South Pacific Forestry Holdings Limited v Pihema

[2024] NZHC 124

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2023-488-000108

[2024] NZHC 124

BETWEEN

SOUTH PACIFIC FORESTRY HOLDINGS LIMITED

Plaintiff

AND

MARAEA PIHEMA

First Defendant

CYRIL CHAPMAN
Second Defendant

GEORGE CHAPMAN
Third Defendant

DION CHAPMAN
Fourth Defendant

ROBERT PIHEMA
Fifth Defendant

UNKNOWN PERSONS

Sixth Defendants

Hearing:

5 February 2024

Appearances:

J A Browne for the Plaintiff

No appearance by or for the First Defendant

Judgment:

8 February 2024

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 8 February 2024 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors: Henderson Reeves, Whangarei

SOUTH PACIFIC FORESTRY HOLDINGS LTD v PIHEMA [2024] NZHC 124 [8 February 2024]

[1]    The plaintiff applies for summary judgment against the first defendant of its statement of claim dated 10 November 2023, seeking an order for possession of a block of forestry land at 438 Mangamuka Road, Mangamuka (being the land in identifiers NA388/241 and NA388/242).

[2]    The first defendant was personally served on 4 December 2023. An affidavit of service has been filed. It appears that only the first defendant is in possession of the land.

[3]    High Court Rule 12.9(1) provides that a party who intends to oppose an application for summary judgment must file and serve a notice of opposition “at least three working days before the date of the hearing”, namely by 31 January 2024. The first defendant has not filed and served any notice of opposition or statement of defence.

[4]    Three documents have been filed by  a  Hori  Chapman  of  Ngati  Tama  o Nu Tireni:

(a)a “Notice of Opposition and a Memorandum for Jurisdictional Clarification, a Request for Substantiation, and a Potential Remedy”;

(b)an application for an adjournment; and

(c)an affidavit in support of a stay of the proceeding.

[5]    While these documents bear the CIV number of this proceeding and record the plaintiff as South Pacific Forestry Holdings Limited, the other party is described as the “Accused” and named as “Te Hapu Ngati Tama o Nu Tireni, a Proclaimed Hapu standing in their Ancestral Right on their Tupuna Whenua cf. Ancestral Territory & Land in Tai Tokerau, Nu Tireni cf. Northland”.

[6]    The essence of these documents is a challenge to the legitimacy of the plaintiff’s title to the land, on the basis that the land was unlawfully confiscated from the hapu by the Crown, in breach of Te Tiriti of Waitangi.

[7]    These arguments do not provide the first defendant with a defence to the plaintiff’s claim for possession of the land. The plaintiff is the registered owner of the land. The land is general land, not Maori land,1 and there is no notation on the title as to s 27B of the State-Owned Enterprises Act 1986 or otherwise. The forum for the arguments made by Ngati Tama o Nu Tireni is the Waitangi Tribunal and/or Parliament.

[8]    A registered proprietor is entitled to exclude all other persons from its land.2 The first defendant is in occupation of the land without the licence or consent of the plaintiff or a predecessor in title. She is neither a tenant nor a subtenant holding over as a tenant. She has no legal right to be in possession of the land. A formal demand has been made several times for her to leave. She fulfils the definition of an “unlawful occupier” under r 13.1 of the High Court Rules 2016.

[9]I order:

(a)the first defendant, Maraea Pihema, is to yield possession of the property at 438 Mangamuka Road, Mangamuka (being the land in identifiers NA388/241 and NA388/242) to the plaintiff;

(b)if the first defendant does not yield possession of the property within five working days of the service of this order, the plaintiff is entitled to take possession of any of the first defendant’s chattels and securely store them pending further order of the Court;

(c)the first defendant is to pay to the plaintiff costs of $9,679.50 and disbursements of $1,400.00, a total of $11,079.50; and

1      Te Ture Whenua Maori Act 1993, s 129.

2      Palmerston North City Council v Birch [2012] NZHC 2979 at [26].

(d)the application is adjourned as against the second to sixth defendants, with leave given for the plaintiff to discontinue the proceeding against all or any of them.

Associate Judge Gardiner