Apostolakis v Kolich

[2012] NZHC 212

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1453 [2012] NZHC 212

BETWEEN  KATHY APOSTOLAKIS Applicant

ANDKATARINA KOLICH First Respondent

ANDDOROTHY CLARE KENNELLY Second Respondent

CIV-2011-485-2508

AND BETWEEN            KATHY APOSTOLAKIS Plaintiff

ANDKATARINA KOLICH First Defendant

ANDDOROTHY CLARE KENNELLY Second Defendant

Hearing:         20 February 2012 (Heard at Wellington)

Counsel:         K. Apostolakis - Plaintiff/Applicant in person

M.A.F. Gilkinson - Counsel for First Respondent/First Defendant M.R. Sherwood King - Counsel for Second Respondent/Second Defendant

Judgment:      22 February 2012

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

This judgment of Associate Judge Gendall was delivered on 22 February 2012 at

3.30 pm under r 11.5 of the High Court Rules.

Solicitors:           Mackay & Gilkison, Solicitors, PO Box 5240, Wellington

Ian McCulloch Max Tait Legal, Solicitors, PO Box 50565, Porirua

K APOSTOLAKIS V K KOLICH & DC KENNELLY HC WN CIV-2011-485-1453 [22 February 2012]

Introduction

[1]      Before the Court are two applications brought by Ms Kathy Apostolakis (the plaintiff) as the plaintiff and applicant in these two proceedings.  The defendants in the proceedings are the plaintiff’s sister-in-law Katarina Kolich (Ms Kolich) and the plaintiff’s mother Dorothy Clare Kennelly (Mrs Kennelly).

[2]      The first application in proceeding CIV-2011-485-1453 is an application to sustain  two  caveats.    The  second  application  in  proceeding  CIV-2011-485-2508 seeks summary judgment with respect to a separate claim the plaintiff says she has against Ms Kolich and Mrs Kennelly.  Both applications are opposed.  In addition, before me the defendants sought to strike out the plaintiff’s claim against them in proceeding CIV-2011-485-2508.

Background Facts

[3]      Although  it  is  rather  difficult  here  to  discern  all  of  the  appropriate background facts to this matter, I now set out the position as best I can tell from the material before the Court.

[4]      The  plaintiff  and  a  Mr  Damir  De  Polo  (Mr  De  Polo)  were  in  an acknowledged defacto relationship being a relationship in the nature of a marriage from July 1996 to July 2004.

[5]      Following their separation in 2004, difficulties arose concerning division of their property.  This culminated in a judgment being given on 13 October 2009 by Judge PR Grace in the Family Court in matrimonial property proceedings between the couple brought in that Court.

[6]      Amongst  other  things,  that  Family  Court  judgment  dealt  with  an  issue concerning the parties’ previous relationship home at 12 Colville Street, Wellington (the property).  That property throughout was in the name of the plaintiff alone but Judge  Grace  at  [22]  of  his  decision  found  clearly  that  the  property  was  the relationship home of the plaintiff and Mr De Polo at separation.

[7]      According to Judge Grace’s judgment, the property had a rating valuation at September 2007 of $540,000.00 and, at the time of his judgment in October 2009, it was subject to charges securing a $24,000.00 debt to Johnson Lawrence Nominee Company Limited, a further $170,000.00 debt to Hayman Lawyers Nominee Company Limited and a further debt in favour of Pioneer Limited of $8,897.50.

[8]      In his judgment Judge Grace dealt with the property in two ways.  First, he allowed the plaintiff Ms Apostolakis a period of time to give notice that she wished to acquire Mr De Polo’s interest based on a market valuation figure to be obtained. From that fair market valuation figure were to be deducted the amounts owing on the property as at the date of separation referred to in para [7] above, and the interest of Mr De Polo was to represent one-half of the remaining net equity in the property.

[9]      Secondly, the judgment in the Family Court went on at para [28] to provide that, if the plaintiff Ms Apostolakis did not wish to acquire Mr De Polo’s interest in the property, then the Registrar of the Wellington District Court was appointed to conduct a public auction to sell the property and:

After payment of estate agents and costs incurred in respect of sale, the balance, subject to deduction of the amounts owing on the mortgages as at the date of separation, is to be divided equally between the parties.

