Thomaes v Ajani [2016] NZDC 3687 (9 March 2016)

Last Updated: 10 August 2016

IN THE DISTRICT COURT AT WHANGAREI

CIV-2015-088-000540 [2016] NZDC 3687

IN THE MATTER OF	THE HARASSMENT ACT 1997
BETWEEN	LIEF THOMAES Plaintiff
AND	JANETTE ANN AJANI AKA SHUSHILA AJANI Defendant

Hearing:	3 March 2016
Appearances:	The Plaintiff appeared in person The Defendant appeared in person
Judgment:	9 March 2016

_{RESERVED DECISION OF JUDGE P A CUNNINGHAM}

LIEF THOMAES v JANETTE ANN AJANI AKA SHUSHILA AJANI [2016] NZDC 3687 [9 March 2016]

Introduction

[1] This is an application under the Harassment Act for a restraining order made by Mrs Thomaes against Ms Ajani.

The legislation

[2] The Court has the power to make a restraining order under s 16 of the

Harassment Act 1997. Section 16 says:

16 Power to make restraining order

(1) Subject to section 17, the Court may make a restraining order if it is satisfied that—

(a) The respondent has harassed, or is harassing, the applicant;

and

(b) The following requirements are met:

(i) The behaviour in respect of which the application is made causes the applicant distress, or threatens to cause the applicant distress; and

(ii) That behaviour would cause distress, or would threaten to cause distress, to a reasonable person in the applicant's particular circumstances; and

(iii) In all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order; and

(c) The making of an order is necessary to protect the applicant from further harassment.

Subsection Note

(2) For the purposes of subsection (1)(a), a respondent who encourages another person to do a specified act to the applicant is regarded as having done that specified act personally.

(3) To avoid any doubt, an order may be made under subsection (1) where the need for protection arises from the risk of the respondent doing, or encouraging another person to do, a specified act of a different type from the specified act found to have occurred for the purposes of paragraph (a) of that subsection.

[3] Section 17 should also be mentioned. This section provides a defence if the respondent proves that the specified act was done for a lawful purpose.

[4] Specified Act is defined in s 4. It says:

4 Meaning of “specified act”

(1) For the purposes of this Act, a specified act, in relation to a person, means any of the following acts:

(a) Watching, loitering near, or preventing or hindering access to or from, that person's place of residence, business, employment, or any other place that the person frequents for any purpose:

(b) Following, stopping, or accosting that person:

(c) Entering, or interfering with, property in that person's possession:

(d) Making contact with that person (whether by telephone, correspondence, [electronic communication,] or in any other way):

(e) Giving offensive material to that person, or leaving it where it will be found by, given to, or brought to the attention of, that person:

(ea) [giving offensive material to a person by placing the material in any electronic media where it is likely that it will be seen by, or brought to the attention of, that person:]

(f) Acting in any other way—

(i) That causes that person (“person A”) to fear for his or her safety; and

(ii) That would cause a reasonable person in person A's particular circumstances to fear for his or her safety.

(2) To avoid any doubt, subsection (1)(f) includes the situation where— (a) A person acts in a particular way; and

(b) The act is done in relation to a person (“person B”) in circumstances in which the act is to be regarded, in accordance with section 5(b), as done to another person (“person A”); and

(c) Acting in that way—

(i) Causes person A to fear for his or her safety; and

(ii) Would cause a reasonable person in person A's particular circumstances to fear for his or her safety,—

whether or not acting in that way causes or is likely to cause person B to fear for person B's safety.

(3) Subsection (2) does not limit the generality of subsection (1)(f).

[5] To complete the picture I will also mention s 3 which defines ‘harassment’ as a pattern of behaviour directed against the other person that includes the doing of any specified act to the other person on at least two separate occasions within a period of twelve months. Section 3 also provides that the specified act may be the same type of specified act on each separate occasion or different types of specified acts. It also provides that the specified acts need not be done to the same person on each separate occasion, as long as the pattern of behaviour is directed against the same person.

