SMITH v NZ KENNEL CLUB INC [2018] NZHC 27

SMITH v NZ KENNEL CLUB INC [2018] NZHC 27 [30 January 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV 2016-009-23[2018] NZHC 27BETWEEN LOUISE SMITHPlaintiffAND NEW ZEALAND KENNEL CLUBINCORPORATEDDefendantHearing: 12 October 2017Counsel: G E Minchin for PlaintiffT Mijatov for DefendantR Collis for Susan Howard as an interested partyJudgment: 30 January 2018JUDGMENT OF ELLIS J[1] The New Zealand Kennel Club (the NZKC) has become collateral damage ina battle over the registration of three pedigree Japanese Spitz dogs.1 The present ownerof the dogs, Ms Louise Smith, seeks judicial review of a decision by NZKC refusingto place them on the its "Full Register". That refusal affects the value of the dogs anddenies them the ability to be entered in a Championship or Open Show, to be bred orto be issued with a Certified Export Pedigree. Their registration status also has aninter-generational trickle-down effect on any puppies the three dogs might sire orwhelp in the future. Objection is also taken by Ms Smith to the names under whichthe dogs have been registered.1 I use the term "dogs" in the generic sense. Two of the dogs are female, one is male. As Iunderstand it, only one now remains in the ownership of Ms Smith.[2] At its heart, however, the proceedings are not concerned with the registrationdecision itself. That is because that decision turns on who is entitled to apply to havethe dogs registered. It is that person who, in the first instance, makes the decisionabout what type of registration will be sought. The NZKC's position is that theappropriate registrant here is Ms Susan Howard because she is the "breeder" of thepuppies in terms of the relevant Rules and Regulations. Consistent with that stance,the NZKC has registered the puppies in accordance with Ms Howard's wishes.Ms Smith denies that Ms Howard is the "breeder" of the puppies and maintains that itis she, as owner (or Ms Jane Faulkner as the previous owner), who is entitled to choose.[3] A useful starting point is an overview of the relevant NZKC Rules andRegulations. That will be followed by the factual narrative and then an overview andanalysis of Ms Smith's claimThe Rules and Regulations of the New Zealand Kennel Club[4] The NZKC was founded in 1886. It is an incorporated society whose missionstatement is "to encourage and support the pursuit of excellence" in relation to thestandards of dogs in New Zealand.[5] The NZKC operates pursuant to the "Rules of the New Zealand Kennel Club"(the Rules). The NZKC has also made regulations pursuant to the Rules that relate tothe registration of dogs with the Club.2 Minor, but largely immaterial, changes to theRules and the Regulations have been made during the period covered by Ms Smith'sclaim. For convenience, I will refer to the Rules and Regulations that were currentduring 2011 in this judgment.[6] Under the Rules, a subcommittee of the NZKC's Executive Council deals withany disputes that are referred to it. The Executive Council is also responsible formaking all NZKC Regulations.[7] It is necessary now to say a little more about the specific aspects of the Rulesand Regulations that are relevant to the present dispute.2 Rule 34 authorises the making of Regulations by resolution of the Executive Council of the NZKCfor the purposes of giving effect to the Rules.The Rules[8] Rule 2 sets out the objects of the NZKC. These include promoting:(a) dog shows, including the annual National Dog Show;(b) the classification of breeds;(c) the registration of dogs in the NZKC Register; and(d) the registration of pedigrees.[9] Rule 3 sets out a number of definitions. Relevant for present purposes is theterm "breeder" which is defined as follows:(b) 'Breeder' subject to Rule 3(o), the breeder of any dog is the "ownerof the dam at the time of whelping"[10] The reference to Rule 3(o) in this definition is clearly a mistake. That isbecause Rule 3(o) simply provides that:'NZKC' means 'New Zealand Kennel Club'.[11] The origins of this mistake were explained in a supplementary affidavit filedby Mr Dunne, the present Director Secretary of the NZKC. He says, and I accept, thatthe reference should be to Rule 3(m), which defines "lessee" as follows:3(m) 'Lessee'. The lessee is the person to whom the dog is lent either undera loan of dog for stud purposes or a loan of bitch for breed purposesunder a loan agreement duly registered with the New Zealand KennelClub.[12] The significance of the (intended) reference to lessees will become apparentwhen it comes to consideration of the Regulations. I return to it shortly, below.3 Mr Dunne explained that a change was made to the Rules in 2007/2008 when the definitions werealphabetised. This resulted in what had previously been the definition at "(o)" becoming thedefinition at "(m)", with the need consequentially to amend the definition of "breeder" beingoverlooked.[13] Rule 32 relates to the NZKC Register. It provides:(a) The New Zealand Kennel Club shall keep a Register of Dogs in threeParts and a Companion Dog Directory.(b) No dog may be shown at any show until the appropriate registrationhas been made.(c) Part 1 of the Register is the Full Register. It is only open to:(i) pure bred dogs bred from a sire and dam each registered onPart 1, and(ii) imported pure bred dogs with a Certified Export Pedigreeissued by a canine control recognised by the New ZealandKennel Club.Details of the owner/s, name of dog, colour/s, sex, breeder,date of birth, sire, dam, and a registration number shall berecorded.(d) Part 2 of the Register is the Dog Training Register and is open to anydog.(e) Part 3 of the Register is the Restricted Register, and is open only topure bred dogs as specified in (c). Details of the owner/s, name ofdog, colour/s, sex, breeder, date of birth, sire, dam and a registrationnumber shall be recorded. Any transfer of a dog from Part 3 to Part1 can only be done with the consent of all the breeder/s of the dog.(f) (g) Only dogs registered on Part 1 may be entered at a ChampionshipShow or Open Show(h) Only dogs registered on Part 1 may be issued with an exportpedigree.