Maori Trustee v Hill
[2019] NZHC 2250
•10 September 2019
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2016-454-85
[2019] NZHC 2250
BETWEEN MĀORI TRUSTEE
Judgment creditor
AND
FREDRICK PIRIPI KINGI HILL
Judgment debtor
Hearing: 5 September 2019 Appearances:
C Reuhman for judgment creditor Judgment debtor in person
Judgment:
10 September 2019
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
This judgment was delivered by me on 10 September 2019 at 11.00am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
[1] After nearly five years of litigation between the judgment creditor, the Māori Trustee, and the judgment debtor, Mr Fredrick Hill, before the Court for determination is the Māori Trustee’s application for an order adjudicating Mr Hill bankrupt.
[2] Following a defended hearing in the District Court at Palmerston North, Judge Ross delivered a judgment dated 23 February 2015 in which the Judge:1
1 Māori Trustee v Hill DC Palmerston North CIV-2011-054-533, 23 February 2015.
MĀORI TRUSTEE v HILL [2019] NZHC 2250 [10 September 2019]
(a)made an order terminating a lease between the Māori Trustee as lessor and Mr Hill as lessee of a block of land in Mangatainoka;
(b)made a supplementary order granting the Māori Trustee possession of the land; and
(c)awarded the Māori Trustee damages in the sum of $87,423.33.
[3] That judgment was based on certain premises, most obviously that the Māori Trustee as the registered owner of the land was entitled to deal with it.
[4]The Māori Trustee’s status as such is disputed by Mr Hill.
[5] The lapse in time between the District Court judgment of 23 February 2015 and this hearing is explained by ongoing litigation between the parties. Focussing on litigation that relates directly to the matter before the Court today, and therefore ignoring collateral litigation initiated by Mr Hill in various courts:
(a)Mr Hill sought a retrial of the proceeding in the District Court. His application was dismissed by Judge Bouchier in a judgment dated 10 June 2015.2
(b)Mr Hill appealed from the District Court’s substantive judgment to this Court. His appeal was dismissed by Dobson J in a judgment dated 4 March 2016.3 This was a comprehensive judgment that addressed all of Mr Hill’s arguments, whether or not they had been argued in the court below.
(c)On 29 October 2016, the Māori Trustee served a bankruptcy notice based on the District Court judgment. On 11 November 2016, Mr Hill filed and served an application for an order setting the bankruptcy notice aside. Mr Hill’s application was heard on 7 April 2017.
2 Māori Trustee v Hill [2015] NZDC 10506.
3 Hill v Māori Trustee [2016] NZHC 364.
Associate Judge Smith dismissed that application in a judgment dated 29 September 2017.4 This too was a comprehensive judgment that addressed the same arguments.
(d)Mr Hill appealed from Associate Judge Smith’s judgment to the Court of Appeal. On 24 June 2019, the Court of Appeal struck Mr Hill’s appeal out on procedural grounds.5
(e)Mr Hill applied to the Court of Appeal for an order recalling its earlier judgment. The application was declined in a judgment dated 22 August 2019.6
(f)Mr Hill subsequently applied for leave to appeal against the Court of Appeal’s judgment to the Supreme Court. In a judgment dated 19 August 2019, the Supreme Court refused leave.7
(g)Contemporaneously with the filing of his interlocutory application in this proceeding, Mr Hill filed new proceedings in this Court against the Māori Trustee seeking damages. In a minute dated 19 July 2019, Dobson J directed the Registrar to refuse to accept that documentation for filing, essentially on the basis that it sought to re-litigate matters dealt with in the earlier judgments. Mr Hill has sought to challenge Dobson J’s direction.
[6] After all that, prior to the Māori Trustee’s bankruptcy proceeding coming on for hearing before the Court on 5 September 2019, Mr Hill filed and served a document entitled “Application and Interlocutory on Notice” dated 12 July 2019, together with a large bundle of supporting material. I am treating this as setting out the basis for Mr Hill’s resistance to the Māori Trustee’s application. In it Mr Hill says that he is seeking an order or orders rescinding or varying the earlier decisions — presumably
4 Māori Trustee v Hill [2017] NZHC 2377.
5 Hill v Māori Trustee [2017] NZCA 243.
6 Hill v Māori Trustee [2019] NZCA 381.
7 Hill v Māori Trustee [2019] NZSC 3.
the District Court judgments and the judgments of this Court — on the basis that they are “wrong in fact and law”. He goes on to identify why. Here is what he says:
2.The grounds on which said orders and directions are sought are as follows: the decision of this proceeding and court is wrong in fact and law whereby:
(i)The Māori Trustee is in no way shape or form trustee of an ‘Ahu Whenua Trust’ under section 438 (1) Maori Affairs Act 1953. There is no evidence that the Māori Trustee constituted the trust over ‘Mangatainoka 1BC2B3 part partition’ in terms of the provisions of section 215 Te Ture Whenua Act 1993 nor under the trust order by the Māori Land Court 13 May 1986. The trust order and constitutional document dated 13 May 1986 for ‘Mangatainoka 1BC2B3 Trust’ at Mangatainoka Block varies a previous trust vesting order of 1964 in the Māori Trustee from section 438 Maori Affairs Act 1953 [not section 438 (1)] to vesting and leasing under specifically, section 438 (3) (b) Maori Affairs Act 1953.
(ii)In law, all relative court decisions are effectively null n void, ab initio and should be recalled or otherwise dismissed by the inherent jurisdiction of the High Court, especially the order of the District Court dated 23 February 2014 applied as the basis of a ‘debt’ to Bankrupt.
