This post explains the New Zealand law in relation to abandonment as best as I can establish. It relates to a scrap between a local builder Josh Hawkless and myself. Basically a new tenant next door gave the disputed scrap steel to me when he moved in. He wanted the section cleared and I asked him for it. I thought that Josh had abandoned it but four months later Josh turned up and said, “That’s mine and I’m going to take it – now!” which if you know me, went down like a ton of lead bricks. Yours truly said, “Yeah, Nah!” A ‘crooked’ cop then got involved, hooked the gear out while I wasn’t there and the rest is history. Enjoy!
The matters got a little crazy with the local cops getting involved, acting in bad faith, breaking in while I wasn’t there and securing the disputed goods by way of a ‘dodgy’ Search Warrant – obviously done for their mate. All pretty marginal stuff if you ask me but hey, I’m not a lawyer, I’m just a dude with an opinion!
I’ve shared this previously and how this dispute will go to both civil and criminal courts for resolution. Josh doesn’t want to talk about it man-to-man. That’s what spoiled little rich kids do of course. Run and hide and stomp their feet and cry to their daddy for help rather than to man-up. Josh is one of those, apparently!
In 2019, Josh Hawkless entered into a contract with Colliers International to demolish a neighbouring building. He was paid and upon completion of the contract had apparently abandoned any interest in all the remaining goods. They were picked over, for a while then stayed there for more than a year. I still asked Josh for his permission to remove the scrap steel (which was denied and his wishes respected).
When the new tenant took possession of the property though, I assumed that the rights to any remaining goods (like the scrap steel) had reverted to the new lessee. I wasn’t party to the new lease – I’m just a neighbour – but the new lessee also assumed that he had inherited a legitimate interest in the scrap steel as it fell upon him to dispose of the goods. So two people therefore, independently determined that the goods had been abandoned and that title to the goods vested in the new tenant when he took over the lease. Reasonable? I would think so!
Anyway, a court will eventually determine who legitimately owns the steel and the adjudicator will need to determine on the facts and the law who owns the disputed goods. They will also need to determine what the value of the goods are.
Time periods and intentions are important with abandonment.
Abandonment usually requires a specific act of abandonment to occur, such as dumping, or actively relinquishing an interest or right to something or a title or similar. You can’t for example just take a Mercedes with a flat tyre or even if it is involved in an accident from the side of the road and say, “It’s mine!” just because its owner went away from it. If he said though, “OK you can have it if you pick up the pieces!” then sure, that is an intent of abandonment.
Long timeframes though can also cause abandonment to occur. If a gazillion years passes and the original owner doesn’t care about something then the courts can determine that abandonment has occurred. Timeframe alone though does not determine whether something is legally abandoned. The courts seem to respect title even if time has passed. Civil and Criminal cases too have a marked difference in approach as civil deals with the law in regards to title – who ACTUALLY owns the disputed goods. Criminal law however defines claim of right (it used to be called, “colour of right”) as the BELIEF that abandonment has occurred or that one has a right to take, own or control something.
In my case the law is not clear as to what the requirements are in terms of abandoned property. I knew that the disputed steel was originally his. That’s why I never touched it when he said, no and sold it off to others. What was left however appeared to us for all intents and purposes to be abandoned. The Property Law Act deals with this by assuming that anything of value left behind by previous occupiers is put into storage and that storage fees are deducted from the sale price when it is then sold – usually by auction. The new tenant has the right of course (unless he has agreed specifically with the landlord otherwise) to dispose of anything deemed rubbish or of no commercial value.
In my case the new tenant was happy for me to take the scrap steel because he wanted it gone and didn’t see much commercial value to it. He did the deal of course because it was in his interest to do so. If he gave it to me then he didn’t need to take it to a scrap merchant. I had asked for it, he wanted to remain on good terms with his neighbours and all he had to do was open the gate and let me clear it out for him which I eventually did!
That Josh wanted to and did come back for it caught us all by surprise. My guess is that Josh found out that there was a new tenant some four months after he moved in and then swung by to pick it up, only to find that it was already gone. In fact I know that to be the case because the attending cop (CC1) told me that neither the landlord nor the new tenant even knew what was happening down there until Josh started the sh*t-stirring! He also made comment that only I seemed to know WTF was going on down here! Funny that eh?
Items can change value over time too. In a 1958 case quoting an older 1936 case which is used as an example in case law, a judge ruled that some hypothetical valuable mining equipment in a difficult place to extract was worthless at one time, yet later may become valuable if it could be used, repurposed or accessed for example. It is not then reasonable that the original owner can come back and say, “Oy – that’s mine!”
