ANZ National Bank Limited v Burnside HC Dunedin CIV 2011-412-000452
[2011] NZHC 1651
•16 November 2011
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV 2011-412-000452
BETWEEN ANZ NATIONAL BANK LIMITED Applicant
ANDDELLENE JANETTE BURNSIDE First Claimant
ANDKELVIN ROBERT HAY Second Claimant
ANDTREVOR DAVID HAY Third Claimant
ANDDELLENE JANETTE BURNSIDE (AS EXECUTRIX IN THE ESTATE OF MERVYN CHARLES HAY)
Fourth Claimant
Hearing: (On the Papers) Judgment: 16 November 2011
JUDGMENT (1) OF FOGARTY J
[1] On 3 November counsel for the applicant, the first, second and fourth claimants, applied to be relieved from a hearing on this matter and for the issues to be decided on the papers. I apprehended from the memorandum that Mr Trevor Hay had been given every opportunity to participate as a party but had not done so. I agreed the matter be done on the papers.
[2] On the same day, and unbeknown to me, the Registry received a letter from Mr GWC McNab dated 6 November. Mr McNab appears to be acting as Mr Hay’s friend but claims an indirect interest in the application on behalf of Macraes Mining Company Limited and Deepdell Mining Company Limited. The letter seeks pursuit of the first objection to the proceedings by Mr Hay and advises that he has received a
third party notice from Mr McNab on behalf of those companies. It also enclosed a
ANZ NATIONAL BANK LIMITED V BURNSIDE HC DUN CIV 2011-412-000452 16 November 2011
medical certificate dated 20 April 2009 as to the fact that: Mr Trevor Hay had sustained a significant head injury and suffers from post traumatic stress disorder, depression and persistent head pain; that he has demonstrated neurophysical impairment including a loss of ability to control emotions during stressful situations. It gives the opinion that under the New Zealand Health and Disability Act 2000 he is entitled to be represented by an advocate.
[3] Also on 7 November the High Court received a letter from Mr Hay pursuing his protest to jurisdiction and challenging Downie Stewart’s right as solicitors to represent the first, second and fourth parties without leave of the Court and contrary to r 1.20(2) of the High Court Rules.
[4] At 3 pm on Monday, 7 November, the Registrar advised Mr Hay and Mr McNab that the matter would not be called in Court and would be dealt with on the papers without appearance of counsel.
[5] That was an email sent in reliance on my minute of the same date.
[6] On 9 May Mr McNab sent an email acknowledging receipt of the email of
7 November and expressing disappointment about this development. This correspondence of 7 and 9 November has come to my attention with the case on the papers. As a result I am not dealing with the interpleader claim on the papers, except in this judgment to deal with the protest to jurisdiction and make directions giving Mr Trevor Hay one further opportunity to participate in the hearing of whether or not the application by the Bank that the proceeds, be divided four ways after costs, should succeed.
[7] This judgment therefore is confined to the issue of protest to jurisdiction, and the question of joinder of the mining companies. .
[8] Rule 1.20(2) of the High Court Rules provides:
1.20 Lawyers' duties
...
(2) A lawyer who acts for a party to a proceeding, or is a party to any proceeding, must not, without the leave of the court, act for any other party to the proceeding who does not have the same interest in the subject matter of the proceeding.
...
[9] The reason that Mr Trevor Hay is claiming that Dellene and Kelvin do not have a common interest is due to a difference between the registered proprietors on the land that was sold and arguments as to who has the beneficial interest on the land that was sold. The registered proprietors appearing on the title are the three brothers: Kelvin, Trevor and Mervyn. Mervyn has died. His sister, Dellene, is the executrix of his estate.
[10] On 20 November 2008 Dellene, Mervyn, Kelvin, Trevor, and their mother, Pearl, all signed a deed of family arrangement. Clause 1 and 2 of the operative part of that deed reads:
1.THE parties acknowledge that Dellene is entitled to a one quarter share of Deepdell Station and that a transfer of Deepdell Station to Mervyn, Kelvin, Trevor and Dellene as tenants in common in equal shares will be effected at the earliest convenient time.
2.THE parties agree that the transfer of a one quarter share of Deepdell Station to Dellene is subject to Dellene taking a one quarter share of Deepdell Station’s liabilities as at the time that the transfer to include Dellene’s one quarter ownership is effected.
[11] That legal transfer did not take place. Dellene caveated the property to protect her interest.
[12] Dellene, for herself, and as executrix of the estate of Mervyn, and Kelvin, both rely on the deed.
[13] Trevor appears to be arguing that they do not have a common interest because
Kelvin is a registered proprietor and Dellene is not.