[10]     As it transpired, the plaintiff Ms Apostolakis did not acquire Mr De Polo’s interest in the property.  Instead, in about August 2010 the property was sold by way of public auction under the conduct of the Registrar of the Wellington District Court.

[11]     The plaintiff Ms Apostolakis says she attended that auction with her son Kosta Apostolakis (Kosta) in an endeavour to purchase back what she describes as “her” property.  She claims that through her son Kosta she bid for its purchase, and ultimately was successful.

[12]     At the conclusion of the auction however, the property was clearly acquired by Kosta as the successful bidder at a price I understand of around $554,000.00.  A deposit of $54,000.00 was paid to the agents (according to the plaintiff from money she had provided) and a contract was signed for the purchase of the property by Kosta and his wife Ms Kolich as named purchasers.

[13]     Subsequently, according to the plaintiff, Kosta and Ms Kolich arranged from the BNZ the necessary mortgage for the total balance purchase price of the property to enable them to complete settlement with the Registrar of the High Court.  Title to the property was then transferred into their names on 20 August 2010.

[14]     After a short while, however, it seems that Kosta and Ms Kolich were unable to meet the substantial mortgage payments on the property despite them having arranged a tenant and applied the rental received towards these payments. Accordingly, the property was again placed on the market for sale.

[15]     It was then sold by Kosta and Ms Kolich to third parties Sarah Jenny Wilson (Ms Wilson) and Herman Steven De Groot (Mr De Groot), I understand at a significant reduction in price from the amount they had previously paid at auction. Title to the property was transferred to the purchasers on 27 July 2011.

[16]     There is another event which the plaintiff says is of some significance here. This occurred nearly a year prior to the District Court hearing and judgment in October 2009.  On this, the plaintiff says that in December 2008 her former husband died and she received from AMP Society the proceeds of an insurance policy on his life amounting to approximately $200,000.00.  The plaintiff says that these insurance proceeds were paid into her bank account around December 2008 or early 2009 but for some reason which remains unexplained she maintains they were applied by the bank in reduction of debts which the plaintiff says were owing to the bank and other property debts at the time.

[17]     According to the plaintiff therefore, the true debt which was owing on the property at that time was reduced by some $200,000.00 by virtue of these insurance proceeds (proceeds which she maintains for matrimonial property purposes must be considered to be her separate property).

[18]     As best I can tell, the plaintiff now argues that, following the August 2010 sale of the property to Kosta and Ms Kolich and payment of the $554,000.00 sale price, after expenses the only deductions actually made from this amount in determining equity in the property were the mortgage payments I have noted at para

[17]  above  totalling  some  $200,000.00.    This  left  an  equity  in  the  property of something over $350,000.00, one half of which being approximately $175,000.00 was paid to Mr De Polo pursuant to the order of the District Court.  It is this amount it seems which is the real subject of the plaintiff’s present complaints.  How these complaints impact on the defendants here Ms Kolich and Mrs Kennelly is not clear however.

[19]     As best I can tell from the proceedings and submissions advanced by the plaintiff, she appears to  contend that  Ms  Kolich  (her daughter-in-law)  and  Mrs Kennelly (her mother) were negligent, or in some way deceitful or fraudulent (or were at least accessories to fraud) in the sense that they did not take steps to advise Mr De Polo that the life insurance policy proceeds received by the plaintiff had been used to  reduce down the indebtedness  on  the  property prior  to  the relationship property proceedings.   She also maintains there were loans owing by her to Mrs Kennelly which were not enforced, thus increasing the calculation of Mr De Polo’s interest  in  the  property.    She  contends  therefore  that  they  were  in  some  way complicit in Mr De Polo receiving more from the Family Court judgment of Judge Grace than he should have been entitled to.

Proceeding CIV-2011-485-1453 – Application to Sustain Caveats

[20]     As I have noted above this application by the plaintiff was brought on 25 July

2011 and is said to be to sustain two caveats –

(a)       the first caveat is claimed to be over the interest of Ms Kolich in certificate of title WN817/71 being the title to the property; and

(b)       the  second  caveat  is  claimed  to  be  against  the  interest  of  Mrs

Kennelly in her own property at Collier Avenue, Karori.

[21]     Although it is unclear from all the material before the Court what interest the plaintiff  may  be  claiming  in  these  caveats,  given  that  neither  caveat  remains registered against the respective certificates of title, the present application is quickly disposed of.

[22]     In so far as the caveat over Ms Kolich’s interest in the property is concerned, as I understand it this has been rejected or removed by Land Information New Zealand and title to this property has long since been transferred to the third parties Ms Wilson and Mr De Groot.

[23]     And, in so far as  the caveat over Mrs Kennelly’s interest in the Collier Avenue, Karori property is concerned, as I understand it first, according to the title, this property is now owned by Bas Partnership and Mrs Kennelly no longer has any interest in it and, secondly and in any event, Land Information New Zealand rejected this caveat when it was presented for lodgement on the basis that no grounds were shown in the caveat for it to be sustained.

[24]     Therefore  no  existing caveats  remain  to  sustain  in  terms  of  s  137  Land Transfer Act  1952  or  otherwise.    The  present  application  is  therefore  wrongly brought, it is misconceived and must be dismissed.   An order dismissing the application is now made.

[25]     I will deal with the question of costs on this application later in this judgment.

Proceeding CIV-2011-485-2508 Application for Summary Judgment.

[26]     The plaintiff brings this application for summary judgment pursuant to r

12.2(1) High Court Rules.

[27]     Rule 12.2(1) provides that this Court may give judgment against a defendant if the plaintiff satisfies the Court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action. The principles relevant to that assessment were summarised by the Court of Appeal in Krukziener v Hanover Finance Ltd: [2008] NZCA 187, [2010] NZAR 307 at [26]; adopted more recently by the Court of Appeal in Cockburn v CS Development No 2

Ltd [2010] NZCA 373, (2010) 24 NZTC 24,431 at [26] and Mitchell v Trustees

Executors Ltd [2011] NZCA 519 at [35]:

The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real

question to be tried: Pemberton v Chappell [1987] 1 NZLR 1; (1986) 1 PRNZ 183 (CA), at p 3; p 185. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331; [1979] 3 WLR 373 (PC), at p 341; p 381. In the end the Court's assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).

[28]     The  plaintiff’s  summary  judgment  application  was  accompanied  by  a statement of claim and an affidavit dated 30 November 2011.  As I see the position the statement of claim contains a series of wide-ranging and disconnected allegations made against Ms Kolich, Mrs Kennelly and others.   It contains no adequate particulars of any kind.  It purports to plead what appear to be matters of law.  As I see the position the statement of claim simply does not provide the defendants with any cogent details of the nature of the allegations made against them.

[29]     It is clear from the rules that the requirements of the statement of claim must show the general nature of the plaintiff’s claim to the relief sought and must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments and other circumstances to inform the Court and the parties against whom relief is sought of the plaintiff’s cause of action – r 5.26 High Court Rules.

[30]     In this case the plaintiff ’s statement of claim as I see it consists simply of wild and speculative allegations of illegal contracts, fraud, illegality and negligence. In addition a wide range of statutory provisions and cases are also pleaded.

[31]     Further, it seems from the affidavits filed in this proceeding by the plaintiff that she attempts to expand her allegations to include amongst other things claims of fraud, contributory negligence, criminal activity and even claims of sexual abuse. No particulars whatever are provided in the statement of claim or her affidavits to support any of these allegations however.  The bald assertions the plaintiff makes are difficult to follow or to understand and entirely unsubstantiated in any way.

[32]     At best, the plaintiff’s present claims might involve allegations that the two contracts affecting the property were illegal contracts.  That claim would be based on s 7 of the Illegal Contracts Act 1970, which allows the Court to grant relief by way of compensation to a party to an illegal contract or any person claiming through or under such a party.  Any claim by the plaintiff here, however, faces two major legal impediments:

a.        The plaintiff is not party to either of the alleged illegal contracts in the case.

b.There is simply no evidence that the two contracts for transfer of the property were illegal due to fraud.

[33]     As to the first issue, the first contract for the transfer of property was between the Registrar of the District Court (as vendor) and Kosta.   The second involved Kosta and Ms Kolich as vendors and third party buyers, Mr De Groot and Ms Wilson.   Neither involved the plaintiff as a party, nor is she claiming through or under her son as a party.

[34]     As to the second issue, to succeed the plaintiff would have to show that the contracts at issue were in fact illegal.  Section 3 of the Illegal Contracts Act 1970 provides that an illegal contract is any contract that is illegal at law or in equity.  An agreement made with the object of defrauding or deceiving a third party is illegal at

common law.[1]   The plaintiff here would clearly have great difficulty in showing that

Kosta and Ms Kolich bought and  then on sold the property with the object of defrauding her of her interest in the house.  Indeed, Kosta and Ms Kolich say they got  involved  to  protect  their  mothers’ interest  in  the  property.    Moreover,  the defendants dispute that there has been any fraud on their part, and the pleadings provide no particulars or evidence as to the nature of any fraud here.  As I see it, there is simply no proper basis for any suggestion that either of the contracts in

question here could be considered to be an illegal contract.

[1] Silver v Mitchell [1932] NZLR 882.

[35]     As best I can tell, the AMP life insurance policy proceeds and an alleged debt owed to Mrs Kennelly feature significantly in the plaintiff’s material before the Court.  As I have noted above, the proceeds of the AMP policy were clearly paid to the plaintiff’s own bank account and disbursed by her.  One can see no basis for any wrong having been done to the plaintiff by either Ms Kolich or Mrs Kennelly in relation to that policy and the resulting payment by AMP.  The pleadings certainly disclose no such wrong.

[36]     And, as to the alleged debt, Mrs Kennelly deposes in her affidavit that over the years as a mother she has lent or given money to her daughter the plaintiff. When the property which the plaintiff and Mr De Polo shared, was being sold following the Family Court proceeding, Mrs Kennelly placed a caveat on that property to secure money which she then thought was owed to her.  But she states that that claim became far too hard for her to pursue.   Accordingly, finally, she advised that she no longer wished to pursue a claim for that money and so the caveat was withdrawn and the property sold in accordance with the order of the Family Court.

[37]     Importantly, in her affidavit, Mrs Kennelly deposes now that she does not consider that the plaintiff owes her any money.  And she goes on to state that the plaintiff has certainly never lent or given any money to Mrs Kennelly.

[38]     I am satisfied therefore that there is nothing in the plaintiff’s papers which discloses any cause of action against Mrs Kennelly (or indeed Ms Kolich) in relation to any alleged debt.

[39]     It  is  also  useful  at  this  point  to  return  to  contain  other  specific  issues concerning the life insurance policy proceeds.   As I have noted, it is said that in December  2008  the  plaintiff  received  these  proceeds  totalling  approximately

$200,000.00 into her bank account.  As best I can tell, the plaintiff seems to contend (but without any corroborating evidence to this effect) that this money was used to repay debt owing at that point to the plaintiff’s bank, debts on the property and some personal debts incurred by the plaintiff and Mr De Polo.

[40]     As noted at para [18] above on the later sale of the property by the Registrar of the High Court a calculation was made so that the net proceeds were calculated to be divided equally.  This was to be along with certain other provisions outlined in the judgment of the Family Court to the intent that Mr De Polo then received as I understand it about $175,000.00.

[41]     The plaintiff is now claiming that had this matrimonial property division occurred in November 2008 before she says the outstanding debts were paid from the life insurance proceeds, Mr De Polo would have received nothing.  She maintains this is because the total mortgages and joint debts at that time exceeded the value of the property.   As a result the plaintiff appears to claim now that Mr De Polo is effectively “in possession of her life insurance policy proceeds”.

[42]     This seems to be what the plaintiff claims to be one of the “fraudulent acts” which  she  says  Ms  Kolich  and  Mrs  Kennelly  were  parties  to.    The  plaintiff complains further that in his 13 October 2009 decision in the Family Court, Judge Grace did not take into account the insurance proceeds used earlier to pay the joint and property debts.  Certainly it is clear from that decision that Judge Grace makes no mention of any life insurance proceeds.  On this the plaintiff contends that she had endeavoured to put information about these life insurance proceeds before the Family Court but was refused the opportunity to do this.

