Andreassend v Liang
[2021] NZHC 337
•2 March 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2018-404-002469
[2021] NZHC 337
IN THE MATTER A claim pursuant to a Reasonable Expectations Constructive Trust BETWEEN
JAMES DAVID ANDREASSEND
Plaintiff
AND
HONG LIANG
First Defendant
AND
DING NI LAN, JI BO LIANG and HONG
LIANG as Trustees of a discretionary family trust call the HONG EDUCATIONAL
TRUST
Second DefendantsAND
DIAN MOY LAM
Third Defendant
Hearing: 1 March 2021 Appearances:
J E M Connell for First Defendant
G Kohler QC & T Nelson for Second and Third Defendants
Judgment:
2 March 2021
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 2 March 2021 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Connell and Connell, Auckland Shortland Chambers, Auckland Copy to:
Plaintiff
ANDREASSEND v LIANG [2021] NZHC 337 [2 March 2021]
[1] When this proceeding was called at 10 am on 1 March 2020, there was no appearance by the plaintiff, James David Andreassend.
[2] Because Auckland was in Level 3 lockdown for COVID-19 reasons, the Registrar attempted to contact Mr Andreassend by telephone when the hearing was called. That effort was unsuccessful.
[3] Since late November 2020, Mr Andreassend has failed to comply with Court orders and has failed to contact or to respond to telephone calls and emails from the Court and from counsel for the defendants.
[4] On the application of the defendants, and in accordance with r 10.8 of the High Court Rules 2016, I ordered judgment dismissing the proceeding. I also ordered costs in favour of the defendants on a 2B basis.
[5] This judgment records that decision and sets out the factual basis of the decision.
Summary history of proceeding
[6] Mr Andreassend filed his first statement of claim in this proceeding in November 2018. He claimed a remedial constructive trust in his favour in relation to certain property based on his de facto relationship with the defendant, Hong Liang.
[7] For the most part, Mr Andreassend has represented himself in the proceeding, although he was assisted by counsel for a time.
[8] The second defendants are the first defendant’s parents and the first defendant in their capacities as trustees of the Hong Educational Trust which, among other things, is the legal owner of a property at 123 Bassett Road, Auckland.
[9] The third defendant is the aunt of the first defendant and is said to be the account holder of bank accounts which hold funds claimed by Mr Andreassend.
[10] The defendants have filed statements of defence denying Mr Andreassend’s claims.
Related proceedings
[11] This proceeding is the third of three proceedings brought by Mr Andreassend following the break-up of his relationship with the first defendant. Previously, Mr Andreassend filed two separate proceedings in the Family Court under the Family Proceedings Act 1980 and under the Property (Relationships) Act 1976. In December 2018, those proceedings were transferred to the High Court. They were subsequently allocated Court File numbers CIV-2019-404-2677 (the Family Proceedings Act claim) and CIV-2019-404-2678 (the Property (Relationships) Act claim).
[12] By minute dated 17 April 2019, Associate Judge Smith ordered that the three proceedings be case-managed together.1
Case-management of the three proceedings
[13] During subsequent case-management, the proceedings have been subject to a succession of orders as Associate Judges have endeavoured to ensure that the proceedings were brought on for hearing.
[14] By minute dated 27 November 2019, Associate Judge Sargisson, by consent, allocated a four-day trial commencing at 10 am on 1 March 2021 for all three proceedings that remained at that date.2 The Associate Judge also made pre-trial directions which included that the close of pleadings date for all proceedings was 30 June 2020 and made timetable orders for the filing of evidence, documents, chronologies and submissions.3
[15] By minute dated 23 December 2019, Associate Judge Sargisson recorded that the Family Proceedings Act claim was stale and declined to make further directions in
