Nicholls v Nicholls

[2013] NZHC 3348

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2013-419-696 [2013] NZHC 3348

UNDERRule 17.29 of the High Court Rules and s 85(4) of Te Ture Whenua Maori Act

1993

IN THE MATTER             of the Transmission of Injunction to the High Court of an order of the Maori Land Court by way of Injunction (57 Waikato Maniapoto MP 83-84)

BETWEEN  MARK STEVEN NICHOLLS, AIRINI PIRIHIRIA TUKERANGI, DELACE WILLIAM JAMES, KAHUTOROA MATAIA TUKERANGI, VIV TAMA NICHOLLS, ANITA MARI NORMAN and SARAH JANE NICHOLLS Applicants

ANDGEORGE TAMA NICHOLLS Respondent

Hearing:                   5 December 2013

Appearances:           D E Wackrow and R L Gray for Applicants

J P Kahukiwa and D L Takitimu for Respondent

Judgment:                12 December 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 12 December 2013 at 4.45 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Wackrow Williams & Davies Limited, Auckland

Corban Revell, Auckland

NICHOLLS v NICHOLLS [2013] NZHC 3348 [12 December 2013]

[1]      This decision concerns two applications, namely:

(a)      an application by the Applicants (“trustees”) pursuant to s 85 Te Ture Whenua Act 1993 (“Act”), for enforcement of an injunction issued by the Maori Land Court (“Court”).   Specifically the trustees seek the issue of a possession order;1 and

(b)      an amended application by the Respondent dated 22 November 2013 to dismiss the trustees’ application, alternatively to stay enforcement.2

[2]      The Court may only grant a stay under rule 17.29 High Court Rules if a substantial miscarriage of justice would be likely to result in the absence of such a stay.  For reasons set out below, I am not satisfied that any such miscarriage would arise.

Background

[3]      The land (“land”) is Maori land as defined in the Act and is situated in

Oamaru Bay, Coromandel.

[4]      On 15 August 2011, the Court constituted the W T Nicholls Trust as an ahu whenua trust (“trust”) in respect of the land, appointed the trustees as the trustees of the trust and vested the land in the trustees jointly.3

[5]      Part of the land is operated as a camping ground.  As of October 2012, the Respondent was occupying parts of the land, including a residential property on the camping ground.   The Respondent’s associates were also in occupation.   Prior to that, the residential property had been occupied by the manager of the camping ground.   The trustees’ evidence is that the Respondent or his brother required the manager to vacate the residential property and the manager did so.  The Respondent

has been in occupation since 2010.

1 High Court Rules, r 17.80.

2 Ibid, r 17.29.

3 Te Ture Whenua Act 1993, ss 215, 220 and 222.

[6]      The trustees require the income earned from the camping ground to meet expenses such as rates, interest payments and other outgoings.  In earlier years the income generated has been in the vicinity of $250,000 per annum.  The trustees’ case is that the Respondent and his associates have received this income but have not accounted for the same.  The rates are now in arrears in an amount of approximately

$140,000.

Injunction

[7]      By application dated 15 October 2012, the trustees applied to the Court for injunction and for orders for recovery of the land.4   In particular, the trustees sought:

(a)      recovery of the land, as the Respondent and his associates were in possession;

(b)      an injunction against the Respondent and his associates on the basis (in summary) that they were trespassers, and requiring them to stay off the land and to permit recovery of that which had been earned from the land.

[8]      The application came before the Court on 20 December 2012, at which time the Court heard evidence and submissions.

[9]      On  21  December  2012  the  Court  delivered  an  oral  judgment  on  the application and made the following orders (“injunction”):5

1.Those  persons  listed  as  the  Respondents  above  are  not  to  enter and/or occupy the lands being the Oamaru Camping ground without the consent of the trustees;

2.The  Respondents  are  not  to  occupy  any  of  the  other  properties situated  in  the  Oamaru  Bay  as  noted  in  Schedule  A  (attached) without the consent of the trustees.  The Respondents also have 30 days to vacate these lands;

AND IT IS FURTHER ORDERED pursuant to rule 7.5(2)(b) of the Maori Land Court Rules 2011 that this order issues IMMEDIATELY from the office of the Court.

4 Ibid, at ss 19 and 20.

5 Nicholls v Nicholls – W T Nicholls Trust (2012) 50 Waikato Maniapoto MB 10-16 (50 WM 10).

[10]     Rule 7.5 Maori Land Court Rules provides:

7.5      Time for completion of order

(1)      An order must not be completed until—

(a)       the period of 2 months for an appeal to be filed has elapsed (or, if the Court has granted a longer period for filing an appeal, that longer period has elapsed); and

(b)      any appeal against the order has been finally disposed of;

and

(c)       any conditions under section 73 of the Act or otherwise to which the order is subject have been satisfied; and

(d)       any  requirements  as  to  a  plan  under  rule  7.7  have  been complied with; and

(e)       all Court fees and other charges relating to the order have been paid.

