Pihema v South Pacific Forestry Holdings Ltd

[2025] NZCA 17

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA116/2024
 [2025] NZCA 17

BETWEEN	MARAEA PIHEMA First Appellant ROBERT PIHEMA Second Appellant
AND	SOUTH PACIFIC FORESTRY HOLDINGS LTD Respondent

Court:	French P and Collins J
Counsel:	Appellants in person J A Browne for Respondent
Judgment: (On the papers)	20 February 2025 at 11 am

JUDGMENT OF THE COURT

AThe application to extend time to comply with r 43 of the Rules is declined.

B    The application to appoint Mr Faulkner as agent of the appellant is declined. 

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

1. Ms Pihema applies for:

   (a)an extension of time to comply with r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules); and

   (b)the appointment of Mr Faulkner as her agent.

2. Ms Pihema wishes to appeal a summary judgment of Associate Judge Gardiner delivered on 8 February 2024 in which the Judge:

   (a)ordered Ms Pihema to yield possession of a property at 438 Mangamuka Road, Mangamuka which she was occupying; and

   (b)directed that if Ms Pihema did not yield possession within five working days of service of the order the plaintiff was entitled to take possession of Ms Pihema’s chattels and secure them pending further order of the Court. 

3. The order for possession was enforced on 28 February 2024.  Ms Pihema’s belongings were taken into storage and the “dilapidated house” she was living in was demolished. 

4. On 29 February 2024 Ms Pihema filed a notice of appeal.  No filing fee was paid. 

5. On 5 March 2024 the respondent sold the land in question to a third party. 

6. On 2 July 2024 Ms Pihema’s appeal was deemed to be abandoned due to failure to comply with r 43.  

7. Ms Pihema has filed an affidavit in te reo Māori.  A translation was provided on 23 October 2024. 

8. We understand that in essence Ms Pihema is challenging the lawfulness of the orders of the High Court on the basis that the land in question has been occupied by her for many years and that the legal title to the land does not prevail over her interests. 

9. The principles for determining an application to extend time were summarised by the Supreme Court in Almond v Read.[1]  We shall deal with the Almond v Read factors under the heading of analysis.

Analysis

Length of delay

[1]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

1. Ms Pihema’s appeal was filed in February of 2024.  There has no been no tangible progress during since then.    

Reasons for the delay

1. The application refers to Ms Pihema’s belongings being in storage and that there has been inadequate time to consult with counsel for the respondents.  In his submissions, Mr Browne points out Ms Pihema’s belongings have been placed in storage and that she has been able to collect them without paying for the storage facility for some time.  There has also been no attempt to consult with respondent’s counsel since the appeal was filed. 

Conduct of the parties

1. Ms Pihema has missed almost every deadline she has been required to meet. 

Prejudice

1. There is always prejudice to a respondent who is the subject of an appeal by a litigant who fails to properly prosecute their appeal.

Significance of the issues raised

1. We agree with Mr Browne that the appeal does not raise any matters of legal significance.

Merits

1. We also accept that the appeal has no reasonable prospect of success.  Ms Pihema was living on the respondent’s land.  The land in question has been general land for approximately 100 years and the respondent was the registered owner of the land.  The principal of indefeasibility of title weighs overwhelmingly against Ms Pihema’s appeal. 

2. We are therefore satisfied that this is not a case in which further extensions should be granted.  This conclusion renders it unnecessary to deal with the application to appoint Mr Faulkner. 

3. For completeness we note however that Mr Faulkner is not a lawyer and the principles articulated by this Court in Commissioner of Police v Aarts weigh heavily against the appointment of Mr Faulkner.[2]

Result

[2]Commissioner of Police v Aarts [2015] NZCA 385 at [23].

1. The application to extend time to comply with r 43 of the Rules is declined.

2. The application to appoint Mr Faulkner as agent of the appellant is declined. 

Solicitors:
Henderson Reeves, Whangarei for Respondent.