Pihema v South Pacific Forestry Holdings Ltd

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA116/2024
[2025] NZCA 17

BETWEEN	MARAEA PIHEMA First Appellant ROBERT PIHEMA Second Appellant
AND	SOUTH PACIFIC FORESTRY HOLDINGS LTD Respondent

Court:	French P and Collins J
Counsel:	Appellants in person J A Browne for Respondent
Judgment: (On the papers)	20 February 2025 at 11 am

JUDGMENT OF THE COURT

AThe application to extend time to comply with r 43 of the Rules is declined.
B The application to appoint Mr Faulkner as agent of the appellant is declined.

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REASONS OF THE COURT

(Given by Collins J)

Ms Pihema applies for:
(a)an extension of time to comply with r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules); and
(b)the appointment of Mr Faulkner as her agent.
Ms Pihema wishes to appeal a summary judgment of Associate Judge Gardiner delivered on 8 February 2024 in which the Judge:
(a)ordered Ms Pihema to yield possession of a property at 438 Mangamuka Road, Mangamuka which she was occupying; and
(b)directed that if Ms Pihema did not yield possession within five working days of service of the order the plaintiff was entitled to take possession of Ms Pihema’s chattels and secure them pending further order of the Court.
The order for possession was enforced on 28 February 2024. Ms Pihema’s belongings were taken into storage and the “dilapidated house” she was living in was demolished.
On 29 February 2024 Ms Pihema filed a notice of appeal. No filing fee was paid.
On 5 March 2024 the respondent sold the land in question to a third party.
On 2 July 2024 Ms Pihema’s appeal was deemed to be abandoned due to failure to comply with r 43.
Ms Pihema has filed an affidavit in te reo Māori. A translation was provided on 23 October 2024.
We understand that in essence Ms Pihema is challenging the lawfulness of the orders of the High Court on the basis that the land in question has been occupied by her for many years and that the legal title to the land does not prevail over her interests.
The principles for determining an application to extend time were summarised by the Supreme Court in Almond v Read.[1] We shall deal with the Almond v Read factors under the heading of analysis.

Analysis

Length of delay

[1]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

Ms Pihema’s appeal was filed in February of 2024. There has no been no tangible progress during since then.

Reasons for the delay

The application refers to Ms Pihema’s belongings being in storage and that there has been inadequate time to consult with counsel for the respondents. In his submissions, Mr Browne points out Ms Pihema’s belongings have been placed in storage and that she has been able to collect them without paying for the storage facility for some time. There has also been no attempt to consult with respondent’s counsel since the appeal was filed.

Conduct of the parties

Ms Pihema has missed almost every deadline she has been required to meet.

Prejudice

There is always prejudice to a respondent who is the subject of an appeal by a litigant who fails to properly prosecute their appeal.

Significance of the issues raised

We agree with Mr Browne that the appeal does not raise any matters of legal significance.

Merits

We also accept that the appeal has no reasonable prospect of success. Ms Pihema was living on the respondent’s land. The land in question has been general land for approximately 100 years and the respondent was the registered owner of the land. The principal of indefeasibility of title weighs overwhelmingly against Ms Pihema’s appeal.
We are therefore satisfied that this is not a case in which further extensions should be granted. This conclusion renders it unnecessary to deal with the application to appoint Mr Faulkner.
For completeness we note however that Mr Faulkner is not a lawyer and the principles articulated by this Court in Commissioner of Police v Aarts weigh heavily against the appointment of Mr Faulkner.[2]

Result

[2]Commissioner of Police v Aarts [2015] NZCA 385 at [23].

The application to extend time to comply with r 43 of the Rules is declined.
The application to appoint Mr Faulkner as agent of the appellant is declined.

Solicitors:
Henderson Reeves, Whangarei for Respondent.

In the Court of Appeal of New Zealand, the case of Pihema v South Pacific Forestry Holdings Ltd involved a dispute between Marae Pihema and Robert Pihema, who were seeking to appeal a judgment against them, and South Pacific Forestry Holdings Ltd, the respondent. The appeal stemmed from a summary judgment granted by Associate Judge Gardiner, which ordered Marae Pihema to vacate a property located at 438 Mangamuka Road, Mangamuka, and directed the respondent to take possession of Marae Pihema’s belongings if she did not comply within five working days. The property was subsequently sold by the respondent to a third party. Marae Pihema filed a notice of appeal without paying the required fee and failed to meet the deadlines set by the Court, resulting in the abandonment of the appeal.

The primary legal issues before the Court of Appeal were whether to grant an extension of time to Marae Pihema to comply with Rule 43 of the Court of Appeal (Civil) Rules 2005 and whether to appoint Mr Faulkner as her agent. The Court considered the principles outlined in Almond v Read regarding the extension of time, including the length of the delay, reasons for the delay, conduct of the parties, prejudice to the respondent, and the significance of the issues raised. The Court also evaluated the merits of the appeal and whether it had a reasonable prospect of success.

The Court of Appeal found that Marae Pihema had not made tangible progress with her appeal, and the delay was significant. The reasons for the delay, such as her belongings being in storage and insufficient time to consult with counsel, did not justify an extension of time. Marae Pihema's conduct in missing deadlines and failing to consult with the respondent's counsel further supported the denial of the extension. The Court also noted that the appeal did not raise significant legal issues and had no reasonable prospect of success, particularly given the principle of indefeasibility of title and the respondent's ownership of the land. Therefore, the Court declined both applications, emphasizing the need for timely and proper prosecution of appeals.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established