(iii)The lease instrument dated 17 May 2007 used deceitfully by Defendant parties and the Courts in bias or whom acquiesced by consent is in law of no force and effect in terms of the relevant law, Te Ture Whenua Act 1993.
(iv)Decisions by both the District Court and High Court as submitted in filings supporting this notice and applications are ultra vires and or per incuriam.
(iv) The purported Judgment Debtor seeks a stay in this proceeding and orders to rescind the earlier decision of this court and or otherwise vary to a competent jurisdiction on stay in favour of the Applicant as submitted in filings hereto or attached and award judgment in damages by summary judgment and or a valid set-off, cross claim by way of rehearing.
3.The application is made per sections 17 (7) (b), 414 (1) Insolvency Act 2006, High Court Rules 2016, Senior Courts Act 2016, Te Ture Whenua Act 1993, Bill of Rights Act 1990, Contract and Commercial Law Act 2017, Fair Trading Act 1986 section 9, 12 (a) (2), Limitation Act 2010 but not limited.
[7]During the course of the hearing Mr Hill expanded on those points.
[8] I decline Mr Hill’s invitation to reconsider the underlying issues addressed in the earlier judgments.
[9] Section 17 of the Insolvency Act 2006 provides that the failure on the part of the judgment debtor to comply with a bankruptcy notice constitutes an act of bankruptcy, capable of supporting bankruptcy proceedings, except in certain circumstances. Those circumstances include where the judgment debtor can establish that he or she has a cross-claim. A cross-claim is a “counterclaim, set-off or cross-demand” that is equal to or greater than the amount of the judgment debt and that the judgment debtor could not raise as a defence in the original proceeding.8
[10] Mr Hill is not entitled to rely on a cross-claim here. All the arguments that he now seeks to advance were available to him by way of defence in the original proceeding in the District Court, and those arguments — or variations of them — were relied on by him in that proceeding, and on appeal to this Court.
[11] Mr Hill has had at least three substantive opportunities to advance these arguments, has done so, and they have been dismissed. They cannot be reopened in reliance on a cross-claim.
[12]Section 414(1) of the Insolvency Act says:
(1)The court may review, rescind, or vary any decision of the court or a Judge under this Act.
[13] That provision is not a licence for the Court to reconsider substantive decisions, or some sort of alternative process to appeal. In Re Guise, ex parte NZI Bank Ltd, Robertson J said of the predecessor to s 414(1) (s 8 of the Insolvency Act 1967) that, although expressed in wide terms, “it is not to be treated as providing any disgruntled litigate with a ‘second bite at the cherry’”.9 Similar observations were made by Randerson J in Property Restoration Ltd (in liq) v Farquhar.10 In Balzat v Zhang, Heath J suggested that the proper scope of operation of s 414(1) was to deal with situations in which a court had proceeded without notice or in circumstances of
8 Insolvency Act 2006, s 17(7).
9 Re Guise, ex parte NZI Bank Ltd HC Auckland B954/90, 22 November 1990.
10 Property Restoration Ltd (in liq) v Farquhar HC Auckland CP338/87, 9 November 1998.
urgency and given no or limited reasons for its decision, or where there is reason to think that the Court may have been misled with the result that it proceeded on an incorrect premise.11 Heath J’s judgment was referred to with approval by the Court of Appeal in Sharma v Wati.12
[14] Furthermore, s 414(1) only applies to decisions made by the High Court or a High Court Judge under the Insolvency Act. The decisions underlying Mr Hill’s judgment debt are not decisions under the Insolvency Act and cannot be challenged under that provision. While Associate Judge Smith’s decision concerning Mr Hill’s application to set aside the bankruptcy notice was a decision of the High Court under the Insolvency Act, that decision was unsuccessfully appealed to the Court of Appeal (and leave to appeal was declined by the Supreme Court). I doubt whether s 414(1) can be used where an appeal has been lodged. That is contemplated by s 414(2).
[15] The short point is that all of the issues identified by Mr Hill in his notice of interlocutory application quoted in full above have been the subject of careful scrutiny in both the District Court and this Court. It would be entirely inappropriate for this Court to revisit those issues at this stage. They have been determined already, and the parties are bound by that determination.
[16]On those bases, I dismiss Mr Hill’s interlocutory application.
[17] That brings me to the Māori Trustee’s application for an order adjudicating Mr Hill bankrupt.
[18] As far as I am able to see the Māori Trustee can prove all of the necessary elements and there is no room for objection to any aspect of her application. Prima facie the Māori Trustee is entitled to the order she seeks.
[19] During the course of the hearing I specifically asked Mr Hill whether, putting aside any matters raised in his interlocutory application, he wished to raise any
11 Balzat v Zhang HC Auckland CIV-2008-404-6062, 22 September 2009 at [59].
12 Sharma v Wati [2012] NZCA 195, (2012) 21 PRNZ 161 at [14]–[15].
argument of a procedural or substantive kind in relation to the Māori Trustee’s application.
[20] Mr Hill’s response was to tell me that bankruptcy would cause problems in his life, including embarrassment in other proceedings in which he is currently involved in the Māori Land Court and the Waitangi Tribunal. I do not doubt that. But it is no argument against the order that the Māori Trustee seeks.
[21] On the application of the Māori Trustee, I make an order pursuant to s 11 of the Insolvency Act bankrupting Fredrick Hill (aka Fredrick Piripi Kingi Hill) and appointing the Official Assignee at Palmerston North as Assignee of his estate in bankruptcy.
[22] That order is made on the date and at the time that appears on the front cover of this judgment.
[23] The Māori Trustee is entitled to her costs on a 2B basis together with such disbursements as may be allowed by the Registrar.
Associate Judge Johnston
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