Anderson v Registrar-General of Land at LINZ [2024] NZCA 591 (14 November 2024)

Last Updated: 18 November 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA562/2024 [2024] NZCA 591

	BETWEEN	STEPHEN GILBERT ANDERSON Appellant
	AND	REGISTRAR-GENERAL OF LAND AT LINZ First Respondent ATTORNEY-GENERAL OF NEW ZEALAND Second Respondent

Court:	Cooke, Fitzgerald and Jagose JJ
Counsel:	Appellant in person K F Gaskell and D Ranchhod for Respondents
Judgment: (On the papers)	14 November 2024 at 2.30 pm

JUDGMENT OF THE COURT

1. The appeal is dismissed.
2. There is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Jagose J)

• [1] Stephen Anderson appeals the 12 August 2024 decision of Dunningham J in the High Court at Dunedin, striking out his proceeding against the respondents under r 5.35B of the High Court Rules 2016.^[1]

Context

• [2] Rule 5.35B entitles a Judge to (among other things) strike out a proceeding if “satisfied that the proceeding is plainly an abuse of the process of the court”.^[2] An abuse of process is the “improper use of [the court’s] machinery”,^[3] or the use of a court process “for a purpose or in a way which is significantly different from [its] ordinary and proper use”.^[4] In accordance with this Court’s usual practice on appeals from decisions under r 5.35B, the respondents were not required to, and did not, participate in the appeal.

Background

• [3] By document dated 7 August 2024, Mr Anderson filed an application in the High Court at Dunedin against the Registrar-General of Land and the Attorney‑General, requesting “a formal judgment/ruling of this Court as to the ... legal binding liabilities of [the respondents] to granting compensation for the creditors” in his 1988 bankruptcy under s 58 of the Land Transfer Act 2017. Mr Anderson’s application continued:

7. My contention all along is that there is a restrictive covenant over the 5 Land titles and at the sale time, pending a High Court hearing. That it was a defective 2^nd property law notice that those 5 land titles were eventually on sold with.

• [4] The application asserted:

3. The transfer of the above 5 Land titles to Electrocorp NZ in 1988 was wrong and illegal as the High Court restrictive covenant order (injunction) was in place and held over those 5 land titles pending a Court hearing over serious matters surrounding a forced sale by NZI bank ...

Judgment under appeal

• [5] Noting Mr Anderson’s prior proceedings alleging wrongful transfer all had been determined against him,^[5] the Judge struck out the proceeding:

[6] I am satisfied that there is, therefore, no possibility of a finding that the transfer of the titles as a consequence of the mortgagee sale of Mr Anderson’s family farm, was invalid or unlawful in any way. This proceeding is, therefore, a collateral attack on the finality of earlier judgments and so plainly an abuse of the Court’s processes.

• [6] On appeal, Mr Anderson explains “the application was a simple request ... to clarify a point of law and was in no way an attempt to re-litigate historical events”. Instead, he argues the proceeding was brought to obtain compensation for his creditors, who he says are detrimentally affected by the result of the litigation to which the Judge referred.

Approach on appeal

• [7] Under s 56(4)(a) of the Senior Courts Act 2016, any party may appeal to this Court any order or decision of the High Court “striking out or dismissing the whole or part of a proceeding”. Mr Anderson bears the onus of satisfying us that the Judge was wrong.^[6]

Discussion

• [8] Section 58 of the Land Transfer Act entitles a person who has suffered loss or damage as a result of the Registrar’s error or wrongful act or omission to bring a proceeding against the Crown for compensation. In Hojsgaard v Registrar-General of Land, this Court held such a right was not a “right to compensation [extending] beyond matters relating to the register of land”.^[7]
• [9] Mr Anderson’s proceeding does not allege any error or wrongful act or omission on the part of the Registrar relating to the register of land. Instead, as noted above, it asserts transfer of five titles pledged by Mr Anderson as security was “wrong and illegal” and in alleged breach of an interim injunction granted in the prior proceedings referred to by the Judge.
• [10] But that assertion has been determined incorrect in those proceedings. The Supreme Court recorded that:^[8]

(a) the interim injunction “expressly did not immunize Mr Anderson from a further mortgagee sale should a demand be properly served”;^[9]

(b) “[t]he [subsequent] mortgagee sale (under a properly served second demand) was not challenged at the time”;^[10] and

(c) “[t]he land was acquired by a bona fide third-party purchaser 35 years ago, in 1988”.^[11]

• [11] The Judge accordingly was right that the proceeding was plainly an abuse of the process of the Court: Mr Anderson has suffered no loss or damage from any act or omission on the part of the Registrar in relation to the register and the transfer is no longer open to dispute. The new proceeding thus improperly uses the Court’s machinery to make its assertions in a collateral attack on the prior proceedings’ disposition. It was correctly struck out. The Judge did not err.

Result

• [12] The appeal is dismissed.
• [13] There is no order as to costs.

Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondents

---

^[1] Anderson v Registrar-General of Land at LINZ [2024] NZHC 2246 [Judgment under appeal].

^[2] High Court Rules 2016, r 5.35B(1).

^[3] Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [87], citing Simon Goulding, DB Casson and William Blake Odgers Odgers on Civil Court Actions (24th ed, Sweet & Maxwell, London, 1996) at [10.15].

^[4] Te Wakaminenga o Nga Hapu Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63, [2023] NZAR 180 at [14], citing Attorney-General v Barker [2000] 1 FLR 759 (QB) at 764.

^[5] Judgment under appeal, above n 1, at [4]–[5], citing Anderson v NZI International Acceptances Ltd [2023] NZSC 64 at [13].

^[6] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4] and [13].

^[7] Hojsgaard v Registrar-General of Land [2023] NZCA 562, [2023] 3 NZLR 696 at [87]. Leave to appeal dismissed: Hojsgaard v Registrar-General of Land [2024] NZSC 40.

^[8] Anderson v NZI International Acceptances Ltd, above n 6.

^[9] At [12].

^[10] At [13].

^[11] At [13].