Nottingham v Attorney-General

[2024] NZHC 3644

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-706

[2024] NZHC 3644

UNDER

the Defamation Act 1992

BETWEEN

PHILLIP RAYMOND NOTTINGHAM, ROBERT EARLE MCKINNEY and GEORGE BULLOCK

Plaintiffs

AND

ATTORNEY-GENERAL

First Defendant

PATTERSON HOPKINS LAW, WILLIAM PATTERSON and ROBYN HOPKINS
Second Defendants

WARREN ERNEST BEERE

Third Defendant

Hearing:

14 October 2024

Appearances:

Plaintiffs in person (with D Nottingham as McKenzie Friend) D J Watson and R M Fistonich for First Defendant

L G Cox for Second Defendants

Judgment:

3 December 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 3 December 2024 at 10.00 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

NOTTINGHAM v ATTORNEY-GENERAL [2024] NZHC 3644 [3 December 2024]

TABLE OF CONTENTS

Post hearing developments – recusal  [5]

Recusal  [10]

Background  [25]

Summary judgment principles  [54]

Defences of absolute and qualified privilege and s 235 of the LTA  [57]

Absolute immunity  [58]

Statutory immunity — s 235 of the Land Transfer Act 2017  [72]

Matters relied on as showing bad faith  [85]

Registering the caveats  [87]

Failing to remove the caveats  [102]

Failing to take action  [113]

Qualified privilege  [117]

Abuse of process  [122]

Strike out principles  [123]

Dow Jones & Co Inc v Jameel  [125]

Discretion to award summary judgment  [132]

Result  [135]

[1]                 The plaintiffs allege they were defamed by the defendants and seek general and punitive damages. The claim relates to registered caveats searchable on the Toitū te Whenua Land Information New Zealand (LINZ) website, which the plaintiffs contend contain defamatory material that they committed “criminal fraud”.

[2]                 The Attorney-General, named as a party on behalf of the Registrar-General of Land (Registrar), applies to strike out the claim against her or summary judgment. Broadly, the issues that arise are whether the Attorney-General has established her entitlement to the relief sought on the grounds:

(a)she has a defence of absolute privilege; or

(b)no tortious liability can arise in this case against the performance of functions, powers or duties by the Registrar or his delegates under the Land Transfer Act 2017 (LTA);1 or

(c)she has a defence of qualified privilege; or

(d)no real or substantial tort has occurred.

[3]                 The plaintiffs are self-represented but at the hearing Dermott Nottingham presented submissions on their behalf as a McKenzie Friend.2

[4]                 Mr Cox made an appearance for the second defendants but made no submissions in support of or in opposition to the application.

Post hearing developments – recusal

[5]                 Since the hearing the plaintiffs filed what purports to be an application for orders, including that:

1      Land Transfer Act 2017, s 235.

2      Associate Judge Brittain made a direction that Dermott Nottingham could present the plaintiffs’ submissions in Nottingham v Attorney-General [2024] NZHC 2410 at [44]. I refer to Dermott Nottingham to distinguish him from the plaintiff Phillip Nottingham, whom I refer to throughout this judgment as Mr Nottingham.

(a)a Full Court of the High Court be convened to decide whether I and other Judges of the High Court, Crown Law and various solicitors have been involved in corrupt activities; and

(b)I should not determine this application due to “disclosed open animus” towards the plaintiffs and bias in favour of Crown Law; and

(c)the Attorney-General’s application be determined by a Full Court of the High Court; and

(d)this proceeding be removed to the Court of Appeal.

[6]The plaintiffs’ application was not supported by any affidavit evidence.

[7]                 There is no reason this application should be determined by a Full Court of the High Court. It is not complex nor does it raise issues of general or public importance. I note also that such an application by the plaintiffs was previously rejected by Associate Judge Brittain and nothing has changed.3   The application is again refused.

[8]                 As far as the application in [5(a)] is concerned, the orders sought are not ones that can be made in this proceeding. In relation to the application in [5(d)], the plaintiffs would need to apply to the Court of Appeal and show exceptional circumstances, which clearly do not exist.4

[9]That leaves the application that I recuse myself.

Recusal

[10]              This is the third occasion the plaintiffs have made an application that an Associate Judge recuse himself from hearing this or a related proceeding.5 The applications are clearly tactical. In this and other instances the plaintiffs have also chosen to attack the integrity of counsel.

3      Nottingham v Attorney-General [2024] NZHC 2410.

4      Senior Courts Act 2016, s 59.

5      Nottingham v Attorney-General, above n 3; and Beere v Bullock [2024] NZHC 3174.

[11]              Judges are obliged to sit on cases allocated to them unless grounds for disqualification exist. The grounds for recusal are founded on protecting public confidence in the independence and impartiality of the judiciary and the administration of justice.

[12]              Recusal guidelines exist to assist Judges in deciding whether they should recuse themselves from a proceeding.6 Recently, in Ressels v Southern Response Earthquake Services Ltd, Associate Judge Lester summarised the relevant principles as follows:7

[20]The general principles are (with my own emphasis added):

“(a)A judge has an obligation to sit on any case allocated to them unless grounds for recusal exist.

(b)A judge should recuse themselves if, in the circumstances, a fair-minded, fully informed observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

(c)The standard for recusal is one of real and not remote possibility, rather than probability.

(d)The test for this is a two-stage one:

(i)what is it that might lead to a reasonable apprehension by a fully informed observer that the judge might decide the case other than on its merits; and

1. whether there is a logical and sufficient connection

between those circumstances and that apprehension.

(e)The question of recusal is for the judge who should consider:

(i)the above principles firmly and fairly and not accede too readily to suggestions of bias;

(ii)the burden passed to other judges if the judge recuses themselves unnecessarily;

(iii)a judge is not required to recuse themselves merely because the issues in the case are in some indirect way

6      Senior Courts Act 2016, s 171; and see Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [SC171.01]. The guidelines are published at v Southern Response Earthquake Services Ltd [2024] NZHC 1264.

related to the judge’s personal experience or the judge has previously dealt with the case;

(iv)the making of a complaint to the Judicial Conduct Commissioner against a judge does not of itself serve to disqualify the judge from hearing cases involving the complainant; and

(v)if, after considering all relevant circumstances, there is doubt regarding whether there may properly be an appearance of bias, it may be prudent for the judge to decline to sit in that case.

(f)Conflicts of interest can arise in a number of situations and a judge should be alert to any appearance of bias arising out of connections with litigants, their legal advisors or witnesses.

(g)The apprehension of bias is case dependent.

[13]              As reflected in the guidelines, a Judge is disqualified if in the circumstances “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.8 Associate Judge Lester observed in Ressels:9

[24] The test of the fair-minded lay observer is objective, and they are “neither unduly sensitive or suspicious nor complacent about what may influence the judge’s decision”. The observer is an informed one, understanding that a judge is expected to be independent, has an obligation to sit on any case allocated unless there are grounds for disqualification, and that New Zealand’s judicial system functions on the basis of making decisions irrespective of the merits or demerits of the litigants’ counsel. At the same time, the lay observer is not a lawyer and does not have detailed knowledge of the law.

(footnotes omitted)

[14]Therefore, in considering the plaintiffs’ application I must identify:

(a)what it is said might lead me to decide this case other than on its legal and factual merits; and

(b)whether there is a logical connection between those matters and the feared deviation from the course of deciding this case on its merits.

8      Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at [6].

9      Ressels v Southern Response Earthquake Services Ltd, above n 7.

[15]              It is alleged I disclosed animus towards the plaintiffs and bias in favour of Crown Law and that I am involved with others, including Crown Law, to corruptly harm the plaintiffs and conceal criminal offending of certain named lawyers. The allegations have no foundation in fact.

[16]              To the best of my recollection I have never previously met any of the parties to this proceeding, or any of the lawyers acting for those parties, or any of the lawyers named by the plaintiffs  as being involved in corrupt activities.   The exception is   Mr Patterson, who has appeared before me as counsel. I have not had any other dealings with him professionally or socially. I bear no animus towards the plaintiffs. I have no reason to, and do not, favour the interests of any party to this proceeding or persons associated with them.

