Te Roroa Whatu Ora Custodian Limited v Kereopa aka Birch [2012] NZHC 1052 (2 May 2012)

Last Updated: 25 August 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2011-488-843 [2012] NZHC 1052

BETWEEN TE ROROA WHATU ORA CUSTODIAN LIMITED

Plaintiff

AND GRACE KEREOPA (A.K.A. GRACE BIRCH)

First Defendant

AND BRYCE KEREOPA (A.K.A. CHIPPIE KEREOPA)

Second Defendant

AND PHILIP BIRCH Third Defendant

AND ROSE HESKETH Fourth Defendant

AND REWI MANIAPOTO GREGORY (A.K.A.

COLT GREGORY) Fifth Defendant

AND CASSIE ELOWE Sixth Defendant

AND STEVIE MAKOWHAREMAHIHI Seventh Defendant

Hearing: 2 May 2012

Appearances: A Hyndman for Plaintiff

Colt Gregory (Fifth Defendant) for Defendants

Judgment: 2 May 2012

_{ORAL JUDGMENT OF ASSOCIATE JUDGE BELL}

Solicitors:

Henderson Reeves Connell Rishworth (J A Browne/A Hyndman) P O Box 11 Whangarei 0140

Email: [e-mail]

_{Copy for: Defendants.}

TE ROROA WHATU ORA CUSTODIAN LIMITED V KEREOPA HC WHA CIV-2011-488-843 [2 May 2012]

[1] This is a case about the occupation of land. It was brought by one Maori group against another Maori group. Normally, questions of occupation of land between Maori groups are decided in the Maori Land Court.1 It is therefore somewhat unusual to find the claim brought in this court, but the plaintiff in law is entitled to come to this court to have the court determine questions of occupation of land. It has brought a proceeding under Part 13 of the High Court Rules and has

applied for summary judgment.

[2] When one Maori group brings a claim against another Maori group, questions arise as to the right rules to be applied in deciding the claim. The law and tikanga are systems of rules. Sometimes people speak of applying “law” and “lore”. But, as was usefully pointed out this morning tikanga is more than lore. In Maoridom tikanga may be “law” just as much as statutes and common law are law in this court. The question in this decision is how far tikanga can be applied as part of the law to be recognised by this court.

[3] In English, we speak of custom or customary law. Custom is as much part of the law as the Acts of Parliament, the decisions of judges and the opinions of learned legal scholars. In deciding cases the court has to apply law and, where it is appropriate, custom or tikanga. While it is important to record that custom, or tikanga, has a place in the law, it does not override everything else. The law that is applied in this court starts with the law laid down by Parliament in Acts and in other legislation such as regulations and rules made under statutory authority. The law also consists of decisions made by judges in other cases which can bind this court and dictate how cases ought to be decided. Law is also made by legal scholars who write about the law and give guidance on how cases ought to be decided. In addition, there is custom. What Parliament lays down in legislation is the paramount source of the law. Legislation prevails over decisions of other courts which might

_{otherwise apply the law, and it prevails over any customary law.}

1 In respect of Maori freehold land under sections 18-20 of Te Ture Whenua Maori Act 1993.

[4] In this case, the plaintiff has come to court relying on rights given by Acts of Parliament. The defendants are relying on custom. This case is about land which is traditionally referred to as Te Pararau. It is within the area known as the Waipoua Forest.

[5] The defendants trace their ancestry back to an ancestor called Tiopira Kinaki. He occupied the area in question, part of the Waipoua Forest, in the 19th century. They say that his ancestors had lived in that area for generations before that time.

[6] The plaintiff is a corporate trustee which was established to receive assets under a claim under the Treaty of Waitangi. It represents a larger group called Te Roroa.

[7] I have to say something about the use of “Te Roroa”. The defendants do not recognise that there is a larger group called Te Roroa. On the other hand, there is an act of Parliament called the Te Roroa Claims Settlement Act 2008 where Parliament has itself recognised that there is a group called Te Roroa. I will come later on in my judgment to address how I should deal with that act of Parliament.