(2)      However, the following orders may be completed without delay: (a)         an order granting an injunction:

(b)      with the leave of the Court, any other order.

Section 85

[11]     Section 85 of the Act permits the Chief Judge of the Court to transmit a copy of the injunction to a Registrar of the High Court.  On receipt, the Registrar is to file the copy as of record in the High Court.  On such filing the injunction is deemed to have been issued by the High Court and may be enforced in the manner provided for in s 85(2) of the Act.

[12]     Section 85 provides:

85       Enforcement by High Court of injunctions

(1)       For the purpose of enforcing any injunction issued by the Court, the Chief Judge may, on the application of any party or of the Chief Judge's own motion, transmit a copy of the injunction, under the hand of the Chief Judge and the seal of the Court by which the injunction was issued, to any Registrar of the High Court, who shall file it as of record in that Court.

(2)       On the filing of a copy of any such injunction, the injunction shall be deemed to have been issued by the High Court, and may be enforced

by writ of attachment or otherwise in accordance with the practice of that Court.

(3)      ...

(4)       The filing in the High Court under this section of a copy of an injunction issued by the Maori Land Court or the Maori Appellate Court  shall  not  limit  or  affect  any  right  or  power  of  rehearing, appeal, amendment, or cancellation existing in respect of that order.

[13]     On or about 25 January 2013, the Respondent lodged a notice of appeal to the

Maori Appellate Court in respect of the orders made on 21 December 2012.6

[14]     On or about 6 March 2013, the Respondent sought a stay of enforcement of the injunction pending determination of the appeal referred to in [13] above.  The application for stay was dismissed on 30 April 2013.7

Transmission of injunction to High Court

[15]     On 20 June 2013, the Chief Judge of the Court transmitted a copy of the injunction to the Registrar of the High Court at Hamilton and the Registrar filed the copy in the High Court.  Counsel for the Respondent submits that the transmission was deficient in two respects, as set out below.

[16]     On 28 June 2013, the Respondent lodged a notice of appeal to the Maori Appellate Court against the decision of 30 April 2013, dismissing the application for stay.

[17]     The  Respondent’s  appeal  against  the  injunction  came  before  the  Maori

Appellate Court on 29 and 30 July 2013.

[18]     The Maori Appellate Court dismissed the appeal on 3 October 2013,8  with reasons to be given later. The Court delivered its reasons on 22 November 2013.9

6 Te Ture Whenua Act 1993, s 58.

7 Nicholls v Nicholls – W T Nicholls Trust (2013) 55 Waikato Maniapoto MB 288 (55 WM 288).

8 Nicholls v Nicholls – W T Nicholls Trust (2013) 2013 Waikato Maniapoto Appellate Court MB 515 (2013 APWM 515).

9 Nicholls v Nicholls – W T Nicholls Trust (2013) 2013 Waikato Maniapoto Appellate Court MB 598 (2013 APWM 598).

[19]     The Respondent has filed a Notice of Appeal to the Court of Appeal against the decision of the Maori Appellate Court.

Respondent’s application to High Court to dismiss/stay

[20]     Rule 17.29 High Court Rules provides:

17.29   Stay of enforcement

A liable party may apply to the court for a stay of enforcement or other relief against  the  judgment  upon  the  ground  that  a  substantial  miscarriage  of justice would be likely to result if the judgment were enforced, and the court may give relief on just terms.

[21]     The principal grounds on which the Respondent seeks relief are:

(a)       the Respondent’s appeal to the Court of Appeal is meritorious and will be rendered nugatory in the absence of a stay; and

(b)      the balance of convenience favours the Respondent.

[22]     As to the first ground, I do not accept that the Respondent’s prospects before the Court of Appeal would be affected by his compliance now with the orders made against him to vacate and to stay off the land.   I add that counsel for the trustees informed me that the trustees would not make any submission to the Court of Appeal to the contrary.

[23]     As to the balance of convenience, I am not satisfied that it does favour the Respondent,  in  the  context  of  the  circumstances  as  I  have  described  them. Compliance is long overdue and it is essential the trustees have control of the land and the income it generates.

[24]     The Respondent also relies on three further matters.

[25]     The first concerns the “application” referred to in s 85(1), that being the application to the Chief Judge to transmit a copy of the injunction to the High Court.

[26]     Rule 4.2 Maori Land Court Rules requires such an application to be in form 1 to the Rules.  I have reviewed what I believe to be the application and, with respect, any non compliance is not apparent to me.  If I am wrong in that, however, I am not satisfied that any deficiency in the form of application would provide a ground on which to stay enforcement, given that there is no dispute the injunction was issued and transmitted, and has been filed in the High Court.  Once filed, the injunction is

deemed  to  have  been  issued  by the  High  Court.10      I  am  not  satisfied  that  the

High Court would be entitled to decline to enforce on the ground that a written application to the Maori Land Court was not in accordance with the particular form stipulated.

[27]     The second matter relied on by the Respondent concerns the “memorandum”

referred to in rule 9.8(2) Maori Land Court Rules.  Rule 9.8 provides:

9.8      Enforcement of injunction

(1)      The Chief Judge must not, under section 85 of the Act, send a copy of the order to a Registrar of the High Court unless either—

(a)       an affidavit of service of the order has been filed in the

Court; or

(b)      a Judge has directed that service of the order is not required. (2)     The copy of the order sent to a Registrar of the High Court must be

accompanied by a memorandum in form 17.

(3)      A certificate given by a Judge under section 85(3) of the Act must be addressed to a Registrar of the High Court.

[28]     Form 17 is as follows:

Memorandum transmitting order by way of injunction to High Court for enforcement

r 9.8

Section 85, Te Ture Whenua Maori Act 1993

The Maori Land Court of New Zealand

[Name of district] District

In the matter of section 85 of Te Ture Whenua Maori Act 1993

10 Te Ture Whenua Act 1993, s 85(2).

And

In the matter of an order of the Maori Land Court by way of injunction in respect of

[specify].

To the Registrar of the High Court at [place]

Transmission of order

Pursuant to section 85 of Te Ture Whenua Maori Act 1993, I transmit to you, for filing as of record in the High Court, a copy of an order by way of injunction made by the Maori Land Court on [day, date].

Solicitors acting

...

[29]     The Respondent submits that there is no evidence that the required form 17 memorandum accompanied the transmission of the injunction.  Section 85 refers to an injunction whereas rule 9.8 refers to an order but nothing turns on the difference. There  is  no  evidence  that  a  memorandum  in  form  17  was  transmitted  to  the High Court but again I do not consider that provides a basis for granting a stay in the present case. As I have said, there is no dispute that the injunction was issued.

[30]     The third matter relied upon by the Respondent is rule 7.5(1)(b) Maori Land Court Rules, and the Respondent’s appeal to the Court of Appeal. The Respondent’s submission is that the effect of the appeal to the Court of Appeal is to bring the matter within rule 7.5(1)(b) which prohibits “completion” of an order until any appeal against the order has been disposed of finally.

[31] That submission overlooks the wording of the injunction referred to at [9] above, that is that the order issues immediately. It is not apparent to me why the injunction refers to rule 7.5(2)(b) instead of rule 7.5(2)(a) but regardless the Court’s intention is clear, namely that it shall be effective immediately.

[32]     Accordingly, I do not accept that this third matter on which the Respondent relies provides any basis for withholding enforcement.

Trustees’ application

[33]     As I have said, the trustees seek that a possession order be issued pursuant to rule 17.80 High Court Rules.11

[34]     Rule 17.8 High Court Rules provides that an enforcement process (which includes a possession order) may be issued as of right unless leave is required under rule 17.9 High Court Rules.   It is not apparent to me whether such leave may be required in this case.   To avoid further procedural steps, I grant such leave if it should be required.

Events subsequent to the hearing

[35]   By memorandum dated 9 December 2013, filed after the hearing, the Respondent set out certain terms on which he would be willing to vacate the land. At my request the trustees responded by memorandum dated 11 December 2013. The trustees opposed the Respondent’s memorandum being read or acted upon, and sought a determination of the two applications before the Court.

[36]     Having  considered  the  matter,  I  am  satisfied  that  the  best  course  is  to determine the applications on the basis of the evidence before the Court and the submissions made at the hearing.  I have put the memoranda to one side accordingly.

Result

[37]     I dismiss the Respondent’s application dated 22 November 2013.

[38]     The  Applicants  may  seek  the  issue  of  a  possession  order  pursuant  to rule 17.80 High Court Rules.  To the extent it may be required, I grant leave to the

Applicants pursuant to rule 17.9 High Court Rules.

11 Application for Possession Order dated 19 June 2013.

[39]     The Applicants having succeeded, they are entitled to costs on a 2B basis together with disbursements.  Both are to be fixed by the Registrar in the event of dispute.

..................................................................

M Peters J