Roman Catholic Bishop of the Diocese of Auckland v Boynton

[2019] NZHC 1446

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1937

[2019] NZHC 1446

BETWEEN

THE ROMAN CATHOLIC BISHOP OF THE DIOCESE OF AUCKLAND
Plaintiff

AND

RETI BOYNTON

First Defendant

LISA POPATA and ELLA TUROA

Second Defendants

Hearing:	24 June 2019 at 10:00am
Appearances:	B J Upton and S L Hawksworth for the Plaintiff Reti Boynton, Lisa Popata and Ella Turoa in person
Judgment:	24 June 2019

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:

Simpson Grierson (B J Upton and S L Hawksworth), Auckland, for the Plaintiff

Copy for:

Reti Boynton

Lisa Popata and Ella Turoa

THE ROMAN CATHOLIC BISHOP OF THE DIOCESE OF AUCKLAND v BOYNTON [2019] NZHC 1446 [24 June 2019]

[1]    For many years, the Roman Catholic church ran a school that catered for Māori boys at College Road, Northcote, Auckland - Hato Petera College. It was initially a private church school but became an integrated school in 1981. The school closed in August 2018, apparently because of dysfunction within the school and a dwindling school roll. After the school closed, people moved onto the school property and occupied it. The Bishop says that these people came onto the property without consent. They included the defendants in this case. Trespass Act notices were served. The Bishop followed up with this proceeding in which he seeks an order for possession of the property. The relief sought in the statement of claim is:

(a)a declaration that the Bishop is entitled to vacant possession of the school property;

(b)orders that the defendants and anyone else occupying the school property without the Bishop’s consent are to vacate and deliver up possession of the property to the Bishop or his agents;

(c)orders requiring the defendants to remove any property they had brought onto the school grounds; and

(d)costs and other relief.

[2]    On 9 October last year, Jagose J gave interim relief.1 He ordered the defendants immediately to give vacant possession of the school property and within 48 hours to remove any property they had brought onto the school grounds. After the Bishop had obtained these orders, he decided that the best way to obtain a final determination was to apply for summary judgment. I have heard the application for summary judgment, but before I deal with the merits of that application there are some procedural matters.

1      Roman Catholic Bishop of Auckland v Boynton [2018] NZHC 2636.

Parties

[3]    The plaintiff, the Roman Catholic Bishop of the Diocese of Auckland, is a corporation sole.2 As a corporation sole, the Bishop has and may exercise all the rights, powers and privileges, and has all the liabilities, of a natural person. That entitles him to own property and to sue and be sued.

[4]    At the outset, the Bishop sued Mr Reti Boynton as first defendant, and the unauthorised occupants of the properties at 120 College Road and 103 College Road, Northcote, Auckland as second defendants. But those occupants were never identified. In the hearing today, the question of the identity of the second defendants has been largely cleared up. There are difficulties with proceedings against unidentified persons. Normally a party to a proceeding needs to be identified. That is to ensure that they can be and are served. It is necessary to make sure that those who will be bound by the decision are identified. Those who are parties to a proceeding have the right to appear in court and to appeal against any decision. Defendants who are unknown or unidentified will normally not have that ability.

[5]    In some cases, the courts can deal with proceedings against unidentified persons. Rule 4.24 of the High Court Rules 2016 allows for representative proceedings. Either there can be a court order that a person is appointed to represent the interests of a group, or alternatively, a person can appear as representative with the consent of those he purports to represent. Mr Boynton has said that he is the representative of the Turoa and the Peters families. But that is not without controversy. In his decision on the interim injunction application, Jagose J recorded that some members of the Peters family appeared and contested Mr Boynton’s right to argue on their behalf.3

[6]    Under Part 13 of the High Court Rules, summary proceedings can be brought for the recovery of land. Part 13 allows proceedings to be taken against unlawful occupiers of land, whether they are known to the plaintiff or not. Rule 13.3 directs

2      The Roman Catholic Bishops Empowering Act 1997, s 5.

3      Roman Catholic Bishop of Auckland v Boynton [2018] NZHC 2636 at [5].

that a plaintiff must name as a defendant each unlawful occupier who is known to the plaintiff. If no unlawful occupier is known to the plaintiff, the statement of claim must not name any person as a defendant. McGechan on Procedure comments:4

The plaintiff must either name all the known occupiers or must name no defendant if they are unknown. If there are occupiers he does not know, they must be served but they are not included as defendants in the documentation unless the court orders that they be included as defendants.