1 Andreassend v Liang HC Auckland CIV-2018-404-002469, 17 April 2019 (Minute of Smith AJ) at [12].
2 Andreassend v Liang HC Auckland CIV-2018-494-002469, 27 November 2019 (Minute of Sargisson AJ) at [12].
3 At [13].
respect of that proceeding.4 The Associate Judge also declined to make directions on Mr Andreassend’s application to consolidate the present proceeding and the Property (Relationships) Act proceeding but left open the question of consolidation.5
[16] By judgment dated 23 July 2020, Associate Judge Sargisson declined an application by the second and third defendants for orders dismissing Mr Andreassend’s claim against them in the present proceeding.6 The Associate Judge also made various orders including that Mr Andreassend:7
(a)File and serve an amended statement of claim in the present proceeding by 18 September 2019;
(b)Set out briefly in the statement of claim whether his constructive trust claim and his Property (Relationships) Act claim were brought as alternatives in the present proceeding or whether they were concurrent claims in separate proceedings.
[17] On 18 September 2020, Mr Andreassend filed a draft amended statement of claim dated 17 September 2020. Although it comprised 52 pages, the draft was incomplete and did not plead specific causes of action or specify the relief sought. However, the introductory section of the draft amended statement of claim stated that the claim was brought by way of sham or alternatively an institutional or remedial constructive trust in reliance on the decision of the Court of Appeal in Lankow v Rose.8
[18] In a minute dated 25 September 2020, Associate Judge Bell noted that there had been a lengthy procedural history to the matter and that there were significant problems with Mr Andreassend’s draft amended statement of claim.9 The Associate Judge recorded that, having heard Mr Andreassend that day, it was clear to him that Mr Andreassend was procedurally incompetent in the practices and processes of this
4 Andreassend v Liang HC Auckland CIV-2018-494-002469, 23 December 2019 (Minute of Sargisson AJ) at [4].
5 At [6] and [12].
6 Andreassend v Liang [2020] NZHC 1781.
7 At [77](a) and (c).
8 Lankowe v Rose [1995] 1 NZLR 277 (CA).
9 Andreassend v Liang HC Auckland CIV-2018-494-002469, 25 September 2020 (Minute of Bell AJ) at [5].
Court.10 The Associate Judge also recorded that there was a risk of injustice because, even if Mr Andreassend had a good case on the merits, he was likely to founder procedurally and miss out if left to run the case by himself.11 Associate Judge Bell directed that Mr Andreassend file and serve his evidence in support of his claim by 16 October 2020 and directed an issues conference on 22 October 2020 to assess Mr Andreassend’s statement of claim in the light of his evidence.12
[19] On 21 October 2020, Mr Andreassend filed an affidavit sworn and dated that day. An unsworn copy of the affidavit was served on the defendants. The exhibits were not provided except for some included on a USB stick.
[20] Subsequently, Mr Andreassend filed and served a USB stick with further documents and cross references to many other files and documents.
Case management leading to hearing
[21] In a minute dated 28 October 2020, Associate Judge Bell set out nine causes of action based on Mr Andreassend’s draft amended statement of claim and affidavit.13 Three claims were based in the Property (Relationships) Act. Two claims were based on constructive trusts. The Associate Judge also made various timetable directions.14
[22] In a minute dated 13 November 2020, Associate Judge Bell gave leave to Mr Andreassend to run additional claims that had not been previously identified but declined leave to pursue other claims.15 The Associate Judge also declined Mr Andreassend’s application that the defendants be required to make further disclosure,16 and made further timetable directions, including that Mr Andreassend:17
(a)File and serve his evidence by 20 November 2020;
10 At [6].
11 At [6]–[7].
12 At [10]–[11].
13 Andreassend v Liang HC Auckland CIV-2018-494-002469, 28 October 2020 (Minute of Bell AJ) at [5]–[15].
14 At [17]–[18].
15 Andreassend v Liang HC Auckland CIV-2018-494-002469, 13 November 2020 (Minute of Bell AJ) at [3]–[15].
16 At [19].
17 At [21]–[27].
(b)Set out in those affidavits all matters which he would wish to prove in support of all of his causes of action;
(c)Provide exhibits to his affidavit in hard copy and on a USB stick;
(d)File and serve a chronology by 20 November 2020;
(e)File and serve his evidence in reply by 29 January 2021; and
(f)File and serve his opening by 3 February 2021.