[14] Part 3 of the Register (the Restricted Register) was introduced in about 2008,apparently to meet the demand from owners of dogs to be used as pets who wantedtheir pets to be recorded as purebred, but without the right to be shown or bred from.Prior to 2008, the NZKC was able to place certain "endorsements" on dogs thatachieved the same effect as the introduction of the Restricted Register. The ability toplace endorsements on dogs registered on the Full Register still exists today and isdiscussed further, below.The Registration Regulations[15] The Registration Regulations deal with the Register in more detail. Theexplanatory note to the Regulations states:1. Only the breeder can register a dog.3. The breeder must be the owner of the dam of the litter, that is:- the outright owner, or- if the dam is jointly owned, all the owners, or- the lessee of the bitch under a New Zealand Kennel Clubregistered lease agreement.[16] Regulation 5 reiterates the four parts of the Register and further states thatdogs registered on the Restricted Register are to be endorsed "not to be bred from","not to be shown" and "not eligible for an Export Pedigree". Restricted Register dogscan, however, be shown at Ribbon Parades and Trials, and can compete in any agility,obedience or working trials events.[17] Regulation 6 sets out the powers of the Executive Council in relation toregistration. These include:(a) the power to decide disputes arising from any registration or applicationfor registration;(b) in exceptional circumstances and upon payment of a SpecialRegistration Fee, the power to approve without reasons the registrationof any dog, notwithstanding that there has been non-compliance or onlypart compliance with the normal requirements of registration;(c) an absolute discretion to decline to register any dog;(d) the power to place an endorsement on the register in relation to anydog; and(e) upon the application of any person, to review any administrativedecision made pursuant to the regulations.[18] Regulation 8 deals with "litter notification". It relevantly provides:8.1.1 Only a financial member of the New Zealand Kennel Club mayregister a dog or notify a litter under these Regulations.8.1.2 Only a registered owner of a Kennel Name may notify a litter underthese Regulations or register a dog whelped in New Zealand on Part1 of the Register.48.1.3 The breeder of any litter is deemed to be:(a) the owner or owners of the bitch according to theNew Zealand Kennel Club Register or(b) the lessee of the bitch pursuant to an Agreement for Loan orUse of Bitch registered with New Zealand Kennel Clubpursuant to these Regulations.[19] Regulation 9 deals with the registration process. It provides that all dogs"should be registered" within one year of birth and that dogs whelped in New Zealandthat are over the age of two years "cannot be registered under any circumstances".Regulation 9.3 requires (inter alia) the Kennel Name to be included in the registeredname of the dog and provides that name changes can only be effected either before thedog is four months old or within 21 days of registration. Of further relevance are:(a) reg 9.3.6, which provides:Only the member registered as owner or part owner of a New ZealandKennel Club registered Kennel Name may use that name as part ofany registered dog's name.and(b) reg 9.3.11, which provides:Any application for a change of name shall be made by the breeder 4 Kennel Names are dealt with in Regulation 11. The NZKC is required to keep a register of suchnames.[20] Regulation 12 deals with endorsements, or restrictions, placed on theregistration of a dog "limiting the use of the dog". Recognised endorsements include"Not to be shown – Lifetime", "Not to be bred from – Lifetime" and "Not to be eligiblefor the issue of an export certificate". Such endorsements therefore mirror the typesof restrictions which are placed on the use of a dog by virtue of its registration on theRestricted Register. It is implicit in reg 12 that general endorsements are placed onthe Register at the time of registration by whomever registers the dog concerned (ie theowner or the breeder).5 Notably, reg 12.6 provides that an owner may apply to theExecutive Council to have an endorsement lifted, but that such application can onlybe made "with the consent of the breeder of the dog".6[21] Regulations 13 and 14 govern lease arrangements. The lease of bitches is dealtwith under reg 13, which states:13.1 A member of the New Zealand Kennel Club may lease a bitch forbreeding purposes and be deemed to be the breeder of any Litterwhelped by that bitch during the currency of the lease.13.2 The lesser [sic] (owner of the bitch) need not be a member of theNew Zealand Kennel Club.13.3 The lessee (member leasing the bitch) must be a current financialmember of the New Zealand Kennel Club and be an owner or partowner of a Kennel Name.13.4 A lease of a bitch for breeding purposes must be registered with theNew Zealand Kennel Club by the lessee (person leasing the bitch)registering a Loan or Use of Bitch for Breeding Purposes Agreementin triplicate within three months of the date of signing.13.5 Parties to an agreement for Loan or Use of Bitch for BreedingPurposes Agreement may enter into such contractual arrangementsbetween themselves as they may deem appropriate. Any such contractshould be in writing and is a personal agreement between the partiesand will not be recognised by the New Zealand Kennel Club.13.6 A bitch may be leased under these Regulations for any period beingnot less than 6 months or more than eighteen months.13.7 The registration of a Loan or Use of Bitch for Breeding PurposesAgreement shall remain in force for the period stated in the agreementunless cancelled by written agreement of the parties concerned.5 Pursuant to reg 12.5.1, other endorsements (such as an endorsement as to neutering or spaying)may be requested by an owner subsequently.6 A decision whether or not to grant such an application is said to be at the Executive Council's"absolute discretion".[22] The NZKC has issued a standard Loan or Use of Bitch for Breeding PurposesAgreement. It advises the parties to such an agreement to read the Regulations andrefers specifically to reg 13.5. As well as providing spaces for the names and detailsof the lessor/owner and the lessee, it contains a specific space in which the "breederof all puppies" for the duration of the lease is to be identified. It contains space forthe signatures of both the lessee and the owner and a space for the "date signed".