[17]              I do not accept the plaintiffs’ recollections of the hearing in all respects, but it would unnecessarily lengthen this judgment to address those matters. This is because there is no logical connection between any of the matters raised and the plaintiffs’ assertions that I am biased or corrupt. I now explain why that is the case in respect to each matter.

[18]              The first matter advanced as evidence of my alleged animus and bias concerns me pointing out to Dermott Nottingham the content of certifications provided by the second defendant, Ms Hopkins, when lodging the caveats that are in issue. This was in the context of Dermott Nottingham submitting Ms Hopkins certified that she held evidence to establish the plaintiffs were guilty of fraud. It is said “[t]he angle” of my intervention was to protect Ms Hopkins.

[19]              A fair-minded observer would understand that a Judge will test the parties’ submissions on matters of fact and law, and in circumstances where the Judge considers a party’s submissions are incorrect draw that to their attention so they have an opportunity to respond. In this instance it appeared to me, and remains my view, that a fundamental aspect of the plaintiffs’ case was based on a misreading of the certifications.

[20]              The second matter is that I did not appear to know of “notorious” cases referred to in the plaintiffs’ submissions. It is also said I asked what evidence the plaintiffs had in relation to the strike out application when Associate Judge Brittain had refused the plaintiffs’ application to cross-examine the Registrar and the evidence of the Registrar’s corruption was “overwhelming”.

[21]              A fair-minded observer would understand that a Judge cannot be expected to be aware of every case decided on a particular issue. A Judge will often take time after a hearing to consider case law to which he or she is referred. That is what has occurred here. As to my asking about the evidence, that is a normal feature of any court hearing. A Judge must decide a case on the basis of the evidence and may ask a party to support a submission by reference to the evidence. I add that the submission that evidence of the Registrar’s corruption was overwhelming is not one with which I agree, as I will come to.

[22]              The third matter is that I did not ask Crown counsel why Crown Law and the Registrar had not prosecuted the second defendants, or removed the second defendants’ access to the Landonline intranet system or reported their conduct to the New Zealand Law Society. It is said this was clear evidence of corruption.

[23]              I expect I did not ask Crown counsel those questions. That is because they would not have assisted me to decide the Attorney-General’s application on its merits. A fair-minded observer would understand that it is for the Judge to determine what issues he or she needs to explore with counsel to determine the matter before the Court. A failure by a Judge to make an inquiry that a party considers relevant to an issue does not indicate bias.

[24]The criteria for recusal are not met and the application is dismissed.

Background

[25]              Mr Nottingham is the registered owner of 107 and 129 Allen Bell Drive, Kaitaia and 447 Kohukohu Road, Kohukohu (Records of Title NA77A/480, NA64C/389 and 552190). Mr Nottingham, Robert Earle McKinney and

George Bullock are the registered owners of 6 Beazley Place, Glendene, Auckland (Record of Title NA3C/1260).

[26]The second defendants are a law firm and two of the principals of that firm.

[27]              The third defendant, Warren Beere, is a client of Patterson Hopkins Law and a beneficiary of the Beere Family Trust.

[28]              On 17 December 2021 Patterson Hopkins Law lodged caveats for registration affecting the plaintiffs’ properties on behalf of Mr Beere. The caveats were lodged as one dealing under number 12339604.

[29]              The wording of the caveat lodged in respect to Records of Title NA77A/480, NA64C/389 and 552190 was as follows:

The caveator, as beneficiary of the BEERE FAMILY TRUST, (“the Trust”), claims derivatively through and from George Bullock as sole trustee of the Trust, such trustee being cestui que trust pursuant to an implied, resulting and or constructive trust arising from the transfer of the property (“Transfer”) by George Bullock as sole trustee of the Trust to PHILLIP RAYMOND NOTTINGHAM (“Transferee”) when the Transfer was fraudulent and or in breach of the terms of the Trust and both the Transferor and Transferee knew that the Transfer was fraudulent and in breach of trust

[30]              The wording of the caveat lodged in respect of Record of Title NA3C/1260 was as follows:

The caveator, as beneficiary of the BEERE FAMILY TRUST, (“the Trust”), claims derivatively through and from George Bullock as sole trustee of the Trust, such trustee being cestui que trust pursuant to an implied, resulting and or constructive trust arising from the transfer of the property on 24 May 2021 (“the First Transfer”) by George Bullock as sole trustee of the Trust (“Transferor”) to himself and Phillip Raymond Nottingham (“the First Transferees”) and a transfer of the property 10 December 2021 (“the Second Transfer”) by the First Transferees to Phillip Raymond Nottingham and Robert Earle McKinney (“the Second Transferees”) when the First Transfer and Second Transfer were fraudulent and in breach of the terms of the Trust and the Transferor, First Transferees and Second Transferees knew that First Transfer and Second Transfer were fraudulent and in breach of trust

[31]              The solicitor who submitted  the  caveat  documents  for  registration  was  Ms Hopkins. She provided the following caveator certifications:

Caveator Certifications

I certify that I have the authority to act for the Caveator and that the party has the legal capacity to authorise me to lodge this instrument

þ

I certify that I have taken reasonable steps to confirm the identity of the person who gave me authority to lodge this instrument.

þ

I certify that any statutory provisions specified by the Registrar for this class of instrument have been complied with or do not apply

þ

I certify that I hold evidence showing the truth of the certifications I have given and will retain that evidence for the prescribed period

þ

[32]              On 6 January 2022 a property rights analyst at LINZ, Valerie Rimoni, reviewed the caveats. She sought advice about whether they could be accepted for registration. That advice was provided later that day by a solicitor employed with the Property Rights Team at LINZ, Fleur Rowe. The advice, which was contained in an email, was that more clarity was required “about whether there is an implied, or resulting or constructive trust”.

[33]              Acting on that advice, Ms Rimoni issued a requisition notice to Patterson Hopkins Law pursuant to s 37(1)(b) of the LTA in the following terms:

Requisition Reasons:

12339604.1 Caveat Requirements — Expand on interest claimed for both instruments by clarifying about whether there is an implied, or resulting or constructive trust. Please refer to Hinde McMorland Sim Land Law in New Zealand, chapter 10.009 for further guidance.

For clarificaiton [sic] of the reasoning of any item on this notice, Please call Valerie on ...

The time for complying with this notice is by the 20 January 2022 being 10 working days after the date of this notice. ...

[34]              Patterson Hopkins Law responded to the requisition notice by letter signed by Mr Patterson and emailed to LINZ on 19 January 2022. There are several important aspects to the letter. It clarified that Mr Beere claimed an interest in the land under an institutional constructive trust; Mr Beere’s claims against the properties comprised in records of title NA3C/2160, NA77A/480 and NA64C/389 were made derivatively in a trustee capacity and not in his capacity as a discretionary beneficiary of the Beere

Family Trust; and that Mr Beere’s claims were the subject of litigation in the Auckland High Court under CIV-2021-404-2416 filed on 17 December 2021. A copy of the statement of claim in that proceeding was provided. The litigation relates to the subject matter of the caveats and is still before the Court. Mr Patterson asked LINZ to confirm whether the information provided was sufficient and whether the caveats required amendment.

[35]              Patterson Hopkins Law’s letter was reviewed by Ms Rimoni on 27 January 2022. She again sought advice to confirm her intention to require the caveat documents  to  be  amended.  On  28 January  2022  Ms Rowe  recommended  to   Ms Rimoni by email that Patterson Hopkins Law be asked “to amend the wording in the interest claim section to reflect their clarification”.

[36]              On 28 January 2022 Ms Rimoni sent an email to Patterson Hopkins Law advising that for the caveat dealing to be processed it should be amended.

[37]              The caveats were amended and resubmitted by Patterson Hopkins Law under two dealings, numbers 12339604.1 and 12339604.2.

