Smith v New Zealand Kennel Club Incorporated
[2018] NZHC 27
•30 January 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE
CIV 2016-009-23 [2018] NZHC 27
BETWEEN LOUISE SMITH
Plaintiff
AND
NEW ZEALAND KENNEL CLUB INCORPORATED
Defendant
Hearing: 12 October 2017 Counsel:
G E Minchin for Plaintiff
T Mijatov for Defendant
R Collis for Susan Howard as an interested partyJudgment:
30 January 2018
JUDGMENT OF ELLIS J
[1] The New Zealand Kennel Club (the NZKC) has become collateral damage in a battle over the registration of three pedigree Japanese Spitz dogs.1 The present owner of the dogs, Ms Louise Smith, seeks judicial review of a decision by NZKC refusing to place them on the its “Full Register”. That refusal affects the value of the dogs and denies them the ability to be entered in a Championship or Open Show, to be bred or to be issued with a Certified Export Pedigree. Their registration status also has an inter-generational trickle-down effect on any puppies the three dogs might sire or whelp in the future. Objection is also taken by Ms Smith to the names under which
the dogs have been registered.
1 I use the term “dogs” in the generic sense. Two of the dogs are female, one is male. As I
understand it, only one now remains in the ownership of Ms Smith.
SMITH v NZ KENNEL CLUB INC [2018] NZHC 27 [30 January 2018]
[2] At its heart, however, the proceedings are not concerned with the registration decision itself. That is because that decision turns on who is entitled to apply to have the dogs registered. It is that person who, in the first instance, makes the decision about what type of registration will be sought. The NZKC’s position is that the appropriate registrant here is Ms Susan Howard because she is the “breeder” of the puppies in terms of the relevant Rules and Regulations. Consistent with that stance, the NZKC has registered the puppies in accordance with Ms Howard’s wishes. Ms Smith denies that Ms Howard is the “breeder” of the puppies and maintains that it is she, as owner (or Ms Jane Faulkner as the previous owner), who is entitled to choose.
[3] A useful starting point is an overview of the relevant NZKC Rules and Regulations. That will be followed by the factual narrative and then an overview and analysis of Ms Smith’s claim
The Rules and Regulations of the New Zealand Kennel Club
[4] The NZKC was founded in 1886. It is an incorporated society whose mission statement is “to encourage and support the pursuit of excellence” in relation to the standards of dogs in New Zealand.
[5] The NZKC operates pursuant to the “Rules of the New Zealand Kennel Club” (the Rules). The NZKC has also made regulations pursuant to the Rules that relate to the registration of dogs with the Club.2 Minor, but largely immaterial, changes to the Rules and the Regulations have been made during the period covered by Ms Smith’s claim. For convenience, I will refer to the Rules and Regulations that were current during 2011 in this judgment.
[6] Under the Rules, a subcommittee of the NZKC’s Executive Council deals with any disputes that are referred to it. The Executive Council is also responsible for making all NZKC Regulations.
[7] It is necessary now to say a little more about the specific aspects of the Rules and Regulations that are relevant to the present dispute.
2 Rule 34 authorises the making of Regulations by resolution of the Executive Council of the NZKC
for the purposes of giving effect to the Rules.
The Rules
[8] Rule 2 sets out the objects of the NZKC. These include promoting:
(a) dog shows, including the annual National Dog Show;
(b) the classification of breeds;
(c) the registration of dogs in the NZKC Register; and
(d) the registration of pedigrees.
[9] Rule 3 sets out a number of definitions. Relevant for present purposes is the term “breeder” which is defined as follows:
(b) ‘Breeder’ subject to Rule 3(o), the breeder of any dog is the “owner of the dam at the time of whelping”
[10] The reference to Rule 3(o) in this definition is clearly a mistake. That is because Rule 3(o) simply provides that:
‘NZKC’ means ‘New Zealand Kennel Club’.
[11] The origins of this mistake were explained in a supplementary affidavit filed by Mr Dunne, the present Director Secretary of the NZKC. He says, and I accept, that the reference should be to Rule 3(m), which defines “lessee” as follows:3
(m) ‘Lessee’. The lessee is the person to whom the dog is lent either under a loan of dog for stud purposes or a loan of bitch for breed purposes under a loan agreement duly registered with the New Zealand Kennel Club.
[12] The significance of the (intended) reference to lessees will become apparent when it comes to consideration of the Regulations. I return to it shortly, below.
3 Mr Dunne explained that a change was made to the Rules in 2007/2008 when the definitions were alphabetised. This resulted in what had previously been the definition at “(o)” becoming the definition at “(m)”, with the need consequentially to amend the definition of “breeder” being overlooked.
[13] Rule 32 relates to the NZKC Register. It provides:
(a) The New Zealand Kennel Club shall keep a Register of Dogs in three
Parts and a Companion Dog Directory.
(b) No dog may be shown at any show until the appropriate registration has been made.
(c) Part 1 of the Register is the Full Register. It is only open to:
(i) pure bred dogs bred from a sire and dam each registered on
Part 1, and
(ii) imported pure bred dogs with a Certified Export Pedigree issued by a canine control recognised by the New Zealand Kennel Club.
Details of the owner/s, name of dog, colour/s, sex, breeder, date of birth, sire, dam, and a registration number shall be recorded.
(d) Part 2 of the Register is the Dog Training Register and is open to any dog.
(e) Part 3 of the Register is the Restricted Register, and is open only to pure bred dogs as specified in (c). Details of the owner/s, name of dog, colour/s, sex, breeder, date of birth, sire, dam and a registration number shall be recorded. Any transfer of a dog from Part 3 to Part
1 can only be done with the consent of all the breeder/s of the dog.
(f) …
(g) Only dogs registered on Part 1 may be entered at a Championship
Show or Open Show
(h) Only dogs registered on Part 1 may be issued with an export pedigree.