[8] The plaintiff ’s claim is that, in law, it is the owner of the Waipoua Forest which includes this area called Te Pararau. It became the owner through the settlement of a claim under the Treaty of Waitangi. It says that because it is the owner it has control of the land and has a right of occupation. Part of its right of occupation is to control who can enter onto the land and it can recover possession of the land if it is put out of possession.

[9] The defendants have occupied two lodges on the land. The lodges are in what used to be the headquarters of the Waipoua Forest. They were the Department of Conservation (DoC) headquarters and, before 1987 when the Department was set up, they were the forest headquarters for the New Zealand Forest Service. The Waipoua Forest is of course very well-known for its kauri. It was preserved by the New Zealand Forest Service as a native forest.

[10] The defendants have been in occupation of the two lodges in the old headquarters since 2009. The plaintiff has served notices under the Trespass Act on them. The defendants acknowledge today that they received Trespass Act notices. They have remained in occupation of the lodges. In doing so they say that they are continuing their rights to possession because they say that this land is their ancestral land.

[11] I deal with the claim made under the Treaty of Waitangi Act. A claimant group, which said it represented Te Roroa, made a claim in the Waitangi Tribunal under the Treaty of Waitangi Act. In due course that led to the Waitangi Tribunal holding an inquiry. The Waitangi Tribunal made a report, which led to negotiations between the claimant group and the Crown (ie the Government). As a result of those negotiations, the Crown and the claimant group entered into a Deed of Settlement on

17 December 2005. The purpose of that was to settle the historical claims of that claimant group representing Te Roroa.

[12] That Deed of Settlement was, in turn, put into effect by the Act of Parliament, Te Roroa Claims Settlement Act 2008. Section 3 of that Act sets out the purpose of the Act:

3. The purpose of this Act is -

(a) to record the acknowledgements and the apology offered by the

Crown to Te Roroa in the Deed of Settlement dated 17 December

2005 and signed by -

(i) the Minister in Charge of Treaty of Waitangi Negotiations, the Honourable Mark Burton, for the Crown; and

(ii) Alex Nathan Moengaroa Murray, and other members of Te

Roroa for Te Roroa; and

(b) to give effect to certain provisions of the Deed of Settlement, which is a deed that settles the Te Roroa historical claims and provides cultural and commercial redress to Te Roroa.

[13] Under the Deed of Settlement and under the Act, the transfer of the Waipoua Forest from the Crown to the Whatu Ora Trust is part of the commercial redress. That is set out in sections 88 and 89 of the Act:

88 Transfer of Waipoua Forest

Despite anything in the Crown Forest Assets Act 1989 and to give effect to clause 12.2.1 of the Deed of Settlement in relation to the Waipoua Forest, the Crown (acting through the responsible Ministers) is authorised to do 1 or more of the following:

Transfer the fee simple estate in the Waipoua Forest to the trustees of the

Whatu Ora Trust:

Sign a transfer instrument or other document, or do any other thing, to effect the transfer:

89 Creation of computer freehold register: Waipoua Forest

(1) The Registrar-General must, on written application by a person authorised by the Director-General of the Ministry of Agriculture and Forestry, create a computer freehold register in the name of the Crown for Waipoua Forest subject to, and together with, any encumbrances that are registered, notified, or notifiable, and that are described in the application.

(2) Subsection (1) is subject to the completion of any survey necessary to create the computer freehold register.

(3) The computer freehold register created in accordance with this section must be created in the name of the Crown without any statement of purpose.

[14] It is also relevant to take note of s 13 of the Act:

13 Settlement of Te Roroa historical claims final

(1) The settlement of Te Roroa historical claims effected under the Deed of Settlement and this Act is final, and on and from the settlement date the Crown is released and discharged from all obligations and liabilities in respect of those claims.