[23] Thankfully, reg 16 is only marginally relevant. It is confusing. It purports todeal with what are called in it "New Zealand Kennel Club Recognised contracts",although that terms is nowhere defined. It provides that:16.1 The New Zealand Kennel Club shall issue a recognised standardcontract for the sale and purchase of dogs.16.2 For any New Zealand Kennel Club Recognised contract to be upheldit must be signed by all parties. Any subsequent variation must alsobe signed by all parties.16.3 In the absence of a completed form for any transaction theNew Zealand Kennel Club shall uphold the following terms andconditions contained in any recognised contract:16.3.1 The registration of any dog, including the registration of anydog presumed to be registered pursuant to clause 16.6 hereof16.3.2 the change of ownership of any dog16.3.3 Any undertaking that any dog is not to be registered with theNew Zealand Kennel Club16.3.4 Any undertaking for the dog to be endorsed with a recognisedendorsement16.3.5 Any agreement that a dog be jointly owned16.3.6 Any agreement for the lease of a bitch for breeding purposesor loan of a Stud Dog in accordance with these regulations16.3.7 Any agreement for the issue of a Certified Export Pedigree fora dog16.4 All other terms and conditions of any recognised contract will not berecognised by the New Zealand Kennel Club.16.5 Any dispute arising out of any term or condition of a recognisedcontract not specified in clause 16.3 hereof shall be settled by theparties to the contract by private agreement or by an appropriate civilauthority. The New Zealand Kennel Club will not adjudicate any suchdispute.16.6 It is presumed that any dog the subject of a completed New ZealandKennel Club recognised contract is or is intended to be registered withthe New Zealand Kennel Club. The New Zealand Kennel Clubrequires any such dog to be registered. The parties to a contract canspecify that this clause does not apply and/or that the dog is notand/never will be registered.16.7 Upon the production of the recognised contract accompanied by arequest in writing, and the payment of the appropriate fees the NewZealand Kennel Club will amend its registration records in accordancewith any of the agreements listed in clause 16.3 hereof.[24] I shall return to consider the relevant Rules and Regulations in the context ofthe facts of this case later in this judgment.FactsA preliminary word about the evidence[25] Evidence on behalf of the NZKC was given by the Club's Director Secretary,Mr Peter Dunne.[26] Both Ms Smith and Ms Faulkner swore affidavits in support of Ms Smith'sposition. Although the affidavits do not make their relationship clear, theiracquaintance appears to go beyond the transaction between them giving rise to thepresent matter; it may well be that they are friends. In any event, their accounts areconsistent as to central matters, although both contain a fair amount of unnecessary(and irrelevant) editorialising.[27] As noted later, Ms Howard was also given the opportunity to file evidence butchose not to do so. So, in that sense the accounts given by Ms Smith and Ms Faulknerare uncontested. Nonetheless, given the complexity and contentious nature of thedispute between the women I rely wherever possible on the documentary record (thevast majority of which is attached to the relevant affidavits).The relevant narrative[28] On 20 June 2006, Ms Faulkner purchased Fudge (aka Mondial Cookies andCream) from Ms Natalie Rosa. Ms Rosa had, in turn, previously acquired Fudge fromMondial Kennels, a pedigree kennel operated by Susan Howard. A lease agreementhad been entered into between Ms Rosa and Ms Howard (known as the "Rosaagreement"). I set out the agreement in full:Lease BitchWe [Natalie Rosa] agree to lease there [sic] bitch Mondial Cookies & Creamto Mondial Kennels on the following terms and conditions:1. The bitch is serviced by a stud at the cost of Mondial Kennels.2. In the result of a pregnancy the entire litter is registered in MondialKennels name and at the cost of Mondial Kennels3. Mondial Kennels has the right to pick 1 x puppy of the litter prior tothe sale thereof4. All documentation including lease agreement, registering of the litterand change of ownership is at the cost of Mondial Kennels5. All vet fees and food costs will be payable by [Natalie Rosa]6. All proceeds from the sale of the puppies will vest in [Natalie Rosa][29] As part of the agreement to purchase Fudge, Ms Faulkner agreed to take overthis lease agreement. Her name was substituted for Ms Rosa's.[30] I interpolate that at the time the Rosa agreement was entered, the four tiers ofNZKC registration outlined above did not exist. The only means by which a breederor owner could restrict the use of a pedigree dog in the way that is now effected byregistration on the Restricted Register was through the endorsement process.[31] Returning now to the factual narrative, it seems that the Rosa agreement wasnot activated for some years. The mating of Fudge with one of Ms Howard's studswas first foreshadowed in October 2010. But it was not until around 22 February 2011when Fudge was in season that Ms Howard asked Ms Faulkner to send her to Aucklandso that she could be mated with a stud of Ms Howard's choosing. After some debateabout whether Fudge should be sent to Auckland or the stud to Christchurch, Fudgewas delivered to Ms Howard on 24 February 2011.[32] At the same time as making these arrangements (or shortly afterwards)Ms Howard asked Ms Faulkner to complete and return a NZKC lease agreementwhich she sent her in order that the litter could be registered in the name of her(Mondial) kennels.7 The Lease agreement that was sent named Ms Howard as thebreeder and was said to run for a six month term, from 26 February 2011 to 26 August2011. It seems that Ms Howard had not herself executed the agreement at this point.[33] An impasse quickly developed.8 Although Ms Faulkner expressed herwillingness to sign the lease agreement, she refused to send back the "paperwork"(ie the executed agreement) until Fudge was returned. But Ms Howard refused to sendFudge back without first receiving the executed lease agreement.[34] Based on the evidence before me, however, it seems that Ms Faulkner did, atsome point sign the agreement. She dated it 26 February 2011 although it is quiteclear that she did not sign it on that day.9 The impasse with Ms Howard continued.Ms Faulkner deposed that sometime in March she "tried to present" Ms Howard witha copy of the lease "dated 26 February 2011"10 but that "she refused to take it and saidshe had given Fudge away to people 'up North'". Ms Faulkner then filed a claim inthe Disputes Tribunal seeking the return of Fudge.