So far, there has been no court order directing that unknown persons be named as defendants. This is not a proceeding under Part 13. That part does not allow a plaintiff to sue both known and unknown defendants without a court order. Even more so, in  a proceeding outside Part 13.

[7]    During  the  hearing,  a  way  round  the  procedural  problem  was  found.  Mr Boynton sought to be excused from the proceeding and to have Ms Turoa and  Ms Popata substituted as defendants. The plaintiff resisted Mr Boynton being removed from the proceeding. Mr Boynton’s argument was that he had quit the school premises promptly - he says when he was served with a Trespass Act 1980 notice – but in any event he had quit the school premises after the interim injunction had been ordered. Mr Boynton claims to no longer have any interest in contesting the matter. The Bishop does not accept that because Mr Boynton did file a notice of opposition and an affidavit by Ella Turoa, indicating ongoing opposition to the proceeding.

[8]    Mr Boynton was properly joined as a defendant at the start of the proceeding. He was one of the people occupying the school grounds. It is the plaintiff’s choice whether to release him or not. It is important for the Bishop that he obtain a determination against those who came onto the grounds contesting the Bishop’s right to bar them from the property. Mr Boynton sought to have Ella Turoa and Lisa Popata added as defendants. He explained that while he does not whakapapa to the land where the school is located, both Lisa Popata (his partner, a member of the Peters whānau) and Ella Turoa whakapapa to that land. As they have ancestral connection to the land, they should properly be parties.

4      Andrew Beck (ed) McGechan on Procedure (online loose-leaf edition, Thomson Reuters) at [HR13.3.02].

[9]    Ms Turoa and Ms Popata both sought to be joined as defendants. I pointed out to them that as defendants they could be liable for costs. They accepted that. They also have the privileges of a party to the proceeding. Ms Turoa spoke in support of her case, and Ms Popata in support of her. Likewise, they have any rights of appeal from this decision. They have accordingly been joined as second defendants in the proceeding. I do not regard it as necessary to have unknown defendants as parties to this proceeding at this stage. The parties are adjusted accordingly.

Leave to bring a summary judgment application

[10]   The Bishop requires leave to apply for summary judgment. When the statement of claim was first served, the Bishop had not applied for summary judgment. The decision to apply for summary judgment was made only after Jagose J gave his decision on the interim injunction. The explanation given for the late application for summary judgment was that the plaintiff did not appreciate that the case was capable of summary judgment determination until after the decision had been given on the interim injunction application. That is, the Bishop did not appreciate the defences that might be raised in opposition to his case. I do not find that explanation convincing. This case could have been brought more efficiently under Part 13 of the High Court Rules as an application for summary recovery of land. This case is ideally suited for that. The Bishop has instead taken a more circuitous path by seeking an interim injunction and applying for summary judgment afterwards. Notwithstanding that, I see no reason why the Bishop should not be able to apply for summary judgment now. This is not a case where the defendants have invested a lot in the defence of the case in the expectation that it would go to trial in the normal way. Their response has been the opposite. They regard the interim injunction proceeding as having determined matters. While they do not agree with the Bishop’s case, my impression is that they are perplexed that the proceeding has carried on to the extent that it has. As the Bishop had obtained an interim injunction, it is appropriate for him to continue the proceeding to obtain a final determination on the merits. Equally, I accept that a summary judgment application is an efficient way of dealing with the substantive merits of the case. Accordingly, I grant leave to apply for summary judgment.