There may be machinery used for goldmining which is often of great value, but in a site difficult to access and so not worth the trouble of getting it out from that position. If that property were abandoned and some years later someone seeing that it was derelict found a use for it on a handy site it would seem unjust and unnecessary that the Official Assignee should have the right to be entitled to claim the property from the man who found it abandoned.Butler v Harrison 1958 quoting Mayal v Galbraith 1936
So, in order to have a civil court determine the correct ownership of the scrap steel I will need to present my case, Josh will present his case, the adjudicator will apply the law to the best of their ability and that’s that. Josh will either need to return the scrap steel (or pay me whatever the adjudicator determines is fair if that is not possible) or else I lose and Josh and I go our merry ways – he with ‘his’ scrap steel and me with another lesson in life!
And in order to prove the case in a criminal court, the Prosecution will need to show a truckload of bad intent on my part, for example that I didn’t believe that the new tenant could give it to me, that I deceived him in some way or whatever . . . have at it guys, if that’s what you really want!
Obtaining by Deception
The specific crime I have been charged with is s240 (1)(a):
240 Obtaining by deception or causing loss by deception
(1) Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—
(a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly;
In order to convict me the Prosecution will have to present their case that I
a) obtained property,
b) by deception, and
c) that I did it without claim of right.
The two important definitions are:
(2) In this section, deception means—
(a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—
(i) knows that it is false in a material particular; or
(ii) is reckless as to whether it is false in a material particular;https://www.legislation.govt.nz/act/public/1961/0043/latest/whole.html#DLM330275
claim of right, in relation to any act, means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committedhttps://www.legislation.govt.nz/act/public/1961/0043/latest/whole.html#DLM327394
Questions for the Jury
Assuming that these ‘crooked cops’ push through with this dodgy case, on the charge of Obtaining by Deception s240 of the Crimes Act, I consider the following question tree to be likely. The judge should set something like this for them to work through:
1. What were the goods the Prosecution claimed that I obtained?
→ If they are identified and quantified, then the jury should proceed. If they are unidentified or unquantified then the jury should clarify this because you cannot find somebody guilty of doing something generally – you gotta be specific. Imagine the trauma this could cause if someone ever said, “Oh I know he’s a criminal because he’s just an opinionated investigative blogger who wrote something nasty about my friend online!” Humpf! As the cops still haven’t told me what they took (naughty, naughty) and they haven’t told me the details of the charges (funny that eh?) who knows what this will all end up like. I continue . . .
2. Did I obtain the goods claimed? → If Yes, then the jury should proceed. If No, then the jury should find “Not Guilty”. Until I get more information I can’t be specific here.
3. What was the value of the goods taken – up to $500; up to $1,000; over $1,000? → If it is found to be worth over $1,000 then the jury should proceed. If not then the jury should adjust the charge accordingly. Over $1k has a maximum penalty of 7 years in jail. Precedent sets under two years imprisonment (i.e. home detention) for this sort of low-value crime. Until I know what the Prosecution claim though I’m in the dark.
4. Was there deception (as defined in the Act above)? → If Yes, then the jury should proceed. If No, then the jury should find “Not Guilty”. Obviously as one who has preached the foolishness of deception for years, I gotta be a pretty crazy hypocrite or this one has gotta be BS!
5. Did I have claim of right (as defined in the Act above)? → If No, then the jury should find “Guilty”. If Yes then the jury should find “Not Guilty”. Yeah right!
No prizes for guessing what my thinking is on all the above lunacy!
I think that Josh Hawkless is an immature, greedy little ‘daddy’s boy’ who seems to think that the world owes him everything. [Golly, did I really say that? . . . I guess I just did!]
He drove by the neighbours place and saw that a new tenant had taken over the vacant land next door to me, and probably thought to himself, “Oh, shit! I better get that scrap steel out of there while I can!” and then sold it, sight unseen, not knowing that it had already gone. He and another dude came down to suss it out the morning that they were intending to hook it out but they found a whole bunch of firewood there where he had left all the scrap steel. He then drove away then wondered if I had taken it, so he returned to my place and found it.
He was under pressure because he had sold it so he demanded that I return it and called the Police on 111 in my presence on my land as a threat. The Police are most likely to have told him on that phone call to get off my property which he did but he parked his car deliberately in a way that I could not shut my gate. He also tried to escape from the Police station later that day without speaking to me because he knew that the Police were intending to press charges as a result of his insistence. That’s why he exited the cop shop at the rear!
Josh turned up with the Police later and took a bunch of stuff that he claimed was his, both he and the cops knowing full well that the ownership was disputed and that the dispute was already before the civil court. I think that he did this because he had sold the scrap steel and he most likely will have a big problem if the civil court determines that he should return it to me.