[35] On 15 April 2011, Ms Faulkner's claim was heard and the Tribunal delivereda decision in which it relevantly found that:(a) Fudge was Ms Faulkner's property, subject only to the terms of theRosa agreement which allowed her to be bred with one of Ms Howard'sstud dogs;7 It appears that a lease agreement was posted to Ms Faulkner and one was also sent her by emailon 2 March 2011.8 It should, perhaps, be recorded that the dispute between the two women appears to have had some"history" to it. That history is not, however, presently relevant.9 Evidenced by the fact that she emailed Ms Howard on 1 March 2011 advising that she had notreceived a copy of the lease agreement. It was plainly this email that prompted Ms Howard toemail a further copy of the lease agreement to Ms Faulkner the following day.10 And presumably signed by Ms Faulkner.(b) the terms of the Rosa agreement supported Ms Faulkner's contentionthat her understanding was that the stud dog would come to Fudge andthat Fudge would remain in her care whilst pregnant and throughdelivery;(c) Ms Faulkner had agreed to vary the terms of the Rosa agreement to theextent that Fudge would travel to Ms Howard in Auckland to be matedbut that the variation was that Fudge would only be in Ms Howard'scare for approximately one week (ie while she remained in season)before being returned; and(d) Ms Howard was in breach of contract by refusing to return Fudge toMs Faulkner.[36] The Tribunal made an order requiring that Fudge be returned to Ms Faulkner'scare, or to the care of her nominated representative (who was identified as includingbut not being limited to Ms Smith), within 24 hours of the Sealing of the Order.[37] Ms Howard did not comply. The Police became involved but to no apparentavail. Ms Howard filed an appeal against the Tribunal's decision. Ms Faulknerapplied for an enforcement order. On 19 and 29 April 2011, the Tribunal made furtherorders requiring the immediate return of Fudge. The Tribunal's orders could not,however, be enforced because Fudge had, at some point, been removed fromMs Howard's address[38] Sometime between 27 and 29 April 2011, Fudge gave birth to four live puppies.[39] On 18 May 2011, the Tribunal made an order staying its earlier order about thereturn of Fudge until 10 June 2011, due to veterinary concerns following the birth ofthe puppies. The Tribunal noted that while it could not make any orders for the returnof the puppies, Ms Howard had earlier accepted that she was only entitled to retainone from the litter.[40] There was a further hearing in the Tribunal on or about 6 July 2011, when afurther decision was issued. After referring to its earlier findings about the Rosaagreement, the February 2011 variation of that agreement and the dispute over theNZKC lease11, the Tribunal said:4. Looking at the two agreements [ie the Rosa agreement and theFebruary variation] together, what should have happened is that Fudgeshould have returned after mating. Fudge and the later puppies wouldthen have been in the care of Ms Faulkner and at her cost. The KennelClub lease of bitch agreement should have been signed. Given thewording the Rosa agreement, I find it was up to Ms Howard to makeclear to Ms Faulkner at the time of the February negotiation that sheexpected Ms Faulkner to sign that agreement before Fudge wasreturned to her. This was not a condition that Ms Howard could simplyimpose after Fudge had been sent to her.5. Nevertheless, there were ways of resolving that and I find thatMs Faulkner made reasonable effort to complete that process in amanner which would have met both parties' needs. Irrespective of thefailure of those efforts, Ms Howard had no right to keep Fudge anddeprive Ms Faulkner of her property. Ms Howard had agreed to returnFudge and she did not do so.6. There was no justification for holding Fudge simply because theagreement had not been signed. A possible breach of an agreement byone party is not remedied by a similar breach on the part of the otherparty. Ms Howard's option was to take appropriate legal action of herown if she believed that Ms Faulkner had not complied with the termsof the Rosa agreement.7. It is impossible now to bring about a situation that will achieve theoutcomes contemplated by these agreements. It is not possible to windback the clock and give Ms Faulkner the pleasure of the company ofher dog for the last 3 months or so and of her puppies for the last9 weeks. The best I can do is to find a pragmatic solution to put theparties, as best as can be, in the position they should now have been inbefore this difficulty arose. That means that Fudge and her puppiesare to be returned to Ms Faulkner and a Kennel Club lease of bitchform is to be signed. The puppies are to be registered with the KennelClub. Ms Howard can select her puppy prior to the sale of the rest ofthe litter and Ms Faulkner retains the proceeds of the sale.[41] The Tribunal made specific orders that:i. Ms Faulkner and Ms Howard are to arrange for a meeting in Aucklandno later than 21 July 2011. Either party may choose to be representedat that meeting as long as they advise the other party no less than48 hours in advance as to who that person will be.11 The Tribunal accepted Ms Howard's contention that a NZKC lease was required to be executed inorder that the puppies could be registered by her.ii. At the time of the meeting, there will be a contemporaneous exchangeof Mondial Cookies and Cream, Kennel Club number 05864 - 2006,known as Fudge, plus her crate and her 4 puppies, and the signedKennel Club lease of bitch agreement, as presented to the Tribunal byMs Faulkner. The agreement is returned to Ms Faulkner with thisorder. As that agreement expires on 26 August 2011, there is no reasonto organise any earlier cancellation of that agreement. Ms Howard isthen responsible for the registration of all puppies as soon as possible.iii. Once the exchange has taken place, Ms Faulkner becomes responsiblefor the care of Fudge and her puppies and for arranging transport backto her place of residence. The cost of that transport is to be met byMs Howard as she was the person who chose to keep Fudge and herpuppies. The final cost of transport is to be determined at the time thatarrangements are made. Evidence of that cost is to be supplied to theDisputes Tribunal for a further order to be made for payment.iv. Ms Howard is to advise Ms Faulkner as to her selection of the onepuppy to which she is entitled and make arrangements for thetransport of the puppy no earlier than two weeks after they havearrived in Athol, unless an earlier date is agreed by the parties.v. Alternatively, if both parties agree, the puppy selected by Ms Howardcan be retained by Ms Howard and taken back with her after themeeting. This is to ensure that, at least, Ms Faulkner gets to meet allthe puppies.[42] The Tribunal expressly recognised that the effective operation of these orderswas dependent on the good will of both parties.