Background

[6] Both the plaintiff and the respondent own shares of a piece of land at [location deleted]; Ms Thomaes as to one tenth and Ms Ajani as to one twentieth. The land is held as tenants in common and is contained in Certificate of Title [title reference deleted] North Auckland.

[7] On 29 November 1992 the then owners (12 of them) signed a co-owners Deed in which they agreed that each co-owner could build one dwelling on the land. It also provided that co-owners would

become the individual owner of a .80938 hectare freehold area of the land.

[8] The Deed refers to building sites and the .80938 hectares area being identified on an attached plan. Ms Ajani told me that this was achieved by co-owners sitting around and effectively marking with a pin the area that each of them wanted.

[9] In addition to owning a one twentieth share Ms Ajani owns two additional pieces of land which adjoins the co-owned land. This is referred to in Certificates of Title [title reference deleted] and [title reference deleted]. Ms Ajani granted an easement over her land to enable the co-owners to have access to the co-owned land.

[10] My understanding from the hearing is that it had been anticipated from the outset that at some stage the co-owners would subdivide the land so that each owned their own piece. Over the years the land has been owned, this intention has never been realised although there have been various efforts to achieve certainty of ownership of areas of the land.

[11] A civil proceeding was filed in the High Court at Whangarei in October last year to sell the co-owned land. Ms Ajani was one of the plaintiffs in that proceeding, Ms Thomaes was not. Ms Thomaes made it clear that she did not see subdivision or Court proceedings as being the solution to the issues that are currently challenging the co-owners.

[12] I am aware that there have been other proceedings and processes as between some of the co-owners over a number of years including recent proceedings in the Whangarei Court in relation to the easement over Ms Ajani’s land. There has also been a case some years ago about some pine trees which Ms Thomaes said were near the house in which she lived, which resulted in a resolution.

[13] Suffice to say there is a background of co-owners not in agreement about how the land should be legally owned and used.

[14] During this case Ms Ajani made a number of references to the fact that all the land was co-owned. One of the issues that I consider is important in this case is whether the fact that the land is co-owned means that each co-owner is entitled to use all of the land. In the material before the court there was a legal opinion dated

31 October 2005 which Ms Thomaes had obtained which suggested that the co- owners Deed was legally unenforceable because the terms of it were uncertain. This is not the time of place to resolve that issue. However the status of the statements referred to in the co-owners’ Deed about the right to become the owner of

.80938 hectare freehold area and whether that means that owner has exclusive rights to occupy that particular part of the land has relevance to this case.

The specified Acts

[15] Ms Thomaes alleges the following specified Act:

(i) Two emails from Ms Ajani that she describes as offensive both dated 1 December 2014;

(ii) A visit to “her property” with another co-owner Victoria del la Varis when Victoria entered a cabin which Ms Thomaes had purchased, entry into her dwellinghouse and taking photos in both locations. Ms Ajani is said to have been present when this happened including in Ms del la Varis’ car when they drove through the gate to the area that Ms Thomaes regards as “her property”;

(iii) On 20 April 2015 Ms Ajani replied to a letter a lawyer wrote regarding an offer of some co-owners to buy the shares of those who wanted to sell their interest in the land;

(iv) On 29 April 2015 Ms Ajani demanded the key to a cabin purchased by Ms Thomaes asking if she could stay there. Having said no Ms Thomaes says that she was further harassed about the same issue in an email during which Ms Ajani stated that she had “checked out the little transportable cottage”;

(v) On 4 June 2015 spraying the driveway in front of Ms Thomaes’ house with spray entering into Ms Thomaes’ paddock in breach of the co-owners’ Deed which agreed that the co-owners would follow permaculture principles;

(vi) On 8 June 2015 Ms Ajani is said to have entered into

“Ms Thomaes’ property” and walked around writing down the

number plates of cars parked there and interrogating visitors. Ms Ajani is said to have been present for 16 minutes;