I think that both Josh Hawkless and Samuel Edwards from the Taumarunui Police are crooked and conspired to pre-empt the civil court hearing and have proven bad faith conduct in more than one way.
I finish this ‘rant’ with a copy of an email sent to Josh last week inviting him to resolve this dispute in a godly or Christian (or even just an honest manner would do me) and then I give a personal warning. As with all crooks, crims and crazies that I expose, they run and hide and deceive. Josh, you’re a fraud and an utter disgrace and if I was your wife or parent or anyone one close to you I’d be telling you to hang your head in shame. Any time I look at you, know full well that these sentiments are all true.
Email to Josh Hawkless
SUBJECT: Disputed goods
Wed, 28 Jul, 18:09
Dennis A Smith <firstname.lastname@example.org>
On Friday morning 16/7/2021 you visited first Kevin’s and then my lands claiming ownership of left over scrap steel from the demolition job, undertaken in December 2019.
You told me that you were going to take it that morning because you had sold it and you had a forklift coming to get it that morning. I resisted your demands, claimed that the steel was mine and invited you to return to talk about it when you had calmed down. In reply you twisted reality and said that you were not angry but that it was me inflaming the situation i.e. making the situation worse [by refusing to give in to your demands]. I recognised my rights, said “No!” then told you that I did not want a fight with you and invited you to return at another time. That sir, is godly conduct in a commercial conflict situation.
You gave me two options – acquiesce to your demands or face the alternative which you showed me when you then called the Police on 111 and moved your vehicle off my property although parked in a way that I could not close my gate. You refused to move it so that I could close it, three times pretending to walk away from me that you had not heard me. Both officers observed this interaction. You are therefore IMHO a bully and dishonest.
Despite my repeated claims that this was a civil dispute and that they should butt out of the matter, Sam from the Police informed me that they believed that a burglary had occurred; then when I proved that to be false, he claimed that that theft has occurred and that it was their intention to charge me with theft. I then initiated a civil case (CIV 2021-068-000032) which is IMHO the correct legal process for resolving civil disputes if it is not possible for two parties to resolve the matters themselves. Christians are encouraged to resolve their matters “in-house” but it appears to me that this is not your priority. I blame you and your conduct in its entirety for this disgrace. I was minding my own business. You can into my land and my life uninvited on Friday and created a scene.
That we are in a dispute situation is due, IMHO to your failure to understand reality, both morally, spiritually and legally which I will try to explain here, hopefully you or Leticia will listen-up and get it.
- I am a man of God. I might be a prickly rooster but when I told you that I didn’t want to fight with you, I meant it. I say what I mean and mean what I say. If at any time during this dispute process you wish to let go, get real and apologise I will respond openly and honestly. You might not get exactly what you want but at least you know that you will be dealing with an aspect of godliness – a dude who shoots straight.
- I have never and will never lie to you nor steal anything from you. In this regard I will remind you that you offered to pay me to help you demolish the place next door but I refused, instead taking only what you didn’t want which included a pair of unwanted workboots so that I could retire my “Samoan safety boots” and comply with OSH regulations for you. I was very careful to honour your wishes and as far as I knew nothing, I repeat nothing, went from one section to the other without your prior knowledge and/or approval. Nothing. Anything disputed or where you changed your mind (which you did do more than once) was returned or sorted to your satisfaction without quibble. In my book you have nothing “on me” over the business that we did over those few weeks. I provided security for you, honoured you and never did anything to hurt you nor your interests – indeed to the contrary.
- We never had any disagreement and you received commercial value for our engagement. How much that is, or even whether that can be or should be measured in monetary concerns is not and has never been of any interest to me. You were a neighbour and I could help so I did, no money changed hands. The deal was done and I fully honoured all my commitments to you.
- During the year following I asked you three times for the remaining steel, and in one instance even one specific small part of it. Three times you refused me, giving me variants on the same story that you had given or sold it to a farmer who wanted it for building a barn. I understood from you that he had taken what he wanted and thus the remaining leftovers had no commercial value to you but you still did not want to give them to me. Unless it relates to gossip received from Laurie Bull or anyone associated with him I do not care why you wanted to keep it from my ownership or possession.
- You told me that the fact that I asked you three times is an indication that I acknowledged that you owned the steel and this is true, but remember this works two ways, it is also evidence that three times I respected your ownership!
- From December 2019 until April 2021 I honoured your request totally. I did not even walk up to the steel, let alone touch any of it. Even though I had to buy new steel more than equal to what was just sitting there I never complained nor disrespected your wishes. I had asked you. You said, “No!” so that was it. I was, but am no longer a thief and consciously stopped stealing 33 years ago.