[43] As is clear both from the terms of the Tribunal's orders and Ms Faulkner's ownevidence, Ms Faulkner had produced at the hearing the NZKC lease agreement thatshe had signed at some earlier point. That agreement named Ms Howard as theBreeder and was signed by Ms Faulkner but not by Ms Howard. It seems thatMs Howard may have obtained a copy of that document at that time.[44] In any event, soon afterwards Ms Howard emailed the NZKC referring to the6 July orders and providing a copy of the NZKC lease form signed by Ms Faulkner.She asked for confirmation that the Club would accept registration of the leasenotwithstanding that the date on the form was 26 February 2011.[45] On 12 July 2011, the NZKC advised that it could not accept the lease profferedby Ms Howard because it had not been lodged within three months of signing inaccordance with reg 13.4 and that it was unable to grant extension of time withoutExecutive Council approval. The Club also noted that it was not common for itsExecutive Council to make decisions that ran contrary to the regulations.[46] Following further exchanges, on 15 July 2011 the NZKC emailed bothMs Faulkner and Ms Howard, saying:If both parties can agree, we will accept a lease if the signature date is changedto accommodate our regulations. This will ensure that the lease has the sametimeframe as originally intended but can be processed within our regulations.Our regulations don't appear to worry about the whelping date. So if the sameagreement is used but a signature date that falls within our regulationrequirements is used then I believe this will satisfy our requirements.[47] On 21 July, the Police facilitated the handover of the dogs (Fudge and fourpuppies).12 It seems that the NZKC lease was, at that time, signed by Ms Howard anddated with that day's date. Shortly thereafter she scanned it through to the NZKC.[48] On 29 July 2011, Mr Brown of the NZKC emailed Ms Howard's lawyer,saying:I have spoken to the President of NZKC and we cannot proceed with theprocessing of the [NZKC lease] document until such time both parties agreeor if the disputes tribunal directs us.[49] On 31 July 2011, Fudge's three remaining puppies were sold by Ms Faulknerto Ms Smith for deposits of $500 each, with the balance of the total price of $1500each to be paid later from proceeds of any registered litter that may be whelped from"Shiroi Yuki".13[50] In an email dated 1 August 2011, Ms Faulkner told NZKC that her signatureon agreement was dated 26 February 2011 and refuted any proposition that she hadagreed to the addition of the later, 21 July 2011, date. Later that day, the NZKC againdeclined to accept the lease, telling the parties that outstanding issues between themneeded to be resolved first. It seems that these events prompted Ms Howard to applyfor a rehearing in the Tribunal on the grounds that Ms Faulkner was refusing to comply12 The puppy that Ms Howard was to retain was returned to her later, in August.13 It seems that Ms Smith subsequently sold two of the puppies. Shiroi Yuki is the name given byMs Smith to the puppy kept by her. She is also known as "Jenny" and her (present) kennel nameis "Mondial Catch Me If You Can".with the second of the 6 July orders (set out at [41] above) and that NZKC was(accordingly) refusing to register the puppies in the name of Mondial Kennels.[51] On 16 August Ms Faulkner filed a memorandum in the Tribunal in which shestated (inter alia):1. Regarding Order (ii) and Ms Howard's responsibility to register thelitter, I do not have any dispute or issue with this responsibility.2. I am unsure why we are revisiting this matter. On 6 July 2011, I madeit very clear to all parties that I did not wish to make, change orotherwise alter any NZKC lease to suit Ms Howard; however I wishto reiterate that this was solely as a result of Ms Howard depriving meof Fudge and breaching our agreement.3. During the rehearing on 6 July 2011, Ms Howard requested theTribunal change the date of signing of the original lease from 26February 2011 to a current date for her. As I recall, this was deniedby the Tribunal and the original NZKC lease document – as it stood-was ordered to remain in play, despite all parties knowing it to be outof time by NZKC rules and regulations.[52] She went on to say that she had discussed various options for enabling theregistration with Ms Howard (she does not say what they were) but that Ms Howardhad refused to accept them and then said:6. In my view, the puppies can be registered. If Ms Howard is unhappyshe has to show a measure of goodwill and come to an agreement withme on this matter, as this is an unfortunate situation she has broughtupon herself through her own actions and [it] is not my doing.8. Therefore, in all respects at this point in time, I have no dispute withMs Howard and I am satisfied the Tribunal has fulfilled the purposeof my original application.[53] The Tribunal issued a further minute on 7 September 2011, stating:The order made on 6 July 2011 is hereby clarified by stating that, irrespectiveof any problem with the dates on the Application for Registration of The LoanOr Use Of A Bitch For Breeding Purposes which has now been signed by bothparties, the puppies in question are to be registered in the name of MondialKennels.The original registration decision[54] The NZKC then accepted the NZKC lease as valid. This necessarily meantthat Ms Howard was, in terms of both the lease agreement itself and reg 8.1.3, deemedto be the breeder of the puppies. In turn, Ms Howard's status as breeder meant thatshe was entitled to register the puppies and to name them.[55] Ms Howard subsequently registered the puppy she had retained on the FullRegister. She registered the remaining three puppies on Restricted Register. Shenamed those three puppies as follows:(a) Mondial Catch Me If You Can;(b) Mondial Do A Runna; and(c) Mondial Where The Hell R Ya.[56] Ms Faulkner and Ms Smith find these names offensive because (they believe)the names are intended to refer to their dispute with Ms Howard over the return of thedogs.NZKC decision - 19 December 2012[57] Following the registration and naming of the puppies, considerable furthercorrespondence between Ms Faulkner and/or Ms Smith and the NZKC was enteredinto. Ms Faulkner and Ms Smith maintained that they were entitled to have thepuppies registered on the Full Register and renamed. In October 2012, Mr Dunneadvised the Executive Council that they should agree to transfer "ownership" of thethree puppies to Ms Faulkner and to place them on the Full Register, and for the NZKCto invite Ms Faulkner (or nominated person) to submit alternative names for thepuppies.