Beere v Bullock

[2025] NZHC 3157

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2416 [2025] NZHC 3157

UNDER  the Trusts Act 2019

BETWEEN  WARREN ERNEST BEERE

Plaintiff

AND  GEORGE BULLOCK

First Defendant

PHILLIP RAYMOND NOTTINGHAM
Second Defendant

ROBERT EARLE McKINNEY
Third Defendant

DERMOT GREGORY NOTTINGHAM

Fourth Defendant

Hearing:                   5 August 2025 Appearances:      A J Steele for Plaintiff

Second Defendant in person Third Defendant in person Fourth Defendant in person

Judgment:                23 October 2025

JUDGMENT OF WILKINSON-SMITH J

[Interlocutory applications]

This judgment was delivered by me on 23/10/2024 at 11 am

Pursuant to Rule 11.5 of the High Court Rules Registrar/Deputy Registrar

Solicitors/counsel:

Patterson Hopkins, Auckland, A J Steele, Auckland

Copy to defendants.

BEERE v BULLOCK & ORS [2025] NZHC 3157 [23 October 2025]

Introduction  [1]

Background[10]

Procedural history  [35]

The present applications[76]

Issues[83]

Does the plaintiff have standing to bring the proceedings?  [84]

Do procedural defects such as a failure to file notices of opposition prevent the plaintiff from now opposing the defendants’ applications?[96]

Should the plaintiff be permitted to amend the statement of claim?[103]

Is the amendment nevertheless an abuse of process?[114]

Defendants’ application for stay/strike-out of proceeding[122]

Relevant law[125]

Is the defendants’ application for stay/strike-out a relitigating of matters already decided by Associate Judge Taylor and if not, are the causes of action in the amended statement of claim each clearly untenable?[127]

Plaintiff’s application to strike out defendants’ December 2023 application[167]

Relevant law[169]

Discussion[180]

Plaintiff’s application for further orders[188] Defendants’ application for orders pursuant to inherent jurisdiction[197] Inherent jurisdiction — legal principles[198]

Orders sought under the inherent jurisdiction[201]

Result[253]

Introduction

[1]                  The plaintiff, Warren Beere, is the father of the late Stephen Beere, who died in Australia in August 2019.

[2]                  Stephen Beere relocated to Australia in 2017, apparently to avoid the attention of the New Zealand police who were investigating him for drug offending.

[3]                  These proceedings concern the Beere Family Trust (the Trust), which Stephen Beere settled in 2008.

[4]                  The plaintiff is both a primary and discretionary beneficiary of the Trust under the original trust deed. Among other causes of action, he alleges various breaches of trust. The allegations are based on a number of different claims, including claims that ownership of Trust properties was transferred to various of the defendants in breach of trust.

[5]The properties owned by the Trust at the time of Stephen Beere’s death were:

(a)6 Beazley Place, Glendene;

(b)107 Allen Bell Drive, Kaitaia;

(c)129 Allen Bell Drive, Kaitaia; and

(d)447 Kohukohu Road, Kohukohu.

[6]                  The defendants are current and former trustees of the Trust. Under a 2015 deed of variation, the validity of which is disputed by the plaintiff, all four defendants are also beneficiaries of the Trust.

[7]                  The defendants say that the Trust had no equity in the Allen Bell Drive and Kohukohu Road properties (together, the Northland properties) as one of the trustees, Phillip Nottingham, was owed money in excess of the value of the properties for the work he had done developing the properties. The defendants say that the terms of the

trust   deed   permitted   the   trustees   to    transfer   the   Northland   properties    to Phillip Nottingham to meet that debt.

[8]                  The defendants say that the Beazley Place property remains in the Trust and was used as security for  a  mortgage  to  pay  bequests  in  accordance  with  Stephen Beere’s   will.   The   final   beneficiaries   under    the    will    include Phillip Nottingham and Dermot Nottingham.

[9]                  The substantive hearing is scheduled to proceed in July 2026. A number of interlocutory applications have been filed and are the subject of this decision:

(a)An application by the defendants for an order “staying/striking out the proceeding for abuse of process and perjury”, dated 23 January 2024.

