Registrar-General of Land v New Zealand Law Society [2001] NZCA 121; [2001] 2 NZLR 745; (2001) 9 TCLR 665; (2001) 4 NZ ConvC 193,366 (5 April 2001)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

Registrar-General of Land v New Zealand Law Society [2001] NZCA 121 (5 April 2001); [2001] 2 NZLR 745; (2001) 9 TCLR 665; (2001) 4 NZ ConvC 193,366

Last Updated: 13 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA256/00

	BETWEEN	THE REGISTRAR-GENERAL OF LAND
		Appellant

	AND	THE NEW ZEALAND LAW SOCIETY
		First Respondent

	AND	LESTER ROY DEMPSTER
		Second Respondent

	AND	ROBYN ELIZABETH RENOUF
		Joined Party

	AND	VICKI MARIE DEMPSTER
		Joined Party

	AND	MARY SHEARER SLATER
		Joined Party

	AND	JOHN DE GRAAF
		Joined Party

Hearing:	14 March 2001
Coram:	Richardson P Gault J Keith J Blanchard J Tipping J
Appearances:	E D France and T Warburton for Appellant W M Wilson QC and F J Tregonning for Respondent L R Dempster (Second Respondent) and J De Graaf (Joined Party) in person
Judgment:	5 April 2001

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

Introduction

[1] The New Zealand Law Society, the first respondent, objects to the issuing by the appellant, the Registrar-General of Land, of landbrokers licences under s229(1) of the Land Transfer Act 1952 to the second respondent, Mr Dempster, and to the four joined parties. It says that by virtue of s64 and 65 of the Law Practitioners Act 1982, nobody other than a barrister and solicitor holding a practising certificate can act as a conveyancer, even if doing so only in respect of land under the Land Transfer Act, as contemplated in ss229-234 of the Land Transfer Act. Therefore, the Society says, notwithstanding those provisions, the profession of landbroker no longer exists in New Zealand. Consequently, although Mr Dempster and the joined parties are licensed in South Australia to practice as landbrokers in that State, there is no “equivalent occupation” of landbroker in New Zealand, so that they were not entitled to be registered under s229(1) pursuant to s15 of the Trans-Tasman Mutual Recognition Act 1997 upon which the Registrar-General relied in issuing the licences.
[2] It is common ground that if the occupation of landbroker under the Land Transfer Act exists in New Zealand, the occupation of a South Australian landbroker would be an equivalent occupation under the 1997 Act.
[3] In a High Court judgment delivered on 31 October 2000, Goddard J made the following declarations:

The occupation of landbroker confers no authority to convey land in New Zealand, following the 1982 abrogation of the exemption in the Law Practitioners Act which permitted landbrokers licensed under the Land Transfer Act 1952 to act as conveyancers. Sections 229-234 of the Land Transfer Act 1952 and the Sixth Schedule to that Act, although not impliedly repealed by the enactment of s 65 of the Law Practitioners Act 1982, are of no effect.

The enactment of s 15 of the Trans-Tasman Act has not affected or reversed or modified the abrogation of the exemption in s 65 of the Law Practitioners Act 1982. There is no equivalent occupation of landbroker in New Zealand and the ability to act as a conveyancer is an activity confined to the practice of duly enrolled barristers and solicitors with current practising certificates.

[4] The Registrar-General appeals from that decision, supported by Mr Dempster and the joined parties.

The statutory provisions

[5] The relevant statutory provisions, ss229-234 of the Land Transfer Act 1952, ss64 and 65 of the Law Practitioners Act 1982 and ss5(2) and 15-17 of the Trans-Tasman Recognition Act 1997, are to be found in an Appendix to this judgment.

Background

[6] Mr Dempster is not a barrister and solicitor but was an Assistant Land Registrar for a decade and has extensive practical land transfer conveyancing experience. He has been trying for several years to find a means of practising lawfully as a land transfer conveyancer, by which is meant conveyancing limited to documents intended to be registered under the Land Transfer Act. Two earlier High Court decisions record stages in his conflict with the legal profession. First, in Auckland District Law Society v Dempster [1995] 1 NZLR 210, Blanchard J held in the High Court that his business conducted through a company with his wife – now one of the joined parties – of, inter alia, preparing and registering documents under the Land Transfer Act, involved the same work as that ordinarily done by solicitors and that he was “acting as a solicitor” within the meaning of s64(1)(a) of the Law Practitioners Act. The judgment said (at p217):

[Mr Dempster and his company] seek to be able to carry out land transfer conveyancing processes but are not registered as landbrokers. If their argument were to succeed it seems to me that the requirement for licensing of landbrokers would simply be being sidestepped. The existence of such a requirement in the legislation is an additional indication that conveyancing, even restricted to land transfer documents, is not to be done except by people who either have legal qualifications or have been licensed under the Land Transfer Act.