[14] That does not trigger the application of High Court r 1.20(2). This is because it is perfectly appropriate and proper for Dellene and Kelvin to agree that there is in fact a beneficial division of the property into quarter shares pursuant to the deed of
family arrangement. Accordingly, it is not in breach of r 1.20, nor is it in any way at all an abuse of process for Downie Stewart to act for these parties.
[15] There is a further protest of jurisdiction dated 20 October. This is to the decision of Associate Judge Osborne removing the caveat and directing the interpleader proceeds.
[16] This further protest is again in error of law. It is common place when banks wish to exercise the power of sale for there to be caveats against title. It is necessary for these caveats to be addressed before the sale is perfected. This is what the Judge has done. He has done it in a way which preserves all rights. There is no merit at all to this further objection to jurisdiction.
[17] The Court has no formal notice of the “third party” notice seeking to engage Macraes Mining and Deepdell Mining. It does not appear on the file. Attached is a memorandum dated 8 November received on 10 November.
[18] Mr Trevor Hay is perfectly entitled to defend these proceedings. I reserve leave for Macraes Mining Limited to join these proceedings, but on condition that that company retains a barrister and solicitor of this court to act on its behalf or obtains an order relieving it from this normal requirement, relying on the Mannix rule.
[19] I will allow a further period of 15 working days to 6 December 2011 for:
1.Mr Trevor Hay to file on his behalf any statement of defence to the application. Mr McNab cannot file proceedings on behalf of Mr Hay.
2.The filing of any application by Macraes Mining Limited and/or Deepdell Mining Company to be joined to these proceedings. Five working days later, on 13 December, at 9.30 am, there will then be a telephone conference with counsel for the applicant, counsel from Downie Stewart, and Mr Trevor Hay, and any solicitor representing the mining companies, if they have lodged or are the subject of an
application for joinder. The purpose of this conference will be to decide:
(a) Whether any additional parties will be joined.
(b)To what extent the matter can be argued on the basis that the deeds to do not have to be formally proved.
(c) To what extent any evidence is necessary. (d) Whether or not a hearing is necessary.
(e) Whether in the alternative the issues can be resolved on the papers.
That conference will be before me.
Solicitors:
Bell Gully, Wellington, for Applicant ([email protected])
Downie Stewart, Dunedin, for First, Second & Fourth Claimants ([email protected])
cc: Mr T D Hay ([email protected] )
Mr GWC McNab ([email protected])
IN THE HIGH COURT OF NEW ZEALAND
DUNEDIN REGISTRY CIV-2011-4 2-452
BETWEEN ANZ NATiONAL BANK LIMITED a limited liability
company having Its registered address at Level 6,
1 Victoria Street, WellIngton.
Applicant.
AND DELLENE JANETTE BURNSIDE of Macraes
flat, Central Otago, Office Administrator.
First Ciahnartt
AND KELVIN ROBERT HAY of Kent, United
Kingdom.
Second Claimant
AND TREVOR DAVID HAY of 563 Worcester
Street, Chrlstchurch.
ThIt Claimant
ANDDELLENE JANETrE BURNSIDE of Macrees Flat, Central Otago, Office Administrator as Executor In the Estate of Meivyn Charles
Hay
Fourth Claimant
MEMORANDUM UPON VACATION OF HEARING
10 NOV 2071Trevo, David Hay
563 Worcester Street, Christchurch
Email: TaffMaygmaii.com
GWCMcNab©gmail.com
niurl L_Aj(Jt1 I
I 0 NOV 2011nUn,
MEMORANDUM UPON VACATION OF HEARING
NOTIcE OF CHANGE OF PARTY.
1. On 5°’ November 2011 I sold my ownership interest in all of the land comprising Deepdell Station to the real Macracs Mining Company LimIted (Incorporated by the Christchurch law firm, Cavell Leech) for the sum of $5.2 million dollars, received payment of the deposit upon our agreement for sale and purchase becoming unconditIonal, and fixed the date for settlement, having duly recorded all the terms and conditions etc of this agreement, including matters concerning the determination of the ownership of the private electricity line and the water pipeline thereon, and certain other matters,
2. Macraes Mining Company Limited’s lease in respect of the land comprising Deepdell Station continues until the date of settiement, as does GWC McNab’s residential tenancy in respect of the new homestead and cartilage land.3.Record change of parties in all litigation, DATED NOVEMBER 2011
Trevor David Hay ,/ Owner of the land comprising Deepdeli Stfflion, as to a one-third share, in my own right, and, in
addition, of the one-third share of Ihe late MJC Hay, by agreement at mediation, and certain other
contractual rights also.
Gordon Wallace Cameron McNab Trever DavIU11ay Managing Director Director Macrace Mining Company Ltd Macraes Mining Company Ltd
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