(b)An application by the defendants dated 4 December 2023 seeking various orders under the inherent jurisdiction of the High Court (December 2023 application).

(c)An application by the plaintiff for strike-out of the defendants’ December 2023 application, together with further orders.

Background

[10]              In December 1998, Stephen Beere bought 6 Beazley Place, Glendene in his personal capacity.

[11]              In January 2008, he established the Trust. The original trustees were himself and Phillip Nottingham. The Beazley Place property was sold to the Trust for consideration of a debt of $355,000, with that debt to be forgiven by Stephen Beere over time.

[12]              On 26 April 2010, Phillip Nottingham retired as trustee of the Trust and was replaced by George Bullock,  who  was  a  tenant  living  at  6 Beazley  Place. Dermot Nottingham says that he advised Phillip Nottingham to retire as a trustee and refused to become a trustee himself because the Trust appeared to be a sham trust set

up not for the genuine benefit of the beneficiaries, but for the purpose of protecting Stephen Beere’s assets from Inland Revenue or potentially proceeds of crime proceedings.

[13]              By deed of gift dated 18 October 2012, Stephen Beere forgave the trustees for all debts owed by them to him in their capacity as trustees.

[14]              On 29 July 2014, Stephen Beere and Mr Bullock registered a mortgage over the Beazley Place property to secure a loan to the Trust from an  associate  of Stephen Beere, Arifin Leo. A general security agreement (GSA) was signed at the same time. That loan was in the amount of $1 million dollars and the GSA was in the amount of $2 million.

[15]              The defendants  Phillip  Nottingham,  Dermot  Nottingham  and  Robert  Earle McKinney say that this mortgage was a sham, as evidenced by the lack of any accounts or payments of any amounts or interest by the Trust to Mr Leo.

[16]              On  13  June  2015,  Stephen  Beere  made  his  last   will.   He   named Phillip Nottingham and Dermot Nottingham as his executors. He made bequests of

$50,000 to several beneficiaries including Mr Bullock, Mr McKinney, and jointly to his parents, Warren Beere and Frances Beere.

[17]              The residue of Stephen Beere’s estate was to be divided equally between his friends Phillip Nottingham, Dermot Nottingham, and Mr Leo. The Court has been supplied with two copies of the will, one of which attaches a list of assets including the Beazley Place property. That was the only property then owned by the Trust.

[18]              On 14 June 2015, Stephen Beere and Mr Bullock as trustees of the Trust purported to execute a deed of variation of trust which annexed the last will and recorded the agreement of the trustees  that, since Stephen Beere had executed the  13 June 2015 will dictating how he wished his property and the property of the Trust to be distributed, “it would be appropriate that the Trust adopts the specificity of the wishes and directions given in the Will”.

[19]              The deed of variation deleted sch A to the trust deed, which listed the “primary” and “final” beneficiaries of the Trust and replaced it with a list of “primary beneficiaries”. The deed of variation provided that those primary beneficiaries are to “receive, pursuant to the terms of the Trust Deed, what is specifically noted on the Will”.

[20]              The primary beneficiaries named in the deed of variation of trust are identical to those named as recipients of gifts in the will. The deed of variation included a direction that the listed primary beneficiaries are to receive payments of $50,000. The plaintiff is one of the named primary beneficiaries.

[21]              The deed of variation also provided that: “[f]or the removal of doubt the specific entitlements to the Primary Beneficiaries are not to be paid twice, and the wishes of the [Settlor’s] Will shall be operable for the Trust, and the Will”.

[22]              The deed of variation provided that the residual funds, if any, are to be divided equally between Dermot Nottingham, Phillip Nottingham and Mr Leo.

[23]              In July 2015 the trustees of the Trust resolved to purchase 447 Kohukohu Road in Northland, and to enter a mortgage in favour of Phillip Nottingham securing a loan of $300,000.

[24]              On 9 June 2016, the trustees and Mr Leo executed a deed of agreement and power of attorney recording that all sums borrowed by the Trust from Mr Leo had been repaid, and authorising Stephen Beere to discharge the mortgage over the Beazley Place property.

[25]                On 16 June 2016, the trustees entered into a deed with Phillip Nottingham recording that the $300,000 loan in respect of the Kohukohu Road property had been repaid.