[7] An order was made restraining Mr Dempster and his company

from in any way acting as a solicitor or using a title, addition or description implying or likely to lead any person to believe that they are qualified as a solicitor, and in particular from:

(a) Accepting instructions from and acting for persons transferring real property either as a vendor or as a purchaser, pursuant to any agreement between those parties;

(b) Accepting instructions to act for persons who are mortgaging, encumbering, or charging any real property;

(c) Accepting instructions to act for persons who wish to convert freehold or leasehold real property to a cross-lease form of title or strata title within the meaning of the Unit Titles Act 1972;

(d) Accepting instructions to draw documentation for the purpose of conveying property in connection with the subdivision of any freehold or leasehold property; and

(e) Using the description "Legal Agent" and/or "Conveyancing Consultant" and/or "Land Transfer Consultant" in their letterhead and business activities. (p218)

[8] Encouraged perhaps by the last sentence of the first quoted passage of this judgment, Mr Dempster made three applications to the Registrar-General for a landbrokers licence under s229. He sought judicial review of decisions by the Registrar-General declining his applications. In Dempster v Registrar-General of Land [1997] 2 NZLR 609 he was unsuccessful. Fisher J considered that, although ss229-234 had not been repealed in 1982 when the Law Practitioners Act replaced the Law Practitioners Act 1955, ss64 and 65 of the 1982 Act “were intended to prevail”. There was “not so much a repeal as a removal of practical consequence”. The Judge said that the 1982 Act abrogated an express exemption in s18 of the 1955 Act which had read:

18. Qualified persons only to act as conveyancers – Every person commits an offence against this Act, and shall be liable on summary conviction to a fine not exceeding fify pounds, who, not being the holder of a licence as a landbroker in force under the Land Transfer Act 1952, or of a practising certificate as a barrister or solicitor in force under this Act, acts as a conveyancer.

[9] Fisher J quoted s18 in its original form as given above, but it seems that his attention may not have been drawn to the fact that this provision had been repealed and replaced by a substitute section by s2 of the Law Practitioners Amendment Act 1962. As relevant, the substitute section read:

18. Qualified persons only to act as conveyancers – (1) Except as provided in subsection (2) of this section, no person, other than the holder of a practising certificate as a barrister or as a solicitor which is then in force, or a person acting under the supervision of such a holder, shall draw or prepare for or on behalf of any other person-

(a) Any conveyance within the meaning of the Property Law Act 1952 of any real or personal property:
(b) Any deed within the meaning of the Property Law Act 1952 relating to any real or personal property:

(c) Any tenancy agreement or agreement evidencing a tenancy, if-

[i] The tenancy is for a term of more than twelve months; or
[ii] Any right of renewal is conferred on the tenant by the agreement; or
[iii] Any charge is made directly or indirectly for the drawing or preparation of the agreement or for any other service incidental thereto.

(1) Subsection (1) of this section shall not apply to –

...

(c) Any business transacted by the holder of a licence as a landbroker under the Land Transfer Act 1952 pursuant to his licence: ...

[10] Fisher J was of the opinion that the change made in 1982 to the Law Practitioners Act could not be regarded as accidental or lacking in significance. Discontinuance of the exception for landbrokers, the Judge said, would be consistent with Parliament’s failure or refusal to review the now “derisory” scale of landbroker charges established by the Land Transfer Act 1870 (and still appearing, in decimal currency, in the Sixth Schedule to the Land Transfer Act 1952.) The inaction over fees reflected a parliamentary perception that landbroker licences “are a dead letter”. The Judge thought it probable that ss229-234 could have been left intact in case they were needed for any existing landbrokers but more probably had been simply overlooked.
[11] He was of the view that the issue of a landbrokers licence under s229 would not enable the holder to carry out those activities which are proscribed by s64 and 65 of the Law Practitioners Act. He found that there was no residual activity which would not be caught by ss64 and 65 but which would be prohibited under other legislation in the absence of a landbrokers licence. He concluded that a landbrokers licence would therefore have been of no use to Mr Dempster and declined to grant him judicial review.
[12] Subsequently, the Trans-Tasman Mutual Relations Act was enacted and the Registrar-General has issued licences to Mr Dempster and the joined parties on the basis of their South Australian registrations.