[38]              The amended wording in respect of dealing 12339604.1 affecting Records of Title NA64C/389, NA77A/480 and 552190 was as follows:

The caveator, as beneficiary of the BEERE FAMILY TRUST, (“the Trust”), claims derivatively through and from George Bullock as sole trustee of the Trust, such trustee being cestui que trust pursuant to an institutional constructive trust arising from the transfer of the property (“Transfer”) by George Bullock as sole trustee of the Trust to PHILLIP RAYMOND NOTTINGHAM (“Transferee”) when the Transfer was fraudulent and or in breach of the terms of the Trust and both the Transferor and Transferee knew that the Transfer was fraudulent and in breach of trust

[39]              The amended wording in respect of dealing 12339604.2 affecting Record of Title NA3C/1260 was as follows:

The caveator, as beneficiary of the BEERE FAMILY TRUST, (“the Trust”), claims derivatively through and from George Bullock as sole trustee of the Trust, such trustee being cestui que trust pursuant to an institutional constructive trust arising from the transfer of the property on 24 May 2021 (“the First Transfer”) by George Bullock as sole trustee of the Trust (“Transferor”) to himself and Phillip Raymond Nottingham (“the First Transferees”) and a transfer of the property 10 December 2021 (“the Second

Transfer”) by the First Transferees to Phillip Raymond Nottingham and Robert Earle McKinney (“the Second Transferees”) when the First Transfer and Second Transfer were fraudulent and in breach of the terms of the Trust and the Transferor, First Transferees and Second Transferees knew that First Transfer and Second Transfer were fraudulent and in breach of trust

[40] The amended documents were submitted with the same caveator certifications provided by Ms Hopkins as reproduced at [31] above.

[41]              The amended caveats were reviewed by Ms Rimoni on 1 February 2022, who again referred them to the Property Rights Team. Ms Rowe responded, advising “[b]oth caveats are now registerable as the caveator has clarified the interest claimed as an institutional constructive trust, in both instances”.

[42]              The caveats were registered on 1 February 2022. The same day notices were sent to the plaintiffs advising that caveats had been lodged with LINZ by Mr Beere “forbidding the registration of any Memorandum of Transfer or other instrument affecting the land”, and that:

(a)information on caveats lodged under the LTA could be found at ss 138 to 148 of the LTA;

(b)LINZ customer support was available to deal with any queries about the notices; and

(c)if the recipient had concerns as to the lodgement of the caveats, they “may find it appropriate to seek legal advice”.

[43]              On 10 February 2022 a LINZ staff member in the Contact Centre received a call from Mr Nottingham in relation to the caveats. Mr Nottingham was assisted to order the caveat instruments, which were emailed to an email address associated with him that day.

[44]              On 3 May 2022 an email was sent by Mr Nottingham to Luke Dixon, a solicitor with Patterson Hopkins Law, and copied to Customer Support at LINZ. The email asserted the caveats contained unfounded false criminal allegations against “myself and all the defendants” (which I take to be a reference to the defendants in the

proceeding before the High Court at Auckland) and demanded evidence to support the allegations. The email also asserted that the Registrar was culpable in not making reasonable inquiries. It concluded:

The evidence alleged to be in Ms Hopkins possession and relied on by LINZ before they published the fraud allegations on their website should be provided to them to ensure they have no excuse for the Registrar-General of lands [sic] conduct.

[45]              The email was referred to the Registrar, Robert Muir, on 4 May 2022. Mr Muir in turn forwarded it to Michael Veneer, a senior solicitor at LINZ, with the following instructions:

Michael — see below — the matters raised in this correspondence don’t ring any bells with me, but could you please search the titles for the properties referred to and see if there are any caveats or other matters recorded which may shed some light on what this is about. As this correspondence is addressed to Luke Dixon at Patterson Hopkins, and we’re simply cc’d, we may choose not to engage further at this stage but let’s form a view on that once we’ve had a look at the titles.

[46]              Mr Veneer spoke to Mr Dixon and Mr Patterson at Patterson Hopkins Law on 10 May 2022. He prepared a record of conversation which includes:

They confirmed their suspicion of fraudulent dealings, particularly in relation to NA3C/1260.

Bill pointed out that T 12109473.1, from Stephen Matthew Beere and George Bullock to Bullock and Phillip Raymond Nottingham was lodged 2 years after the death of Stephen Beere.

He said that Patterson Hopkins has been unable to elicit any information on Stephen Beere’s Will or his Estate, but are trying to get the matter into Court, so that the documents can be discovered.

The Nottinghams were being as obstructive as possible, and Bill mused that the documents might be in production as we were speaking.

They believe the father is the residual beneficiary and are trying to establish his right to whatever proceeds there may be.

[47]Mr Veneer then recorded his intentions as follows:

I said I would report to the RGL on what they had told me. I wasn’t sure that there was anything LINZ could do at the moment, the transfers having been lodged with due certifications and registered accordingly.

I would recommend that the RGL should initiate compliance reviews on the dealings. If he declined to do so, we would await the outcome of any proceedings. If the Court decided that any of the transfers were fraudulent, the Court could order cancellation and rectification.

[48]              Mr Veneer reported to Mr Muir by a file note of 10 May 2022. The file note recorded that Mr Dixon and Mr Patterson had confirmed their suspicion of fraudulent dealings, particularly in relation to NA3C/1260, and also:

They have been unable to elicit any information about the Will or the Estate and, despite the obstructions placed by the Nottinghams, are trying to get the matter into Court so that the documents can be discovered. Bill added that the documents might be in production as we were speaking.

[49]              Mr Veneer also made proposals for steps that might be taken in respect to the email.

I propose:

1not to respond to the email; and

2a compliance review of:

Transmissions 11600420.2, 11600420.4 and 11600420.6, and

Transfers 11600420.3, 11600420.5 and 11600420.7, lodged on 7 November 2019, by Andrew Mark Wilmot Seton, of Andrew Seton Law Ltd;

Transfer 12109473.1, lodged on 24 May 2021, by Shiva Christopher Ram Raju of Aaron Kashyap, Barrister & Solicitor; and

Transfer 12326737.2, lodged on 10 December 2021, by Iana Rae Cano de la Cruz, of Aaron Kashyap, Barrister & Solicitor

Query – Should we DD these RTs, in case s 143 applications are made? It would be one way to get the matter into Court, but would not encompass all the wider issues. If the caveats were to lapse and depending on the outcome of the compliance reviews it could warrant RGL caveats?

[50]The Registrar responded to Mr Veneer by email later that day as follows:

Hi Michael

Thanks for your report. This provides some useful context for the email we received. As it’s not our role to inquire into disputes involving the administration of trusts or alleged breaches by trustees, and the relevant parties are taking steps to have these matters put before the court, I don’t think it would be appropriate for us to initiate compliance reviews at this stage. We may revisit this later, but for now I think we should hold off on taking any

further action pending on the outcome of these proceedings. I’m mindful of not getting unnecessarily drawn into a dispute on matters which are beyond our remit. For these reasons, and because it was only cc’d to us, I agree that we should not respond to the email we received.

As caveats have already been lodged to protect the interests of Warren Beere, I don’t think we have any reason to place DDs on the titles or consider RGL caveats. If the caveats are challenged under s 143 LTA the caveator’s solicitors will have the opportunity to apply to the court to sustain them in the usual way.

In the meantime, let’s just ask Patterson Hopkins to keep us informed of developments re their court proceedings.

[51]              Mr Veneer then telephoned Mr Dixon and Mr Patterson again. He prepared a note of the conversation. He advised that the Registrar did not consider the situation warranted compliance reviews, and the Registrar’s preference was to let the matter take its course in the High Court and “he would comply with any Orders issued by the Court”. He asked Patterson Hopkins Law to keep the Registrar informed of developments, and that it might be prudent for them to liaise with the Registrar regarding any “draft Orders”.

[52]              There has been further correspondence sent on behalf of the plaintiffs to LINZ, including correspondence demanding the caveats be removed. Siobhan Simpson, the principal solicitor in the Property Rights Team at LINZ, wrote to Mr Nottingham on 30 November 2022 and explained that:

(a)the caveat certifications Ms Hopkins had provided when lodging the caveats were those required by reg 7 of the Land Transfer Regulations 2018 (the Regulations) and did not extend to requiring Ms Hopkins to hold evidence supporting her client’s claimed interest or to verify the truth of assertions in the caveats as to the existence of that interest;

(b)at the time the caveats were lodged, LINZ’s role was to consider the caveats on their face and confirm they met the requirements of s 138 of the LTA but they were not able to verify the claims made by the caveator;

(c)Mr Nottingham could apply to lapse the caveats or seek an order of the High Court for their removal, and pursue the caveator for compensation under s 148 of the LTA;

(d)the Registrar could not short-circuit those processes to remove the caveats; and

(e)the High Court was the appropriate authority to determine whether the grounds for the caveats were not met and they were not able to be sustained or should be removed for other reasons.

