Tea Custodians (Bluestone) Limited v A Person or Persons Unknown HC Auckland CIV 2010-404-86

[2010] NZHC 1501

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-000086

BETWEEN  TEA CUSTODIANS (BLUESTONE) LIMITED

Plaintiff

ANDA PERSON OR PERSONS UNKNOWN Defendants

Hearing:         22 April 2010

Appearances: D A Wood for the Plaintiff

Dianna Jane Bongard for the Defendants

Judgment:      22 April 2010

Reasons:        23 April 2010

SECOND ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

Solicitors/Counsel:

N Robertson, Sanderson Weir, Auckland –  Nicola[email protected]

D Wood, Barrister, Auckland –  des[email protected]

Copy to:

Attention: Dianna Bongard, C/- Ngai-Tupango-Hapu (Inc) P O Box 206, Takanini 2245

TEA CUSTODIANS (BLUESTONE) LIMITED V A PERSON OR PERSONS UNKNOWN HC AK CIV 2010-

404-000086  22 April 2010

[1]      I have previously dealt with the matter in part by my judgment dated 18

March 2010.  At that time I made it clear that I would assume jurisdiction to make the orders sought by the plaintiff and would not cede that in face of opposition claims on behalf of the defendants.

[2]      At that time I noted the claim on behalf of the defendants that their dispute with the plaintiff had previously been arbitrated before, as I recall it being said, a Justice of the Peace.  At that time I adjourned the matter to 22 April 2010 to enable the defendants to provide proof of their claims of arbitration.  I made directions for the filing of affidavits and submissions.

[3]      Since, a raft of documents has been received on behalf of the defendants. Those have added to the heading of the documents of record, the name of Ngai- Tupango-Hapu-(Inc.) as:

“Second defendant, as third parties with real interest in the matter.”

[4]      The documents filed include:

-    ‘Notice to answer interrogatories’.  It is a 10-page document detailing 72 questions for answer;

-    ‘Notice for interlocutory application for stay and vacation of the matter in its entirety’;

-    ‘An affidavit in support of the interrogatories and stay matters sworn by Te Awhina Kaitiaki and Deputy Registrar of the above Ngai-Tupango- Hapu-(Inc.)’;

-     A synopsis of submissions filed on behalf of the second defendant.

[5]      When the matter was called before me on 22 April a person appeared as the defendants’ representative.  I asked for her name.  She said she was known as Te- Awhina.  I assumed that was the same name as associated that was written over the finger print with which the defendants’ documents were signed.

[6]      I then asked that person what name of hers appeared on her birth certificate. She responded with words to the effect that that was just a name and that she was a free  spirit.    When  I  insisted  she  tell  me  the  full  name  written  upon  her  birth certificate she advised it was Dianna Jane Bongard.   I shall refer to her as Ms Bongard hereafter.

[7]      When  I  discussed  with  Ms  Bongard  the  substance  of  the  defendants’ submissions that its claim of arbitration had occurred she referred me to the fact that named members of the plaintiff had been written to on 12 June 2008 (after the Property Law Act notice was delivered on 8 May 2008).  The defendants’ documents filed in support of this claim are difficult to understand but in essence they advise that the writer does not understand the nature or cause of the plaintiff’s demand under its mortgage.   It purports to request further information to prove the requirement for repayment of the mortgage.  It requires it be shown why the terms of the mortgage are not null and void in terms of the Te-Ture Whenua Mäori Land Act

1993.   It requires in effect proof that the plaintiff is not acting fraudulently or otherwise criminally in respect of its demand.

[8]      A copy of the letter was exhibited with documents produced on behalf of the defendants.  Proof was also provided of delivery of that document to a number of the plaintiffs employees/officers at 7:56am on 13 June 2009.

[9]      Ms Bongard advises that when no response was received to that letter a further demand was sent.  Subsequently in absence of any response at all a ‘Notice of Fault and Opportunity to Cure’ was sent to the same plaintiff’s employees/officers. It notes that the author of that Notice has reviewed records evidencing a failure to provide the information requested to enable a settlement of issues.   The Notice purported to provide an  opportunity “to cure any alleged mistaken silence”.   It warned  of  the  risk  of  an  adverse judgment  for  failure  to  comply.    The Notice concludes:

This is an official proceeding.  I am authorised by law to do this.  You are advised that you should not take this procedure lightly.  You may want to consult with your legal counsel however that is for you to determine, since the liability for concerting any instrument which may be used for debt collection purposes of the account, as per numerous current acts and statutes.