(2) Despite any other enactment or rule of law, on and from the settlement date, no court, tribunal, or other judicial body has jurisdiction (including, without limitation, the jurisdiction to inquire or further inquire into, or to make a finding or recommendation) in respect of –

(a) any or all of the Te Roroa historical claims; or

(b) the Deed of Settlement; or

(c) the redress provided under the Deed of Settlement or under this Act; or

(d) this Act.

(3) Subsection (2) does not exclude the jurisdiction of a court, tribunal, or other judicial body in respect of the interpretation or implementation of the Deed of Settlement or this Act.

[15] It is not open to anyone to enquire into or make any findings or recommendations in respect of any of Te Roroa’s historical claims or the Deed of Settlement, the redress provided under the Deed or under this Act. The effect of s 13 is to limit the matters that I can look into in this case.

[16] The historical search copy of the entry in the computer freehold register under the Land Transfer Act shows that this land is recorded under identifier 461969. The entry was made on 22 December 2008. It records Her Majesty the Queen as the original proprietor. The property was then transferred to a number of named trustees of the Whatu Ora Trust under s 97 of the Te Roroa Claims Settlement Act on

19 January 2009. There was then another transfer to Te Roroa Whatu Ora Custodian Ltd on 28 June 2011. It is that, which the plaintiff relies on to say that it is the lawful owner of the land within identifier 461969.

[17] The defendants make a competing claim. They say that they are the rightful owners of the property. They do not rely on the provisions of the Land Transfer Act, the Land Transfer (Computer Register and Electronic Lodgement) Amendment Act

2002, or records of title under that legislation, or on Te Roroa Claims Settlement Act. Instead, they say that the land is customary land and that they are the customary owners of the land. I was told that they have been in continuous occupation of the land. I do not believe that that is strictly correct. The land has been under the control of the Crown including its agencies - the New Zealand Forest Service and the Department of Conservation. While it was under the control of those bodies I doubt that the defendants could say that they were occupying it.

[18] As I have said, the defendants trace their ownership to an ancestor, Tiopira Kinaki. They say that there is a history of customary ownership and occupation of the land going back before the Treaty of Waitangi. I have to decide which has priority – the defendants’ claims to customary ownership or the claims of the plaintiff by virtue of the provisions of the Te Roroa Claims Settlement Act and the Land Transfer Act.

[19] I accept that before Europeans came to New Zealand, Maori had customary ownership of the land. It is also well-established that when the British Government took sovereignty of New Zealand, it assumed sovereignty subject to existing customary rights to land held by Maori. This meant that the Crown was only able to dispose of land once customary ownership had been lawfully extinguished. Today, Mr Gregory has cited me some of the cases where the courts have recognised that.

[20] The matter of importance today, though, is to consider whether customary ownership has been extinguished. One of the most famous cases concerning customary ownership is Attorney-General v Ngati Apa,2 in which the Court of Appeal recognised that while there could be customary ownership, it could be effectively extinguished.

[21] The ways that customary rights can be extinguished include these:

[a] By proceedings in the old Native Lands Court (now the Maori Land Court) where the court investigated title as to land, determined ownership, and then issued title for Maori freehold land. Maori freehold land under the Te Ture Whenua Maori Act and under earlier legislation is not customary land.

[b] By acquisition by the Crown. [c] By a Crown grant.

[d] It has also been recognised that when land is subject to a registered title under the Land Transfer Act, that any Maori customary rights in the land have been abolished.