[26]              In November 2016, Stephen Beere and Mr Bullock, in their capacities as trustees of the Trust, became the registered owners of 107 Allen Bell Drive and

129 Allen Bell Drive. They had been nominated as purchasers by Stephen Beere in his personal capacity.

[27]              Phillip Nottingham says he carried out significant building work in respect of the Trust properties. The Beazley Place property had been the subject of a prosecution for unconsented building work. Phillip Nottingham says that he remedied that without payment. He says that he did all the building work at the Northland properties without payment but on the basis that he would have an interest in the properties.

[28]Stephen Beere died without children on or around 3 August 2019.

[29]              On 1 October 2019, another deed of variation of trust was executed. That deed purported to retire Stephen Beere as trustee, and to appoint Phillip Nottingham as settlor and trustee. A later deed dated 17 October 2019 acknowledged an error in appointing Phillip Nottingham as settlor and acknowledged that Phillip Nottingham was appointed only as a trustee.

[30]              In November 2019, Mr Bullock signed a statutory declaration that he held the Northland properties in his own name, free of all trusts and equities. The following day, those properties were transferred to Mr Bullock as though he were absolutely and beneficially entitled to them. He then transferred the properties to Phillip Nottingham on the basis that Phillip Nottingham was beneficially entitled to them.

[31]              In May 2021, the defendants, with the exception of Dermot Nottingham who was not a trustee at that stage, executed a deed by which Mr Bullock retired as a trustee and Mr McKinney was appointed as a trustee in his place. The record of title for the Beazley Place property records that on that day, title to the property was transferred from Stephen Beere and Mr Bullock to Mr Bullock and Phillip Nottingham.

[32]              The Beazley Place property was transferred again to Phillip Nottingham and Mr McKinney on 10 December 2021.

[33]              In December 2021, Phillip Nottingham and Mr McKinney, in their capacities as trustees, obtained a loan of $300,000 from Kensington Finance, secured by a

mortgage over the Beazley Place property. The defendants say this loan was used to repay a loan secured by a mortgage over the Beazley Place property in favour of ANZ Bank, and to pay certain legacies to legatees named in Stephen Beere’s will dated 13 June 2015 as if they were beneficiaries of the Trust as envisaged by the deed of variation signed in June 2015.

[34]              The plaintiff declined to accept the $50,000 legacy provided for in the will and in the June 2015 deed of variation of trust. He brought these proceedings alleging breach of trust and related causes of action by the defendants.

Procedural history

[35]              The plaintiff commenced proceedings against Mr Bullock, Phillip Nottingham and Mr McKinney by filing a notice of proceeding and statement of claim dated     17 December 2021.

[36]The statement of claim contained the following causes of action:

(a)Breach of trust by Mr Bullock and Phillip Nottingham arising from the transfers  of  the  Northland properties   from   Mr Bullock   to   Phillip Nottingham in 2019 — the plaintiff claimed that these transfers of Trust property to a party who was neither a trustee nor a beneficiary were not for good or any consideration.

(b)Knowing receipt by Phillip Nottingham — the plaintiff claimed that Phillip Nottingham knew at all material times that the Northland properties were assets of the Trust and received them knowing that he had not provided good or any consideration; and/or that he received these properties knowing that he had received them in breach of trust.

(c)Breach of trust by Mr Bullock and Phillip Nottingham in relation to the transfer of the Beazley Place property in May 2021 — the plaintiff claimed that Mr Bullock instructed a solicitor to register a transfer of the Beazley Place property from himself and Stephen Beere as transferors to himself and Phillip Nottingham as transferees in

May 2021; that in doing so, the solicitor gave a number of false certificates in order to effect the transfer without the required instructions from Stephen Beere, who had died in 2019; and that this transfer of Trust property to non-beneficiaries was not for good or any consideration.

(d)Breach of trust by Mr Bullock, Phillip Nottingham and Mr McKinney arising from the further transfer of the Beazley Place property from Mr Bullock  and  Phillip Nottingham  to  Phillip Nottingham   and   Mr McKinney in December 2021 — the plaintiff claimed that this transfer of Trust property to parties who were neither beneficiaries nor trustees of the Trust was not for good or any consideration.