[58] In early December the Executive Council agreed with that recommendationand, on about 19 December 2012, this decision was communicated to Ms Smith. Afterthe transfer and renaming had occurred, Ms Howard was notified of the Council'sdecision.NZKC overturns its 19 December 2012 decision[59] In March 2013, Ms Howard applied to the NZKC for a review of that decision.After taking legal advice, the Club determined on 31 July 2013 that Ms Smith was toremain the owner of the dogs, but that the NZKC would return them to the RestrictedRegister under the names chosen by Ms Howard. That decision and NZKC's reasonsfor it were communicated to Ms Faulkner shortly afterwards.Unsuccessful challenges by Ms Smith[60] On 17 September 2013, Ms Smith sought to review the 31 July decision.NZKC stayed that decision while it considered her challenge. Between 21 and22 September 2013, the Executive Council met and considered the matter. Itdetermined that it should uphold its 31 July 2013 decision. It informed Ms Smith ofthis decision on 9 or 10 October 2013, stating that the reasons for the 31 July 2013decision continued to pertain.[61] On 27 November 2013 Ms Smith again asked the NZKC to reconsider itsdecision. By letter dated 12 February 2014, the NZKC declined to do so, again givingfull reasons. It confirmed its view that the lease agreement was valid and thatMs Howard was therefore the breeder in terms of the regulations. It advised that,accordingly, the NZKC would not transfer the puppies from the Restricted Register tothe Full Register without Ms Howard's consent.Jenny and her progeny[62] As noted in footnote 12 above the puppy retained by Ms Smith's is colloquiallyknown as "Jenny" or "Shiroi Yuki". From the time of the NZKC's first reconsiderationof its registration decision in late 2012, until 31 July 2013, Jenny was registered onthe Full Register. Full registration enabled her to be entered in NZKC Championshipdog shows, and in January 2013 she won a number of awards.[63] Ms Smith deposed that in August 2013, after Jenny had been removed from theFull Register, the NZKC nonetheless accepted her entry into the upcoming NationalDog Show. That contention appears to have support in the documentary evidence,although it is unclear whether the entry was submitted by Ms Smith before or after the31 July decision to remove Jenny from the Full Register.[64] On 9 September 2013, (prior to the stay of the removal decision) Jenny wasmated. She gave birth to a litter of her own on 9 November 2013 (known as theToshiko litter). Because Jenny was not then and is not now on the Full Register in herown right, that affects the registration options available in relation to her puppies. Soon 12 February 2014, the NZKC also advised that Ms Smith's application for thepuppies to be placed on the Full Register could not be granted.The ClaimThe origins of these proceedings[65] It seems that at some point Ms Smith filed a claim in the Tribunal about theNZKC's decision to remove her dogs from the Full Register and its decision to declineto register the Toshiko litter. In 2015, The Tribunal transferred her proceeding to theDistrict Court. In April 2016 the District Court transferred it to the High Court, on thegrounds that Ms Smith's claim was, in essence, a claim for judicial review in relationto which the District Court had no jurisdiction.14The application for review[66] As originally pleaded the statement of claim alleged that the registration of thepuppies (their placement on the Restricted Register) is invalid on the grounds that:(a) the NZKC's recognition of the NZKC lease was unlawful and in breachof its Rules and Regulations because the lease was registered out oftime and was not filed in triplicate;(b) the decision was made in breach of natural justice; and14 Smith v New Zealand Kennel Club [2016] NZDC 7423.(c) the NZKC had failed to take into account a mandatory relevantconsideration, namely the Rosa agreement.[67] There was also a cause of action alleging that the decision to restore thepuppies' original names (ie those selected by Ms Howard) to the register was "unfair".[68] Following the adjournment of the initial hearing (discussed further in thefollowing paragraphs) the claim was amended to include a further cause of actionalleging that the registration Regulations are ultra vires the Rules, because thedefinition of "breeder" in the Rules does not include the lessee under a Loan or Useof Bitch for Breeding Purposes Agreement.Procedural matters[69] Before turning to consider the merits of the claim, it is necessary to record thatneither Ms Howard nor Ms Faulkner were joined as parties to this proceeding,although Ms Faulkner swore an affidavit in support of Ms Smith's position.Ms Howard's absence was necessarily a concern both because the evidence of bothMs Faulkner and Ms Smith contained adverse comments about her and because hereconomic interests are (at least indirectly) affected by the outcome. For that and otherreasons, I adjourned the initial hearing of the application so that Ms Howard could begiven the opportunity to be heard if she wished. I directed that Ms Howard was to:(a) file and serve any appearance by 1 September 2017; and(b) file any evidence she wished to file by 8 September 2017.[70] Ms Howard did not do either of those things. Instead, Mr Collis filed a noticeof appearance on her behalf on 10 October 2017.15 In it, Ms Howard indicated heragreement with the position taken by the NZKC in the proceedings to date. She alsosaid that:As a gesture Ms Howard would agree to the November 2013 Toshiko litterbeing placed on Part I of the NZKC Register.15 Mr Collis had been instructed by Ms Howard in relation to the original 2011 dispute.[71] The notice made it clear however that the "gesture" did not extend to Jennyherself.16 There was a brief adjournment during the second hearing in order that thatoffer could be discussed, but no resolution was possible.[72] I also record that Ms Howard was represented by Mr Collis at the resumedhearing and was, herself, present in the courtroom. Ms Smith was permitted to observethe hearing by AVL.17Justiciability[73] There is no real dispute that the decisions made by the NZKC are justiciable,although the Courts have, in the past, expressed reluctance to interfere with thedomestic affairs of voluntary organisations such as the Club.18AnalysisBreach of natural justice[74] The cause of action alleging breach of natural justice can be dismissed in arelatively summary fashion. The voluminous material before the Court could notpossibly found such a claim. The NZKC was bombarded with material by all partiesand, on my assessment, took full and proper account of it over a period of years. ThatMs Smith was, in fact, "heard" is evidenced by the NZKC's change of heart in late2011 and it subsequent reasoned decisions in response to her requests for review.Ms Smith's views on the matter, and the reasons for them, were well understood bythe Club. The simple point is that (ultimately) it did not agree with those views.