TEA CUSTODIANS (BLUESTONE) LIMITED V A PERSON OR PERSONS UNKNOWN OCCUPYING A PROPERTY AT 15 OAKLEIGH AVENUE, TAKANINI HC AK CIV 2010-404-000086

TEA CUSTODIANS (BLUESTONE) LIMITED V A PERSON OR PERSONS UNKNOWN OCCUPYING A PROPERTY AT 15 OAKLEIGH AVENUE, TAKANINI HC AK CIV 2010-404-000086 18 March 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2010-404-000086BETWEEN TEA CUSTODIANS (BLUESTONE) LIMITED Plaintiff AND A PERSON OR PERSONS UNKNOWN OCCUPYING A PROPERTY AT 15 OAKLEIGH AVENUE, TAKANINI Defendants Appearances: D A Wood for the Plaintiff M B Meyrick for the Defendant Judgment: 18 March 2010ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSENSolicitors/Counsel: N Robertson, Sanderson Weir, Auckland – Nicola.robertson@sandersonweir.com D Wood, Barrister, Auckland – des.wood@xtra.co.nz M B Meyrick, Berman & Burton, Ellerslie, Auckland – Fax: advice@bermanburton.net.nz[1] The plaintiff has filed a summary application for possession of land pursuant to Rule 13.4. Service of the application was affected on 23 February 2010 by affixing a copy of the documents to the glass front door of the reception area of a dwelling upon the property. The served documents included a copy of an affidavit by Ms N Robertson of Auckland, a solicitor for the plaintiff. The affidavit deposes the plaintiff is a mortgagee by virtue of a registered memorandum of mortgage over the security of a property at 15 Oakleigh Avenue, Takanini, as contained in certificate of title NA134B/996. [2] Under the provisions of its mortgage the mortgagee is entitled to enter into possession once there is default. Default occurred and a Property Law Act Notice under s 119 of the Property Law Act 2007 was served on the mortgagor on or about 12 May 2008. On or about 2 June 2009 the mortgagor company was struck off the Register of Companies by the Registrar. Thereafter there was no lawful authority entitling any party apart from the plaintiff mortgagee to enter upon the property. [3] Ms Robertson deposes there are a number of persons unlawfully occupying the property. They appear to have taken possession either through the consent or acquiescence of the company mortgagor. The plaintiff has given no consent to any of the present occupiers. Those persons refuse to admit the plaintiff or its agents from entering onto the property for the purposes of marketing and sale. [4] The plaintiff is not aware of the identity of any of the persons on the property. They wish to obtain possession to clear out the existing occupiers and to market and sell the property to redeem its mortgage. [5] On 3 March 2010 the Court received a number of documents under the title:Kaitiaki: Whanau C/- Ngai-Tupango-Hapu-(Inc) P O Box 206, Takinini 2245 Manukau City, Tamaki Makaurau[6] A number of documents were received, foremost of these being:Appearance under protest of jurisdiction to interlocutory application by plaintiff for an order for the vacation and possession of property.[7] That document noted:Our objection is based on the following grounds:a) That the plaintiff has no jurisdiction and claim (account) to consider in this matter; b) The agents and nominees authorised to act for the plaintiff has settled this matter in arbitration with the Justice of the Peace on Monday 30 thJune 2008. [8] The document bears the name Te-Awhina handwritten over a fingerprint. [9] The plaintiff's solicitors were served with a copy of the defendants' documents. In response Mr Cole a legal executive undertook a search of the New Zealand Companies Office records. He deposed that there is no record of the registration of Ngai-Tupango-Hapu-(Inc). [10] When the matter was called before me Mr Meyrick appeared for the defendants. He advised he had only just been instructed and that his instructions were confined to dealing with the call of the matter before me today. It was clear from Mr Meyrick's submissions that the defendants claim jurisdiction by virtue of 'other authority'. I informed Mr Meyrick that the land in question had a Land Transfer Act title and I ruled that the Court was not prepared to cede its jurisdiction over the land. Accordingly I directed the defendants' protest to jurisdiction be set aside. [11] I am satisfied that although the person or persons against whom judgment is sought are unknown to the plaintiff, it is acceptable that the application for recovery of land is sought by summary application. [12] Part 13 of the High Court rules contains as series of provisions whereby a plaintiff may summarily proceed for recovery of land. The acceptable evidence is: a) That the occupiers are present and unlawfully there;b) It is proper to bring proceedings against an unlawful occupier whose identity is not known (Rule 13.3); c) The evidence in support of the application identifies the plaintiff's interest in the land, details the circumstances under which the land has been occupied, and confirms the plaintiff is unaware of the names of the occupiers (Rule 13.4). d) Effective service has been made (Rule 13.5). [13] The plaintiff having provided a proper foundation for its application for summary possession and I having set aside the defendants' protest as to jurisdiction, the only matter remaining for my consideration is the defendants' claim that its disputed possession was the subject of settlement by a prior arbitration. [14] Mr Wood forcefully made the point that if there had been an arbitrated agreement the plaintiff would know about it, but it does not know of it. [15] Notwithstanding the force of that argument it seemed to me an opportunity ought to be given to the defendants to provide proof of their claims. [16] Accordingly I have adjourned this matter to be called at the end of the list at3.00pm on 22 April 2010 for final determination. Before then I direct: a) The defendants are to file any opposition affidavits by 8 April 2010; b) The plaintiff's reply affidavits if any are to be filed and served by15 April 2010; c) The parties' synopses of submissions are to be filed and served by19 April 2010.Associate Judge Christiansen