- You are correct when you say that this proves that I knew the steel was yours. I did and still do think that the steel was yours, up until March 2021 that is.
- In early march 2021 I was chatting to the new tenant Kevin who had introduced himself to me. I told him about you and that you had the PIN numbers to the padlocks, and I gave him the story about the history of the steel and he is the only one who I have told, using the exact words, “Three times”. He told me that he would phone you for access codes and in that first conversation with him I asked him for the steel and pleaded with him to leave the old oak tree as he had told me that it was his intention to cut it down and turn it into firewood.
- Kevin agreed and gave me access to take the steel some three or four weeks after this date.
- I used my forklift to take it all off his property, piece by piece in early April the same day that he unlocked the gate for me.
- S219 of the Crimes act requires that deception or dishonesty exists before a crime occurs. In legal terms this is known as “mens rea“, Latin for a “guilty mind”, thus no mens rea exists in relation to “your steel”. I have blogged about this recently.
- I believe and believed that both in March 2021 when he authorised the collection of your old steel from his property AND in April 2021 when he opened the gate so that I could move it, that both he and I acted legally and morally correctly. At that point he had legal title to anything left behind on the property and thus title to those goods transferred to him when he took over title of the land. At that point you abandoned those goods to him. You cannot morally nor legally come back onto land and claim legal right to something four months after the new tenant has disposed of them, sorry. What would you have done if he had sold them for scrap, and they were out of Taumarunui? Sued him? Called the cops on him?
- The law gives guidelines for the treatment of abandoned goods in the event of leases but you never leased land from Colliers or Linz. Kevin has/did. Under the PLA, basically with abandoned goods, a new tenant can do anything reasonable in the circumstances – either store the goods, dispose of them by way of sale or discard them. Special rules apply to perishables and any overtly malicious action could become questionable and cost recovery is also an option.
- Did you get confirmation from the new lessee that the left over steel was yours and offer to pay him to store it there? No you didn’t, and the truth will become known eventually to those who want to know it.
- Are you aware of the situation that you have created now between two neighbours down here with your insistence that you own that steel? Have you even thought of the stress and pain you have created for Kevin? WTF was he to do with something you left behind? All he wanted to do was to be friends with his neighbours, and clear his land not get one of them arrested and potentially putting himself in the gun too?
- IMHO in the matter of “your steel” I believe that Kevin’s decision to gift the steel to me was perfectly reasonable given the circumstances:
a) He had legitimate title to the land;
b) He knew the history of the scrap steel from talking to me;
c) He had spoken to you by phone to get the access codes and you had not mentioned it to him;
d) I asked for it and obviously would use it:
e) It had low, or certainly questionable commercial value;
f) I had offered to remove it for him at no cost from a property that he was in the process of clearing for its new use. This presented him with a pragmatic solution by solving his immediate problem AND keeping a good relationship with his neighbour; and
g) He has no agreement with his landlord to hold or protect your interests in any ‘abandoned’ steel.
- This analysis of events makes even more sense when it is done at the end of July 2021, 20 months after your demolition contract was finished when you came onto my property and claimed colour of right!
- You may or may not like hearing this Josh, and I don’t care what BS you have heard about me by way of gossip around town nor why you felt like you could come in here and try to muscle your ownership of some scrap steel you left behind for nigh on two years but unless the adjudicator finds to the contrary I believe that you were wrong to do what you did legally – most certainly morally too.
- You have now caused me gross offence and it is you who have directly caused difficulties for others with your actions.
- Specifically you have potentially caused me difficulties in renewing my lease with Colliers in Wellington with your contacting them and securing their verification that you own the steel. It’s none of their business! Even simply asking them for proof that it was yours has created a perception that I am trouble. That’s not fair, especially in the circumstances, and if there is any adverse consequence as a result of your unwise actions then I will hold you personally accountable. Think VERY carefully Josh about this. Club Wairua has two and a half acres in Matapuna and I have invested into the buildings substantially for more than a couple of years now. If this issue is not resolved to my satisfaction and if any future adversity can be tracked back to any Collier’s bad attitude towards me as a result of your words or actions, then expect me to knock on your door and hold you personally liable.
- Specifically you have laid a complaint to the Police via a 111 call when standing in front of me on my property when there was no danger to life or property. This is not the mark of good-faith conduct Josh. It is the mark of a spoiled little brat that didn’t get his way and attempted to tell on another to the authorities to either get back at someone who has embarrassed you and or refused you to get what you want. It is not your right Josh to store stuff on other people’s land then to complain about a neighbour whom the stuff has been given to yonks ago. Yes, you owned those goods right up until the day that Kevin signed his lease and/or took possession legally but you have no rights to those goods now, Josh – none! I know that. Kevin knew that perfectly well and Sam should have known it too from the outset if he had an open mind. Whatever. The pending civil case will sort it out if you don’t do so before the hearing.