(vii) On 9 June 2015 again spraying the shared driveway and about half a metre for 10 metres in length onto the land in front of Ms Thomaes’ house;

(viii) On 20 July 2015 whilst Ms Thomaes was overseas a visit by Ms Ajani to “Ms Thomaes property” and harassing her house sitter asking him personal questions and kicking Ms Thomaes’ dog;

(ix) On 7 October 2015 when Ms Ajani drove in through the gate to ask if Ms Thomaes had found a letter she put on her table. When Ms Thomaes answered yes she asked Ms Ajani to back out which she refused to do and then drove over her lawn to turn around before driving off. Again on this occasion Ms Ajani had been spraying the road frontage of the co-owned land the purpose of which was to harass another neighbour of Ms Thomaes;

(x) On 1 October 2015 filing an application to the High Court to sell the co-owned land.

[16] Ms Thomaes then goes on to allege that Ms Ajani has been guilty of harassment since 2000 including the stealing of an electronic fence, cutting very high trees so they would fall onto the house occupied by Ms Thomaes, the poisoning of two dogs; one in 2001 and one in 2008 and damaging gates so the cows could escape.

[17] Ms Thomaes says that she does not feel safe in her home when Janette Ajani is around and that she feels it necessary to watch her all the time and to take her dog with her when she goes out. She also expresses concern about the fact that she made an affidavit in support of a neighbour Christine Woods who was taken to Court by

Ms Ajani and that she is afraid that this will cause the harassment to escalate (I

understand this to be the Court case about the easement I have earlier referred to).

The first alleged specified act

[18] The two emails were attached to Ms Thomaes’ affidavit. The first email in time was from Ms Ajani dated 1 December 2014 at 2.16am (Ms Ajani was living in Darwin at the time). It is apparent from reading that email that it is about the Court case between Ms Ajani and Christine Woods over the right-of-way. The relevant paragraphs are:

This would be a much more productive idea, rather than supporting Christine and Pats’ illegal actions and blaming me, without any responsibility for your own action.

Just as well I have my mojo back, can see the humorous side of all this sick stuff.

Hmmmmm better check up with my solicitor to see if your on the ROW of my road I own, as the trespass notice was served on you also...

[19] Ms Thomaes replied to Ms Ajani’s email. Most of her response is about ways in which she sees the issue over the right-of-way and how to solve it. The tone of her response was appropriate. Ms Ajani replied:

You’re a joke and full of Shit...

[20] The second email is dated 7.50pm on 1 December 2014 and it says:

I could not give a stuff about the value of properties... when the co-owned land is sold you’ll be gone...yeah...

I have talked to my children and they back me 100% but it’s none of your business... they are wise and see right through you...:

And the poor Dick who was stupid enough to buy Wayne share of tenants in common land, that’s a bit of a joke ah...

You are simply a wicked, lying, lonely old cow...the saddest part is that you not only actually believe your own bull shit and lies you have told them so may (sic many ) times...maybe you need to EMPTY YOURSELF OUT of all your Lief shit...

(AND THEN THE ILLEGAL FENCE CAME DOWN...) Yeah for my fantastic solicitor...I will have know it was well worth $300...but if it ever happens again, it’s a Court order and all costs will be on Christine...so beware evil woman... :-)

Enjoy your day... SO you can make some wise dicisions NOW...

[21] As already referred to these email exchanges were written in the context of

Ms Thomaes’ support of Ms Woods position in litigation with Ms Ajani.

[22] Section 4(1)(e) provides that giving offensive material to a person meets the definition of a specified act. In my view calling Ms Thomaes a “wicked lying lonely old cow” who should empty herself “out of all your Lief shit” meets the criteria of being offensive material. Offensive because those comments are hurtful and insulting (see H v S [2000] DCR 90).

[23] Similarly the response to Ms Thomaes’ reasonable reply when Ms Ajani said:

You are a joke and full of shit.