[53]              Shortly prior to the hearing the Registrar filed an updating affidavit, confirming that apart from LINZ staff in connection with their official duties and downloads of the caveats to an address associated with the plaintiffs there had been only one external download/view of caveat instrument 12339604.1 and four external downloads/views of caveat instrument 12339604.2.

Summary judgment principles

[54]              There is only one cause of action in the plaintiffs’ amended statement of claim. The parties have relied upon affidavit evidence filed in support of or in opposition to this application. The Attorney-General relies on absolute and qualified privilege, as well as the Crown’s immunity from tortious liability in respect to actions of the Registrar or his delegates under the LTA. I will consider the Attorney-General’s defences based on these matters as applications for summary judgment. I will deal with the additional matter, that the claim should be struck out as an abuse of process, at the end of this judgment.

[55]Rule 12.2(2) of the Rules, reads as follows:

12.2 Judgment when there is no defence or when no cause of action can succeed

…

(2) The court may give judgment against a plaintiff if  the  defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed.

[56]              The Court of Appeal summarised the principles that apply to a defendant’s application for summary judgment in Stephens v Barron as follows:10

(a)The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed. Usually this will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim.

(b)An application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits. It may also be inappropriate where ultimate determination turns on a judgment able to be properly arrived at only after a full hearing of the evidence.

(c)The Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment is not to be arrived at on a fine balance of the available evidence as would be appropriate at a trial.

(d)The residual discretion of the Court to refuse summary judgment would be properly invoked to avoid the oppression which would otherwise result if an application by a defendant for summary judgment would pre-empt a plaintiff exercising the right to amend the pleadings.

(e)Summary judgment should not be applied for unless the substantive merits of the case are clear and capable of summary disposal.

(footnotes omitted)

Defences of absolute and qualified privilege and s 235 of the LTA

[57]              A person who believes their reputation has been damaged by false statements may seek redress in the law of defamation. However, in certain instances the law protects a defendant from liability because it is recognised circumstances exist where persons must be able to make statements without fear of legal proceedings. The Attorney-General’s application proceeds on the basis that, whether or not the plaintiffs can establish the requirements of the tort of defamation, the claim against her cannot succeed.

10     Stephens v Barron [2014] NZCA 82 at [9], citing Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA).

Absolute immunity

[58]              Absolute immunity will provide complete protection for a defendant to a claim in defamation even in circumstances where a defamatory statement has been made dishonestly knowing it to be false.11

[59]              The defence is recognised in the Defamation Act 1992. Section 13 concerns absolute privilege in parliamentary proceedings. Section 14 confirms absolute privilege will apply to anything said, written or done in certain judicial proceedings. Section 15 provides that nothing in ss 13 or 14 limit any other rule of law that relates to absolute privilege.

[60]              At common law absolute privilege covers proceedings in or before a Court, and can be divided into three categories as follows:12

The first category covers all matters which are done coram judice. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of proceedings and starting with the writ or other document which institutes the proceedings. The third category is the most difficult of the three to define. It is based on the authority of Watson v M’Ewan in which the House of Lords held that the privilege attaching to evidence which a witness gave coram judice attached to the precognition or proof of that evidence taken by a solicitor. It is immaterial whether the proof is or is not taken in the course of proceedings.

(footnotes omitted)

[61]              The authors of Gatley on Libel and Slander note that the privilege will also attach to any matter incidental to proceedings “practically necessary for the administration of justice”, and:13

... with the exception of proofs of evidence of witnesses or inquiries in criminal cases, it is not enough that proceedings are contemplated: they must be actually on foot or the matter in issue must be an act with initiates them. In the case of proceedings of regular courts, this is not likely to cause any difficulty since the initiation of the proceedings will involve a well-recognised

11 S v W [2022] NZCA 181 at [22].

12 Richard Parkes QC and Godwin Busutill (eds) Gatley on Libel and Slander (13th ed, Thomson Reuters, London, 2022) at [14.006], citing Devlin LJ in Lincoln v Daniels [1962] 1 QB 237 CA at 257–278.

13 At [14-006].

formal step such as the issue of a claim form, but the matter may be more difficult in the case of other tribunals exercising functions of a judicial nature.

[62]              The Attorney-General’s contention is that the publication of the alleged defamatory material in the caveats attracts the protection of absolute privilege. Support for this submission is to be found in Miller v Brandon Brookfield.14 There, a claim in defamation was brought against solicitors who lodged a caveat as well as Westpac Banking Corporation for whom the caveat was lodged.

[63]              Master Gambrill struck out the claim against the solicitors on the basis that absolute privilege applied. She found that lodging a caveat was an interim measure to protect not only the parties involved as registered proprietor and caveator but the public at large in dealing with a title which may become subject to litigation before the Court. Master Gambrill went on to say:15

... Those issues, if there is a dispute, can only be resolved in a judicial process and it appears to me that the action of lodging a caveat has similarities to the initial processes, such as the interview of a possible witness for contemplated proceedings — see Lincoln v. Daniels (supra), recognizing [sic] that such interview and the evidence given thereby are privileged.

[64]              Master Gambrill believed public policy considerations required that in respect to the lodging of a caveat the interests of the individual plaintiff to be protected against damage to their character should be subordinated to the law of public justice. She said the “public is entitled as of right to rely on the register”, and “it is of absolute importance that if there are grounds for suspecting fraud the party affected thereby should be entitled to caveat” and the public is entitled to be put on notice of the fraud.16 The Master did not believe the Court’s recognition of the right to allege fraud without the risk of being sued for defamation would be abused because the caveator could be liable for damages for wrongful caveating under what was then s 146 of the Land Transfer Act 1952 (and now s 148 of the LTA), which recognised that ultimately the Courts had control over the caveat jurisdiction. This, she said, strengthened the conclusion that “a caveat is an interim step which forms part of a process which gives

14     Miller v Brandon Brookfield HC Auckland CP726/90, 14 December 1990.

15     At 23.

16     At 24.

rise to a dispute that can only be settled in Court proceedings and should therefore be privileged”.17

[65]              I could find only two decisions of this Court that referred to Miller v Brandon Brookfield.18 Those cases are not directly on point.

[66]              Recently, in S v W the Court of Appeal was required to decide whether a complaint made about a doctor that was lodged with the doctor’s employer was protected by qualified or absolute privilege.19 In deciding that issue the Court of Appeal referred to four considerations. These were:

(a)The Courts should be astute to ensure that a claim of absolute privilege which deprived citizens of their common law rights to sue for defamation should only be recognised if truly necessary.20

(b)The common law should be developed by the Courts to uphold basic principles reflected in arts 17(1) and (2) of the International Covenant on Civil and Political Rights, which provides that no one shall be subject to unlawful attacks on their honour and reputation and that everyone has the right to the protection of the law against such attacks.21

(c)The Courts should make every effort to ensure the common law aligns with relevant legislative provisions.

(d)It is necessary to assess whether qualified privilege provides adequate protection in the circumstances of the case before the Court or whether it was necessary to clothe the communications with absolute privilege.

17     At 25.

18     Attorney-General v Langdon [1999] 3 NZLR 457, (1999) 4 NZ ConvC 192,990; and Huriwaka v Asher HC Wellington CP127/92, 14 October 1992.

19     S v W [2022], above n 11.

20     Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713 at [7].

21     International Covenant on Civil and Political  Rights  999  UNTS  171  (opened  for  signature 16 December 1966, entered into force 23 March 1976).

[67]              Applying the approach in S v W, I have concluded I should not follow the approach of Master Gambrill in Miller v Brandon Brookfield.22 All the matters which led the Court of Appeal to reject absolute privilege in S v W could be said to apply equally to this case.

[68]              Of particular relevance is the concern to ensure the common law in this area aligns with relevant legislative provisions. Here the relevant legislative provisions include s 235 of the LTA, which provides:

235     Registrar and others persons not personally liable

(1)Neither the Registrar nor a delegate of the Registrar is personally liable for any act or omission in performing or exercising or purporting to perform or exercise a function, duty, or power—

(a)under this Act; or

(b)that the Registrar or delegate reasonably believed he or she could perform or exercise.