The High Court judgment in this case

[13] As Fisher J had done, Goddard J gave a description of the history of the occupation of landbroking in New Zealand but she appears to have misunderstood the factual position which existed between 1870, when the first Land Transfer Act was enacted, and 1908, when a provision first appeared in a Law Practitioners Act (s43) recognising the position of landbrokers. She stated that during this period no persons obtained licences because of a Law Practitioners Act prohibition. As will be seen, this is not only incorrect but would have defeated the very purpose of providing for landbrokers in s111 of the 1870 Act.
[14] Having also described the two earlier Dempster judgments, Goddard J expressed her concurrence with Fisher J in the view that, although ss229-234 have not been repealed, the issue of a licence under s234 confers nothing. That accepted, she said the only conclusion available was that there is no current occupation of licensed landbroker in New Zealand.
[15] Turning to the Trans-Tasman Mutual Recognition Act, Goddard J referred to an argument for the Registrar-General that the Law Practitioners Act 1982 had not deleted the occupation of landbroker, as had happened in Queensland (see Sande v Registrar, Supreme Court of Queensland (1996) 134 ALR 560), but simply added the qualifications of barrister or solicitor as prerequisites to obtaining a licence as a landbroker. Responding to this argument, which in our view did not comprehend the true position, the Judge said that s65 “did no more than simply cancel a statutory exemption from what would otherwise be an offence under the Law Practitioners Act”. She concluded that there was no New Zealand registered occupation equivalent to the occupation of landbroker in South Australia and made the declarations set out above.

The legislative history

[16] As the respective arguments of the Registrar-General and the New Zealand Law Society were directed only incidentally to what we regard as the determinative matters, we will defer reference to them and go straight to the legislative history, beginning at the very beginning in 1842.
[17] Section 54 of the Conveyancing Ordinance 1842 provided:

And be it enacted if any man not being a solicitor of the Supreme Court shall act as attorney or solicitor, or if any man not being a barrister or solicitor of the Supreme Court shall act as conveyancer, he shall forfeit and pay for every such offence the sum of fifty pounds, to be recovered by action in the Supreme Court by any one who shall sue for the same.

[18] This provision was repealed and replaced by s52 of the Law Practitioners Act 1861:

LII. If any man not being a Barrister or Solicitor of the Court shall act as a Conveyancer he shall forfeit and pay for every such offence any sum not exceeding the sum of Fifty Pounds.

This provision remained in force when the Land Transfer Act 1870 was passed.

[19] What occurred in relation to landbrokers while the Real Property Bill, which became the Land Transfer Act 1870, was before Parliament is described in Professor Douglas Whalan’s essay, Origins of the Torrens System, in The New Zealand Torrens System Centennial Essays (Butterworths, 1971) at p20-22. In South Australia there had been much opposition from the legal profession to the first Torrens statute, the Real Property Act 1860. The device used to overcome that opposition, which threatened to frustrate the purposes of the Act, was the appointment of landbrokers whom Professor Whalan described as “persons with slight formal qualifications who could conduct business for reward under the Act”.
[20] The New Zealand Bill contained provision for the appointment of landbrokers. However, there was evidently some diffidence on the part of the Government about this provision and when it was introduced into the Legislative Council it provided that landbrokers must be barristers or solicitors of the Supreme Court. As Professor Whalan said, this was a modification that would have nullified the original purposes of the provision. But, he went on:

On attention being drawn to the fact that this restriction was not contained in the South Australian Act, it was omitted in Committee on 16 August. (p21)

[21] In the Legislative Council a motion seeking reinsertion of the restriction of landbrokers to barristers or solicitors was defeated.
[22] In moving the second reading in the House on 24 August 1870, the Premier, the Hon W A Fox made the following statement:

There is one clause, however, to which I desire to call particular attention, because it may possibly arouse some hostile feeling – although I am not aware that any hostile feeling really does exist against the Bill – in reference to professional men, upon whom this clause may be thought to bear hardly. When Mr Torrens introduced his Bill in South Australia, he was there met by every difficulty that could be opposed to him by the Bench, by the members of the bar, and the entire body of solicitors, who had all set their faces against the Bill, and it was only natural that the Bill should set its face against them. Under these circumstances, it took the transfer of land out of the hands of the members of the legal profession, by appointing what are called land-brokers, who were appointed by the Government, and who were required to give sufficient security for the performance of their office. That clause of the Bill has not been enacted in Victoria, or any Colony, I believe, except South Australia, and, I believe, in Queensland also. It was found absolutely necessary to introduce that clause, from the great hostility which the Bill encountered in South Australia. In reference to this clause the Government intend adhering to it partially, but they will consent, should the House so desire it, to its being modified, not, however, to the extent of striking out the power to appoint land-brokers altogether, as there are some places in New Zealand where it may be necessary to appoint persons as registrars who are not lawyers. The Act will authorize the Governor to declare where such appointment may be made. I shall go further, and state that it is not the intention of the Government to put that clause at present into operation. The Government will look to the legal profession for the assistance which they can give in working out the provisions of this Bill. I am glad to see, in New Zealand, upon the introduction of a measure of this kind to the consideration of the Assembly, that the Government have been almost entirely free from opposition on the part of the legal profession. ((1870) 9 NZPD 197)

[23] Section 111 of the 1870 Act provided for the licensing of landbrokers in the following manner:

111. It shall be lawful for the Registrar-General with the sanction of the Governor to licence fit and proper persons to be Land Brokers for transacting business under the provisions of this Act and with like sanction to prescribe the charges recoverable by such Brokers for such business by any scale not exceeding the charges specified in the Schedule hereto marked Q and upon proof to his satisfaction of the malfeasance or incapacity of any such licensed Broker and with the sanction aforesaid to revoke such license and for every such license to charge and receive the fee of five pounds annually and before granting any such license the Registrar-General shall receive bond from the person to whom the same is to be issued in the sum of one thousand pounds with two sureties each in the sum of five hunderd pounds conditioned that such person shall duly and faithfully act in the capacity as such licensed Land Broker in accordance with the provisions of this Act and shall also administer to such person the oath following –

“I A.B. do solemnly swear that I will faithfully and to the best of my ability execute and perform all such business or duties as may be intrusted to or imposed upon me as licensed Land Broker according to the provisions of ‘The Land Transfer Act 1870.’ So help me God.”

Provided that it shall be lawful for any Solicitor of the Supreme Court to transact any business under this Act without being licensed as a Land Broker or paying any such fee or entering into such bond or taking such oath as aforesaid.

[24] The Act made no reference to the prohibition in s52 of the Law Practitioners Act 1861. Significantly, it was actually thought necessary to include the proviso to s111 so as to ensure that a solicitor would not be prevented from doing conveyancing under the Act because he was not registered as a landbroker. Plainly s111 was the governing provision.
[25] Mr Fox’s sanguine expectations about the attitude of the legal profession were not borne out. In response to a parliamentary question the next year, Mr Fox stated:

He had heard that it was stated in certain quarters that the Government had made a promise not to appoint land brokers before a certain period, but the Government had made no such promise. It was stated by himself, when the Bill was passing through the House, that the Government had no intention of pressing for the appointment of land brokers immediately. Later on, at the third reading of the Bill, the question was put in a pointed manner by the honorable member for Selwyn (Mr. Stevens), and also by Mr. Hall asking whether, if the public made any demonstration in favour of the appointment of land brokers, the Government would be prepared to accede to it. The reply was, “Most certainly.” When the Act was put into force, a period of four or five months elapsed before the Act seemed to have any effect at all, and in many parts of the Colony not a single title was brought to the registration office. Even in Dunedin and Christchurch, where it was expected the operation of the Act would be most marked, scarcely a single transaction took place, and the Act seemed to hang fire. But very soon a number of applications began to be made by the public, and a great many petitions were got up with the object of getting the Government to appoint land brokers without further delay. The Government considered they were bound to fulfil the pledge they had made to the House, and land brokers were appointed in all parts of the Colony when they chose to apply, after giving the necessary security. The effect was instantaneous and magical. Applications for registration of titles came pouring in, and the registrar reported, a few weeks afterwards, that the office at Dunedin was paying its own expenses, and that a fair amount of business was being transacted in Christchurch, and that he saw every prospect of the successful working of the system. It was clear that that result was due altogether to the creation of the land broker system, and he thought the Government were fully justified in the course they had taken by what had been done. ((1871) 11 NZPD 735)

[26] So, contrary to the understanding of Goddard J, many landbrokers were carrying on business in New Zealand from very soon after the enactment of the Torrens system legislation. It did not require the passage of the Law Practitioners Act 1908 for landbroking by non-lawyers to begin. The Law Practitioners Act 1861 was replaced in 1882, with the replacement legislation continuing to include a prohibition upon “any man” not being a barrister or solicitor acting as a conveyancer. Shortly afterwards, in 1885 there was a new Land Transfer Act in which ss205-209 were very similar to the current ss229 and 231-234 of the Land Transfer Act 1952. Section 208, which is the predecessor of the present s233, confirmed that business for a fee or reward under the Act could be carried on either by the holder of a landbrokers licence or by a solicitor (and now also by a barrister):

208. Any person who, not being the holder of a licence as a land-broker under this Act, or of a certificate for the time being in force to the effect that he is on the roll of the Supreme Court as a barrister or solicitor thereof, shall transact business for fee or reward under this Act, or shall wilfully and falsely pretend to be entitled to transact such business, shall for each offence be liable to a penalty not exceeding fifty pounds.

[27] In 1908 both a Land Transfer Act and a Law Practitioners Act were enacted as part of the general consolidation of statutes. In that process, the first of the provisions which Fisher J and Goddard J have viewed as exemptions appeared in the Law Practitioners Act 1908:

43. Except in the case of a person duly acting under and within the authority of a license duly granted and in force under “The Land Transfer Act, 1908,” or any other Act, every person who, not being a barrister or solicitor of the Court, acts as a conveyancer is liable for every such offence to a fine not exceeding fifty pounds.

It is important to observe that what was occurring was merely a consolidation, without any intention of effecting a reform of the law. Consolidating Acts were prepared under the Reprint of Statutes Act 1895, an Act for compiling an edition of the enactments in force in New Zealand of a public or general nature. The task of the Commissioners preparing the edition was that of preparing and arranging the laws for publication. Their task was that of editing and compiling. If in that process they considered that there were contradictions, omissions and imperfections they were to report on that fact and on the mode in which they had reconciled, supplied and amended them (s3(4)). The Commissioners made no such report on the reference to landbrokers inserted in the Law Practitioners Act. The rewording must be taken to have been simply a clarification of the position as it had been understood from 1870. That is important when one turns to consider the effect of the change made in 1982.

[28] After 1908 several events of significance occurred. There was no change to the position in the Land Transfer Act 1915 but, in 1924, it became compulsory to bring land under the Land Transfer Act before conveying it (Land Transfer (Compulsory Registration of Titles) Act 1924). As a result, the deeds system, which was the exclusive domain of the legal profession, was to come to an end. The area of work which landbrokers were authorised to do was effectively to become the only kind of land conveyancing in this country.
[29] The next development may or may not have been a result of the 1924 reform. Because the 1870 scale of fees had never been increased, the transacting of landbrokers’ business had come, in practice, to be an adjunct of another business from which more realistic remuneration could be obtained. For this reason, most landbrokers also operated as real estate agents. It was obviously convenient if they could undertake the conveyancing of the sales which they had arranged. But in 1939, an amendment to the Land Transfer Act, now re-enacted as s230 of the 1952 Act, provided that no person should be qualified to hold a licence as a landbroker if that person was the holder of a licence as a land agent. Agents of building societies were also prevented from being involved in landbroking. There was a grandparenting provision protecting the position of any such person who held a landbroking licence on 14 September 1939 unless that person ceased for a period of more than six months to be the holder of a landbroking licence. (In contrast to the position in Queensland, which is described in Sande, the New Zealand Parliament did not proscribe the issue of new licences to anyone other than those involved in land agency and building society businesses.)
[30] The numbers of practising landbrokers began to dwindle. Although landbrokers were allowed for in the Law Practitioners Act 1955 and again on its amendment in 1962, when there seem to have still been some outstanding licences, no particular attention was directed to them when Parliament was considering those measures. Material supplied by Mr Dempster reveals that there were no holders of licences by the time the Law Practitioners Act 1982 was passed.
[31] That brings us, at last, to the position as from the enactment of the 1982 Act. As has been seen, no alteration was made to ss229-234. They were not expressly repealed and, in view of the fact that s229 was very slightly amended in 1991 (see the note in the Appendix), it would be hopeless to argue that there was an implied repeal. Nor were those provisions overlooked. They were actually mentioned in the parliamentary debate by Mr de Cleene (MP for Palmerston North) when he was speaking about competition in conveyancing and read out part of the scale of fees ((1982) 444 NZPD 4778-9). It may well have been thought that the scale of fees would continue to make the holding of a licence unattractive but plainly, in our view, Parliament deliberately preserved the possibility that someone might wish to apply for a licence and carry on business as a landbroker. It would have been very easy just to repeal ss229-234 if the occupation was to be discontinued. The register could have been checked to verify whether there were any outstanding licences. A grandparenting provision could have been made, if in fact there were any.
[32] Much has been made of the removal of the so-called exemptions found in the successive versions of s18 of the 1955 Act. Sections 64 and 65 now simply prohibit conveyancing by anyone other than a barrister or solicitor. On their face they no longer make allowance for the position of a licensed landbroker. But it does not seem to us that it follows from this change that the occupation of landbroker has been prohibited or that, if it technically still exists, it is to be available only to someone holding a practising certificate as a barrister or solicitor. On the basis of our understanding of the history of the respective provisions, the better view is that the position reverted to that which had pertained before 1908 and which had not been changed by the consolidating legislation in that year.
[33] Since the 1870 Land Transfer Act, Torrens title conveyancing was open to either a law practitioner or a licensed landbroker. Section 233 of the 1952 Act continues to reflect this position by prohibiting land transfer conveyancing except by the holder of a landbrokers licence or by someone on the roll as a barrister or solicitor. It would be pointless to so exempt a landbroker if ss64 and 65 were intended to prevent such a person from doing that class of conveyancing. Therefore, as indicated in the passage quoted above (in para [6]) from the decision in the first Dempster case, it has remained possible since 1982 for conveyancing under the Land Transfer Act to be done by either a licensed landbroker or a barrister or solicitor.
[34] The New Zealand position differs from that in Queensland where no-one who had not qualified to be registered as a landbroker before 1940 can now be registered. Obviously there is no real possibility that any such person will now totter forward and apply for a new licence. In contrast, Mr Dempster did attempt to obtain a licence well before the passage of the Trans-Tasman Mutual Recognition Act and others have shown a willingness to follow him now that a further opportunity has arisen under the 1997 Act.
[35] Accordingly, we regard the occupation of landbroking as an available occupation in New Zealand for the purposes of the 1997 Act which, in its long title, is intended to provided for the recognition in New Zealand of regulatory standards adopted in Australia regarding goods and occupations.
[36] Mr Wilson submitted that the Trans-Tasman Mutual Recognition Act is directed to qualification to commence the practice of an occupation and is not concerned with the mode of carrying out the occupation once an entitlement to be registered is established. By contrast, he argued that ss64 and 65 of the Law Practitioners Act 1982 merely govern the mode of practice and are not directed to the required qualification. Whilst Mr Wilson’s first proposition can be accepted in broad terms, we are not at all persuaded that ss64 and 65 are not concerned with the qualification required of a person who wishes to carry out conveyancing. To the contrary, subject to the effect of ss229-234, they prevent anyone not holding a particular qualification, a practising certificate, from doing the things specified in the sections. Their very headings – 64. Offence for unqualified person to act as solicitor – and - 65. Qualified persons only to act as conveyancers – make this abundantly clear. They are concerned with entitlement, not with method.
[37] The interpretation Mr Wilson sought to give to s15, that the words “before doing so” in subs(2) relate back to “seeking” to carry on an occupation rather than to the actual “carrying on” of the occupation, would render the section largely ineffective and, as he himself admitted, the argument ran into difficulty in the face of s16 which refers both to carrying on and seeking to carry on an occupation.
[38] It follows from this that since, as we have found, there is an existing occupation of landbroker under New Zealand law, distinct from that of a solicitor or barrister, ss5(1), 15 and 16 of the 1997 Act would have the effect that, even if ss64 and 65 otherwise prevented a licensed landbroker from carrying out land transfer conveyancing, ss64 and 65 would be inapplicable in the case of someone who is entitled to be registered under s229 pursuant to the 1997 Act. An individual registered in an Australian jurisdiction as a landbroker is therefore entitled to be registered as such in New Zealand, subject to the other provisions of the 1997 Act.
[39] We would, however, decide this case on the more fundamental basis that, just as before 1982, anyone who is prepared to abide by the conditions in ss229-234 of the Land Transfer Act 1952 and who is a fit and proper person to be a landbroker is entitled to a licence issued under s229, whether or not that person is a member of the legal profession. This has been the law in New Zealand ever since the enactment of the Land Transfer Act 1870.
[40] Ordinarily Mr Dempster may have been bound by the second Dempster decision, against which he did not appeal. The Registrar-General also may have felt inhibited in arguing the present case in a way which challenges that decision, which he himself had sought. But, as Mr Wilson wisely recognised, there are others before the Court who are entitled to argue to the contrary and have done so. In any event, a future applicant under s229 would not be bound in this Court by the second Dempster case. It is best that we now say that it was wrongly decided.
[41] Goddard J’s declarations are set aside and the appeal allowed accordingly. The costs order in the High Court is set aside. In the circumstances there will be no order for costs in either Court.

Solicitors
Crown Law Office for Appellant
Bell Gully, Wellington for First Respondent

APPENDIX

Land Transfer Act 1952

229. Power of Registrar-General to license persons as landbrokers

(1) The Registrar-General may, with the sanction of the Governor-General, license fit and proper persons to be landbrokers for transacting business under this Act; and, with like sanction, may from time to time prescribe the charges recoverable by licensed brokers for any such business by any scale not exceeding the charges specified in the Sixth Schedule to this Act [and for every such licence may charge and receive the fee of $10 annually].

(2) Every such licence shall continue in force until the 31st day of December next after the date thereof.

[Note: the words in brackets in subs(1) were omitted when s229 was amended by the Land Transfer Amendment Act 1991, s2(2)(d).]

230. Restrictions on licensing of landbrokers

(1) No person shall be qualified to hold a licence as a landbroker under this Act if he is the holder of a licence as a real estate agent under the Real Estate Agents Act 1976 or is a partner, agent, or servant of the holder of a licence under that Act, or if he is a director, officer, or servant of a company carrying on business as a real estate agent or of a building society incorporated under the Building Societies Act 1965, or is a partner of any such director, officer, or servant.

(2) Nothing in the last preceding subsection shall apply to any person who on the 14th day of September 1939 (being the date of the passing of the Land Transfer Amendment Act 1939) was the holder of a licence as a landbroker and who but for subsection (2) of section 13 of that Act would immediately thereupon have been disqualified from holding the licence, unless he thereafter ceased or hereafter ceases for a period exceeding 6 months to be the holder of a licence as a landbroker or establishes a place of business in any district in which at the last-mentioned date he had no place of business.

(3) If any person being the holder of a licence as a landbroker under this Act becomes disqualified under this section from holding the licence, the licence shall immediately thereupon be deemed to be revoked.

231. Bond required before grant of licence

Before granting any such licence the Registrar-General shall take a bond from the person to whom the licence is to be issued in the sum of $2,000, with 2 sureties each in the sum of $1,000, conditioned that that person shall duly and faithfully act in the capacity of a licensed landbroker in accordance with this Act.

232. Licences may be revoked

Any licence granted as aforesaid may be revoked by the Registrar-General, with the sanction of the Governor-General, upon the ground of malfeasance or incapacity of the licensee, or in case the sureties or either of them becomes bankrupt, or leaves New Zealand, or desires to be discharged from his liability.

233. Acting without licence

Every person commits an offence against this Act, and is liable on summary conviction before a District Court Judge to a fine not exceeding $100, who, not being the holder of a licence as a landbroker under this Act, or of a certificate for the time being in force to the effect that he is on the roll of the High Court as a barrister or solicitor thereof, transacts business for fee or reward under this Act, or wilfully and falsely pretends to be entitled to transact any such business.

234. Making unlawful charges

If any person licensed as a landbroker knowingly and wilfully charges more than the sums mentioned in the aforesaid scale, or in so far as that scale does not extend, then more than the sums mentioned in the Sixth Schedule to this Act, his licence shall be cancelled, and he shall be incapable of being again licensed as a landbroker for 2 years.

Law Practitioners Act 1982

64. Offence for unqualified person to act as solicitor

(1) Every person commits an offence against this Act who, not being duly enrolled under this Act,—

(a) Acts as a solicitor; or

(b) Holds himself out as being qualified to act as a solicitor; or

(c) Takes or uses any name, title, addition, or description implying or likely to lead any person to believe that he is qualified to act as a solicitor; or

(d) Carries on business as a solicitors’ agent, or in any way advertises or holds himself out as a solicitors’ agent.

(2) It shall not be an offence under subsection (1)(d) of this section for a person—

(a) To carry on business as a Maori agent, or to advertise or hold himself out as a Maori agent; or

(b) At the request of a solicitor, to act as his agent in searching any register or in filing, stamping, or registering any document, or in serving any legal process; or

(c) To hold himself out to solicitors, but not to the public, as an agent for any of the purposes mentioned in paragraph (b) of this subsection.

65. Qualified persons only to act as conveyancers

(1) Except as provided in subsection (2) of this section, no person, other than the holder of a current practising certificate as a barrister or as a solicitor or as both, or a person acting under the supervision of such a holder, shall draw or prepare for or on behalf of any other person—

(a) Any conveyance within the meaning of the Property Law Act 1952 of any real or personal property:

(b) Any deed within the meaning of the Property Law Act 1952 relating to any real or personal property:

(c) Any tenancy agreement or agreement evidencing a tenancy, if—

(i) The tenancy is for a term of more than 12 months; or

(ii) Any right of renewal is conferred on the tenant by the agreement; or

(iii) Any charge is made directly or indirectly for the drawing or preparation of the agreement or for any other service incidental to it.

(2) Subsection (1) of this section shall not apply to—

(a) Any agreement for sale and purchase of land or any interest in land or of the goodwill of a business or of chattels prepared by a real estate agent holding a licence in force under the Real Estate Agents Act 1976:

(b) Any transfer of shares, stocks, debentures, or chattels containing no trust or limitation thereof:

(c) Any conveyance, deed, or agreement that is drawn or prepared by filling in a printed form, if—

(i) The printed form was drawn or prepared by a person who, at the time when it was drawn or prepared, was the holder of a current practising certificate as a barrister or as a solicitor or as both; and

(ii) It could reasonably be expected that the form could be properly completed by the persons likely to complete it, whether or not they were holders of such certificates; and

(iii) No charge is made directly or indirectly for the drawing or preparation of the conveyance, deed, or agreement or for any service incidental to it.

(3) Every person who contravenes this section commits an offence against this Act.

(4) In this section the term printed form includes a form of which copies are produced by cyclostyling, or by any duplicating or reproduction process, whether letterpress, photographic, lithographic, multigraphic, or stencilling, or any other similar process.

Trans-Tasman Mutual Recognition Act 1997

5. Application

(2) Every law of New Zealand must, unless it or this Act otherwise expressly provides, be read subject to this Act.

14. Equivalent occupation

(1) For the purposes of this Act, and subject to subsection (2), an occupation for which individuals may be registered in an Australian jurisdiction is taken to be an equivalent occupation to an occupation for which individuals may be registered in New Zealand if the activities authorised to be carried out under each registration are substantially the same.

(2) Subsection (1) is subject to—

(a) The fact that equivalence of occupations between New Zealand and an Australian jurisdiction may be achieved by the imposition of conditions on deemed registration or registration; and

(b) Any declaration made and in force under section 30 or section 31.

15. Trans-Tasman mutual recognition principle in relation to occupations

(1) The Trans-Tasman mutual recognition principle in relation to occupations is that, subject to this Act, an individual who is registered in an Australian jurisdiction for an occupation is entitled, after giving notice to the local registration authority for the equivalent occupation,—

(a) To be registered in New Zealand for the equivalent occupation; and

(b) Pending such registration, to carry on the equivalent occupation in New Zealand.

(2) The entitlement described in subsection (1) arises by virtue of this Act, and no law of New Zealand requiring an individual seeking to carry on that occupation to have any particular qualification before doing so applies to any individual who is registered in an Australian jurisdiction for an occupation and who gives notice to the local registration authority for the equivalent occupation in accordance with section 19.

16. Section 15 not to affect operation of certain laws

Nothing in section 15 affects the operation of any laws of New Zealand that regulate the manner of carrying on an occupation in New Zealand, so long as those laws—

(a) Apply equally to all individuals carrying on or seeking to carry on the occupation under the law of New Zealand; and

(b) Do not require an individual carrying on or seeking to carry on that occupation under the law of New Zealand to have any particular qualification before doing so.

17. Entitlement to registration and continued registration

(1) For all the purposes of the law of New Zealand, every law of New Zealand dealing with registration is deemed to include as a ground of entitlement to registration and renewal of registration, subject to the provisions of this Act, the ground that an individual seeking registration or renewal of registration is registered in an equivalent occupation in an Australian jurisdiction.

(2) An individual to whom registration has been granted on the ground referred to in subsection (1)—

(a) Is entitled to renewal of registration in accordance with the law dealing with registration of that kind; and

(b) Is not disentitled to registration or renewal of registration solely because the individual ceases to be registered in an equivalent occupation in an Australian jurisdiction; and

(c) Keeps or loses his or her entitlement to registration or renewal of registration in accordance with any law dealing with registration of that kind, to the extent that any such law—

(i) Applies equally to all individuals carrying on or seeking to carry on the occupation under the law of New Zealand; and

(ii) Does not require an individual carrying on or seeking to carry on that occupation under the law of New Zealand to have any particular qualification before doing so.