High Court returns conveyance licence

The High Court at Auckland has upheld the right of conveyancer Lester Dempster to act as a landbroker in the South Island, overturning action by Government officials.

Dempster, a maverick in the land conveyancing sector, took a case against Registrar-General of Land Robbie Muir, Governor-General Dame Silvia Cartwright, Land Information Minister Pete Hodgson and the Law Society over his right to practise in Oamaru and Alexandra.

Dempster defended himself in the case, working with Bruce Stewart, QC, who was appointed by the court as "amicus curiae" (friend of the court) to assist in the legal process.

This is the third time Dempster has lost his licence in 12 years and he estimated he had been in the High Court 30 times defending himself from various actions by law societies and the Registrar-General of Land.

"It seems to be a bit of a yo-yo licence," Dempster said.

On June 8, Muir used his statutory powers to revoke Dempster's licence.

Although those actions were sparked by complaints about Dempster's South Island involvement, it meant he could not carry out conveyancing transactions anywhere in New Zealand.

But Justice John Fogarty found in favour of Dempster and reinstated his licence, saying he found the use of the phone, email and the internet enabled him to supervise the South Island operations.

The case stemmed from a complaint made by the Otago District Law Society in November last year. It alleged Dempster was using Cullen Conveyancing of Oamaru as a device to practise conveyancing, without adequately supervising that firm. He was based in Auckland and held only a 1 per cent shareholding in Cullen, promoted as the first non-lawyer conveyancing firm in the South Island.

The society also complained about Dempster's involvement with Central Conveyancing of Alexandra. The NZ Law Society submitted in court that Dempster's firm could not be trusted to responsibly settle conveyancing transactions and cited a South Island case as an example.

Advice from the Crown Law Office determined Dempster's actions were serious enough to justify taking away his licence on the basis of malfeasance. But the meaning of malfeasance was questioned in the case because the term was not defined in the Land Transfer Act.

Justice Fogarty said it was "extremely difficult" to characterise Dempster's South Island landbroking as malfeasance. He found Muir was wrong to recommend to Hodgson that Dempster's licence be revoked on the basis of malfeasance.

But he dismissed Dempster's complaints against Muir for bias, conspiracy and damages and said there was no evidence of any conspiracy with the NZ Law Society or of bad faith or malicious conduct, which could form the basis of a claim for damages.

Justice Fogarty praised Stewart's assistance, saying he had accepted a rate of pay far below that paid by private clients and had acted "in the best traditions of the profession".

After the ruling, Muir said the issue highlighted some of the difficulties with the outdated and now repealed landbroker licensing regime.

"The High Court decision provides some useful guidance on the meaning of the term malfeasance in this context," Muir said. "This is helpful as the term is not defined in the Land Transfer Act, and there is no other New Zealand case law on this point.

"The effect of the decision is to restore his licence and, as directed by the court, I will now continue to examine the merits of the complaints I have received about the South Island conveyancing operations. It is worth noting that the High Court found no substance in Mr Dempster's claims of bias and conspiracy."