[23] The Associate Judge also made timetable directions for the defendants to file and serve evidence and a chronology and directed each party to provide their own bundle of documents.18
[24] By minute dated 25 November 2020, Associate Judge Bell declined an application by Mr Andreassend to review the directions in his minute of 13 November 2020.19 The Associate Judge also noted that Mr Andreassend had not filed any further evidence or filed a chronology as required in the directions made in the minute of 13 November 2020.20 The Associate Judge cautioned Mr Andreassend that failure to follow the Court’s directions could result in orders being made against him.21
Mr Andreassend ceases contact with the Court and the defendants
[25] Since Associate Judge Bell’s minute of 25 November 2020, neither the Court nor the defendants have heard further from Mr Andreassend.
[26] In terms of the directions in Associate Judge Bell’s minute of 13 November 2020, Mr Andreassend did not:
(a)File any further evidence;
18 Ibid.
19 Andreassend v Liang HC Auckland CIV-2018-494-002469, 25 November 2020 (Minute of Sargisson AJ) at [4].
20 At [1].
21 At [5].
(b)Provide hard copies of the exhibits to his affidavit of 21 October 2020;
(c)File and serve a chronology;
(d)File and serve any evidence in reply;
(e)File and serve an opening.
[27] In the meantime, the defendants filed and served their evidence, chronology and bundles of documents largely in accordance with the directions in Associate Judge Bell’s minute of 13 November 2020. The defendants did not receive any response from Mr Andreassend and were unable to contact him.
Non-appearance at Duty Judge call, telephone conference and hearing
[28] When Mr Andreassend did not appear at the pre-hearing call at the Duty Judge List on 22 February 2021, Fitzgerald J directed that a telephone conference be held before the Judge assigned to hear the proceeding for the purpose of assessing whether there was a realistic basis on which the hearing could proceed on 1 March 2021.22
[29] Mr Andreassend did not appear at the telephone conference held before me on 24 February 2021. In my minute of that date, I directed that the hearing should proceed on 1 March 2021 as set down.23 I also recorded that if Mr Andreassend did not appear, the defendants would be entitled to apply under r 10.8 of the High Court Rules for judgment dismissing the proceeding.24 A copy of this minute was sent to Mr Andreassend’s only known email address. Efforts to contact Mr Andreassend at his only known telephone number were also unsuccessful.
[30] As already noted, Mr Andreassend did not appear at the hearing on 1 March 2021.
22 Andreassend v Liang HC Auckland CIV-2018-494-002469, 22 February 2021 (Minute of Fitzgerald J) at [4]–[5].
23 Andreassend v Liang HC Auckland CIV-2018-494-002469, 24 February 2021 (Minute of van Bohemen J) at [6].
24 At [4].
Discussion
[31] Mr Andreassend has been extended considerable leniency and assistance by the Court as he has advanced his claims, even to the point of an Associate Judge reformulating his claims for him. Despite that leniency and assistance, Mr Andreassend has failed to comply with the Court’s orders and has failed to appear at the hearing of his claims on 1 March 2021.
[32] In the meantime, the defendants have been put to considerable expense and anxiety in defending claims that they have denied throughout this proceeding and in the related proceedings.
[33] The hearing date has been known for over a year, having been set down by Associate Judge Sargisson on 27 November 2019.
[34] In these circumstances, I am satisfied it was in the interests of justice to give judgment dismissing the proceeding, and to order costs on a 2B basis in favour of the defendants.
Decision also applies to related proceedings
[35] Lest there be any doubt, this decision also applies to the Family Proceedings Act claim (CIV-2019-404-2677) and to the Property (Relationships) Act claim (CIV- 2019-404-2678), which were set down to be heard at the same time and in relation to which Mr Andreassend has taken no separate steps.
G J van Bohemen J
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