(2)Subsection (1) does not apply if the Registrar or delegate acted, or omitted to act, in bad faith.

[69]              Section 235 replaced what was s 243 of the Land Transfer  Act  1952.  Section 243 did not provide for a bad faith exception to the immunity conferred upon the Registrar and his delegates. It provided:

243     Personal liability

(1) Neither the Registrar nor any delegate of the Registrar is personally  liable for any act done or omitted in the performance or exercise or intended performance or exercise of a duty or power vested in the Registrar or a duty or power that the person believes on reasonable grounds to be vested in the Registrar by this or any other Act.

...

[70]              The inclusion of a bad faith exception in s 235 was commented on by the Law Commission, in its report A New Land Transfer Act, as follows:23

Clause 200 [which became s 235] is the equivalent of section 243 of the [Land Transfer Act 1952]. Subclause (1) provides that neither the Registrar nor a

22     S v W, above n 11; Miller v Brandon Brookfield, above n 14.

23     Law Commission A New Land Transfer Act (NZLC R116, 2010) at 188.

delegate is personally liable for any act or omission in performing, exercising, or purporting to perform or exercise, a duty, function, or power, either under the Bill or which the Registrar (or delegate) reasonably believed he or she could perform or exercise. Subclause (2) is new and provides that the immunity from personal liability does not apply if the Registrar or delegate acted or omitted to act in bad faith. Section 243 appears to give the Registrar and delegates absolute immunity even where they have acted in bad faith. It is appropriate that the Registrar and delegates should be liable where they have acted, or omitted to act, in bad faith as is the position with many other similar statutory immunities.

[71]              It appears that in enacting s 235 it was considered as a matter of policy, and to maintain consistency between similar statutory immunities in other legislation, that the Registrar and his delegates should not be protected from civil liability where they acted in bad faith. To find under the common law that absolute privilege applied to a claim for defamation in a case such as this would therefore be inconsistent with the scheme of the LTA. I conclude that absolute privilege does not apply and it is necessary to consider the other defences advanced. I start with s 235 of the LTA.

Statutory immunity — s 235 of the Land Transfer Act 2017

[72]              Section 6 of the Crown Proceedings Act 1950 defines circumstances in which the Crown is vicariously liable in tort. Relevantly, ss 6(1) and (4) provide:

6        Liability of the Crown in tort

(1)Subject to the provisions of this Act and any other Act, and except as provided in subsection (4A) or (4B), the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject—

(a)in respect of torts committed by its servants or agents;

(b)in respect of any breach of those duties which a person owes to his or her servants or agents at common law by reason of being their employer; and

(c)in respect of any breach of the duties attaching at common law to the ownership, occupation, possession, or control of property:

provided that no proceedings shall lie against the Crown by virtue of paragraph (a) in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his or her estate.

…

(4)... any enactment which negatives or limits the amount of the liability of any government department or officer of the Crown in respect of any tort committed by that department or officer shall, in the case of proceedings against the Crown under this section in respect of a tort committed by that department or officer, apply in relation to the Crown as it would have applied in relation to that department or officer if the proceedings against the Crown had been proceedings against that department or officer.

[73]              The Attorney-General asserts an entitlement to immunity under s 235 of the LTA. The Attorney-General takes the benefit of the statutory immunity to which the Registrar and his delegates are entitled.24

[74]              The immunity under s 235 is broad and protects the Registrar and his delegates from personal civil lability for “any act or omission in performing or exercising or purporting to perform or exercise a function, duty or power” under the LTA.25 The immunity created by s 235 is, however, qualified as it will not apply to acts or omissions in bad faith. The term “bad faith” is not defined in the LTA. It has been recognised that its meaning will depend on the context in which it has been used.26 The New Zealand Law Dictionary states “Bad faith involves intentional dishonesty in not fulfilling legal obligations…”.27 That is a sufficient definition in the present context.

[75]              The plaintiffs contend the Registrar has acted in bad faith in the performance of his functions and duties as he was party to a criminal conspiracy to defraud them. The particular functions and duties in issue can only be those relating to or connected with the registration and then publication of the caveats which can be accessed by the public, including from the LINZ website.

[76]              Under s 9 of the LTA the Registrar must keep and operate the register of land, including to permit the recorded information to be readily accessed or reproduced in usable form.28 The section also provides that all or part of the register may be kept by

24 Crown Proceedings Act 1950, ss 6(1) and (4); Couch v Attorney-General [2010] NZSC 27, [2010] 3 NZLR 149 at [173]; and Attorney-General v Strathboss Kiwifruit Ltd [2020] NZCA 98, [2020] 3 NZLR 247 at [144].

25     Land Transfer Act, s 235(1).

26     IAG New Zealand Ltd v Dewes [2022] NZHC 3555.

27     New Zealand Law Dictionary (10th ed, LexisNexis, Wellington, 2022) at 27.

28     Land Transfer Act 2017, ss 9(1) and (2).

means of a computer system or facility that records information electronically.29 Under s 40, the Registrar must on request and payment of the prescribed fee/charge provide a copy of a record of title or an instrument registered or noted on the register. Under s 233, the Registrar may delegate in writing any of the Registrar’s duties and powers under the LTA or any other Act.30

[77]              The plaintiffs contend that as bad faith is pleaded, I must accept the allegation as capable of proof at trial and that is a complete answer to the application for summary judgment (and strike out). The actual position is somewhat more nuanced.

[78]              Although the Court will not normally determine disputed questions of fact on summary judgment applications, there are circumstances where that will be appropriate, such as where evidence is “inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable”.31

[79]              Also, the plaintiffs’ submission does not recognise the distinction between pleaded facts and inferences that can be drawn from pleaded facts. In a case such as this, the plaintiffs are asking the Court to draw an inference the Registrar and/or his delegates acted in bad faith. Whether an inference is capable of being drawn from pleaded facts is a question of law which may well be amenable to resolution on a summary judgment or strike out application.

[80]              A relevant authority is Stockman v Health and Disability Commissioner.32 It was an appeal against a decision of the High Court striking out causes of action in the appellant’s claim alleging the defendants were liable for misfeasance in public office in their capacity as statutory office holders. The respondents pleaded an affirmative defence under s 121 of the Crown Entities Act 2004, which created an immunity for an office holder or employee of a statutory entity in respect of “an excluded act or omission”. That was defined as “an act or omission by the member, office holder, or

29     Land Transfer Act, s 9(3).

30     Land Transfer Act, ss 40 and 233 are subject to exceptions that do not apply here.

31     Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].

32     Stockman v Health and Disability Commissioner [2020] NZCA 588.

employee in good faith and in performance or intended performance of the entity’s functions”.33

[81]              The High Court Judge struck out the causes of action as Mr Stockman had not produced or pointed to any evidence that went further than to show that the defendants had received and acted on his complaints and correspondence within the terms of their respective  offices.   He  said  mere  assertions  of  bad  faith  were  not  enough.34   Mr Stockman filed an appeal. He argued the Judge was wrong to suggest that he was required to produce evidence to defeat a strike out application because, as a matter of principle, such applications proceed on the assumption that the facts pleaded in the statement of claim are true.

[82]              The Court of Appeal noted that the statutory immunity under s 121 applied provided the respondents acted in good faith.35 Importantly, the Court went on to note that where an allegation of fraud or dishonesty is made (as the plaintiffs do here) there must be a proper basis for it. The Court said:36

[79]     A pleading of misfeasance in a public office, or an allegation that the s 121 defence does not apply, attracts the same requirements as pleadings for fraud, dishonesty and other reprehensible conduct. Specifically, there must be a proper basis for alleging the conduct and it must be pleaded clearly with adequate particulars ....

(footnotes omitted)

[83]The Court further noted:

[81] if one separates the bare allegations of fact (which mostly comprise

a recitation of communications between Mr Stockman and the Commissioner) from the allegations of reckless disregard the latter are, in truth, inferences that Mr Stockman draws from the former. Although a strike out application proceeds on the basis that the pleaded facts are true, inferences are not pleaded facts; whether an inference can properly be drawn from any particular facts is a question of law.