[43]     As to that aspect, what is significant from the judgment of Judge Grace in the Family Court are the following comments he makes at paragraphs 3, 4 and 8 as follows:

(3)       A note from the Registrar on the file indicated that Ms Apostolakis attended the Court last Friday afternoon seeking to file further documents in respect of these proceedings.  That request was declined and Ms Apostolakis was apparently told to raise the issues with the Court.

(4)       Against that background the hearing need to be approached with some caution, particularly where Ms Apostolakis represented herself.

....

(8)       Ms Apostolakis then proceeded to raise issues, against surrounding what she considers were false statements by Mr De Polo’s then solicitor acting in the domestic violence matter and the Court, where there is reference to the

fact that she had “lost” her first small claims dispute between herself and Mr De Polo.  She claimed that this was untrue.  She indicated that she did not proceed with the property matter unless she had an apology and acknowledgement that in fact she had  “one” dispute.   Having tried to indicate to her that the Court was dealing solely with relationship property, and that the issue needed to be resolved so these two parties can move on in their lives, Ms Apostolakis collected her papers and told the Court that she would not be remaining.  She was told that if she left that should would do so at her peril.  Notwithstanding that, Ms Apostolakis elected to leave the hearing.  (emphasis added)

[44]     What is clear from these comments is that the plaintiff Ms Apostolakis as I see it had every opportunity to put before the Family Court her concerns regarding the life insurance proceeds and earlier debt repayments but in fact did not do so.

[45]     And,  following  the  decision  of  Judge  Grace  on  13  October  2009,  as  I understand the position, the plaintiff may have endeavoured to appeal this decision but then simply abandoned that appeal.

[46]     It is difficult to escape the conclusion therefore that it must remain on her head that the plaintiff chose not to put before the Family Court her concerns over the alleged disposal of the insurance proceeds nor subsequently to take that Family Court decision on appeal.

[47]     Instead, in the current summary judgment proceeding, the plaintiff for some reason seeks to pin a certain degree of blame for what she sees as her predicament on her sister-in-law Ms Kolich and her mother Mrs Kennelly.  As to this, she appears to claim without more that they are liable to her in negligence, deceit and for being accessories to a fraud which she says has been committed by Mr De Polo and his then lawyer, both of whom are not parties to the present proceeding.

[48]     Despite these bald claims, there is absolutely no evidence before the Court to support any of these allegations.   Quite to the contrary, the position in which the plaintiff now finds herself in my view is entirely of her own making.   Her real complaint appears to be against Mr De Polo.  If, as now appears, she had issues in the Family Court proceedings involving Mr De Polo with the decision of Judge Grace, there were possible remedies open to her which she has failed to take advantage of.

[49]     In addition, as her real complaint in this matter is against her former defacto partner, Mr De Polo, any remedies which might be open to her should lie in this direction.

[50]     I conclude that the plaintiff’s pleadings in this matter and her supporting affidavits must be seen as clearly untenable.  And I need to say at this point that, in my view, they consist of allegations which are “entirely speculative and without foundation”, in the terms outlined by the Supreme Court in Couch v Atorney General (2008) NZSC 45. The allegations of negligence are not supported by any evidence to outline the required constituent elements. In addition, the allegations of fraud lack any particulars of the alleged false representations of fact whether by words or by conduct and fail to identify adequately the other requirements for fraud. This includes detail as to how the plaintiff may have acted to her detriment and was consequently disadvantaged. I repeat my earlier comment that any damage the plaintiff may have suffered in this matter would appear to be entirely of her own making.

[51]     Finally, in light of the decision of the Family Court and the subsequent orders which followed, I take the view that in reality the present proceeding might be seen as simply an attempt to re-litigate matters which have already been determined – see Hunter v Chief Constable of the West Midlands Police [1982] AC529.

[52]     I  conclude  therefore  that,  for  all  the  reasons  I  have  outlined  above,  the plaintiffs present summary judgment application must fail by a wide margin.  That application is dismissed.