…
[14] Part 3 of the Register (the Restricted Register) was introduced in about 2008, apparently to meet the demand from owners of dogs to be used as pets who wanted their pets to be recorded as purebred, but without the right to be shown or bred from. Prior to 2008, the NZKC was able to place certain “endorsements” on dogs that achieved the same effect as the introduction of the Restricted Register. The ability to place endorsements on dogs registered on the Full Register still exists today and is discussed further, below.
The Registration Regulations
[15] The Registration Regulations deal with the Register in more detail. The explanatory note to the Regulations states:
1. Only the breeder can register a dog.
…
3. The breeder must be the owner of the dam of the litter, that is:
- the outright owner, or
- if the dam is jointly owned, all the owners, or
-the lessee of the bitch under a New Zealand Kennel Club registered lease agreement.
[16] Regulation 5 reiterates the four parts of the Register and further states that dogs registered on the Restricted Register are to be endorsed “not to be bred from”, “not to be shown” and “not eligible for an Export Pedigree”. Restricted Register dogs can, however, be shown at Ribbon Parades and Trials, and can compete in any agility, obedience or working trials events.
[17] Regulation 6 sets out the powers of the Executive Council in relation to registration. These include:
(a) the power to decide disputes arising from any registration or application for registration;
(b)in exceptional circumstances and upon payment of a Special Registration Fee, the power to approve without reasons the registration of any dog, notwithstanding that there has been non-compliance or only part compliance with the normal requirements of registration;
(c) an absolute discretion to decline to register any dog;
(d)the power to place an endorsement on the register in relation to any dog; and
(e) upon the application of any person, to review any administrative decision made pursuant to the regulations.
[18] Regulation 8 deals with “litter notification”. It relevantly provides:
8.1.1Only a financial member of the New Zealand Kennel Club may register a dog or notify a litter under these Regulations.
8.1.2Only a registered owner of a Kennel Name may notify a litter under these Regulations or register a dog whelped in New Zealand on Part
1 of the Register.4
8.1.3 The breeder of any litter is deemed to be:
(a) the owner or owners of the bitch according to the
New Zealand Kennel Club Register or
(b) the lessee of the bitch pursuant to an Agreement for Loan or Use of Bitch registered with New Zealand Kennel Club pursuant to these Regulations.
…
[19] Regulation 9 deals with the registration process. It provides that all dogs “should be registered” within one year of birth and that dogs whelped in New Zealand that are over the age of two years “cannot be registered under any circumstances”. Regulation 9.3 requires (inter alia) the Kennel Name to be included in the registered name of the dog and provides that name changes can only be effected either before the dog is four months old or within 21 days of registration. Of further relevance are:
(a) reg 9.3.6, which provides:
Only the member registered as owner or part owner of a New Zealand Kennel Club registered Kennel Name may use that name as part of any registered dog’s name.
and
(b) reg 9.3.11, which provides:
Any application for a change of name shall be made by the breeder …
4 Kennel Names are dealt with in Regulation 11. The NZKC is required to keep a register of such names.
[20] Regulation 12 deals with endorsements, or restrictions, placed on the registration of a dog “limiting the use of the dog”. Recognised endorsements include “Not to be shown – Lifetime”, “Not to be bred from – Lifetime” and “Not to be eligible for the issue of an export certificate”. Such endorsements therefore mirror the types of restrictions which are placed on the use of a dog by virtue of its registration on the Restricted Register. It is implicit in reg 12 that general endorsements are placed on the Register at the time of registration by whomever registers the dog concerned (ie the owner or the breeder).5 Notably, reg 12.6 provides that an owner may apply to the Executive Council to have an endorsement lifted, but that such application can only be made “with the consent of the breeder of the dog”.6
[21] Regulations 13 and 14 govern lease arrangements. The lease of bitches is dealt with under reg 13, which states:
13.1A member of the New Zealand Kennel Club may lease a bitch for breeding purposes and be deemed to be the breeder of any Litter whelped by that bitch during the currency of the lease.
13.2 The lesser [sic] (owner of the bitch) need not be a member of the
New Zealand Kennel Club.
13.3The lessee (member leasing the bitch) must be a current financial member of the New Zealand Kennel Club and be an owner or part owner of a Kennel Name.
13.4A lease of a bitch for breeding purposes must be registered with the New Zealand Kennel Club by the lessee (person leasing the bitch) registering a Loan or Use of Bitch for Breeding Purposes Agreement in triplicate within three months of the date of signing.
13.5Parties to an agreement for Loan or Use of Bitch for Breeding Purposes Agreement may enter into such contractual arrangements between themselves as they may deem appropriate. Any such contract should be in writing and is a personal agreement between the parties and will not be recognised by the New Zealand Kennel Club.
13.6A bitch may be leased under these Regulations for any period being not less than 6 months or more than eighteen months.
13.7The registration of a Loan or Use of Bitch for Breeding Purposes Agreement shall remain in force for the period stated in the agreement unless cancelled by written agreement of the parties concerned.
5 Pursuant to reg 12.5.1, other endorsements (such as an endorsement as to neutering or spaying)
may be requested by an owner subsequently.
6 A decision whether or not to grant such an application is said to be at the Executive Council’s
“absolute discretion”.
…
[22] The NZKC has issued a standard Loan or Use of Bitch for Breeding Purposes Agreement. It advises the parties to such an agreement to read the Regulations and refers specifically to reg 13.5. As well as providing spaces for the names and details of the lessor/owner and the lessee, it contains a specific space in which the “breeder of all puppies” for the duration of the lease is to be identified. It contains space for the signatures of both the lessee and the owner and a space for the “date signed”.