[22] The preamble to Te Roroa Claims Settlement Act sets out in a summary way the historical background to the claims that were the subject of the settlement. It deals in part with Waipoua Forest. It is clear from the preamble that in the 1870s the

_{Native Lands Court began investigations of ownership of land, which included the}

2 Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA) at [42]- [44], [47], [147]-[149], [185].

land in the vicinity of Waipoua. It appears from the preamble that in due course the Native Lands Court determined ownership, which included recognition of the ownership of Tiopira Kinaki. It appears from the preamble that one part was set aside as a reserve in favour of the group associated with Tiopira Kinaki. That was an area of 12,200 acres. It also appears from the preamble that that reserve of 12,200 acres was, little by little, whittled away and that there was a general loss of land. It is apparent, however, that both the area called Waipoua No.2, the reserve of 12,200 acres, and also other areas, were converted into Maori freehold title. That appears to have happened in the 1870s as a result of the work of the Native Lands Court. It also appears from the preamble that this process did not work entirely smoothly because Parliament recognised that Tiopira Kinaki and people associated with him had grievances over the processes that were adopted. Part of the settlement was to recognise that those grievances were justified.

[23] Nevertheless, the land ceased to be Maori customary land back in the 1870s. Later, the Crown came to acquire the Waipoua Forest. The acquisition of title by the Crown also marks the end of customary ownership.

[24] The Crown held the land absolutely. By way of explanation, ordinarily, when people other than the Crown own land they hold it by way of an estate. There can be estates by leasehold and by freehold. When the Crown owns land it is not said to own the land by way of an estate. It holds the land absolutely. It has a title superior to any other. When the Crown owned the land it owned the land free of any customary rights held by others. So when the Crown, in turn, disposed of the land under Te Roroa Claims Settlement Act, it disposed of the land free of any claims to have customary ownership of the land. By this stage, any rights in custom to the land had been long extinguished.

[25] It is appropriate to refer to the classes of land that are recognised by the Te Ture Whenua Maori Act. This land had undergone a number of changes of status. Those changes happened before the Te Ture Whenua Maori Act came into force, but the classification of land under that Act is still relevant to looking at the way that

Te Pararau has been affected. The classes of land recognised under the Te Ture

Whenua Maori Act are:3

[a] Maori customary land; [b] Maori freehold land;

[c] General land owned by Maori; [d] General land;

[e] Crown land; and

[f] Crown land reserved for Maori.

[26] Under this classification, the land was originally Maori customary land. After the proceedings in the Native Lands Court, it became Maori freehold land. When the Crown took title it became Crown land. After the Te Roroa Claims Settlement Act came into force in 2008, it became Crown land reserved for Maori. When a fee simple title was created and it was transferred to the trustees of the Whatu Ora Trust, it became general land owned by Maori. It has remained general land ever since. Because it is general land, it is no longer Maori customary land. Land cannot be both Maori customary land and general land. As it is now general land, it is governed by the law relating to general land, not the tikanga that applies to Maori customary land.

[27] Title to the land is registered under the Land Transfer Act. That means that the provisions of that Act apply to determine the legal ownership of the land. The land transfer system is a system of title by registration, not registration of title. That means that when a transfer of ownership is registered under s 41 of the Act, it is the act of registration that makes someone the lawful owner of the property. Once a person becomes a registered proprietor, a number of provisions in the Land Transfer

_{Act apply to protect that interest.}

3 Te Ture Whenua Maori Act 1993, s 129(1).

62 Estate of registered proprietor paramount

Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the Crown or otherwise, which but for this Act might be held to be paramount or to have priority, but subject to the provisions of Part 1 of the Land Transfer Amendment Act 1963, the registered proprietor of land or of any estate or interest in land under the provisions of this Act shall, except in case of fraud, hold the same subject to such encumbrances, liens, estates, or interests as may be notified on the folium of the register constituted by the grant or certificate of title of the land, but absolutely free from all other encumbrances, liens, estates, or interests whatsoever,—

(a) Except the estate or interest of a proprietor claiming the same land under a prior certificate of title or under a prior grant registered under the provisions of this Act; and

(b) Except so far as regards the omission or misdescription of any right of way or other easement created in or existing upon any land; and

(c) Except so far as regards any portion of land that may be erroneously included in the grant, certificate of title, lease, or other instrument evidencing the title of the registered proprietor by wrong description of parcels or of boundaries.