[75] If I am wrong in that, and Ms Smith was, somehow, deprived of an opportunityto be heard, then that breach has surely been cured by the hearing in this Court. Herviews on the merits of the impugned registration decisions have been fully taken intoaccount in the analysis that follows.16 In order for the gesture to be effective the Executive Council would need to exercise its discretionto register the litter contrary to the Registration Rules. Ordinarily, the NZKC would not bepermitted to register the Toshiko litter on the Full Register if their dam (Jenny) was not also onthe Full Register.17 On occasion I also permitted Ms Smith to speak to the Court.18 See in particular Brady v New Zealand Kennel Club Inc HC Christchurch CP143/00, 6 March2001.Causes of action challenging the legality of the registration decision[76] For the three causes of action which challenge the legality of the registrationdecision, the starting point is the proper interpretation of the Rules and the RegistrationRegulations. Although the Regulations are "subordinate" to the Rules, it is theRegulations that are directly relevant here. Indeed, apart from requiring theestablishment of the Register, the Rules do not deal with registration at all.[77] Viewed by themselves and as a whole, I consider that the Regulations make ittolerably clear that only the breeder can register a dog, although this is only ever stateddirectly in the explanatory note. That conclusion is consistent (for example) with theconsent of the breeder being required to change an endorsement on a dog'sregistration, and with the Regulations about litter notification and leases, whichsuggest that the owner of the dam may not be able to register a litter but that a lesseewill always be able to do so.19 The fact that a breeder controls any change of namealso points in the same direction.[78] It seems to me that a Loan or Use of Bitch for Breeding Purposes Agreementcould provide that the owner of the bitch remains the breeder. Otherwise the standardregistration form would not leave that part blank. And the Regulations are quite clearthat while the owner of the bitch who whelps a litter may also be the breeder20 , alessee of a bitch pursuant to a NZKC registered lease agreement can also be deemedto be the breeder of any litter whelped by that bitch during the currency of the lease.21[79] The potential difficulty here arises because of the definition of "breeder" in theRules. As noted earlier, Rules define the term as meaning the "owner of the dam atthe time of whelping", subject only to rule 3(o), when rule 3(o) simply refers to theNZKC. As also noted above, I accept both as a matter of common sense and in lightof Mr Dunne's explanation, that the cross-reference should be to Rule 3(m), whichdefines "lessee". Even then, however, the definition remains somewhat oblique.19 In particular, reg 13 provides that the lessee must be a financial member of the NZKC but not thatthe lessor must be. And reg 8 provides that only a financial member of the NZKC may register adog or notify a litter.20 Provided he or she is a financial member of the NZKC.21 Regulation 8.1.3.[80] In the end, however, I consider that it is both appropriate and necessary tointerpret the (general) Rules in light of, and consistently with, the (specific, butsubordinate) Regulations. I say that for four reasons:(a) first, it seems to me that an overly technical, literal or pedantic approachis inapt when interpreting the "statutes" or governing instruments ofvoluntary, incorporated, bodies such as the NZKC;(b) secondly, the Rules themselves do not in fact use the term "breeder" atall. There is nothing by way of context other than its use in theregulations to assist in the interpretive exercise;(c) thirdly, it is the only way in which the definition in the Rules can bemade to make sense; and(d) lastly, such an approach is not, in any event, out of step with the modernapproach to the interpretation of statutes strictly so called. That is clear(for example) from the discussion in Statute Law in New Zealand wherethe learned authors say:22It might be argued that regulations or other items of delegatedlegislation made under an Act are not relevant as an aid to theAct's interpretation, simply because they are made bydifferent bodies. "Regulations generally do not alter themeaning of the primary statute, at least without specificauthority in the statute." However, while that may be thetheory, one knows that in practice the same officials are verylikely to be involved in the preparation of both. Probably forthis reason, modern authority does permit the cautious use ofregulations to interpret the Act. In Hanlon v Law Society,Lord Lowry indicated that this is so where the meaning of theAct is ambiguous, and that regulations may be a reliable guideto the meaning of the Act particularly where "the Act providesa framework built on by contemporaneously preparedregulations". The two elements of ambiguity in the Act, andcontemporaneity of Act and regulations, have been regardedas important by the New Zealand Court of Appeal. Perhapsthey should, however, go more to weight, or to degree ofpersuasiveness, than to precluding use.22 Ross Carter Burrows and Carter Statute law in New Zealand (5th ed, Lexis Nexis, Wellington,2015) at 271 (footnotes omitted).[81] So, in my view, the definition of "breeder" in the Rules should be read asmatching the definition of "breeder" under the Regulations. Accordingly, anyargument that the Regulations are somehow ultra vires the Rules because theRegulations have an impermissibly wider definition of "breeder" falls away.[82] Once that point is reached there are two principal issues remaining.[83] One relates to the dating of the Loan or Use of Bitch for Breeding PurposesAgreement and whether Ms Howard's registration of it should not have been acceptedbecause it was outside the period specified in reg 13.4 (three months from the date ofsigning). It is, of course, only that agreement that gives her formal "lessee" and"breeder" status. The following matters are relevant to that question.[84] First, the evidence is quite clear that Ms Howard did not sign the leaseagreement until 6 July 2011 or afterwards.23 She did not have a copy of the agreementsigned (and dated) by Ms Faulkner until the Tribunal hearing and so could not havesigned it before then. As the NZKC itself determined the agreement was not thereforeexecuted until July 2011 at the earliest. In my view, Ms Howard was entitled to signand date it then and (contrary the view expressed by the NZKC at the time)Ms Faulkner's consent to that date was not required. Nor is there anything in theNZKC Rules and Regulations to suggest that a lease cannot be executed withretrospective effect.[85] Secondly, Ms Faulkner's own evidence makes it clear she had agreed to thelease some months earlier and her position had not changed in the intervening period.She did not refuse to return the signed lease because she had changed her mind, but inorder to use the lease as a bargaining chip for the return of Fudge. Moreover, the Rosaagreement required her to agree to a formal lease. Unless Ms Howard was made thebreeder by way of a Loan or Use of Bitch for Breeding Purposes Agreement, the dogscould not be registered in the name of Mondial Kennels as the Rosa agreementrequired. And from 6 July 2011 onwards she was not only further precluded fromchanging her mind by the orders of the Tribunal, but was required by those orders to23 Nor is it in fact clear when Ms Faulkner herself signed the lease – as earlier noted, it could nothave been on 26 February 2011, the day it was dated.facilitate registration by Ms Howard. And as I have said, registration of the dogs couldonly occur if a valid Loan or Use of Bitch for Breeding Purposes Agreement wasregistered.[86] And thirdly, the NZKC retains a discretion to accept late registration of thelease in any event. Although it is clear that that power was not the basis for theirdecision in this case, it would certainly militate against the exercise of the Court'sdiscretion in favour of relief, had any of the grounds of review been successful.[87] In terms of the relevance of the Rosa agreement, it will be evident from thepreceding discussion that, in the context of the present case at least, I consider thatthere is no inconsistency between the decision taken by the NZKC and that agreement.That effectively answers the second question. But by way of brief elaboration, theRosa agreement effectively made Ms Howard the breeder and gave her effectivecontrol over the registration process, just as the Loan or Use of Bitch for BreedingPurposes Agreement does. And even if the agreement had been activated prior to 2008(before the creation of the Restricted Register) she could have had endorsementsplaced on the registrations of the puppies with similar effect.[88] I record and acknowledge that Mr Minchin attempted to argue that there wasan implied term in the Rosa agreement to the effect that Ms Faulkner was entitled toreceive ownership of pedigree puppies without endorsement or restriction. But that isa contractual matter between Ms Faulkner and Ms Howard which cannot possibly bedetermined in the context of these judicial review proceedings to which neitherMs Faulkner nor Ms Howard are parties.[89] But perhaps the more important point is that, even if Mr Minchin were rightabout an implied term, the NZKC could not be obliged to take account of a privateagreement between the parties. Reg 13.5 expressly provides that such agreements willnot be "recognised" by the NZKC.24 And even if the prohibition on "recognition"does not preclude "taking into account" (which I doubt), the path down which that24 I am unable to accept Mr Minchin's submission that the Rosa agreement is a "recognised" contractof the kind dealt with in reg 16. Whatever that regulation may mean it clearly does not apply toprivate agreements of the "Rosa" kind.would lead would, in a case such as this, be unworkable. Even assuming the NZKChad knowledge of the relevant agreement, it could not sensibly be required to take itinto account if doing so meant (as Mr Minchin contended) that the Club should ignorethe formal lease agreement upon which its registration decision was expressly requiredto be based.[90] The question of whether the lease was provided to the NZKC in triplicate ornot goes nowhere. On the evidence before me I do not accept that it was not. Thelikely purpose of that requirement is so that, once registered, the NZKC can retain onecopy and the other two can then be provided to the lessor and lessee. As Mr Dunnesaid, in all likelihood that is what happened here. That is the obvious explanation foronly one copy remaining in the hands of the NZKC.[91] Even if I am wrong in that, I would not regard such a failure as capable ofvitiating the registration decision. It is a technical requirement, not a substantive one.The NZKC's broad discretion in relation to registration matters has been notedabove.25The unfairness challenge to the registration of the puppies' names[92] The first difficulty for Ms Smith here is that the contractual requirement thatthe puppies be registered in the name of Mondial Kennels means that Ms Howardnecessarily got to choose the names. And the terms of reg 9.3.11 suggest that herstatus as the breeder also means that it is only she who can apply for the names to bechanged.[93] While I accept that the NZKC retains a discretion in that regard and could, nodoubt, decline to register dogs with names it perceived as in some way unsuitable, theexercise of that discretion (or a refusal to exercise it) could not lightly be interferedwith by this Court. I appreciate entirely that Ms Faulkner and Ms Smith perceived thenames chosen by Ms Howard as a deliberately provocative jibe. It may well have been25 The same applies to the allegation (only faintly pursued before me) that the registration of thelease was invalid because an "original" was not filed. In the face of Ms Faulkner's evidence thatshe did sign the lease and that she intended to do so, such a challenge is an exercise in hair-splitting.such. But it is difficult to conceive that the hurt feelings of another member (even ifshe is the owner of the dogs in question) could be a mandatory consideration for theNZKC when exercising its discretion. And while the names may be viewed by someas a little coarse, they are hardly indecent or offensive.Conclusions[94] None of the grounds of review are made out. The application is dismissedaccordingly.[95] The NZKC is entitled to its costs on a 2B basis._____________________________Rebecca Ellis J