[23] Thankfully, reg 16 is only marginally relevant. It is confusing. It purports to deal with what are called in it “New Zealand Kennel Club Recognised contracts”, although that terms is nowhere defined. It provides that:
16.1The New Zealand Kennel Club shall issue a recognised standard contract for the sale and purchase of dogs.
16.2For any New Zealand Kennel Club Recognised contract to be upheld it must be signed by all parties. Any subsequent variation must also be signed by all parties.
16.3In the absence of a completed form for any transaction the New Zealand Kennel Club shall uphold the following terms and conditions contained in any recognised contract:
16.3.1 The registration of any dog, including the registration of any dog presumed to be registered pursuant to clause 16.6 hereof
16.3.2 the change of ownership of any dog
16.3.3 Any undertaking that any dog is not to be registered with the
New Zealand Kennel Club
16.3.4 Any undertaking for the dog to be endorsed with a recognised endorsement
16.3.5 Any agreement that a dog be jointly owned
16.3.6 Any agreement for the lease of a bitch for breeding purposes or loan of a Stud Dog in accordance with these regulations
16.3.7 Any agreement for the issue of a Certified Export Pedigree for a dog
16.4All other terms and conditions of any recognised contract will not be recognised by the New Zealand Kennel Club.
16.5 Any dispute arising out of any term or condition of a recognised
contract not specified in clause 16.3 hereof shall be settled by the parties to the contract by private agreement or by an appropriate civil
authority. The New Zealand Kennel Club will not adjudicate any such dispute.
16.6It is presumed that any dog the subject of a completed New Zealand Kennel Club recognised contract is or is intended to be registered with the New Zealand Kennel Club. The New Zealand Kennel Club requires any such dog to be registered. The parties to a contract can specify that this clause does not apply and/or that the dog is not and/never will be registered.
16.7Upon the production of the recognised contract accompanied by a request in writing, and the payment of the appropriate fees the New Zealand Kennel Club will amend its registration records in accordance with any of the agreements listed in clause 16.3 hereof.
[24] I shall return to consider the relevant Rules and Regulations in the context of the facts of this case later in this judgment.
Facts
A preliminary word about the evidence
[25] Evidence on behalf of the NZKC was given by the Club’s Director Secretary,
Mr Peter Dunne.
[26] Both Ms Smith and Ms Faulkner swore affidavits in support of Ms Smith’s position. Although the affidavits do not make their relationship clear, their acquaintance appears to go beyond the transaction between them giving rise to the present matter; it may well be that they are friends. In any event, their accounts are consistent as to central matters, although both contain a fair amount of unnecessary (and irrelevant) editorialising.
[27] As noted later, Ms Howard was also given the opportunity to file evidence but chose not to do so. So, in that sense the accounts given by Ms Smith and Ms Faulkner are uncontested. Nonetheless, given the complexity and contentious nature of the dispute between the women I rely wherever possible on the documentary record (the vast majority of which is attached to the relevant affidavits).
The relevant narrative
[28] On 20 June 2006, Ms Faulkner purchased Fudge (aka Mondial Cookies and Cream) from Ms Natalie Rosa. Ms Rosa had, in turn, previously acquired Fudge from Mondial Kennels, a pedigree kennel operated by Susan Howard. A lease agreement had been entered into between Ms Rosa and Ms Howard (known as the “Rosa agreement”). I set out the agreement in full:
Lease Bi t ch
We [Natalie Rosa] agree to lease there [sic] bitch Mondial Cookies & Cream to Mondial Kennels on the following terms and conditions:
1. The bitch is serviced by a stud at the cost of Mondial Kennels.
2. In the result of a pregnancy the entire litter is registered in Mondial
Kennels name and at the cost of Mondial Kennels
3.Mondial Kennels has the right to pick 1 x puppy of the litter prior to the sale thereof
4.All documentation including lease agreement, registering of the litter and change of ownership is at the cost of Mondial Kennels
5. All vet fees and food costs will be payable by [Natalie Rosa]
6. All proceeds from the sale of the puppies will vest in [Natalie Rosa]
[29] As part of the agreement to purchase Fudge, Ms Faulkner agreed to take over this lease agreement. Her name was substituted for Ms Rosa’s.
[30] I interpolate that at the time the Rosa agreement was entered, the four tiers of NZKC registration outlined above did not exist. The only means by which a breeder or owner could restrict the use of a pedigree dog in the way that is now effected by registration on the Restricted Register was through the endorsement process.
[31] Returning now to the factual narrative, it seems that the Rosa agreement was not activated for some years. The mating of Fudge with one of Ms Howard’s studs was first foreshadowed in October 2010. But it was not until around 22 February 2011 when Fudge was in season that Ms Howard asked Ms Faulkner to send her to Auckland so that she could be mated with a stud of Ms Howard’s choosing. After some debate
about whether Fudge should be sent to Auckland or the stud to Christchurch, Fudge was delivered to Ms Howard on 24 February 2011.
[32] At the same time as making these arrangements (or shortly afterwards) Ms Howard asked Ms Faulkner to complete and return a NZKC lease agreement which she sent her in order that the litter could be registered in the name of her (Mondial) kennels.7 The Lease agreement that was sent named Ms Howard as the breeder and was said to run for a six month term, from 26 February 2011 to 26 August
2011. It seems that Ms Howard had not herself executed the agreement at this point.
[33] An impasse quickly developed.8 Although Ms Faulkner expressed her willingness to sign the lease agreement, she refused to send back the “paperwork” (ie the executed agreement) until Fudge was returned. But Ms Howard refused to send Fudge back without first receiving the executed lease agreement.
[34] Based on the evidence before me, however, it seems that Ms Faulkner did, at some point sign the agreement. She dated it 26 February 2011 although it is quite clear that she did not sign it on that day.9 The impasse with Ms Howard continued. Ms Faulkner deposed that sometime in March she “tried to present” Ms Howard with a copy of the lease “dated 26 February 2011”10 but that “she refused to take it and said she had given Fudge away to people ‘up North’”. Ms Faulkner then filed a claim in the Disputes Tribunal seeking the return of Fudge.