63 Registered proprietor protected against ejectment

(1) No action for possession, or other action for the recovery of any land, shall lie or be sustained against the registered proprietor under the provisions of this Act for the estate or interest in respect of which he is so registered, except in any of the following cases, that is to say:

(a) The case of a mortgagee as against a mortgagor in default: (b) The case of a lessor as against a lessee in default:

(c) The case of a person deprived of any land by fraud, as against the person registered as proprietor of that land through fraud, or as against a person deriving otherwise than as a transferee bona fide for value from or through a person so registered through fraud:

(d) The case of a person deprived of or claiming any land included in any grant or certificate of title of other land by misdescription of that other land, or of its boundaries, as against the registered proprietor of the other land, not being a transferee or deriving from or through a transferee thereof bona fide for value:

(e) The case of a registered proprietor claiming under the instrument of title prior in date of registration, under the provisions of this Act, in any case in which 2 or more grants or 2 or more certificates of title, or a grant and a certificate

of title, may be registered under the provisions of this Act in respect to the same land.

(2) In any case other than as aforesaid, the production of the register or of a certified copy thereof shall be held in every Court of law or equity to be an absolute bar and estoppel to any such action against the registered proprietor or lessee of the land the subject of the action, any rule of law or equity to the contrary notwithstanding.

64 Title guaranteed to registered proprietor

Subject to the provisions of Part 1 of the Land Transfer Amendment Act 1963, after land has become subject to this Act, no title thereto, or to any right, privilege, or easement in, upon, or over the same, shall be acquired by possession or user adversely to or in derogation of the title of the registered proprietor.

...

75 Certificate to be evidence of proprietorship

(1) Every certificate of title duly authenticated under the hand and seal of the Registrar shall be received in all Courts of law and equity as evidence of the particulars therein set forth or endorsed thereon, and of their being entered in the register, and shall, unless the contrary is proved by production of the register or a certified copy thereof, be conclusive evidence that the person named in that certificate of title, or in any entry thereon, as seised of or as taking estate or interest in the land therein described is seised or possessed of that land for the estate or interest therein specified as from the date of the certificate or as from the date from which the same is expressed to take effect, and that the property comprised in the certificate has been duly brought under this Act.

(2) Nothing in this section applies to electronic transactions land.

...

78 Certificate not to be impeached

No certificate of title or computer register as defined in the Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002 shall be impeached or defeasible on the ground of want of notice or of insufficient notice of the application to bring the land therein described under this Act, or on account of any error, omission, or informality in the application or in the proceedings pursuant thereto.

[28] Section 34 of the Land Transfer (Computer Registers and Electronic

Lodgement) Amendment Act 2002 says:

34 Evidentiary effect of certificates of title and computer registers

(1) This section applies to a document or instrument that—

(a) either—

(i) appears to record the contents of a computer register under this Act; or

(ii) if the land is not electronic transactions land, appears to be in the form prescribed for a certificate of title; and

(b) does not appear to have been altered in any way.

(2) The document or instrument—

(a) must be received in all courts as evidence of—

(i) the information it contains; and

(ii) the recording of that information in the register; and

(b) is conclusive evidence that, at the time it was issued, the information shown on it identified all of the interests and other matters in the computer register concerned; and

(c) unless the contrary is proved by the production of a statement by the Registrar under subsection (3), is conclusive evidence that—

(i) the person named in the certificate or computer register (or in any information forming part of it) as holding an estate or interest in land to which it relates holds that estate or interest as from the date of the certificate or as from the date from which it is expressed to take effect; and

(ii) the land to which it relates is subject to the principal

Act and this Act.

(3) In the absence of proof to the contrary, a statement certified by or on behalf of the Registrar as to any matters recorded under this Act is conclusive evidence of those matters.

(4) In the absence of proof to the contrary, the fact that a statement relating to any matter referred to in subsection (3) purports to be certified by or on behalf of the Registrar is conclusive evidence that it is certified by or on behalf of the Registrar.

