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R v Hartley [2006] NZCA 31; [2007] 3 NZLR 299; (2007) 23 CRNZ 420 (1 March 2007)

Last Updated: 25 March 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA242/05

BETWEEN STEPHEN GILBERT ANDERSON
Appellant

AND NZI INTERNATIONAL ACCEPTANCES LTD, NZI SECURITIES LTD AND NZI FINANCE LTD
Respondents

Hearing: 13 March 2006

Court: Glazebrook, Hammond and Cooper JJ

Counsel: Appellant in Person
T Smith for Respondents

Judgment: 16 March 2006

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Cooper J)

[1] The appellant, Mr Anderson, filed what he described as an application for special leave to appeal against a decision of Chisholm J dated 20 October 2005. It is not a case, however, where special leave is required, and by agreement of the parties we have simply proceeded on the basis that Mr Anderson has exercised his right to appeal.
[2] The matter before Chisholm J purported to be an application for an order giving directions before setting down, in reliance on r 437 of the High Court Rules. By that application, Mr Anderson was effectively seeking that a proceeding in which an interim injunction had been granted by Holland J on 19 November 1987, should be set down for substantive hearing, notwithstanding that no action had been taken in that proceeding in the intervening period of almost 18 years, and notwithstanding that there had been a fundamental change to the facts that were considered by Holland J.
[3] As is recorded in [2] of the judgment subject to appeal:

In broad terms Mr Anderson was hoping that it would be possible for the Court to revisit the interim injunction granted by Holland J on 19 November 1987. That injunction restrained the defendants from proceeding with a mortgagee’s sale of Mr Anderson’s farm pursuant to Property Law notices. In his judgment granting the interim injunction Holland J expressly recognised the possibility that another Property Law notice might be issued and that is what happened. The farm was ultimately sold by way of mortgagee’s sale and Mr Anderson was adjudicated bankrupt. The farm had been in Mr Anderson’s family since 1880.

[4] Mr Anderson attempted to relitigate the issues in 1999. Master Venning (as he then was) ordered that a new proceeding that had been commenced by Mr Anderson be struck out on 1 September 1999.
[5] Mr Anderson accepted, both before Chisholm J and in this Court that the defendants were no longer the registered proprietors of the land, previously his family’s farm, and sold at a mortgagee sale in 1987 instigated by the defendants.
[6] In fact, all of the defendants have since been liquidated, and de-registered. Mr Smith appeared for IAG New Zealand Ltd and advised the Court that that company had acquired the assets and liabilities of the New Zealand Insurance Group under a scheme of arrangement approved on 19 May 2003. However, before those events occurred, the property had been disposed of by the defendants. That occurred as long ago as 22 June 1988.
[7] In his judgment of 19 November 1987, Holland J held that Mr Anderson had established "much more than an arguable case" that the Property Law Act notice upon which the defendants wished to proceed had not been served in time to enable an auction to proceed while giving Mr Anderson one month’s notice to remedy his default under a mortgage. The interim injunction that was then granted was one that restrained the defendants until further order of the Court from selling or completing the sale of the property "under or by virtue of the notices given by the defendants to the plaintiff under s 92 of the Property Law Act 1952 and dated the 14^th day of August 1987".
[8] Yet, as Chisholm J noted, the judgment specifically envisaged that another Property Law Act notice might be issued which gave the defendant proper time to remedy the breach and which could then form the basis of further proceedings for the sale of the property in the case of further default by Mr Anderson. That is what occurred.
[9] In the circumstances, Mr Anderson was not able to point to any unlawful act of the defendants leading to the sale of his property. As was pointed out by Chisholm J an order restoring the defendants to the register could not be contemplated in the present circumstances. No purpose could be achieved by making such an order, given that the property is lawfully in the possession of a new owner.
[10] In the circumstances, the appeal is dismissed. Mr Smith did not seek costs.

Solicitors:
Russell McVeagh, Wellington for Respondents

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[1]	The appellant, Mr Anderson, filed what he described as an application for special leave to appeal against a decision of Chisholm J dated 20 October 2005. It is not a case, however, where special leave is required, and by agreement of the parties we have simply proceeded on the basis that Mr Anderson has exercised his right to appeal.
[2]	The matter before Chisholm J purported to be an application for an order giving directions before setting down, in reliance on r 437 of the High Court Rules. By that application, Mr Anderson was effectively seeking that a proceeding in which an interim injunction had been granted by Holland J on 19 November 1987, should be set down for substantive hearing, notwithstanding that no action had been taken in that proceeding in the intervening period of almost 18 years, and notwithstanding that there had been a fundamental change to the facts that were considered by Holland J.
[3]	As is recorded in [2] of the judgment subject to appeal:

[4]	Mr Anderson attempted to relitigate the issues in 1999. Master Venning (as he then was) ordered that a new proceeding that had been commenced by Mr Anderson be struck out on 1 September 1999.
[5]	Mr Anderson accepted, both before Chisholm J and in this Court that the defendants were no longer the registered proprietors of the land, previously his family’s farm, and sold at a mortgagee sale in 1987 instigated by the defendants.
[6]	In fact, all of the defendants have since been liquidated, and de-registered. Mr Smith appeared for IAG New Zealand Ltd and advised the Court that that company had acquired the assets and liabilities of the New Zealand Insurance Group under a scheme of arrangement approved on 19 May 2003. However, before those events occurred, the property had been disposed of by the defendants. That occurred as long ago as 22 June 1988.
[7]	In his judgment of 19 November 1987, Holland J held that Mr Anderson had established "much more than an arguable case" that the Property Law Act notice upon which the defendants wished to proceed had not been served in time to enable an auction to proceed while giving Mr Anderson one month’s notice to remedy his default under a mortgage. The interim injunction that was then granted was one that restrained the defendants until further order of the Court from selling or completing the sale of the property "under or by virtue of the notices given by the defendants to the plaintiff under s 92 of the Property Law Act 1952 and dated the 14^th day of August 1987".
[8]	Yet, as Chisholm J noted, the judgment specifically envisaged that another Property Law Act notice might be issued which gave the defendant proper time to remedy the breach and which could then form the basis of further proceedings for the sale of the property in the case of further default by Mr Anderson. That is what occurred.
[9]	In the circumstances, Mr Anderson was not able to point to any unlawful act of the defendants leading to the sale of his property. As was pointed out by Chisholm J an order restoring the defendants to the register could not be contemplated in the present circumstances. No purpose could be achieved by making such an order, given that the property is lawfully in the possession of a new owner.
[10]	In the circumstances, the appeal is dismissed. Mr Smith did not seek costs.