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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Watson v Williams

Details

AGLC: Watson v Williams [2012] NZHC 3108
Case: [2012] NZHC 3108
Decision Date: 21 November 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs, Rohan Theodore Walter Watson, Kelly Maree Watson, and Napier Independent Trustees Limited as trustees of the Star Trust, filed an action against the defendants, Glynis Ruth Williams and Shayne Fredrick Williams, seeking the recovery of a property located at 40 Mayall Avenue, Beachhaven, Auckland. The plaintiffs, who are the current registered proprietors of the property, are seeking orders for possession, vacating orders, and damages for unlawful occupation of the property. The defendants, former proprietors, filed an appearance objecting to the court's jurisdiction, which the plaintiffs sought to set aside. The court was required to determine whether it had jurisdiction to hear and determine the plaintiffs' application for summary judgment and whether it should set aside the defendants' appearance objecting to the court's jurisdiction.

The court examined the defendants' grounds for objecting to the court's jurisdiction, which were that there was no privity of contract with the defendants and that the original pleadings did not disclose any claim under Rule 13 of the High Court Rules. The court found that all parties were residents of New Zealand, the right to possession related to a residential property in New Zealand, and there was no basis for a different New Zealand court to hear the dispute. The court also found that there was no contractual term that excluded its jurisdiction, nor any statutory requirement that precluded its jurisdiction in this case. Therefore, the court was satisfied that it had jurisdiction to hear the case.

The court set aside the defendants' appearance objecting to the court's jurisdiction and ordered that any notice of opposition and affidavit in opposition in addition to the documents already filed be filed and served no later than 5pm on the following day. The court also fixed the time for the hearing of the summary judgment application and reserved costs in relation to the application, which could be the subject of an application when the summary judgment application was heard.

Orders