[35] On 15 April 2011, Ms Faulkner’s claim was heard and the Tribunal delivered a decision in which it relevantly found that:
(a) Fudge was Ms Faulkner’s property, subject only to the terms of the
Rosa agreement which allowed her to be bred with one of Ms Howard’s stud dogs;
7 It appears that a lease agreement was posted to Ms Faulkner and one was also sent her by email on 2 March 2011.
8 It should, perhaps, be recorded that the dispute between the two women appears to have had some
“history” to it. That history is not, however, presently relevant.
9 Evidenced by the fact that she emailed Ms Howard on 1 March 2011 advising that she had not received a copy of the lease agreement. It was plainly this email that prompted Ms Howard to email a further copy of the lease agreement to Ms Faulkner the following day.
10 And presumably signed by Ms Faulkner.
(b)the terms of the Rosa agreement supported Ms Faulkner’s contention that her understanding was that the stud dog would come to Fudge and that Fudge would remain in her care whilst pregnant and through delivery;
(c) Ms Faulkner had agreed to vary the terms of the Rosa agreement to the extent that Fudge would travel to Ms Howard in Auckland to be mated but that the variation was that Fudge would only be in Ms Howard’s care for approximately one week (ie while she remained in season) before being returned; and
(d) Ms Howard was in breach of contract by refusing to return Fudge to
Ms Faulkner.
[36] The Tribunal made an order requiring that Fudge be returned to Ms Faulkner’s care, or to the care of her nominated representative (who was identified as including but not being limited to Ms Smith), within 24 hours of the Sealing of the Order.
[37] Ms Howard did not comply. The Police became involved but to no apparent avail. Ms Howard filed an appeal against the Tribunal’s decision. Ms Faulkner applied for an enforcement order. On 19 and 29 April 2011, the Tribunal made further orders requiring the immediate return of Fudge. The Tribunal’s orders could not, however, be enforced because Fudge had, at some point, been removed from
Ms Howard’s address
[38] Sometime between 27 and 29 April 2011, Fudge gave birth to four live puppies.
[39] On 18 May 2011, the Tribunal made an order staying its earlier order about the return of Fudge until 10 June 2011, due to veterinary concerns following the birth of the puppies. The Tribunal noted that while it could not make any orders for the return of the puppies, Ms Howard had earlier accepted that she was only entitled to retain one from the litter.
[40] There was a further hearing in the Tribunal on or about 6 July 2011, when a further decision was issued. After referring to its earlier findings about the Rosa agreement, the February 2011 variation of that agreement and the dispute over the NZKC lease11, the Tribunal said:
4.Looking at the two agreements [ie the Rosa agreement and the February variation] together, what should have happened is that Fudge should have returned after mating. Fudge and the later puppies would then have been in the care of Ms Faulkner and at her cost. The Kennel Club lease of bitch agreement should have been signed. Given the wording the Rosa agreement, I find it was up to Ms Howard to make clear to Ms Faulkner at the time of the February negotiation that she expected Ms Faulkner to sign that agreement before Fudge was returned to her. This was not a condition that Ms Howard could simply impose after Fudge had been sent to her.
5. Nevertheless, there were ways of resolving that and I find that
Ms Faulkner made reasonable effort to complete that process in a manner which would have met both parties’ needs. Irrespective of the
failure of those efforts, Ms Howard had no right to keep Fudge and
deprive Ms Faulkner of her property. Ms Howard had agreed to return
Fudge and she did not do so.
6.There was no justification for holding Fudge simply because the agreement had not been signed. A possible breach of an agreement by one party is not remedied by a similar breach on the part of the other party. Ms Howard's option was to take appropriate legal action of her own if she believed that Ms Faulkner had not complied with the terms of the Rosa agreement.
7.It is impossible now to bring about a situation that will achieve the outcomes contemplated by these agreements. It is not possible to wind back the clock and give Ms Faulkner the pleasure of the company of her dog for the last 3 months or so and of her puppies for the last
9 weeks. The best I can do is to find a pragmatic solution to put the parties, as best as can be, in the position they should now have been in before this difficulty arose. That means that Fudge and her puppies are to be returned to Ms Faulkner and a Kennel Club lease of bitch form is to be signed. The puppies are to be registered with the Kennel Club. Ms Howard can select her puppy prior to the sale of the rest of the litter and Ms Faulkner retains the proceeds of the sale.
[41] The Tribunal made specific orders that:
i. Ms Faulkner and Ms Howard are to arrange for a meeting in Auckland no later than 21 July 2011. Either party may choose to be represented at that meeting as long as they advise the other party no less than
48 hours in advance as to who that person will be.
11 The Tribunal accepted Ms Howard’s contention that a NZKC lease was required to be executed in order that the puppies could be registered by her.
ii. At the time of the meeting, there will be a contemporaneous exchange of Mondial Cookies and Cream, Kennel Club number 05864 - 2006, known as Fudge, plus her crate and her 4 puppies, and the signed Kennel Club lease of bitch agreement, as presented to the Tribunal by Ms Faulkner. The agreement is returned to Ms Faulkner with this order. As that agreement expires on 26 August 2011, there is no reason to organise any earlier cancellation of that agreement. Ms Howard is then responsible for the registration of all puppies as soon as possible.
iii. Once the exchange has taken place, Ms Faulkner becomes responsible for the care of Fudge and her puppies and for arranging transport back to her place of residence. The cost of that transport is to be met by
Ms Howard as she was the person who chose to keep Fudge and her puppies. The final cost of transport is to be determined at the time that
arrangements are made. Evidence of that cost is to be supplied to the
Disputes Tribunal for a further order to be made for payment.
iv. Ms Howard is to advise Ms Faulkner as to her selection of the one puppy to which she is entitled and make arrangements for the transport of the puppy no earlier than two weeks after they have arrived in Athol, unless an earlier date is agreed by the parties.
v. Alternatively, if both parties agree, the puppy selected by Ms Howard can be retained by Ms Howard and taken back with her after the meeting. This is to ensure that, at least, Ms Faulkner gets to meet all the puppies.