I therefore consider both of these communications to be specified acts.

The second alleged specified act

[24] I turn to the incident of 6 January 2015. It was Ms la Varis who entered Ms Thomaes’ house and cabin. I am satisfied from the evidence of Ms Ajani that her role in this matter was not supportive of all of the steps Ms del la Varis took on that day. When Ms de la Varis was inside the cabin and Ms Thomaes’ home, Ms Ajani was outside the fenced area. She said did not know Ms de la Varis was going to drive the car inside the gate. For these reasons I am not satisfied that this incident is a specified act in terms of the Harassment Act.

The third alleged specified act

[25] Ms Ajani’s letter of 20 April 2015 was an attachment to Ms Thomaes’ affidavit. This was in response to a letter written by a legal executive with a law firm written on behalf of a number of owners of the block of land including the applicant Ms Lief Thomaes.

[26] The response by Ms Ajani was to the legal executive. In it, Ms Ajani expressed the view that the letter had not been written by a legal executive but rather by Ms Thomaes. She says:

I also believe words written were not drafted by a legal executive either. They are typical words Lief Thomaes would use. Her tone is familiar after many years.

[27] My view of that letter is that it is not inappropriate and that the reference in it to a threatening email written by Ms Thomaes was an error. I am not satisfied this is a specified Act.

The fourth alleged specified act

[28] I now come to the letter of on 29 April 2015. Ms Thomaes has a tenant. Ms Ajani asked him if she would be able to stay in the cabin that Ms Thomaes told me was located about a 100 metres from her house. This is a self-contained relocatable living unit. Ms Ajani set out her view of the discussion with the tenant in the letter then she said the following:

...I am asking again, if I could please have the key to stay in the little transportable you have built on our land...I will bring my own bedding and of course leave the place clean and tidy.

Of itself that was fine but the next paragraph read:

I refuse to be intimidated and bullied by you any more, it is not your exclusive land, no matter what you say, you are a 1/10th proprietor.

[29] An issue underlying this statement is who owns what in relation to the land. While the Deed of co-owners states that each one tenth owner will have an area of

0.8 hectares approximately on which to build one dwellinghouse, Ms Thomaes has three buildings in which people can live. One is the house that is built on the site. The second is accommodation attached to a double garage near the dwellinghouse and the third is this relocatable cottage. Ms Ajani is of the view that the relocatable cottage is not within the .8 hectare area where Ms Thomaes is living.

[30] As earlier referred to the parties had legal advice that all co-owners own everything on the land and it would appear that that might extend to houses that have

been built on the land. That advice is different from the intention of the original co- owners (which include Ms Ajani and Ms Thomaes). It is clear from the reading of that Deed that pending a subdivision (which has never happened) the intention of the parties was that everybody who met the criteria of being a one tenth owner would have their own .8 hectare site that was not part of the co-owned land. They would be able to live on it and build a dwellinghouse on it.

[31] It is one thing to have legal ownership as co-owners, what the parties have agreed shall happen in relation to the use of the land is another thing.

[32] When I asked Ms Ajani questions about this she said that she regards the area around Ms Thomaes’ property inside the fence as belonging to Ms Thomaes, she accepts that Ms Thomaes has exclusive rights to occupy it.

[33] In my view the request by Ms Ajani to use the cabin was inappropriate and in view of the way in which following sentence reads, it is apparent that Ms Ajani knew or anticipated that the response from Ms Thomaes would be no. To put it another way she never expected her to say yes.

[34] On the face of it this could be a specified act in terms of making contact with the person but this is a communication between two people who are co-owners of a property over which there are ongoing issues as to the legal ownership and use of the land. Although Ms Ajani’s actions were in my view inappropriate and almost provocative, they do not meet the criteria of s 4(1)(d) of the Act and I am also of the view that was not offensive and does not meet the criteria in s 4(1)(e) or (ea) either. This is because Ms Thomaes has not proved the cabin is within that area of land that Ms Ajani recognises Ms Thomaes has the right to occupy.