- Your collection of goods that you claim that you own has also been aggressive and immoral, possibly illegal in the circumstances. Prepare for an escalation of these matters.
- Your words and actions have also caused pressure to be applied onto the Police so that their conduct in forcing the issue has raised questions of trust for more than just me. Be prepared to take the consequences of full exposure Josh.
- On 18 July 2021 I paid $45.00 to obtain adjudication once and for all over who owns this steel. I have told the Police more than once in writing and verbally that this is a civil matter and I have explained why it is. Lodging a civil case like this and informing the Police before their charging mew shows bad faith conduct and especially so if the adjudicator says that Kevin and I did the honourable and legal thing, which is what I expect.
- You should also know by now that I am a … Private Investigative Blogger and Author, fearless to speak it as I find it. If you fail to respond to this communication constructively or if you persist in causing me or those associated with me (like Colliers or Kevin) or indeed anyone in the Taumarunui/King Country region (especially those in the Christian community) any more difficulty then you should expect to receive a reaction in defence.
- The correct way to dealing with a wrong is to face up to the one who is challenging you man-to-man. I ask you why you can not do this, and why you wish to avoid me now. What are you going to do when I arrive in your church, sit beside you and your family, lift my hands and start praising Jesus for His goodness and love towards us all? What do you expect Leticia to say or do to me when I meet her in the street? Snub me or argue with me like you have? What do you want me to tell my grandkids about you when they start playing with your kids when they visit Taumarunui? How do you want me to talk about you to others in your church – that you’re acting like a spoilt little daddy’s boy who stomps his feet and says, it’s mine? To your parents? To strangers in the street?
- Sin takes us further. lasts longer and costs a lot more than we ever think possible when we engage it. Your mistake was first to demand the steel when I said, “No!” and it was made worse when you phoned 111 from my property, then parking your car off my property then in a way that I cannot close the gate and pretending not to hear my request for you to move it. Brudda, this is a far cry from godly conduct. Trust me, if you don’t repent and turn away from this stupidity your pride will only take you down and down and down . . . to death.
- Own it Josh, or the escalation will cost us all dearly.
Now let me ask you, my readers, “How would you respond to receiving something like this?”
I’d be livid. I’d be seething with rage that somebody would dare to preach at me like this and to try to call me out like this. I mean FFS calling me a spoiled little brat? How can this dude even think of calling me that? Then I would sleep on it and wonder why my wife was up all night, praying for me, and why she had tears in her eyes, and why she was fearful of talking to me the next morning.
And then, depending on how much I trusted her judgment and how close I was to her, I might dare to ask her what she really thought. And if she was a good girl and knew what I was saying was right and that her husband was indeed all that I claimed, and probably more, I’d do the honourable thing, fess up and apologize.
In Samoa I watched as the people around me attempted to rip me off, steal from me and cause me a whole bunch of trouble needlessly, but I also observed the hand of the Lord, reaching out and touching me and people around me and encouraging them to do the honourable thing. I also watched at the impact of my words, and actions, sometimes even just my presence as people, even animals, were dealt to lovingly by Him.
Yes, more than once I had people coming to me shocked that unexplained death occurred in families who had crossed me. One family from Savaii I clearly recall did something bad and their Matai and his grandson both died on the same day in the same hospital less than a month later. The locals know that they did wrong by me and they believe that this was God’s punishment on that family. I don’t know but I do remember pointing my finger at this dude’s nose and telling him off, so it could have easily had the same effect as a witch-doctor pointing a bone at some poor villager. I now don’t have that man as a father in law and that family has lost way more than opportunity and a couple of males.
I’ve watched dogs run and charge at me only to turn into ‘friendly angels’ who licked my hands in the space of only seconds as they got closer, and situations in numbers beyond recall where the people watched miracles around me as I did things or said things that they expected war or death to result from, but it didn’t. Likewise it is no surprise to me that crooks like their then Prime Minister came down somewhat as a direct result of what I have said.
Look, it is not that I can control God, or that I want to or can put people to death nor is it that I’m better than everyone else. It is that (as I have tried to explain to this young man above) I shoot straight – always and if you’re going to cross me, rip me off or do ill to me, expect a reaction – from me and also the Lord who always protects his own.
Is the hair on the back of your neck still up a little? It should be if it isn’t. Thanks for reading this today though.