Hill v Māori Trustee [2016] NZCA 380 (9 August 2016)

Last Updated: 18 August 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA220/2016 [2016] NZCA 380
BETWEEN	FREDERICK HILL Appellant
AND	MĀORI TRUSTEE Respondent

Hearing:	1 August 2016
Court:	Kós P, Cooper and Winkelmann JJ
Counsel:	Appellant in person C M Reuhman for Respondent
Judgment:	9 August 2016 at 3 pm

JUDGMENT OF THE COURT

A The appeal and application for stay are dismissed.

2. Mr Hill is to pay the Māori Trustee’s costs for a standard application on a band A basis together with usual disbursements.

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REASONS OF THE COURT

(Given by Kós P)

[1] Mr Hill was lessee from the Māori Trustee of farm land in Mangatainoka. The lease was for a nine year term commencing 11 December 2006. On 23 February 2015 District Court Judge Ross found Mr Hill liable for breaches of the lease.^[1] He ordered the lease be cancelled. Special damages (for unpaid rent, rates and costs associated with gorse control) of $87,423 were awarded against Mr Hill, along with costs.
[2] Mr Hill appealed to the High Court. In the meantime, the lease expired, on 11 December 2015. In a judgment dated 4 March 2016 Dobson J dismissed Mr Hill’s appeal.^[2]
[3] On 2 May 2016 Mr Hill applied in the High Court for leave to bring a second appeal to this Court under s 67 of the Judicature Act 1908. That application is yet to be resolved.
[4] An application to the High Court for stay pending leave to appeal to this Court was dismissed on 13 May 2016.^[3]

Applications before this Court

[5] On 17 May 2016 Mr Hill filed two documents in this Court. The first is a “Notice of Appeal of Order” which in substance is an appeal against dismissal of the stay application on 13 May 2016 in the High Court. On the same day Mr Hill filed an “application for stay or injunction”, which relies on r 12 of the Court of Appeal (Civil) Rules 2005.
[6] This Court has jurisdiction to deal with the second of these documents under r 12(3) and (5):

(3) Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on application,—

(a) order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or

(b) grant any interim relief.

...

(5) If the court appealed from refuses to make an order under subclause (3), the Court may, on application, make an order under that subclause.

[7] This means the first document — the appeal against Dobson J’s refusal to grant a stay — is superfluous.^[4] Nonetheless, we shall determine it alongside the application for stay.

Submissions

[8] Mr Hill in oral submissions before us accepted that the lease had expired, but said that he was in the process of negotiating with a fresh lease with the beneficial shareholders. There were real complexities in shifting bloodstock, in particular thoroughbreds, in the meantime.
[9] Ms Reuhman (for the Māori Trustee) submitted that given that the lease had expired, Mr Hill had no entitlement to be on the land anyway. The only person with power to grant a new lease was her client. The Māori Land Court had refused to order a meeting of beneficial owners of the land, despite application by Mr Hill.

Analysis

[10] This is a clear case. No error in Dobson J’s decision to refuse stay of enforcement in the High Court on 13 May was demonstrated. Nor is any miscarriage of justice likely if a stay is denied. The matters Mr Hill points to are questions of convenience only.
[11] Mr Hill lacks any present tenure in the land. He is in law a trespasser. He may have hopes of renegotiating a new lease, but he will have to deal with the Māori Trustee. The prospects of renegotiation between these parties appear slight indeed. Review of the judgments below indicate that any prospects of success on the substantive appeal are slim, in the event leave to appeal is granted. As to enforcement of the money judgment, Mr Hill has not tendered payment of the amount due, or any sum. Nor is any injustice likely to result from enforcement of it. The Māori Trustee is a substantial entity. It is well able to repay the judgment sum and costs in the event Mr Hill’s appeal is both permitted and allowed.

Result

[12] The appeal and application for stay are dismissed.
[13] Mr Hill is to pay the Māori Trustee’s costs for a standard application on a band A basis together with usual disbursements.

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^[1] Māori Trustee v Hill DC Palmerston North CIV-2011-054-533, 23 February 2015.

^[2] Hill v Māori Trustee [2016] NZHC 364.

^[3] Hill v Māori Trustee HC Palmerston North CIV-2015-454-39, 13 May 2016.

^[4] Spackman v Queenstown Lakes District Council [2007] NZCA 463 at [6].