The fifth alleged specified act

[35] The incident of 4 June 2015 relates to spraying of the driveway. There were other occasions when Ms Ajani was spraying weeds on the driveway so I will deal with them all together.

[36] Ms Thomaes does not approve of chemical spraying. Moreover she sees the use of chemicals to control weeds including honeysuckle as being contrary to a clause in the co-owners Deed dated 29 November 1992 which reads:

The overall management and use of the land shall follow permaculture principles.

[37] Ms Thomaes maintains that use of chemical sprays offends the principles of permaculture. Ms Ajani contested this including that she maintained the use of chemical sprays can be consistent with the principles of permaculture.

[38] Ms Thomaes advised that she keeps the shared driveway tidy by mowing it. From photographs I saw the shared driveway is quite a wide area and the photographs showed that most of the spraying was on a fence line between the shared driveway and Ms Ajani’s two blocks of land. There were weeds overgrowing the fence from Ms Ajani’s land.

[39] Ms Thomaes says that on one occasion the spraying went about half a metre inside to the border of what she considers to be “her property” for about 10 metres.

[40] The whole concept of a specified act is that it has to be an action which is directed as targeting the other person. In my view Ms Thomaes has not proved on the balance of probabilities that spraying carried out by Ms Ajani meets this criteria. In other words it was not directly targeting her. Therefore this is not a specified act.

The sixth alleged specified act

[41] This was an occasion on 8 June 2015 when Ms Ajani entered into the fenced area of the ground surrounding Ms Thomaes’ dwelling and wrote down the number plates of cars that were there and also allegedly interrogated a visitor. Ms Thomaes said that she told Ms Ajani she was invading her privacy and asked her to leave. Ms Thomaes took some photographs which were appended to her affidavit and on them she has put times. She says that she took the time of 16 minutes on her property from photographs she took on the day.

[42] Ms Ajani accepted she went onto the land with a notebook and wrote down number plates of cars on the area. She denies she was there for as long as

16 minutes and denies she spoke to anyone.

[43] Section 4(1)(c) includes entering or interfering with property in that person’s possession as an act that constitutes a specified act. As both Ms Thomaes and Ms Ajani are co-owners of all of the property then problems arise as to whether or not this is a specified act. Having said that, Ms Ajani accepted that Ms Thomaes had the right to use that area of land surrounding her dwellinghouse inside the fence.

[44] In my view coming onto the land so close to Ms Thomaes’ home and with a pen and paper for the express purpose of writing down information and not leaving when asked to do so is something that would cause a person to fear for their safety and it would be reasonable to do so. This is particularly so in light of the abusive messages and reasonably regular contact from Ms Ajani in the context of a dispute over how the problems relating to the co-owned land were going to be sorted out. I therefore find this is a specified act.

The seventh alleged specified act

[45] On 27 July 2015 Ms Ajani came and spoke to Paul Edwards who was a tenant in Ms Thomaes’ property at that time. Her evidence was that Mr Edwards then phoned her and that Paul Edward was distressed and upset. Ms Ajani’s version of this is that when she walked by Mr Edwards seemed to be upset and so she spoke to him about why. She said he told her that one of his children was sick. There is also an allegation that Ms Ajani kicked Ms Thomaes’ dog on this occasion something which she denied.

[46] The evidence Ms Thomaes has about this is hearsay. There is no evidence directly from Mr Edwards. The next problem is whether Ms Ajani’s interactions with Mr Edwards is behaviour directed at Ms Thomaes. Further s (4)(1)(f) also says that a specified act is one that causes a person (Ms Thomaes) to fear for her safety and that it would cause a reasonable person in circumstances to fear for her safety. I am not satisfied this incident can be classified as a specified act.