[11]   In an application for summary judgment, a plaintiff needs to satisfy the court that the defendant does not have a defence to the cause of action in the statement of claim. The Court of Appeal stated the approach on summary judgment applications in Krukziener v Hanover Finance Ltd:5

[26]      The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried. … The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated. … The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that 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: … In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it. …

[27]      Under r 141A, the defendant need not file a statement of defence. The onus remains on the plaintiff, and summary judgment will be denied if on the hearing of the application it appears that there is an issue worthy of trial.

(Citations omitted)

The law to be applied

[12]   No doubt the Bishop is subject to canon law of the Roman Catholic church, but I am not required to apply that law in this case. His case is to be decided under New Zealand property law. That is law laid down by Parliament and in court decisions. One of the laws laid down by Parliament is the Land Transfer Act. When the Bishop began this proceeding, the Land Transfer Act 1952 was in force, but in November 2018 that Act was repealed and replaced by the Land Transfer Act 2017. While the Bishop’s claim to the land turns on the 2017 Act, it will be necessary to refer to earlier land transfer legislation.

[13]   Although the defendants have not put it quite this way, they say that they have claims to the land as well. I take it that their claims in part rely on tikanga. Tikanga can be a source of law in New Zealand. For reasons I will explain, any claims to this

5      Krukziener v Hanover Finance Ltd [2008] NZCA 187 at [26]-[27], (2008) 19 PRNZ 162.

land arising out of tikanga have been extinguished because of the operation of statutes, in particular the Land Transfer Act.

[14]   The Bishop’s proceeding is in essence a claim for ejectment. That is, he claims to be the owner of the land and entitled to possession of it. He wishes to bar from entry and to eject those who come onto the land without his consent. In such proceedings, the court determines the relative claims to possession of the property.    I have to decide who has the better claim to possession in this case – the Bishop or the defendants. That is a relative claim. I do not have to decide absolutely the Bishop’s ownership of the school grounds.

Background

[15]   There is history as to how the Bishop came to own the land in College Road, Northcote. To understand the case it is helpful to go back into that history. The evidence comes from Ella Turoa and a property consultant instructed for the Bishop.

[16]   The land at Northcote is referred to as Awataha.  I understand it to comprise an area of Northcote from Northcote Point on the western side of the motorway northwards in the direction of Glenfield. Ms Turoa and Ms Popata claim ancestral connection to the land. Ms Turoa’s affidavit gives an outline of the occupation of the land in pre-colonial times. She refers in particular to an iwi, Te Kawerau a Maki, which she says occupied land from the Waitakere Ranges through to Cape Rodney in the 17th and 18th centuries. She says that Ngāti Whatua moved into the area during the 18th century. In Auckland (Tāmaki Makaurau) there were land battles between various tribal groups. In the early 19th century there was a successful invasion by Ngāpuhi. Local Māori quit the area. She says that the surviving Te Kawerau a Maki returned to their customary lands, which she describes as in the Awataha area. Her evidence therefore points to occupation by Te Kawerau a Maki at the time of the Treaty of Waitangi.

[17]   In submissions today, Ms Turoa also relates her ancestry to a group, Ngāti Kukanui. She made that submission because she wanted to make the point that her iwi did not trace back to Ngāti Paoa. That is important because Ngāti Paoa sold land

to the Crown in the 1840s and early 1850s. Ms Turoa’s case is that the Te Kawerau a Maki and Ngāti Kukanui did not sell their land to the Crown.

[18]   Here I come to the evidence for the Bishop. That comes from Mr Schwarz, a property consultant who has had extensive experience in researching land titles and land sales. He is not an academic historian and is not qualified in the pre-Treaty occupation of Tāmaki Makaurau, but he has extensive experience in research of land records for the Department of Lands and Survey, DOSLI and Land and Information New Zealand. He says that he has read and understood the code of conduct for expert witnesses in Schedule 4 of the High Court Rules. But he has not, however, said that he agrees to comply with the code. For me to accept his evidence as an expert, he must agree to comply with the code.6 Mr Upton volunteered that an updating affidavit could be provided in which Mr Schwarz would make it clear that he agreed to comply with the code and that he had complied with it in giving his evidence. It is a condition of the orders in this proceeding that that affidavit be provided so that I can accept his evidence as an expert.

[19]   Mr Schwarz has examined LINZ records going back before the land in this case came under the Land Transfer Act. He has identified purchases by the Crown of land he describes as the Mahurangi/Omaha Block. He claims that that is an area of 9,500 acres, but that seems to be mistaken. From plans attached to the documents the area concerned can be understood as follows: down the coastline from Cape Rodney to North Head in Devonport and along the north shore of the Waitemata Harbour to Riverhead, described in the documents as the “Kaipara portage”, then northwards up to a point somewhere west of Warkworth and across to Cape Rodney. The distance from Cape Rodney to Northcote is approximately 70 kilometres. The width of the land is at least 10 kilometres (and in some parts much wider). The area concerned is at least 700 square kilometres. That is a much greater area than the 9,500 acres referred to in Mr Schwarz’s evidence. “Mahurangi/Omaha Block” refers to areas in the Warkworth district, but the deeds and the plans attached to the deeds show a much more extensive area.

6      High Court Rules, r 9.43(2)(a).

[20]   The first deed is dated 13 April 1841. Copies of the deeds have been put in evidence,  a Māori version and a translation into English.   The translator was a     Mr Turton. The deeds are part of a collection referred to as the “Turton deeds”. Under the first deed of 13 April 1841, the vendors are the chiefs and people of Ngāti Paoa, Ngāti Maru, Ngāti Tamatera and Ngāti Whauaunga. The area concerned is what I have described above. The consideration for the purchase was 400 blankets, 60 coats, £200 cash, 60 gowns, 2 horses, 2 head of cattle, 200 pairs of trousers, 30 coats, 100 caps,  4 casks of tobacco, 6 bags of flour, 2 bags of rice and 1 bag of sugar. By today’s standards, that was an improvident sale.

[21]   The second deed is dated 31 May 1841. The vendor is identified as “Pomare”. I take “Pomare” to be the well-known Ngāpuhi chief.7 He sold his interest in the land for one vessel and £50 cash. The land sold was the same as in the agreement with Ngāti Paoa.

[22]   The third deed, (no.198) is for land identified as the “Mahurangi Block” (Haimona’s claim). The deed was made on 7 November 1853. The vendors were identified as Te Ara Tinana and Haimona Pita. The deed provides that this is to be “the final unreserved giving up of Mahurangi, that is the land bought many years ago beginning at Takapuna and on to the Arai being the boundary on the North according to the plan on the back of this deed”.

[23]   There is a fourth deed (no.199), where the vendors are said to be the chiefs of Ngāti Paoa. This deed was dated 6 January 1854. There were individual payments made to particular vendors. This transaction is described as “the final and unreserved giving up of the land previously purchased”.

[24]   What emerges from these four deeds is that the Crown initially bought from a group holding themselves out as owners of the land and dealt with a Ngāpuhi chief who also claimed an interest in the land. The Crown made fresh agreements with others who claimed interests in the land. Those documents do not give any assurance that the Crown had identified and bought from everyone with an interest in the land.

7      He is usually associated with the Waikare Inlet in the Bay of Islands.

I bear in mind that it may be difficult to identify everyone who claimed mana whenua in such an extensive area.

[25]   For this decision it is arguable for the defendants that their ancestors occupied land at Awataha. The Bishop has not shown to the summary judgment standard that their ancestors sold their interest in Awataha  to the Crown under any of the deeds.    I note that as a summary judgment point. The matter should be decided at a full trial. Establishing mana whenua in pre-Treaty days is fraught. It cannot be decided on a summary judgment basis.

[26]   The Bishop traces his ownership of the land to a Crown grant of 25 June 1850, identified as Crown Grant 84822. Under a deed of 25 June 1850, land on the North Shore was transferred to the Bishop of the Roman Catholic Church at Auckland. That was the famous Bishop Pompallier. The recital says that land was transferred to the Bishop:

“for the education of children of our subjects of both races and of children of other poor and destitute persons being inhabitants of the islands in the Pacific Ocean.”

The words of conveyance include that the land was granted to the Bishop and his successors:

…in trust nevertheless for the use of or towards the support and maintenance of the said school so long as Religious Education Industrial Training and Instruction in the English language shall be given to the Youth educated therein or maintained thereat.

Those words appear to establish a charitable trust.

[27]   Mr Schwarz has traced the history of the land through the deeds records after the Crown grant of 1850. There were subdivisions of the land, with new lots created, and eventually a certificate of title was issued under the Land Transfer Act 1915 on 31 December 1934. The land in that certificate of title includes the land which became the site of Hato Petera College. There were further subdivisions, and separate certificates of title were issued for the properties occupied by the school. In June 1973, certificate of title 26B/813 was issued for 120 College Road. That is the site of the

school and sports grounds. On 25 September 1990, certificate of title 79C/263 issued for the land at 103 College Road, which has the hostel and marae.

[28]   Ms Turoa’s evidence refers to dealings between her ancestors and the Bishop. In 1903 Atarea Petera contested what the church was doing to a Native Affairs Committee. In 1908 her ancestors occupied the land on the Awataha whenua in the area now known  as The Warehouse Way,  near to the school.  In  1911, there were  69 men, women and children holding ahi kā on Awataha. She refers to her ancestors as having been buried at Te Urupa. She refers to her ancestor Noka Hukanui and Patariki Hukanui and Patariki Wirito pleading for assistance from the then Bishop (Bishop Cleary). There were negotiations. Life tenancies were granted for the ancestors to live on the land.

[29]   The current Bishop does not necessarily accept that the leases were granted. He puts in evidence a lease granted in 1925 to a non-Māori. This is said to be inconsistent with the defendants’ claims that they occupied the land. Those matters cannot be finally resolved in this summary judgment application. It might be thought that the Bishop may have acquired title by prescription given the long passage of time. From 1850 to the 20th century he seems to have had undisturbed possession of the land, but Ms Turoa’s evidence indicates that her ancestors continued to occupy some of the land and continued to assert some right to occupy the land. It would not be safe for me to assume that the Bishop obtained title by prescription following the Crown grant.

The Bishop’s right to vacant possession

[30]   When the Crown conveyed the land to the Bishop in 1850, the Crown did not necessarily have a complete title. The Crown could only convey to the Bishop whatever interests the Crown held at the time of transfer. The Crown could not give ownership of land that it did not own. To the extent that the Crown had not acquired all the interests in the land at the time of the Treaty, the Bishop’s title in 1850 may have been subject to the claims of those who had not sold to the Crown. That is simply an application of an ordinary principle of property law, nemo dat quod non habet.8

8      No-one can transfer what they do not own.

[31]   Be that as it may, the position changes in 1934 with the land coming under the Land Transfer Act. The Land Transfer Act made important changes to New Zealand land law. It needs to be understood in its historical context. The land transfer legislation was first passed in the 1870s. Its purpose was to give confirmed and certain title to people who had settled on land, so that their claims were free from claims made by people who had lived there before. It was passed after the Māori land wars. It was to give settlors assurance of title – even if there were Māori who had occupied the land before and did not accept that pākehā had obtained good title. That legislation was worked out in court decisions over the years. The principle of indefeasibility is that someone who acquires an interest in land registered under the Land Transfer Act has a claim free from claims by people who had earlier interests in the land, where those interests have not been registered against the land. That finds its modern version in s 51 of the Land Transfer Act 2017. At the time that the school properties were brought under the Land Transfer Act, the relevant act was the Land Transfer Act 1915. The key provision, s 58, says that the title of the registered proprietor is paramount. Section 62 of the Land Transfer Act 1952 is in substantially the same terms. The point here is that at the start of 1935, the Bishop was the registered proprietor of the land. Registration gave him clean title, free of claims of anyone who had an interest in the land before.

[32]   I am satisfied that none of the exceptions to the indefeasibility rule apply here. The most well-known exception is fraud, but there is nothing to suggest fraud on the part of the Bishop in acquiring title to the land. There may be “in personam” claims against a registered proprietor. Those typically apply when the registered proprietor has made a contract or settled land on trust and is bound in a personal capacity by what he has done. But there is no suggestion of that here. For this case there are no statutes that override the Land Transfer Act. Those are the main exceptions to the indefeasibility rule. I am satisfied that they do not apply here. The Land Transfer Act 2017 also allows for title to be upset in cases of manifest injustice. As an academic point, it may be that that does not apply when title has already been obtained under earlier Land Transfer legislation. But in any event, I am satisfied that there is no manifest injustice in this case.

[33]   So the point I have reached is that the Bishop is the registered proprietor of the properties at 103 and 120 College Road, and as registered proprietor he is entitled to possession of the property. That gives him the rights to occupy the property, to consent to people entering onto the property, to refuse consent, and for those who come onto the property without his consent to require them to leave the property. Those are the rights he has asserted in this proceeding.

[34]   While the ancestors of Ms Turoa and Ms Popata may have had an interest in the land in the past, that was extinguished when the property was registered under the Land Transfer Act. They no longer have a current claim to an interest in the property, an interest recognised under land law. They may have complaints about the loss of their interest in the land, going back to the transfer of the land to the Roman Catholic Bishop in 1850 when they had not agreed to sell their land to the Crown. But that is a matter between them and the Crown. It cannot stand in the way of the Bishop enjoying his ownership of the school grounds.

Other matters

[35]   The defendants raise two other matters. The Crown grant covered much more land than the school grounds, and much of it has been sold off. In reply evidence,  Mr Schwarz produced the Auckland Roman Catholic Endowment Sales Act 1858 which gave express legislative authority to the Bishop to sell the land within the grant made in 1850.

[36]   Part of the impetus for occupying the school grounds arose out of the fact that the school had now closed and those who had ancestral connections with the land took the view that as the grounds were no longer to be used for a school, the land should revert to the original owners. The Bishop has, however, countered that by showing that he still intends to use the grounds for the original educational purpose. There is evidence that the Bishop is taking steps to find people who will provide educational services on the school grounds.

[37]   Those aspects do not in my judgment raises any arguable defences. I note that if the Bishop were to propose alternative uses for the land, then as the land is held

under a charitable trust, the law relating to variation of charitable trusts would apply. There are provisions in the Roman Catholic Bishops Empowering Act 1997 about that.9 The fact that the school has had to close and other measures have been taken to find an educational use for the land, does not in my view give any grounds for holding that the trust on which the Bishop holds the land no longer binds him.

Outcome

[38]   I have considered all the matters raised in argument. I am satisfied that the defendants do not have any defence to the claims made in the statement of claim.      I now grant relief. Mr Upton advises that the order for defendants to remove property from the school grounds is no longer necessary as that has already been complied with. I make an order granting the Bishop possession of the land at 120 College Road and 103 College Road, Northcote. The interim injunction granted by Jagose J is now a permanent injunction.

Costs

[39]   As the Bishop has succeeded, he is entitled to costs. When Jagose J ordered the interim injunction, he indicated that costs under category 2 would be appropriate. That was provisional.   Apparently nothing has been done to follow up on costs.       I consider that this case could have been brought more efficiently under Part 13 of the High Court Rules. That would have saved both sides time and trouble. The conduct of the case has been inefficient. I do not see why the defendants should pay for that inefficiency.

[40]   Accordingly, I give a general indication that costs for this proceeding are to be fixed as if it had been brought under Part 13 instead of by interim injunction application and summary judgment. I ask the parties to confer as to costs. Memoranda should be filed, setting out submissions as to what costs I should order.

…………………………………….

Associate Judge R M Bell

9      Roman Catholic Bishops Empowering Act 1997, Part 4.