[10]     The  document  bears  a  signature  and  seal  over  the  name  ‘Jose  Deborah

Barnes, Queens appointed Justice of the Peace [AB]’.

[11]     When no response at all was received from any of the persons served with the aforementioned documents another document was issued.  It was called ‘Certificate of Default and Protest and Stipulated Agreement’.  In effect the document says that due to the failure of the plaintiff’s officers/employees to respond the debt owed to the plaintiff was forgiven.

[12]     This document was also signed and sealed over the name ‘Jose Deborah

Barnes, Queens appointed Justice of the Peace AB’.

[13]     I asked Ms Bongard if the defendants’ case was essentially that because the plaintiff had not responded to the defendants’ claim for further information to prove their  authority to  make  the demand  for  payment  that  the  payment  thereby was forgiven  by order  of  Jose  Deborah  Barnes.    She  agreed  with  that  summary of matters.   I asked her if Jose Deborah Barnes was a duly appointed Justice of the Peace.   Ms Bongard confirmed that she was.   I asked her by what authority Ms Barnes acted.  Ms Bongard responded ‘pursuant to the Justices of Peace and Oaths and Declarations Act’.  When I asked her what provision she was referring to she mentioned to me section 4.

[14]     Ms Bongard then advised me that she requested the proceeding to be stayed and for a full hearing upon the parties’ dispute.

[15]     In his response to those submissions Mr Wood addressed me briefly and referred my attention to an exhibited copy of the registered title to the land, the subject of the parties’ dispute.  That document discloses that on 15 February 2008 a caveat was lodged against the property by Jose Deborah Barnes and Dianna Jane Bongard.

[16]     After  hearing  from  Mr  Wood,  I  summarily  dismissed  the  defendants’

opposition to the plaintiff’s application and made an order for vacant possession in

terms sought by the plaintiff.   I, at Mr Wood’s request also directed that costs be reserved.

[17]     I did not have an opportunity at that time to provide brief reasons for my decision.  Those are these:

1.This case is another example of a disturbing trend by persons masquerading under the pretence of having authority to act outside of the authority vested in our Courts.   Usually these actions are undertaken in respect of applications by mortgagees to recover land when a mortgagor has defaulted.   It appears these persons are sincere in their beliefs.

2.What is clear is that this hearing was concerned only with the defendants’ claim of prior arbitration.  It is nonsense to suggest there was prior arbitration.

3.Ms   Bongard   submitted   that   Jose   Deborah   Barnes   was authorised to do what she did by the provisions of section 4 of the Justices of the Peace Act 1957.   But, a reading of that provision indicates the powers and functions of Justices shall be to take oaths and declarations and “to carry out such functions and exercise such powers as are conferred... by the Summary Proceedings Act 1957 or by another other enactment”.

4.My attention was not drawn to the provisions of any other enactment but it is clear from the provisions of section 9A of the Summary Proceedings Act 1957 that a Justices jurisdiction is conducted in a Court presided over by two or more of them.

5.In the present case the plaintiff is entitled to the order for vacant possession because the defendants were unable to place credible  evidence  to  discredit  the  plaintiff’s  case.     The

defendants’ claim the issue was previously arbitrated.   The plaintiff says it has no knowledge of this as surely it would have for it was of course its land interests that were affected.  It is commercially and logical and unrealistic to expect that the plaintiff would have abandoned its interest in the property.

[18]     I agree with Mr Wood’s assessment that the various documents submitted on behalf of the defendants contend for a separate legal system, a separate system of land ownership and quite separate rights which have nothing to do with these kinds of  proceedings.    The  documents  are  a  patent  nonsense.    It  follows  that  the defendants’ other applications including (I interpolate) for a stay of proceeding and for the issue of interrogatories are dismissed.

Associate Judge Christiansen