[42] The Tribunal expressly recognised that the effective operation of these orders was dependent on the good will of both parties.
[43] As is clear both from the terms of the Tribunal’s orders and Ms Faulkner’s own evidence, Ms Faulkner had produced at the hearing the NZKC lease agreement that she had signed at some earlier point. That agreement named Ms Howard as the Breeder and was signed by Ms Faulkner but not by Ms Howard. It seems that
Ms Howard may have obtained a copy of that document at that time.
[44] In any event, soon afterwards Ms Howard emailed the NZKC referring to the
6 July orders and providing a copy of the NZKC lease form signed by Ms Faulkner. She asked for confirmation that the Club would accept registration of the lease notwithstanding that the date on the form was 26 February 2011.
[45] On 12 July 2011, the NZKC advised that it could not accept the lease proffered by Ms Howard because it had not been lodged within three months of signing in accordance with reg 13.4 and that it was unable to grant extension of time without
Executive Council approval. The Club also noted that it was not common for its
Executive Council to make decisions that ran contrary to the regulations.
[46] Following further exchanges, on 15 July 2011 the NZKC emailed both
Ms Faulkner and Ms Howard, saying:
If both parties can agree, we will accept a lease if the signature date is changed to accommodate our regulations. This will ensure that the lease has the same timeframe as originally intended but can be processed within our regulations. Our regulations don’t appear to worry about the whelping date. So if the same agreement is used but a signature date that falls within our regulation requirements is used then I believe this will satisfy our requirements.
[47] On 21 July, the Police facilitated the handover of the dogs (Fudge and four puppies).12 It seems that the NZKC lease was, at that time, signed by Ms Howard and dated with that day’s date. Shortly thereafter she scanned it through to the NZKC.
[48] On 29 July 2011, Mr Brown of the NZKC emailed Ms Howard’s lawyer, saying:
I have spoken to the President of NZKC and we cannot proceed with the processing of the [NZKC lease] document until such time both parties agree or if the disputes tribunal directs us.
[49] On 31 July 2011, Fudge’s three remaining puppies were sold by Ms Faulkner to Ms Smith for deposits of $500 each, with the balance of the total price of $1500 each to be paid later from proceeds of any registered litter that may be whelped from “Shiroi Yuki”.13
[50] In an email dated 1 August 2011, Ms Faulkner told NZKC that her signature on agreement was dated 26 February 2011 and refuted any proposition that she had agreed to the addition of the later, 21 July 2011, date. Later that day, the NZKC again declined to accept the lease, telling the parties that outstanding issues between them needed to be resolved first. It seems that these events prompted Ms Howard to apply
for a rehearing in the Tribunal on the grounds that Ms Faulkner was refusing to comply
12 The puppy that Ms Howard was to retain was returned to her later, in August.
13 It seems that Ms Smith subsequently sold two of the puppies. Shiroi Yuki is the name given by Ms Smith to the puppy kept by her. She is also known as “Jenny” and her (present) kennel name is “Mondial Catch Me If You Can”.
with the second of the 6 July orders (set out at [41] above) and that NZKC was
(accordingly) refusing to register the puppies in the name of Mondial Kennels.
[51] On 16 August Ms Faulkner filed a memorandum in the Tribunal in which she stated (inter alia):
1.Regarding Order (ii) and Ms Howard’s responsibility to register the litter, I do not have any dispute or issue with this responsibility.
2.I am unsure why we are revisiting this matter. On 6 July 2011, I made it very clear to all parties that I did not wish to make, change or otherwise alter any NZKC lease to suit Ms Howard; however I wish to reiterate that this was solely as a result of Ms Howard depriving me of Fudge and breaching our agreement.
3. During the rehearing on 6 July 2011, Ms Howard requested the
Tribunal change the date of signing of the original lease from 26
February 2011 to a current date for her. As I recall, this was denied by the Tribunal and the original NZKC lease document – as it stood- was ordered to remain in play, despite all parties knowing it to be out of time by NZKC rules and regulations.
[52] She went on to say that she had discussed various options for enabling the registration with Ms Howard (she does not say what they were) but that Ms Howard had refused to accept them and then said:
6.In my view, the puppies can be registered. If Ms Howard is unhappy she has to show a measure of goodwill and come to an agreement with me on this matter, as this is an unfortunate situation she has brought upon herself through her own actions and [it] is not my doing.
…
8. Therefore, in all respects at this point in time, I have no dispute with
Ms Howard and I am satisfied the Tribunal has fulfilled the purpose of my original application.
[53] The Tribunal issued a further minute on 7 September 2011, stating:
The order made on 6 July 2011 is hereby clarified by stating that, irrespective of any problem with the dates on the Application for Registration of The Loan Or Use Of A Bitch For Breeding Purposes which has now been signed by both parties, the puppies in question are to be registered in the name of Mondial Kennels.
The original registration decision
[54] The NZKC then accepted the NZKC lease as valid. This necessarily meant that Ms Howard was, in terms of both the lease agreement itself and reg 8.1.3, deemed to be the breeder of the puppies. In turn, Ms Howard’s status as breeder meant that she was entitled to register the puppies and to name them.
[55] Ms Howard subsequently registered the puppy she had retained on the Full Register. She registered the remaining three puppies on Restricted Register. She named those three puppies as follows:
(a) Mondial Catch Me If You Can;
(b) Mondial Do A Runna; and
(c) Mondial Where The Hell R Ya.
[56] Ms Faulkner and Ms Smith find these names offensive because (they believe) the names are intended to refer to their dispute with Ms Howard over the return of the dogs.
NZKC decision - 19 December 2012
[57] Following the registration and naming of the puppies, considerable further correspondence between Ms Faulkner and/or Ms Smith and the NZKC was entered into. Ms Faulkner and Ms Smith maintained that they were entitled to have the puppies registered on the Full Register and renamed. In October 2012, Mr Dunne advised the Executive Council that they should agree to transfer “ownership” of the three puppies to Ms Faulkner and to place them on the Full Register, and for the NZKC to invite Ms Faulkner (or nominated person) to submit alternative names for the puppies.
[58] In early December the Executive Council agreed with that recommendation and, on about 19 December 2012, this decision was communicated to Ms Smith. After
the transfer and renaming had occurred, Ms Howard was notified of the Council’s
decision.
NZKC overturns its 19 December 2012 decision
[59] In March 2013, Ms Howard applied to the NZKC for a review of that decision. After taking legal advice, the Club determined on 31 July 2013 that Ms Smith was to remain the owner of the dogs, but that the NZKC would return them to the Restricted Register under the names chosen by Ms Howard. That decision and NZKC’s reasons for it were communicated to Ms Faulkner shortly afterwards.
Unsuccessful challenges by Ms Smith
[60] On 17 September 2013, Ms Smith sought to review the 31 July decision.
NZKC stayed that decision while it considered her challenge. Between 21 and
22 September 2013, the Executive Council met and considered the matter. It determined that it should uphold its 31 July 2013 decision. It informed Ms Smith of this decision on 9 or 10 October 2013, stating that the reasons for the 31 July 2013 decision continued to pertain.
[61] On 27 November 2013 Ms Smith again asked the NZKC to reconsider its decision. By letter dated 12 February 2014, the NZKC declined to do so, again giving full reasons. It confirmed its view that the lease agreement was valid and that
Ms Howard was therefore the breeder in terms of the regulations. It advised that, accordingly, the NZKC would not transfer the puppies from the Restricted Register to the Full Register without Ms Howard’s consent.
Jenny and her progeny
[62] As noted in footnote 12 above the puppy retained by Ms Smith’s is colloquially known as “Jenny” or “Shiroi Yuki”. From the time of the NZKC’s first reconsideration of its registration decision in late 2012, until 31 July 2013, Jenny was registered on the Full Register. Full registration enabled her to be entered in NZKC Championship dog shows, and in January 2013 she won a number of awards.
[63] Ms Smith deposed that in August 2013, after Jenny had been removed from the Full Register, the NZKC nonetheless accepted her entry into the upcoming National Dog Show. That contention appears to have support in the documentary evidence, although it is unclear whether the entry was submitted by Ms Smith before or after the
31 July decision to remove Jenny from the Full Register.
[64] On 9 September 2013, (prior to the stay of the removal decision) Jenny was mated. She gave birth to a litter of her own on 9 November 2013 (known as the Toshiko litter). Because Jenny was not then and is not now on the Full Register in her own right, that affects the registration options available in relation to her puppies. So on 12 February 2014, the NZKC also advised that Ms Smith’s application for the puppies to be placed on the Full Register could not be granted.
The Claim
The origins of these proceedings
[65] It seems that at some point Ms Smith filed a claim in the Tribunal about the NZKC’s decision to remove her dogs from the Full Register and its decision to decline to register the Toshiko litter. In 2015, The Tribunal transferred her proceeding to the District Court. In April 2016 the District Court transferred it to the High Court, on the grounds that Ms Smith’s claim was, in essence, a claim for judicial review in relation to which the District Court had no jurisdiction.14
The application for review
[66] As originally pleaded the statement of claim alleged that the registration of the puppies (their placement on the Restricted Register) is invalid on the grounds that:
(a) the NZKC’s recognition of the NZKC lease was unlawful and in breach of its Rules and Regulations because the lease was registered out of time and was not filed in triplicate;
(b) the decision was made in breach of natural justice; and
14 Smith v New Zealand Kennel Club [2016] NZDC 7423.
(c) the NZKC had failed to take into account a mandatory relevant consideration, namely the Rosa agreement.
[67] There was also a cause of action alleging that the decision to restore the puppies’ original names (ie those selected by Ms Howard) to the register was “unfair”.
[68] Following the adjournment of the initial hearing (discussed further in the following paragraphs) the claim was amended to include a further cause of action alleging that the registration Regulations are ultra vires the Rules, because the definition of “breeder” in the Rules does not include the lessee under a Loan or Use of Bitch for Breeding Purposes Agreement.
Procedural matters
[69] Before turning to consider the merits of the claim, it is necessary to record that neither Ms Howard nor Ms Faulkner were joined as parties to this proceeding, although Ms Faulkner swore an affidavit in support of Ms Smith’s position.
Ms Howard’s absence was necessarily a concern both because the evidence of both Ms Faulkner and Ms Smith contained adverse comments about her and because her economic interests are (at least indirectly) affected by the outcome. For that and other reasons, I adjourned the initial hearing of the application so that Ms Howard could be given the opportunity to be heard if she wished. I directed that Ms Howard was to:
(a) file and serve any appearance by 1 September 2017; and
(b) file any evidence she wished to file by 8 September 2017.
[70] Ms Howard did not do either of those things. Instead, Mr Collis filed a notice of appearance on her behalf on 10 October 2017.15 In it, Ms Howard indicated her agreement with the position taken by the NZKC in the proceedings to date. She also said that:
As a gesture Ms Howard would agree to the November 2013 Toshiko litter being placed on Part I of the NZKC Register.
15 Mr Collis had been instructed by Ms Howard in relation to the original 2011 dispute.
[71] The notice made it clear however that the “gesture” did not extend to Jenny herself.16 There was a brief adjournment during the second hearing in order that that offer could be discussed, but no resolution was possible.
[72] I also record that Ms Howard was represented by Mr Collis at the resumed hearing and was, herself, present in the courtroom. Ms Smith was permitted to observe the hearing by AVL.17
Justiciability
[73] There is no real dispute that the decisions made by the NZKC are justiciable, although the Courts have, in the past, expressed reluctance to interfere with the domestic affairs of voluntary organisations such as the Club.18
Analysis
Breach of natural justice
[74] The cause of action alleging breach of natural justice can be dismissed in a relatively summary fashion. The voluminous material before the Court could not possibly found such a claim. The NZKC was bombarded with material by all parties and, on my assessment, took full and proper account of it over a period of years. That Ms Smith was, in fact, “heard” is evidenced by the NZKC’s change of heart in late
2011 and it subsequent reasoned decisions in response to her requests for review.
Ms Smith’s views on the matter, and the reasons for them, were well understood by the Club. The simple point is that (ultimately) it did not agree with those views.
[75] If I am wrong in that, and Ms Smith was, somehow, deprived of an opportunity to be heard, then that breach has surely been cured by the hearing in this Court. Her views on the merits of the impugned registration decisions have been fully taken into
account in the analysis that follows.
16 In order for the gesture to be effective the Executive Council would need to exercise its discretion to register the litter contrary to the Registration Rules. Ordinarily, the NZKC would not be permitted to register the Toshiko litter on the Full Register if their dam (Jenny) was not also on the Full Register.
17 On occasion I also permitted Ms Smith to speak to the Court.
18 See in particular Brady v New Zealand Kennel Club Inc HC Christchurch CP143/00, 6 March
2001.
Causes of action challenging the legality of the registration decision
[76] For the three causes of action which challenge the legality of the registration decision, the starting point is the proper interpretation of the Rules and the Registration Regulations. Although the Regulations are “subordinate” to the Rules, it is the Regulations that are directly relevant here. Indeed, apart from requiring the establishment of the Register, the Rules do not deal with registration at all.
[77] Viewed by themselves and as a whole, I consider that the Regulations make it tolerably clear that only the breeder can register a dog, although this is only ever stated directly in the explanatory note. That conclusion is consistent (for example) with the consent of the breeder being required to change an endorsement on a dog’s registration, and with the Regulations about litter notification and leases, which suggest that the owner of the dam may not be able to register a litter but that a lessee will always be able to do so.19 The fact that a breeder controls any change of name also points in the same direction.
[78] It seems to me that a Loan or Use of Bitch for Breeding Purposes Agreement could provide that the owner of the bitch remains the breeder. Otherwise the standard registration form would not leave that part blank. And the Regulations are quite clear that while the owner of the bitch who whelps a litter may also be the breeder20 , a lessee of a bitch pursuant to a NZKC registered lease agreement can also be deemed to be the breeder of any litter whelped by that bitch during the currency of the lease.21
[79] The potential difficulty here arises because of the definition of “breeder” in the Rules. As noted earlier, Rules define the term as meaning the “owner of the dam at the time of whelping”, subject only to rule 3(o), when rule 3(o) simply refers to the NZKC. As also noted above, I accept both as a matter of common sense and in light of Mr Dunne’s explanation, that the cross-reference should be to Rule 3(m), which
defines “lessee”. Even then, however, the definition remains somewhat oblique.
19 In particular, reg 13 provides that the lessee must be a financial member of the NZKC but not that the lessor must be. And reg 8 provides that only a financial member of the NZKC may register a dog or notify a litter.
20 Provided he or she is a financial member of the NZKC.
21 Regulation 8.1.3.
[80] In the end, however, I consider that it is both appropriate and necessary to interpret the (general) Rules in light of, and consistently with, the (specific, but subordinate) Regulations. I say that for four reasons:
(a) first, it seems to me that an overly technical, literal or pedantic approach is inapt when interpreting the “statutes” or governing instruments of voluntary, incorporated, bodies such as the NZKC;
(b)secondly, the Rules themselves do not in fact use the term “breeder” at all. There is nothing by way of context other than its use in the regulations to assist in the interpretive exercise;
(c) thirdly, it is the only way in which the definition in the Rules can be made to make sense; and
(d)lastly, such an approach is not, in any event, out of step with the modern approach to the interpretation of statutes strictly so called. That is clear (for example) from the discussion in Statute Law in New Zealand where the learned authors say:22
It might be argued that regulations or other items of delegated legislation made under an Act are not relevant as an aid to the Act’s interpretation, simply because they are made by different bodies. “Regulations generally do not alter the meaning of the primary statute, at least without specific authority in the statute.” However, while that may be the theory, one knows that in practice the same officials are very likely to be involved in the preparation of both. Probably for this reason, modern authority does permit the cautious use of regulations to interpret the Act. In Hanlon v Law Society, Lord Lowry indicated that this is so where the meaning of the Act is ambiguous, and that regulations may be a reliable guide to the meaning of the Act particularly where “the Act provides a framework built on by contemporaneously prepared regulations”. The two elements of ambiguity in the Act, and contemporaneity of Act and regulations, have been regarded as important by the New Zealand Court of Appeal. Perhaps they should, however, go more to weight, or to degree of persuasiveness, than to precluding use.
22 Ross Carter Burrows and Carter Statute law in New Zealand (5th ed, Lexis Nexis, Wellington,
2015) at 271 (footnotes omitted).
[81] So, in my view, the definition of “breeder” in the Rules should be read as matching the definition of “breeder” under the Regulations. Accordingly, any argument that the Regulations are somehow ultra vires the Rules because the Regulations have an impermissibly wider definition of “breeder” falls away.
[82] Once that point is reached there are two principal issues remaining.
