Rewi v Attorney-General
[2010] NZCA 328
•27 July 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA717/2009
[2010] NZCA 328BETWEENBELLA REWI
Applicant
ANDATTORNEY-GENERAL
First RespondentANDMINISTER OF LAND INFORMATION
Second RespondentANDTSB BANK LIMITED
Third RespondentANDBARFOOT & THOMPSON LIMITED
Fourth Respondent
Hearing:20 July 2010
Court:Glazebrook, Randerson and Stevens JJ
Counsel:T Davis for Applicant
G Gardner for First and Second Respondents
R B H Hern for Third and Fourth Respondents
Judgment:27 July 2010 at 2.30 p.m.
JUDGMENT OF THE COURT
A There is no jurisdiction to entertain this appeal.
BIf there is jurisdiction, the application for an extension of time to appeal is dismissed.
C There is no order for costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Background
[1] On 13 November 2009 the applicant filed an appeal against a decision of Associate Judge Robinson delivered in the High Court at Whangarei on 9 October 2009.[1] The effect of that decision was to strike out three sets of civil proceedings brought by the applicant against the respondents relating to three properties in Northland.
[1]Bella Rewi v Attorney-General HC Whangarei CIV-2009-488-332, CIV-2009-488-419,
CIV-2009-488-420, 9 October 2009.
[2] The notice of appeal was out of time. It should have been filed by 6 November 2009. In consequence, the applicant applied for an extension of time for appealing.
[3] When this matter was called before us, the applicant’s brother Mr T Davis appeared. He informed us that the applicant had passed away since filing the appeal. We are grateful to Mr Davis for his courtesy in appearing and providing us with a brief statement.
[4] Counsel for the respondents opposed the application for an extension of time on two principal grounds:
(a) there is no jurisdiction to entertain the appeal;
(b)if there is jurisdiction, the application to extend time should not be granted.
Jurisdiction
[5] We are satisfied this Court has no jurisdiction to consider this appeal. In striking out the proceedings, the Associate Judge was exercising the powers of a Judge sitting in Chambers under s 26J of the Judicature Act 1908. The application to strike out the proceedings was interlocutory in nature. Any such application must be heard in Chambers unless a Judge otherwise directs.[2] There is no suggestion that the Judge directed this matter be heard other than in Chambers. The decision was made on the papers as the applicant did not appear.
[2] High Court Rules, r 7.34.
[6] By virtue of s 26P(2) of the Judicature Act 1908 there is no right of appeal from a decision made in Chambers.[3] If the applicant wished to challenge the decision of the Associate Judge her only recourse was to seek a review of the decision under s 26P(1). She did not do so.
Extension of time
[3]See New Zealand Defence Force v Berryman [2008] NZCA 392 at [4]; Vero Liability Insurance Ltd v Symphony Group & Ors [2008] NZCA 419 at [3].
[7] Even if there were jurisdiction to entertain the appeal, we are satisfied there is no proper basis to extend the time to appeal. Although the delay in filing the appeal was brief, we accept the submission by the respondents that there are no arguable grounds for appeal. One of the applicant’s grounds of appeal was that the Associate Judge had refused an adjournment of the application to strike out despite production of a medical certificate. The Judge determined the strike-out application in the applicant’s absence. Where a party fails to appear, there is power for a Judge or Associate Judge to determine the application in the party’s absence in any manner that appears just.[4]
[4] High Court Rules, r 7.40(1)(a).
[8] Here the Judge determined it was appropriate to proceed notwithstanding the applicant’s failure to appear. He did so on the basis there was no reasonably arguable cause of action.
[9] We are satisfied the Judge was correct to reach that conclusion for the reasons he gave. In brief summary, these were that the applicant’s sons had acquired from her an interest in the three properties. They borrowed funds from the TSB Bank Ltd secured by a mortgage registered against the titles to the properties. When the mortgagors defaulted, the Bank exercised its power of sale and the properties were sold to a third party. A caveat was subsequently lodged in the name of Nga Uri Whakatipurunga O Ngarae Inc but the caveat lapsed after notice was given under s 145A of the Land Transfer Act 1952.
[10] The Associate Judge found that the claim against the first and second respondents could not succeed. The body named as caveator was not registered and did not have independent legal status. In any event, notice was given to the address for service stated in the caveat and no steps were taken to avoid the caveat lapsing. The applicant was not registered as a proprietor of any estate in the property and, by virtue of s 34 of the Land Transfer Computer Registers and Electronic Amendment Act 2002, the computer register showing the new owner as the registered proprietor was conclusive evidence of proprietorship of the land.
[11] In relation to the third and fourth respondents, the Associate Judge found that the applicant was not the registered proprietor or mortgagor of the properties and could not maintain a cause of action arising from the exercise by the mortgagee of the power of sale. In any event, the Associate Judge was satisfied there was no evidence that the mortgagee or its agents breached any duty to the mortgagor to obtain the best available price.
Result
[12] We conclude there is no jurisdiction for this Court to entertain the appeal. If there were jurisdiction, there are no grounds made out to grant the application for extension of time to appeal and that application is dismissed accordingly.
[13] In the circumstances the respondents did not seek costs. There will be no order in that respect.
Solicitors:
Crown Law Office, Wellington for First and Second Respondents
McElroys, Auckland for Third and Fourth Respondents
3
2
0