[29] Lawyers have a word for the protection given by these provisions and other provisions in the Land Transfer Act. That protection is called “indefeasibility”. In effect, that means that when a person is registered as the owner of land, they have security of title and are given protection against being removed off the title or having

someone come in over the top of them. A key provision of these indefeasibility provisions is s 62 which provides that a registered proprietor holds free of other interests not recorded on the title, subject to certain exceptions, one of which I will have to consider.

[30] In this case, the plaintiff is the registered proprietor so it has the protection of an indefeasible title. However, indefeasibility does not apply absolutely. There are recognised exceptions. To consider the defendants’ case I must also consider whether any of those exceptions apply.

[31] One of the exceptions is called the in personam exception. The in personam exception allows a person to assert a claim to land when his claim is derived from the registered proprietor. Examples are that he might have a contract to buy the land; he might have a lease that gives him a right of occupation; he may have been given a licence to enter onto the land; or the land may be held for him under a trust. However, the defendants in this case have not asserted any such claim. I was told that there is no contract between the defendants and the plaintiff. The defendants do not say that their rights to occupy the land are derived from the plaintiff in any way. Accordingly, I find that the in personam exception does not apply.

[32] Another way in which the Act may not operate is when there is some other act of Parliament that prevails over the Land Transfer Act. Here, there is another act of Parliament. It is the Te Roroa Claims Settlement Act, but that act does not override the Land Transfer Act. If anything, it supports the plaintiff’s claim. There are no provisions under the Land Transfer Act itself that allow the plaintiff’s ownership to be set aside.

[33] The defendants referred to the exception of fraud. They say that the plaintiff trust has become registered owner by a fraudulent means. Fraud is a recognised exception to indefeasibility. It is expressly provided in s 62 of the Act. However, I do not consider that the fraud exception arises in this case. It is not enough simply to make an allegation of fraud. When you make an allegation of fraud you are accusing someone of dishonesty; you are making an allegation of very serious misconduct. If such an allegation is to be made, there has to be some evidence to support it.

[34] The defendants have not provided any evidence that could lead me to believe that the plaintiff was party to any dishonesty in obtaining title to the land. In a summary judgment case such as this, the defendant does not have to prove a defence on the balance of probabilities. There only needs to be a triable defence of fraud, with the plaintiff having the legal burden of showing that the defendant has no defence. But, even on that test, the defendant must still show that the defence of fraud should be taken seriously. I am unable to find such evidence here.

[35] Next, the plaintiff holds the land as trustee of the Whatu Ora trust as a transferee from previous trustees of that trust. They took title under the settlement of the Te Roroa claims, which was effected by the Claims Settlement Act. There is nothing in those transfers to suggest anything in the way of fraud.

[36] Finally, there is the fact that the trust has obtained title by means of an Act of Parliament which has authorised them to take title. I come back to s 13(2) of the Claims Settlement Act which precludes me from undertaking any kind of enquiry into the settlement process or the means by which the Whatu Ora trust was given the Waipoua Forest. It is a principle of constitutional law that the courts must respect and apply the laws made by Parliament. The courts do not have the power to override legislation such as the Te Roroa Claims Settlement Act. If I were now to begin an enquiry whether the trustees of the Whatu Ora trust committed fraud on Parliament to obtain title to the land, that would be a very serious breach of the important constitutional principles under which Parliament and the courts support each other and do not trespass on the role of the other.

[37] Accordingly, I cannot see that there is any exception to the indefeasibility principle that would give any basis for attacking the plaintiff’s title. I remind myself that the provisions of the Te Roroa Claims Settlement Act have given effect to an important deed of settlement which has settled a Treaty of Waitangi grievance. Parliament itself has directed that the Whatu Ora Trust is entitled to ownership of the Waipoua Forest. It is impossible for me to look beyond that settlement. Accordingly, my conclusion is that the plaintiff is the lawful owner of the Waipoua Forest, which includes the area of the old forestry Department of Conservation headquarters, and including the lodges occupied by the defendants.