(emphasis added)

33 At [75].

34 At [76].

35 At [75].

36     Citing Schmidt v Pepper New Zealand (Custodians) Ltd [2012] NZCA 565 at [15].

[84]              The Court of Appeal agreed with the High Court that the pleadings did not contain anything that could properly found the serious allegation of bad faith. It said the Judge’s observation that Mr Stockman had not provided evidence to suggest that the public servants did more than receive and respond to his complaints within the terms of their office did not amount to the Judge wrongly requiring Mr Stockman to file evidence. The Court said:

[82] ... It was simply an observation that, in the face of a strike out application based on a justifiable criticism that the pleadings did not disclose any tenable cause of action, Mr Stockman offered nothing further to advance his position. In the absence of anything in the pleadings to support the assertions of bad faith, it is not enough to assert that evidence will “come later”. ...

Matters relied on as showing bad faith

[85]              The plaintiffs’ submissions are discursive and hard to follow. They also make plainly incorrect assertions as if they are fact, misinterpret contemporaneous documents/communications, raise irrelevant matters, and do not recognise the true nature and functions of the Registrar.

[86]              Underlying the plaintiffs’ opposition to the Attorney-General’s application is the proposition that the Registrar acted in bad faith in the following respects:

(a)Accepting the caveats for registration.

(b)Failing to remove the caveats once he became aware that:

(i)the caveat certifications provided by Ms Hopkins were false; and

(ii)Mr Beere and Patterson Hopkins Law had no evidence to support the interest claimed in the caveats.

(c)Failing to take action against Mr Beere and Patterson Hopkins Law consequent upon (b)(i) and (ii) above.

Registering the caveats

[87]              The plaintiffs submit “The Registrar-General aware of the conspiracy, registered the Caveats despite the admissions of [Mr Patterson] to a fraudulent allegation of fraud and in breach of his duty…”. It is not clear what is meant by the “conspiracy”, nor is there is evidence to support the submission that Mr Patterson made such an admission. He plainly did not.

[88]              The Registrar had no personal involvement in the registration of the caveats, nor would it be expected that he would. The caveats were received, processed, requisitioned and then registered by LINZ officers under a delegation from the Registrar.37

[89]              There can be no suggestion that any delegate of the Registrar involved in those processes had knowledge of or was involved in any conspiracy to defraud the plaintiffs.

[90]              There is also nothing to suggest that the Registrar had any knowledge of the caveats prior to 3 May 2022 when Mr Nottingham sent his email to Mr Luke Dixon at Patterson Hopkins Law, copied to Customer Support at LINZ. By that stage, the caveats had been registered for several months.

[91]              The plaintiffs assert that the Registrar knew about the findings of Birss J in JSC Mezhdunarodniy Promyshlenniy Bank  v  Pugachev  which  were  critical  of  Ms Hopkins and Mr Patterson.38 Related to this, it is submitted the Registrar should not have accepted certifications of the caveat instruments from known liars.

[92]              There is no evidence that the Registrar knew of the Pugachev decision, however it makes no difference whether he did or not. Despite any findings that were made in that case, Ms Hopkins is a practising lawyer who was entitled to certify electronic documents under the LTA.39

37     Land Transfer Act, s 233.

38     JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev [2017] EWHC 2426 (Ch).

39     Land Transfer Act, s 28.

[93]              The Registrar has the power to revoke a person’s authority to certify electronic documents in limited circumstances.40 There is nothing to suggest such circumstances existed at the time the caveats were lodged or, I would add, have arisen since.

[94]              The plaintiffs argue the Registrar (or his delegates) failed to make reasonable investigations into whether there were “special circumstances” existing for the third defendant to claim an interest in the properties derivatively through a defaulting trustee. This misunderstands the Registrar’s role.

[95]              The LTA and the Regulations set out the requirements that must be complied with when a caveat against dealings under s 138(1)(b) of the LTA is lodged to be registered electronically. As the Attorney-General’s counsel correctly points out, these requirements can be summarised as follows:

(a)The caveat against dealings document must be executed by the caveator or the caveator’s agent.41

(b)The caveat against dealings document must contain the information prescribed under the Regulations.42 This includes information relating to the instrument and the estate or interest to which it applies, specified information relating to the nature or interest claimed by the caveator, and how it is derived.

(c)The caveat document must be certified by a lawyer with authority to act for the caveator, with certification given as to the standard matters.43 These broadly address a lawyer’s obligation to identify and obtain instructions from their client,44 but do not require the lawyer to hold evidence supporting the substance of their client’s claim to the caveat.

40 Land Transfer Act, s 29.

41 Land Transfer Act, s 138(2); and Land Transfer Act Regulations 2018, reg 11: electronic caveat documents certified under s 27 of the LTA are treated as having been executed by the caveator or their agent.

42   Land Transfer Act, s 138(3); and  Land Transfer Act Regulations, regs 5(1)(a)(ii) and 5(2) and   sch 2.

43    Land Transfer Act Regulations, regs 7(1), 7(3) and sch 3.

44    Land Transfer Act Regulations, regs 7(3)(a)–(c) and 7(6).

[96]              Once a caveat has been lodged that satisfies the statutory requirements, the Registrar’s obligation is to register the dealing. Specifically, under s 147 of the LTA the Registrar is not required to assess or inquire into the merits of the claimed interest. That section provides:

147Registrar not required to verify entitlement to lodge caveat against dealings

(1)The Registrar does not have to be satisfied that a caveator is in fact or in law entitled to lodge a caveat against dealings.

(2)Despite subsection (1), a caveat against dealings must comply with section 138.

[97]The authors of Hinde McMorland and Sim note the position as:45

By s 147 of the Land Transfer Act 2017 the Registrar does not have to be satisfied that a caveator is in fact or in law entitled to lodge a caveat against dealings. Provided that a caveat is in proper form the Registrar is therefore under a duty to enter the caveat: there is no discretion. In Kuper v Keywest Constructions Pty Ltd it was said that:

The function of the Registrar in receiving a caveat is … limited to determining whether the caveat is in the proper form. This is an administrative rather than an adjudicative function. Once satisfied regarding the form the Registrar is under a duty to accept the caveat and comply with … the Act. …

[98]              Here, when the caveats were first lodged they were requisitioned because they did not sufficiently describe the claimed interest. As a result, Mr Patterson wrote clarifying the nature of the interest, explaining how that interest was said to have arisen, the legal basis for it, providing confirmation that the caveator was proceeding to substantiate the interest by High Court proceedings, and supplying a copy of the proceedings. I cannot see that the Registrar’s delegates could have refused to accept the amended caveats for registration.46

[99]              The plaintiffs are critical that when requisitioning the caveats the second and third defendants were given legal advice and referred to Hinde McMorland and Sim.

45 Hinde McMorland and Sim Land Law in New Zealand (online ed, LexisNexis) at [10.014] and the authorities cited therein. See also Adams Land Transfer (online ed, LexisNexis) at S147.3, citing Marriott v Attorney-General [2011] NZLR 354 at [46].

46 The plaintiffs’ case that there is no basis for the interest claimed in the caveats is undermined also by the fact an application that they brought to strike out the related proceeding in the High Court was unsuccessful in Beere v Bullock [2023] NZHC 1172.

They submit this was guidance that would not normally be given by an independent public service and is in breach of the public service principles and the State Sector Act 1988. I do not accept that submission.

[100]          The fact the caveats were requisitioned at all does not sit easily with the plaintiffs’ contention that the Registrar is part of a conspiracy to defraud them. Leaving that rather obvious point aside, the requisition notice was issued under s 37 of the LTA which requires the notice to state the reasons for rejecting or retaining the instrument.47 The reference to Hinde McMorland and Sim was in the context of providing those reasons. I see nothing to support the assertion that the requisition notice breached public service principles and certainly nothing suggesting bad faith.

[101]          Therefore, in respect to the allegation that the Registrar acted in bad faith in registering the caveats, he was not personally involved in the registration process, all tasks were carried out by his delegates who had no basis to refuse to register the caveats and against whom no allegations of bad faith can be asserted.

Failing to remove the caveats

[102]          The plaintiffs rely upon the conversations between Mr Veneer, Mr Dixon and Mr Patterson and written communication between Mr Veneer and the Registrar reporting on those conversations. These occurred between 4 and 10 May 2023, following receipt of Mr Nottingham’s 3 May email. The plaintiffs’ case is that during the telephone conversations Mr Patterson confirmed he had no evidence to support the allegations of fraud made in the caveats, and that accordingly the caveat certifications provided by Ms Hopkins were “lies”. The plaintiffs submit that with knowledge of these matters the Registrar wrongly continued publication of the defamatory material on the register.

[103]          Mr Patterson did not confirm he held no evidence to support the interest claimed in the caveat. He confirmed the existence of a belief in the claimed interest and that Mr Beere was attempting to have his claim to substantiate that interest heard in the High Court. However, and again leaving that matter aside, the plaintiffs’ case

47     Land Transfer Act, s 37(3).

misunderstands the nature of the caveator’s certifications provided by Ms Hopkins and wrongly assumes the Registrar had the power to remove the caveats absent an order of the Court requiring him to do so.

[104]Section 30 of the LTA provides:

30       Evidence of certification for electronic instrument

(1)If a person, in giving a certificate for an electronic instrument, certifies that he or she has evidence relied on in support of matters stated in the certificate, the person must retain that evidence for the prescribed period.

(2)The Registrar may specify standards (see section 236) that, if met, provide sufficient evidence to satisfy the requirement in subsection (1).

(3)The Registrar may, by notice, require a person who has given a certificate for an electronic instrument to provide to the Registrar—

(a)the evidence referred to in subsection (1), if applicable; or

(b)a statutory declaration as to—

(i)any further information required by the Registrar; or

(ii)the circumstances of the preparation and electronic transmission of the instrument.

(4)A requirement under subsection (3) must be complied with within 10 working days of receipt of the notice.

[105]          The plaintiffs contend Ms Hopkins’ certifications included that she held evidence to support the existence of the interests claimed in the caveats and that that she was required to retain that evidence for the prescribed period of 10 years. It is then said the Registrar had the power to obtain the evidence held as to the truth “of the criminal fraud alleged” by the caveators, and this should have been obtained when the caveats were requisitioned and also when Mr Patterson and Mr Dixon were questioned by Mr Veneer after the complaint made by the plaintiffs.

[106] Ms Hopkins did not certify she held evidence to support the existence of the interest claimed in the caveats. She provided the standard certifications required for electronic instruments by reg 7(3) of the Regulations. They are the certifications set out at [31] above only.

[107]          Insofar as it is said the Registrar should have undertaken an investigation using his powers under s 30 and then removed the caveats, the Registrar’s powers under s 30 to require evidence concerning the certification of electronic instruments does not extend to requiring the solicitor providing the certifications to provide evidence of the interest claimed in a caveat.

[108]          The Registrar’s powers to alter the register are contained in s 21 of the LTA and are both limited and administrative in nature.48 Section 21 of the LTA provides:

21       Registrar’s powers of alteration

(1)The Registrar may alter the register to—

(a)correct an error made by the Registrar or a person acting under a delegation under section 233:

(b)correct an error made by a person in preparing or submitting a document or information for registration:

(c)record a boundary change resulting from accretion or erosion:

(d)give effect to an order or a direction of a court.

(2)The Registrar must not alter the register under subsection (1)(a), (b), or (c) if the alteration would materially affect the registered estate or interest of any person unless—

(a)the person consents in writing to the alteration; or

(b)in accordance with regulations made under this Act,—

(i)the Registrar gives notice of intention to alter the register; and

(ii)no material objection to the proposed alteration is received.

(3)The Registrar may alter the register for any other purpose with the consent in writing of the persons affected.

(4)The Registrar may, in exercising powers under this section, have regard to any material or information the Registrar considers relevant and reliable.

(5)Subsection (4) is subject to any regulations made under this Act.

48     Elizabeth Toomey New Zealand Land Law (3rd ed, Thomson Reuters, Wellington, 2017) at 2.11.

[109]          When commenting on what became s 21 of the LTA, the Law Commission in its report said:49

We do not believe the Registrar should have a quasi-judicial power to correct the register. The Registrar does not want such a power. We recommend that the power be an administrative one. Although it might be thought that permitting the Registrar to make substantive findings may be a cheaper, quicker and more efficient way to resolve disputes than taking them to the High Court, the Registrar is not well placed to make decisions involving complex issues of law and fact that are very likely to be appealed in any event. Where correction involves issues relating to fraud or indefeasibility more generally, or where the correction is contested the High Court is the best forum for the matter to be decided.

(emphasis added)

[110]          Contrary to the plaintiffs’ submission the Registrar lied to them that he had no grounds or powers to rectify, remedy or remove the caveats, he never made any such representation. In her email to Mr Nottingham of 30 November 2022, Ms Simpson stated:

... We do not have authority to remove either caveat from a title in these circumstances … The High Court is the appropriate authority to determine whether the grounds for the caveat are not met and are not able to be sustained or should be removed for other reasons.

[111]          That was a correct statement and the plaintiffs, of course, have always had it within their power to apply under s 143 of the LTA for the removal of the caveats but have not done so.

[112]          Therefore, in respect to the allegation that the Registrar acted in bad faith by not removing the caveats, the short response must be that he cannot have acted in bad faith in not exercising a power he did not have.

Failing to take action

[113]          The next complaint is that the Registrar should have taken the following further action:

49     Law Commission A New Land Transfer Act, above n 23, at 2.49. See also Green Growth No. 2 Ltd v Queen Elizabeth the Second National Trust [2018] NZSC 75, [2019] NZLR 161 at fn 17.

(a)removed the second defendants’ access to the LINZ online land transfer registration system;

(b)prosecuted Ms Hopkins and Mr Patterson for breaches of ss 218 and 219 LTA;

(c)advised the plaintiffs of the conversations with the second defendants and supplied telephone records of communications; and

(d)contacted Crown Law and related the “offending” to Crown Law and other agencies.

[114]          The suggestion the Registrar should have taken any such steps given the information that was before him is fanciful. In any event, in circumstances where the Registrar (or his delegates) had no basis to refuse the caveats for registration or to remove the caveats, these complaints, and the related complaint that the Registrar should have conducted a general compliance review on Mr Veneer’s suggestion, are simply unable to support the plaintiffs’ contention that the Registrar published defamatory material about them in bad faith.

[115]          Standing back and looking at the evidence as a whole, there is nothing before me that would suggest that the Registrar (or his delegates) was aware of or participated in any conspiracy against the plaintiffs or that he or any of his delegates acted or failed to act in bad faith.

[116]          It follows that the Attorney-General is entitled to the benefit of the immunity under s 235 of the LTA and also to summary judgment.

Qualified privilege

[117]          Qualified privilege differs from absolute privilege in that the defence can be defeated. Under s 19 of the Defamation Act the defence will fail if the plaintiff proves that in publishing the words in question the defendant was predominantly motivated by ill-will towards the plaintiff or otherwise took improper advantage of the occasion

of publication.50 The onus is on the plaintiff to prove these matters once the defendant has established that the occasion is one of privilege, which is a question of law.

[118]          The Court of Appeal recently summarised the definition of qualified privilege in Durie v Gardiner:51

[36]    The classic definition of qualified privilege is that it arises where the maker  of the impugned communication has “an interest or duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it”.52 Where the privilege arises, it protects false and defamatory assertions of fact. It is qualified as opposed to absolute because the privilege may be lost if the plaintiff proves the maker of the statement took improper advantage of the occasion of publication or was predominantly motivated by ill-will.53

[119]          The impugned communications in question are the registered caveats. As noted earlier, provided a caveat lodged for registration is in proper form, the Registrar is under a duty to enter the caveat on the register, and those searching the register have a corresponding interest to receive notice of the caveat and the interest claimed by it. I am satisfied qualified privilege applies.

[120]          For the same reasons as provided in [87]—[116], there is nothing to suggest that the privilege enjoyed by the Registrar could arguably have been lost because he took improper advantage of the occasion of publication or was predominantly motivated by ill-will.

[121]          I am satisfied the Attorney-General has a valid defence of qualified privilege and is entitled to summary judgment on that basis also.

Abuse of process

[122]        The Attorney-General applies to strike out the claim as an abuse of process as no substantial tort has been committed. She relies upon Dow Jones & Co Inc v

50     S v W, above n 19, at [26].

51     Durie v Gardiner [2018] NZCA 278.

52     Adam v Ward [1917] AC 309 (HL) at 334.

53     Defamation Act 1992, s 19.

Jameel.54 Given my earlier findings it is not strictly necessary to consider this ground but for completeness I will do so.

Strike out principles

[123]Rule 15.1 of the High Court Rules relevantly provides:

15.1     Dismissing or staying all or part of proceeding

(1)       The court may strike out all or part of a pleading if it—

(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

…

(d)       is otherwise an abuse of the process of the court.

…

[124]          The general principles applicable to the exercise of the Court’s power under   r 15.1 are well known.55 Pleaded facts, whether or not admitted, are usually deemed to be true. Normally the Court will not consider evidence inconsistent with the pleading as a strike out application proceeds on the basis that what has been pleaded may be proved.56 This does not extend to pleaded allegations which are entirely speculative and without foundation.57 A cause of action or defence must be clearly untenable before it will be struck out, so the jurisdiction is to be exercised sparingly and only in clear cases. It is inappropriate to strike out a claim summarily unless the Court can be certain that it cannot succeed. The case must be “so certainly or clearly bad” that it should be precluded from going forward. Particular care is required in areas where the law is confused or developing. While the jurisdiction is not excluded by the need to decide difficult questions of law requiring extensive argument, the Court should be particularly slow to strike out a claim or defence in a developing area of the law.58

54 Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75, [2005] QB 946.

55 Jessica Gorman and others McGechan on Procedure, above n 6, at [SC171.01], citing Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267; and Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725.

56     Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566.

57     Jessica Gorman and others McGechan on Procedure, above n 6.

58     Couch v Attorney-General, above n 55.

Dow Jones & Co Inc v Jameel

[125]          The Courts have held that where a claimant brings an action for defamation in circumstances where his or her reputation has suffered little or no actual damage the claim may be treated as a form of abuse of process on the basis that no real or substantial tort has been committed. In such cases the costs of allowing a defamation proceeding to continue would be grossly disproportionate to any reputational harm suffered.59

[126]          In Dow Jones & Co Inc v Jameel the English Court of Appeal struck out the claim where the defendant was accused of publishing an article online implying the claimant was, or was suspected of, funding Al-Qaeda.60 The argument proceeded on the basis that only five people within the jurisdiction had clicked the hyperlink that contained the defamatory material. In giving the judgment of the Court, Lord Phillips said:

[55] There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new [Civil Procedure Rules]. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more pro-active. The second is the coming into effect of the Human Rights Act. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, insofar as it is possible to do so. Keeping a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant’s reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.

…

[69]   If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.

59     Thornton v Telegraph Media Group Ltd [2010] EWHC 1414, [2011] 1 WLR 1985 (QB); and Dow Jones & Co Inc v Jameel, above n 54.

60     Dow Jones & Co Inc v Jameel, above n 54.

[127]          Jameel has been applied in the High Court to strike out defamation proceedings.61 However, in Sellman v Slater Palmer J said:62

But I have difficulty with the notion, that seems implicit in Jameel, that a court can routinely use its ability to deal with abuses of process to stop a proceeding properly founded in law, because of something the law does not require (insufficient damage to reputation). The right of a person or group to access the courts in order to vindicate their legal rights has a high constitutional value in New Zealand, against however powerful or popular a defendant. As the United Kingdom Supreme Court stated in July 2017 in Unison v Attorney- General “[t]he constitutional right of access to the courts is inherent in the rule of law”.

[128]          Palmer J thought that a threshold of “more than minor harm to reputation” should be required to found an action in defamation, which would be consistent with the New Zealand Bill of Rights Act 1990.63 He summarised his views as follows:

[69] So I consider the common law of defamation in New Zealand is that damage to reputation is presumed to occur on publication of a defamatory statement. But that presumption is rebuttable. If a defendant can show their statement has caused less than minor harm to the plaintiff’s reputation, that will defeat a defamation claim. It may therefore be a basis for showing a cause of action is clearly not tenable in a strike-out application. …

[129]          In Craig v Slater the Court of Appeal appeared to approve Palmer J’s statement of the law but did not refer to Jameel. The Court of Appeal said:64

[44]      For a meaning to be defamatory, it must tend to affect the claimant’s reputation adversely. And it must do so in more than a minor way. That qualification was contended for by Mr Miles, for the appellant. Mr Akel queried it. It reflects the serious harm threshold developed in United Kingdom courts, and since legislated for there. The High Court in New Zealand has approved and adopted that qualification, but it has not yet been considered by this Court.

[45]      We approve adoption of the “more than minor” harm requirement in New Zealand common law, for three reasons. The first is that damage to reputation is an essential element of the cause of action of defamation, for the reasons Tugendhat J canvassed in Thornton v Telegraph Media Group Ltd. The fact that damage is rebuttably presumed (in most cases) does not alter the fact that damage to reputational credit remains an element of the tort. Principle and proof should not be confused. Secondly, a threshold of this kind is a necessary consequence of the right to freedom of expression protected by

61 Opai v Culpan [2017] NZHC 1036, [2017] NZAR 1142; X v Attorney-General (No 2) [2017] NZHC 1136, [2017] NZAR 1365; Prasad v Raj [2022] NZHC 2960; Adamson v Hutt Valley District Health Board [2022] NZHC 1403; and Russell v Matthews [2016] NZDC 17743.

62 Sellman v Slater [2017] NZHC 2392 at [60].
63 At [68].

64 Craig v Slater [2020] NZCA 305.

s 14 of the New Zealand Bill of Rights Act 1990. We agree with the reasoning of Palmer J in Sellman v Slater on that point. Thirdly, we consider the requisite threshold standard — “more than minor harm” — was correctly identified in the same decision and is to be preferred to a higher standard based on the word “serious”.

(footnotes omitted)

[130]          Most recently in Television New Zealand Ltd v Talley’s Group Ltd, the Court of Appeal held that it was not now open to it to depart from the test in Craig v Slater.65 While Jameel was referred to in the judgment, the Court of Appeal accepted the approach where a reputational harm threshold should be addressed as an element of the tort of defamation rather than through an application to strike out a claim as an abuse of process.66

[131]          It is now not clear what role, if any, the principle in Jameel has to play in the law of New Zealand, notwithstanding the decisions of this Court that have applied it.67 Given the uncertain state of the law I would not have struck out the plaintiffs’ claim on this basis. It also seems to me that it would be wrong to do so where the alleged defamatory material continues to be publicly available by way of search of the LINZ website. In such circumstances, I do not see how an assessment could be made that the plaintiffs will not suffer more than minor damage such that the costs of litigation are disproportionate and the proceeding an abuse of process on this particular basis.

Discretion to award summary judgment

[132]          No arguments were advanced that the Court should exercise its discretion to refuse summary judgment in the event that it found the plaintiffs’ claim in defamation cannot succeed (as I have found).

[133]          This is not a case where it would be oppressive to enter summary judgment because it could pre-empt the plaintiffs exercising the right to amend the pleadings to reframe their clam. Any claim the plaintiffs might wish to advance based on the facts of this case would not overcome the hurdle presented by the immunity conferred on the Registrar (and thus the Attorney-General) by s 235 of the LTA.

65     Television New Zealand Ltd v Talley’s Group Ltd [2024] NZCA 502.

66     Craig v Slater, above n 64; and Television New Zealand Ltd v Talley’s Group Ltd, above n 65.

67     Dow Jones & Co Inc v Jameel, above n 54.

[134]          No other reasons present themselves as justifying the refusal of summary judgment.

Result

[135]          The first defendant’s application for summary judgment is successful. Judgment is entered for the first defendant and against the plaintiffs.

[136]          The first defendant is entitled to costs and may file any submissions on costs within 14 days. The plaintiffs shall have 14 days to reply. Submissions are not to exceed six pages. I will determine costs on the papers.

O G Paulsen Associate Judge

Solicitors:

Crown Law, Wellington Morgan Coakle, Auckland