New Zealand is in a constitutional vacuum which means that this Court, as others, has no power to make orders.  There were also references made to native  title  considerations  which  dis-entitled  this  Court  from  making  the  orders which the plaintiff sought.  As I advised the defendants these issues have been taken in the Courts on previous occasions, not only at this level but also at appellate level. The question of entitlement to enforce rights over properties registered under the

Land Transfer Act is not affected in any way by the types of considerations that they wish to place before me.   In my view there could be no point in allowing the defendants to pursue a ground of opposition along these lines.   I therefore have advised  Mr  and  Mrs  Kiwa  that  I  intend  to  proceed  today  and  deal  with  the application which, as I have said, has the status of an unopposed summary judgment application.  I will now hear from counsel for the plaintiff.

[3]      The order which the plaintiff seeks is in these terms:

“An order requiring the defendants and any other occupants of the property to  deliver possession to the plaintiff within seven days following service of the sealed order for summary judgment”.

[4]      In my judgment the plaintiff is entitled to such an order and also to the order for costs which is sought under sub-paragraph (b) and I make an order accordingly.

[5]      The plaintiff is to serve a copy of the note of this judgment on Mr and Mrs

Kiwa together with the formal sealed judgment.

J.P. Doogue

Associate Judge