Watson v Williams

[2012] NZHC 3108

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-5994 [2012] NZHC 3108

UNDER  the Judicature Act 1908

IN THE MATTER OF     recovery of land from an unlawful occupier

- Part 13, Schedule 2 of the Judicature Act

1908

BETWEEN  ROHAN THEODORE WALTER WATSON, KELLY MAREE WATSON AND NAPIER INDEPENDENT TRUSTEES LIMITED AS TRUSTEES OF THE STAR TRUST

Plaintiffs

ANDGLYNIS RUTH WILLIAMS AND SHAINE FREDRICK WILLIAMS Defendants

Hearing:         21 November 2012

Counsel:         BW Morley for plaintiffs

Appearance:    SF Williams, second-named defendant in person

Judgment:      21 November 2012

(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE

[on application to set aside appearance objecting to court’s jurisdiction]

Solicitors:           Hesketh Henry, Private Bag 92 093, Auckland

And To:             GR & SF Williams, 40 Mayall Avenue, Beachhaven

RTW WATSON, KM WATSON AND NAPIER INDEPENDENT TRUSTEES LIMITED AS TRUSTEES OF THE STAR TRUST V WILLIAMS HC AK CIV-2012-404-5994 [21 November 2012]

The applications

[1]      Two applications require determination. They are:

(a)      The plaintiffs’ application dated 14 November 2012 to set aside the defendants’ appearance objecting to the Court’s jurisdiction to hear and determine the plaintiffs’ application for summary judgment; and

(b)      The plaintiffs’ application for summary judgment.

The issues raised by the summary judgment application

[2]      The plaintiffs are the current registered proprietors of a property at 40 Mayall Avenue, Beachhaven, Auckland.   The defendants were the former registered proprietors of the property. The plaintiffs seek orders:

(a)       That they are entitled to possession of the property;

(b)That the defendants, together with any family, friends or associates, vacate the property within one week from the date of judgment; and

(c)      For damages for the defendants’ continued unlawful occupation of the property in the sum of $700 per week from 14 September 2012 (the settlement date) to the date the defendants vacate the property

[3]      The summary judgment application requires the Court to determine who is entitled to possession of a property in New Zealand: the title to which is registered under the Land Transfer Act 1952.

The application to set aside the appearance

[4]      This application requires a consideration of the jurisdiction of the High Court in respect of the parties before it and the matter in dispute.

[5]      I adopt the following passage from McGechan on Procedure:[1]

[1] McGechan on Procedure (looseleaf ed, Brookers) at {HR5.49.03].

5.49.03 Absence of jurisdiction

The jurisdiction of the High Court is stated in ss 3,  16, and 17 of the Judicature Act 1908, and includes a wide inherent jurisdiction. In Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue [2011] NZCA 638, the Court of Appeal held that the procedure for filing an appearance and objecting to the High Court’s jurisdiction will generally only be suitable where a party claims that:

•        it is not subject to the jurisdiction of the New Zealand courts;

•the case can by law only be determined by a different New Zealand court or authority; or

•the  High  Court’s jurisdiction  is  precluded  by the  operation  of  a contractual term or because statutory requirements have not been complied with.

If none of those situations arise and the application or proceeding is of a kind that the High Court can hear, it must have jurisdiction. The procedure under r 5.49 is only concerned with the Court’s jurisdiction to hear and determine the application or proceeding. Rule 5.49 is not concerned with the Court’s jurisdiction to grant relief in a proceeding within its jurisdiction: Doug Hood Ltd v Gold & Resource Developments (NZ) Ltd (1999) 13 PRNZ 362 (CA). Thus, in an application under r  5.49, the Court’s focus must be on the allegations made in the statement of claim and any affidavit evidence put forward to support them: Stone v Newman (2002) 16 PRNZ 77 (CA) at [24]– [25].

5.49.04           Power of Court to determine its jurisdiction

In the light of the Court’s express jurisdiction, conferred by r 5.49, to decide whether it has jurisdiction, there can be no contention of inability to do so. In this respect, the rule follows the common law: Williams & Glyn’s Bank plc v Astro Dinamico Cia Naviera SA [1984] 1 All ER 760, [1984] 1 WLR 438 (HL) at 763, 442.

[6]      The defendants in opposition advanced in their notice the following grounds:

(a)       That  this  Court  has  no  jurisdiction  to  hear  and  determine  a proceeding where:

(i)        The subject matter of the claim by the plaintiffs discloses no privity of contract with the defendant.

(ii)       The original pleadings on which this claim was brought did not disclose any claim under Rule 13 of the High Court Rules on which the plaintiffs now seek to rely.

[7]      All parties are resident in New Zealand.  The right to possession relates to a residential property in New Zealand.  There is nothing before me to suggest that a different New Zealand court should hear this dispute.  There is no contractual term that excludes the High Court’s jurisdiction.  There is no statutory requirement that precludes the High Court’s jurisdiction in this case.  Accordingly, there is no basis for upholding the appearance.  I am satisfied that the High Court has jurisdiction.

[8]      I order that the appearance be set aside.

[9]      Appearances objecting to jurisdiction are dealt with under r 5.49.  When an appearance is set aside where summary judgment is sought, r 5.49(9) applies.  Rule

5.49.9 provides:

5.49     Appearance and objection to jurisdiction

If the appearance set aside has been filed in relation to a proceeding in which the plaintiff has applied for judgment under rule 12.2 or 12.3, the court—

(a)       must fix the time within which the defendant may file and serve –

(i)       a notice of opposition; and

(ii)      an affidavit by or on behalf of the defendant in answer to the affidavit by or on behalf of the plaintiff; and

(b)may,  under  subclause  (8),  give  any  other  directions  that  appear necessary regarding any further steps in the proceeding.

[10]     Having considered that matter and the material that has been placed before me, the grounds of opposition to summary judgment are relatively clear.  It is out of an abundance of caution and because the rule requires it, however, that I intend giving a short period of time for a formal notice of opposition and, if required, any further affidavit in opposition to be filed.

[11]     Accordingly, I order that:

(a)      any notice of opposition and affidavit in opposition in addition to the documents already filed, shall be filed and served no later than 5pm tomorrow, 22 November 2012;

(b)      this proceeding shall be heard at 10am on Friday, 23 November 2012.

[12]     I reserve costs in relation to this application.  They can be the subject of an application when the summary judgment application is heard.

JA Faire

Associate Judge