Strike Out Application

[53]     At  the  hearing  of  this  summary  judgment  application  counsel  for  the defendants referred to an application for the plaintiff’s claim in this proceeding CIV-

2011-485-2508 to be struck out on the ground that it disclosed no reasonable cause of action and was an abuse of process.

[54]     Rule 15.1 High Court Rules deals with striking out a proceeding and states:

15.1      Dismissing or staying all or part of proceeding

(1)       The court may strike out all or part of a pleading if it—

(a)      discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b)      is likely to cause prejudice or delay; or

(c)      is frivolous or vexatious; or

(d)      is otherwise an abuse of the process of the court.

(2)        If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3)         Instead of striking out all or part of a pleading under subclause(1), the court may stay all or part of the proceeding on such conditions as are considered just.

(4)         This rule does not affect the court's inherent jurisdiction.

[55]     At the outset I need to note that it is clear the r 15.1 power to strike out a proceeding does not depend on a formal application having been made – Siemer v Stiassny [2011] NZCA1 at [14] – see also McGechan on Procedure HR 15.1.09(1).

[56]     And McGechan on Procedure HR 15.1.02 refers to the general strike-out principles and states:

HR15.1.02 No reasonably arguable cause of action or defence

(1)     Principles

The established criteria for striking out was summarised by the Court of Appeal in A-G v Prince [1998] 1 NZLR 262, (1997) 16 FRNZ 258, [1998] NZFLR 145 (CA) at 267, and endorsed by the Supreme Court in Couch v A-G [2008] NZSC 45 at [33], per Elias CJ and Anderson J:

(a)      Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.

(b)       The cause of action for defence must be clearly untenable. In Couch Elias CJ and Anderson J, at [33], said: “It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed.”

(c)        The jurisdiction is to be exercised sparingly, and only in clear cases. This reflects the Court’s reluctance to terminate a claim or defence short of trial.

(d)       The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.

(e)        The Court should be particularly slow to strike out a claim in any developing area of the law, perhaps particularly where a duty of care is alleged in a new situation. In Couch, at [33], Elias CJ and Anderson J said: “Particular care is required in areas where the law is confused or developing.” There is considerable authority that developments in negligence need to be based on proved rather than hypothetical facts.

[57]     As I have noted above, I am satisfied that the plaintiff’s pleadings in this case and her supporting affidavits must be seen as falling squarely into the category of being quite clearly untenable and further, that they consist of allegations which are “entirely speculative and without foundation” as the Supreme Court noted in its decision in Couch.

[58]     As I see the position this proceeding is not a serious and proper use of the Court process.  The plaintiff’s statement of claim fails by every possible measure to comply with the High Court Rules.  It is entirely confused and discloses no proper cause of action against the defendants.  It must be seen as frivolous and vexatious.

[59]     In addition, in my view, there is clearly no proper basis on which the plaintiff could bring this proceeding, it is an abuse of process of the Court in terms of r

15.1(1)(d) and must be struck out.

[60]     An order is now made striking out the plaintiff’s claim against the defendants in this proceeding 2011-485-2508.

Costs

[61]     The defendants Ms Kolich and Mrs Kennelly have been entirely successful first, in opposing both the plaintiff’s application to sustain the caveats in question and in opposing the summary judgment application brought by the plaintiff and secondly, in their application to strike-out this proceeding CIV-2011-485-2508.

[62]     They are clearly entitled to orders for costs in the usual way.

[63]     In addition, in my view this is clearly a case where indemnity costs are appropriate in terms of r 14.6(4) High Court Rules. The plaintiff as I see it, has acted

vexatiously, frivolously, improperly and unnecessarily here in commencing and continuing these proceedings against the defendants.

[64]     Clearly the defendants have been put to considerable time and trouble in defending these proceedings, proceedings which should never have been brought against them, and they are therefore entitled to an award of indemnity costs and disbursements.

[65]     Costs are therefore awarded to the defendants Ms Kolich and Mrs Kennelly on  the caveat  application,  the summary judgment  application  and  the  strike-out application  on  an  indemnity basis  (as  approved  by the  Registrar)  together  with disbursements (also as approved by the Registrar).

‘Associate Judge D.I. Gendall’