[38] While the defendants may have a claim in tikanga that the land belongs to them, it is not a claim that can be recognised in law. I understand their grievance. In particular, I listened carefully to what Grace Kereopa had to say. The defendants link directly to this land. They say that the trustees relate to another area within a larger rohe. The trustees have let the lodges out to other people, using it for a commercial purpose. The defendants do not agree with that use of the lodges. However, that is an internal matter to be sorted out within the claimant group. In this proceeding I cannot resolve that issue. I can only uphold the plaintiff’s claim that it is the lawful owner of the land and, as the lawful owner of the land, it can exercise rights of ownership which include the right to maintain and recover possession. Accordingly, the plaintiff is entitled to orders for possession of the lodges that the defendants occupy.

[39] The defendants have also lodged a counterclaim. They have set out three causes of action. The first is based on trespass. They say that the plaintiff has trespassed on their land. I have held that the plaintiff is the lawful owner of the land and is entitled to possession of the land. It is the plaintiff who can issue trespass notices against the defendants. The defendants cannot issue trespass notices or issue claims for trespass against the plaintiff. Therefore, that claim is not sustainable.

[40] Next, the defendants have claimed fraud. For the allegation of fraud to stand would require the court to enquire into the settlement and the validity of the settlement. Normal constitutional principles and section 13(2) of the Settlement Act do not allow me to enquire into that matter. The fraud allegation cannot be maintained.

[41] The third cause of action is for negligence. The claim for negligence is for alleged harm done to the Waipoua Forest. The person with title to make a claim for any damage to the forest is the owner of the forest, the plaintiff. The defendants do not have a right to make a claim in negligence in respect of those matters. Accordingly, I conclude that none of the causes of action within the counterclaim are sustainable. I make an order striking out the counterclaim.

[42] The defendants have been in occupation of the lodges since 2009. I appreciate that the plaintiff is vexed at the time that has been required to obtain orders for vacant possession. However, when the court makes an order for vacant possession, it is normal practice to give the defendants time to leave the land in good order rather than to be thrown out peremptorily. I appreciate that someone who has lived on a property for up to three years may have organised their affairs in reliance of having continuing occupation for some time. They should be given time to move their belongings out before the plaintiff resumes occupation of the lodges. A reasonable period for the defendants to do that is three weeks.

[43] Accordingly, I make orders for possession against the defendants but those are to take effect three weeks from today, 2 May 2012. I also make an order striking out the counterclaim.

[44] There is the question of costs. Ms Hyndman, for the plaintiff, seeks increased indemnity costs. As a general principle, increased or indemnity costs are awarded if there has been some misconduct by the unsuccessful party in the way that they have conducted the case. In considering whether there should be increased indemnity costs, it is relevant to consider whether the defendants have been legally represented. If the defendants have not been legally represented it is not fair to apply against them the same measure as would be applied against someone who has been legally represented and who has had legal advice.

[45] In this case the defendants have opposed this proceeding in good faith. It is apparent from what I have heard today that the defendants have a sense of grievance. I cannot comment on whether it is a justified sense of grievance. But they clearly wanted to have the opportunity to present their side of the story to the court and to allow the court to consider what they had to say. They have complied with the directions that the court gave for the conduct of the case. There is nothing in the way that the defendants have conducted themselves in this proceeding that calls for any increased costs.

[46] I make an order for costs in favour of the plaintiff against the defendants on the 2B scale, as for an ordinary summary judgment application. Ms Hyndman should file a memorandum and send a copy to the defendants to allow them to see it.

[47] The order for vacant possession I make applies not only against the named defendants but also other people who have been in occupation, whom the defendants have not been able to identify. That is a normal order, made when there is an application for vacant possession under Part 13 of the High Court Rules.

..............................

R M Bell
Associate Judge

Solicitors: