Innes-Jones v Tepaki [2010] CKHC 27; Misc 106 of 2010 (10 December 2010)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

MISC NO. 106/2010

IN THE MATTER of Rules 132 and/or 354 of the Code of Civil Procedure 1981 and Sections 409(d) a)d (e) of the Cook Islands Act 1p>

ter">AND

IN THE MATTER of an Application for an Injunction and der fcant Possession

BETWEEETWEEN

MICHAMICHAEL INNES-JONES as Receiver of TEPAKI 5 HOLDINGS LIMITED (IN RECEIVERSHIP)
Applicant

AND

TEPAKI NOOAPII TEPAKI
Respondent

Hearing: 6 December 2010

Counsel: Mr C Little for Applicant
Mr T Tepaki in Person

Judgment: 10 December&#110

JUDGMENT OF GRICE J
[Application for Injunction/Vacant possession]

Tepaki Nooapii Tapaki, Arorangi, Rarotonga
C Little, Littlp; Matysik PC, Maraerenga, nga, Avarua, Rarotonga

[1] This is an application for an injunction and Order for vacant possession.

[2] Given the implications of the application, I gave Mr Tepaki the opportunity to leek legal advice. Mr Tepaki, ined he did not want want to seek a lawyer because he could not afford one.

[3] The application is an application foOrderting vacant possession of the land, and further Oher Orders restraining the Applicant and/oand/or his agents, servants or assignees from occupying Unit R and Accessory Units R1 to R5 as delineated on Plan No. SO1863, and restraining them from entering upon the land comprising Unit Title. The Orders are sought to take effect from 15 January 2011.
[4] The applicatiication as initially made was by Michael Innes-Jones as Receiver of Tepaki 5&#1ldings Limited (In Rece Receivership). Mr Little t an ment substng thng the Applicant with Tepaki 5 Hol5 Holdingsdings Limited (In Receivership). That application was granted without oppon.
[5] The primaryimary provision that the Applicant relied on for the injunction Orders wass was s 409(d) and/or (e) of the Cook Islands Act 1952. Counsel initiadvised ised me that applications such as the present one were usually pursuant to this pron. Section 409 reads:

409 Miscellaneous jurisdiction of Land Cond Court – In addition to the jurisdiction elsewhere conferred upon the Land Court by this Act, the Court shall have jurisdiction –

(a) To hear and determine as between Natives or the descendants of Natives any claim to the ownership or possession of Native freehold land, or to any right, title, estate, or interest in such land or in the proceeds of any alienation thereof.

(b) To determine the relative interests of the owners in common of Native freehold land, whether any of those owners are Natives or Europeans.

(c) To hear and determine as between Natives or the descendants of Natives any claim to recover damages for trespass or any other injury to Native freehold land;

(d) To grant an injunction against any person in respect of actual or threatened trespass or other injury to Native freehold land;

(e) To grant an injunction prohibiting any person from dealing with or doing any injury to any property which is the subject matter of any application to the Court.

[6] I pointed out to Mr Little the provisioy appliepplied to Native freehold land, defined in s 2 as follow>

"Native freehold land" means land which, or any undivided share in w is owned by a Native for the beneficial estate in fee simp simple whether legal or equitable.

Mr Little accepted that thvisiovision under s 409 relatingranting an inju injunction was probably limited to Native freehold land. The present applic does not deal with Native freehold land, but rather a leasehold Unit Title under the Unit Unit Titles Act 2005. I find that s 4 9(d)e) does not apply to y to the present application.

[7] Mr Litten fell back on r #160;132 and/o of the Code Code of Civil Procedure 1981. Rule 132 provides:

132. Application for interim injunction, etc. – whny pa desires, before fore the hearing, an immediate Order ̵–

(a) In the nature of an interim injunction;

...

He may apply to the Judge, who may, in proof of the facts rendering the Order immediately necessary, make such Order as he thinks fit.

[8] Rule 35vides for the granting ofng of a final injunction.

[9] Mr Little expressly indicated that he was not seeking an interim injunction in this application despite his application reng in the body to an "interinterim injunction". He sought leave to amend the application to seek a final injunction.

[10] Mr Tepaki opposed the application and filed a Notice of Opposition to the application, together with an affidavit by him in support of the Notice of Opposition. The affidavit contained a number of Exhibits, without Exhibit notes, numbered 8, 12, 22, 23 and 24, presumably taken from some other affidavit given the numbering. The affidavits and Exhibits were unfocussed and amounted to a general narrative of the financial collapse of Mr Tepaki's devent companies.
[11] Mr Tepaki indicated that he was the 99 percent shareholder in i 5 ki 5 Holdings Limited (In Receivership). Mr Tepaki contests eceivershiprship f. Hefiled other proceproceedings in relation to the Receivership. He seeks that this applicatiocation be delayed pending the outcome of those edings. Mr Tepaki lives in the pty in y in question byon by virtue of what appears to be a grace and favour arrangement with the owner, Tepaki 5 Holdings Limited (In Receivership).

[12] Mr Tepaki in his Notice of Otiosition refers to a substantive claim filed by the respondent now before the Court, which involves the Unit Title in question. He says the Applicant Receiver he accountant for the Hotel Operator which operated Lagoon goon Lodges. He then makes allegations against the Applicant as follows:

1. That the Applicant was the accountant for the Hotel Operator when fraud occurred at Lagoon Lodges and the other hotels and was party to fraud.
   
2. That the Applicant has conflicting interests and ought not to be the Receiver for a property he was previously involved with.
   

The respondent seeks the status quo of his residing in the Unit Title remains until the matter of the substantive claim is resolved.

[13] In his affidavit Mr Tepaki makes allegs againstainst the Receiver for fraud when he operated Lagoon Lodges. He further claims that the loan had been repaid in relation to this property, that cross-guarantee agreements did not apply in the Cook Islands, and that colour of right does not apply in the Cook Islands. This apparently refers to the Receiver not having rights he had under New Zealand law to put the company into Receivership.

[14] Finally, after referring to proportionate ownership lifestyle sales that Mr Tepaki was involved inretirretire debt", he refers to the Applicant having conflicting interests and submits the Applicant ought not to be the Receiver for a property he was previously involved with.

[15] Mr Tepaki's oral submissions were in a similar vein. He indicated that he had signed a cross-guarantee, which apparently related to the indebtedness that led toReceivership, but he had been told that it did not apply in the Cook Islands. Mr LittlLittle resd that guaraguarantees and cross-guarantees, and indeed cross-securities, were enforceable in the Cook Islands. In limited instances, for instance under s f the Islands Act 1915;1915, the Courld refusrefuse tose to enforce a contract or other document. This was not such a case.
[16] Mr Tepaki then indicated that he accepted he had been wrongly advised on the poin point of guarantees.

[17] Mr Tepaki mt clear that he hade had no dispute with the power of a properly appointed Receiver to access and recover the property in questir Tepaki's issue was that there were many things wrong with the Receivership and the athe appointment of a Receiver. Therefore the Orders should not be granted.

[18] An affidavit of Michael Innes-Jones of Rarotonga, Accountant, the Receiver appointed to Tepaki 5 Holdings Limited was filed in support of the application. He annexed a copy of a first registered Debenture over the assets and undertakings of Tepaki 5 Holdings Limited dated 6 December 2006. Counsel handed y agre agreement with Mr Tepaki,rtificate of Registrgistration of the Debenture issued under s 1 the Companies Act.


[19] Mr Innes-Jin hiidaviosed at paragraph 5 that the company deny defaultfaulted on its obligations under the DebenDebenture and he was accordingly appointediver on 18 August&#160 2010annexed a copy of the athe appointment of himself as Receiver and Manager dated 18 August 2010. vised Mr Tepaki paki of his appointment on 18 August 2010 by a l whirh he personersonally delivered.

[20the sime he told Mr Tepaki that he required vacant possession of the land comprismprising ting the Unit Title by 18 November 201reminf this was sent by t by Mr&y Mr Innes-Jones to espondent bynt by email dated 19 October 2010. Mr Tepaki re by day of edatedcatedctober 2010, that the Receiver would need to obtain a Court Order for Mr Tep0;T taki to vacate the pthe property. A copy of that emai prod Mr T has refused to vacate to e to date.

[21] In his reply Mr Little sought to adevidencedence of a copthe D Notice under ther the Loan Agreement between Strategic Finance (In Receivership) and TepakTepaki 5 Holdings Limited. He also sought duce evidence of service of that Notice on Tepaki 5 Holdingldings Limited at its address for service at Lagoon Lodges. Mr Tepakiially opposed but thet then indicated he had no opposition to the evidence being adduced and Eliza Robert, a secretary in the emof Mr Arnold, the solicitor acting for Strategic Finance at the time the Demands were issueissued, produced the Demand and gave evidence that she served them on Mr Tepaki by delivering them to Lagoon Lodge on 28 June 20r&#16aki aaki acknowledgeledged that he had received the documents.

[22] Mr Tepaki, howevericated that that he needed more detail on the makof thunt othan a an a demand for $6.9 million.

[23> [23] [23] As a final matter I had inquired of Mr L as to the applic of s&#16s 92 o Properroperty Law Act. Act. Mr Little provided a memorandum and indicated that this application only sought possessio salerefore the provisions of s 92 of the rtoperty Law Act Act had no application. I accepaccept that submission.

[24] The has had to make certain alin allowances for the presentation of his case by Mr Tepaki, an Applicant rson. son. However, in this case it appears that a Demand has been served and default is a triggering event enabling a Receiver to be appointed (9(a) of the Debe document). I am satisfied that the Demand was made and thnd the Notice of Appointment of Receiver was duly served. Mr Tepaki to issue with the othe other procedural matters for which Mr Littught amendment and addu adduced evidence.

[25] Tep Holdings Limited was placed in Receivership on 18 August 2010. 60;Tepaki haki has reas recently filed proceedings against es involved in the Receivereivership. He did not refer to any extant proceedings seeking to remove the Receiver. The Receivership hasbeen istence for threethree mont months.

[26] In the course of the application Mr Little sourders amending thng the Applicant to Tepaki 5 Holdings Limited (In Receivership), amending the application to be an application for final injunction rather thannterim injunction, and sought leave to adduce the evidence ence as to service of the Demand on the company. Mr Tepaki did not opany of thof those applications. However, in my view, Mr Little hfurther issue of a of a technical nature which cannot be deith by amendment.

[27] Mr Liindicated that the applicpplications were for injr injunctions pursuant to s 132 and/o of the Co Civil Pvil ProceProcedure 1981.as unable to further eher elaborate on the basis for the applications, including that for v possession.

[28] The outcome sought by the Applicant appears to be the determinatmination of a tenancy at will. To achieve this there needs to be a demand for possession. Following that the premises would usually be recovered in an action for recovery of land.[1] The action which should have been brought is an action for recovery of land. This should be brought under the provisions of the Code of Civil Procedure 1981.

[29] Residential Tenancies Act applies to cover the situation in New Zealand, but there is no equivalent in the Cook Islands. In McDonald v Selwyn Millinery Co. Limited,me="fnB2" href="#fn2">[2] a mandatory injunction toon to obtain possession of land was refused as the common law remedy of ejectment was available.

[30] There is a procedure for bringing such an application for recovery of land under the Code of Civil Procedure 1981 by w action. Bringing ging the application under the guise of an injunction under the Code of Civil Procedure 1981 is rather a shortethodethod of doing it. I am not convinced that an injunction is a suitable remedy in the present circumstances. I therefore decline to exercise my discretion to grant the Orders. The Applicant may pursue his remedies but using the correct procedures, with the requisite service periods.

[31] I therefore dismiss the applications for injunction.

[32] Mr Tepaki has ut a technical rcal reprieve.

[33] In relation to the question of costs a lay litigant is not entitled, except in exceptional circumstances, to cover costs: Re Collier (A Bankrupt).[3] The submissions of Mr Tepaki were of little assistance in the development of the arguments in this case. The time taken up by the Court because of Mr Tepaki's lack of knowledge of the law and procedural issues was far in excess of what uld have taken if competentetent counsel familiar with the Cook Islands law had been appearing for him. I therefore make no Order as sts.

Grice J

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^[1] Halsbury Laws of England 4^th Ed Vol. 27 Butterworths 1981 at “Landlord and Tenant”, para 171 pg 128.
^[2] McDonald v Selwyn Millinery Co. Limited [1937] NZLR 24.
^[3] Re Collier (A Bankrupt) [1996] 2 NZLR 438.