[47] Ms Thomaes refers to the filing of the High Court application to sell the co- owned land. That is a legal process and given the difficulties there are as between some of the co-owners, it cannot be seen as part of a pattern of behaviour directed against Ms Thomaes. Furthermore, Ms Ajani told me she was only one of a number of plaintiffs in that case. This is a non-specified act.

The ninth alleged specified act

[48] The last identified specified act in Ms Thomaes’ affidavit is an incident on

7 October 2015 when Ms Ajani drove inside the gate in the fence of her property reasonably close to the double garage to ask if she had found the letter Ms Ajani had put on her table the day before. This was service of the High Court proceeding which Ms Ajani had agreed to do on behalf of the plaintiffs.

[49] In view of the problems as between the co-owners and Ms Thomaes’ known view that Court action was inappropriate, personal service by Ms Ajani and/or her coming back to check that the papers had been received by Ms Thomaes the following day was most unwise. In my view this meets the criteria of a specified act either s (4)(1)(d) or s (1)(f). The services of a professional process server was a much better option.

[50] I have considered whether the defence of the act being done for a lawful purpose applies here. Clearly it is necessary to serve civil court proceedings on defendants and this is what Ms Ajani was doing. As I have already said a professional process server should have been engaged. Ms Ajani chose to do it herself. That may not be fatal to the defence. But the fact that there were visits on two consecutive days in my view makes it a specified act. The papers were left on a table at the address. That is one entry into the area where Ms Thomaes lives. The second day there was a follow up visit by Ms Ajani when she drove inside the gate which was unnecessary and intrusive.

[51] I have found that there were two specified acts in emails dated 1 December

2014. I have also found that the entry to the grounds surrounding Ms Thomaes’ dwelling on 8 June 2015 was a specified act as was the incident on 7 October 2015 when Ms Ajani drove inside the gate in the fence of the area surrounding Ms Thomaes’ dwellinghouse. Thus there are four specified acts within a period of

12 months. In my view they constitute a pattern of behaviour directed against

Ms Thomaes.

[52] I am satisfied that this behaviour has caused Ms Thomaes distress. She stated that she does not feel safe in her own home and feels she has to watch all the time when Ms Ajani is in the vicinity. I have also taken into account that Ms Thomaes gave support to her neighbour Christine Woods. This might tend to be taken as behaviour that is not something someone who is afraid of another person would do. However it has to be seen in the context that there are clearly two opposing groups within the co-owners of the land. Some who wish to sell or subdivide it and others who do not.

[53] Ms Thomaes lives on the land permanently. It is her home. Her husband has died. It was plain to me that she feels somewhat vulnerable. I am therefore satisfied that the behaviour would cause a reasonable person in her particular circumstances to be distressed or threatened to cause distress.

[54] I am also satisfied that the degree of distress justifies the making of a restraining order. In particular because there are ongoing issues between the parties over the ownership and use of the land. I am further satisfied that an order is necessary to protect Ms Thomaes from further harassment.

Terms of the harassment order

[55] There will be the standard conditions of a harassment order. In addition there will be a special condition that

Ms Ajani is not to enter onto the piece of land that surrounds Ms Thomaes’ dwellinghouse including not to drive on the driveway past the gate and not to enter the fenced area or the area from the dwellinghouse which is not fenced for a distance of 50 metres from the dwellinghouse Ms Thomaes lives in.

[56] The second special condition is that

this harassment order will not operate to prevent these parties being together in a Court or alternative process to resolve matters relating to co-ownership and use of the land.

Duration of the order

[57] Ms Thomaes asked for the order to last for five years. I am not satisfied that that duration is necessary. Clearly steps are being taken to try and resolve matters relating to ownership and use of the land including through the proceeding that was filed in the High Court. In my view a period of 18 months should be sufficient to get that to a conclusion. Therefore the duration of the order will be 1 year and 6 months.

Dated at Auckland this 9th day of March 2016 at am/pm

P A C unningham

District Court Judge