[83] One relates to the dating of the Loan or Use of Bitch for Breeding Purposes Agreement and whether Ms Howard’s registration of it should not have been accepted because it was outside the period specified in reg 13.4 (three months from the date of signing). It is, of course, only that agreement that gives her formal “lessee” and “breeder” status. The following matters are relevant to that question.
[84] First, the evidence is quite clear that Ms Howard did not sign the lease agreement until 6 July 2011 or afterwards.23 She did not have a copy of the agreement signed (and dated) by Ms Faulkner until the Tribunal hearing and so could not have signed it before then. As the NZKC itself determined the agreement was not therefore executed until July 2011 at the earliest. In my view, Ms Howard was entitled to sign and date it then and (contrary the view expressed by the NZKC at the time)
Ms Faulkner’s consent to that date was not required. Nor is there anything in the NZKC Rules and Regulations to suggest that a lease cannot be executed with retrospective effect.
[85] Secondly, Ms Faulkner’s own evidence makes it clear she had agreed to the lease some months earlier and her position had not changed in the intervening period. She did not refuse to return the signed lease because she had changed her mind, but in order to use the lease as a bargaining chip for the return of Fudge. Moreover, the Rosa agreement required her to agree to a formal lease. Unless Ms Howard was made the breeder by way of a Loan or Use of Bitch for Breeding Purposes Agreement, the dogs could not be registered in the name of Mondial Kennels as the Rosa agreement required. And from 6 July 2011 onwards she was not only further precluded from
changing her mind by the orders of the Tribunal, but was required by those orders to
23 Nor is it in fact clear when Ms Faulkner herself signed the lease – as earlier noted, it could not have been on 26 February 2011, the day it was dated.
facilitate registration by Ms Howard. And as I have said, registration of the dogs could only occur if a valid Loan or Use of Bitch for Breeding Purposes Agreement was registered.
[86] And thirdly, the NZKC retains a discretion to accept late registration of the lease in any event. Although it is clear that that power was not the basis for their decision in this case, it would certainly militate against the exercise of the Court’s discretion in favour of relief, had any of the grounds of review been successful.
[87] In terms of the relevance of the Rosa agreement, it will be evident from the preceding discussion that, in the context of the present case at least, I consider that there is no inconsistency between the decision taken by the NZKC and that agreement. That effectively answers the second question. But by way of brief elaboration, the Rosa agreement effectively made Ms Howard the breeder and gave her effective control over the registration process, just as the Loan or Use of Bitch for Breeding Purposes Agreement does. And even if the agreement had been activated prior to 2008 (before the creation of the Restricted Register) she could have had endorsements placed on the registrations of the puppies with similar effect.
[88] I record and acknowledge that Mr Minchin attempted to argue that there was an implied term in the Rosa agreement to the effect that Ms Faulkner was entitled to receive ownership of pedigree puppies without endorsement or restriction. But that is a contractual matter between Ms Faulkner and Ms Howard which cannot possibly be determined in the context of these judicial review proceedings to which neither
Ms Faulkner nor Ms Howard are parties.
[89] But perhaps the more important point is that, even if Mr Minchin were right about an implied term, the NZKC could not be obliged to take account of a private agreement between the parties. Reg 13.5 expressly provides that such agreements will not be “recognised” by the NZKC.24 And even if the prohibition on “recognition”
does not preclude “taking into account” (which I doubt), the path down which that
24 I am unable to accept Mr Minchin’s submission that the Rosa agreement is a “recognised” contract of the kind dealt with in reg 16. Whatever that regulation may mean it clearly does not apply to private agreements of the “Rosa” kind.
would lead would, in a case such as this, be unworkable. Even assuming the NZKC had knowledge of the relevant agreement, it could not sensibly be required to take it into account if doing so meant (as Mr Minchin contended) that the Club should ignore the formal lease agreement upon which its registration decision was expressly required to be based.
[90] The question of whether the lease was provided to the NZKC in triplicate or not goes nowhere. On the evidence before me I do not accept that it was not. The likely purpose of that requirement is so that, once registered, the NZKC can retain one copy and the other two can then be provided to the lessor and lessee. As Mr Dunne said, in all likelihood that is what happened here. That is the obvious explanation for only one copy remaining in the hands of the NZKC.
[91] Even if I am wrong in that, I would not regard such a failure as capable of vitiating the registration decision. It is a technical requirement, not a substantive one. The NZKC’s broad discretion in relation to registration matters has been noted above.25
The unfairness challenge to the registration of the puppies’ names
[92] The first difficulty for Ms Smith here is that the contractual requirement that the puppies be registered in the name of Mondial Kennels means that Ms Howard necessarily got to choose the names. And the terms of reg 9.3.11 suggest that her status as the breeder also means that it is only she who can apply for the names to be changed.
[93] While I accept that the NZKC retains a discretion in that regard and could, no doubt, decline to register dogs with names it perceived as in some way unsuitable, the exercise of that discretion (or a refusal to exercise it) could not lightly be interfered with by this Court. I appreciate entirely that Ms Faulkner and Ms Smith perceived the
names chosen by Ms Howard as a deliberately provocative jibe. It may well have been
25 The same applies to the allegation (only faintly pursued before me) that the registration of the lease was invalid because an “original” was not filed. In the face of Ms Faulkner’s evidence that she did sign the lease and that she intended to do so, such a challenge is an exercise in hair- splitting.
such. But it is difficult to conceive that the hurt feelings of another member (even if she is the owner of the dogs in question) could be a mandatory consideration for the NZKC when exercising its discretion. And while the names may be viewed by some as a little coarse, they are hardly indecent or offensive.
Conclusions
[94] None of the grounds of review are made out. The application is dismissed accordingly.
[95] The NZKC is entitled to its costs on a 2B basis.
Rebecca Ellis J
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