(e)Knowing receipt by Phillip Nottingham and Mr McKinney — the plaintiff claimed that Phillip Nottingham and Mr McKinney knew at all material times that the Beazley Place property was an asset of the Trust; that they received that property knowing that they had not provided good or any consideration to the Trust; and/or that they received that property knowing that they had received it in breach of trust.

[37]              Mr Bullock filed a statement of defence to the plaintiff’s first statement of claim, which was dated 10 March 2022. Phillip Nottingham filed a statement of defence dated 11 March 2022, and Mr McKinney filed a statement of defence dated 16 March 2022.

[38]              All three statements of defence described the proceeding as “FALSE, FRAUDULENT, INCOMPETENT, DEFAMATORY, MALICIOUS[,] SCANDALOUS, AND ABUSIVE”, and alleged that it was brought “AS PART OF A CONSPIRACY TO DEFEAT JUSTICE, AND OBTAIN ORDERS BY FRAUD”.

[39]              Mr Bullock, Phillip Nottingham and Mr McKinney filed a further application dated 12 April 2022, seeking:

(a)an order debarring counsel for the plaintiff, William Patterson, and the firm Patterson Hopkins, from any involvement in the proceedings;

(b)an order finding counsel and the firm Patterson Hopkins in contempt of court;

(c)an order striking out the proceedings with a permanent stay; and

(d)any other orders considered relevant.

[40]              By case management memorandum dated 21 April 2022, the plaintiff’s counsel raised various issues with the statements of defence filed, including that they were non-compliant with the High Court Rules 2016 and the principles of pleading, that they were “prolix” and contained “scandalous and irrelevant material”, and that the basis of the defendants’ opposition to the substantive claim was unclear, such that that the plaintiff could not “understand or fairly respond to the case raised by the statements of defence in the form pleaded”.

[41]              The plaintiff’s counsel also stated that no affirmative defences requiring a reply had been pleaded. He alleged failures by the defendants to comply with their initial disclosure obligations and addressed various other case management matters.

[42]              On 28 April 2022, the plaintiff filed a notice of opposition to the defendants’ 12 April 2022 application.

[43]              The defendants filed a memorandum dated 2 May 2022 in reply to the memorandum of counsel for the plaintiff dated 21 April 2022.

[44]              The defendants then filed a further memorandum dated 26 May 2022 in which they claimed that various aspects of the plaintiff’s pleadings were untruthful and sought timetable directions in relation to their 12 April 2022 application.

[45]              On 30 May 2022, Associate Judge Andrew issued a minute following a Chambers List case management conference, in which he allocated a fixture for the

hearing of the defendants’ 12 April 2022 applications and made timetable directions.1 The defendants were directed to file and serve any affidavits in support of their      12 April 2022 application by 30 June 2022.

[46]                The Judge also recorded the plaintiff’s contention that the defendants had failed to comply with their initial disclosure obligations under the High Court Rules and made an order for the provision of further documents by the defendants. Further, the minute records the plaintiff’s concerns regarding the statements of defence filed, including his claims that they contained “scandalous” and “irrelevant” material and that they were non-compliant with the High Court Rules. However, the Judge concluded that these matters could be reviewed at the conclusion of the strike-out application.

[47]              By memorandum dated 30 June 2022, the defendants advised the Court that some of the affidavits they intended to file in support of their 12 April 2022 application would be filed by close of business on 3 July 2022 — that is, after the deadline directed by Associate Judge Andrew.

[48]              The defendants subsequently filed  an  affidavit  sworn  by  John Taylor  on 30 June 2022 in support of their 12 April 2022 applications. They later filed the following documents:

(a)An affidavit of Phillip Nottingham dated 5 July 2022.

(b)An affidavit of Aaron Kashyap dated 11 July 2022.

(c)An affidavit of George Bullock dated 11 July 2022.

(d)An affidavit of Robert Earle McKinney dated 14 July 2022.

[49]              Counsel for the plaintiff filed a memorandum dated 20 July 2022 stating that the  defendants  had  failed  to  comply   with   the   timetable   directed   by Associate Judge Andrew in filing affidavits in support of their 12 April 2022

1      Beere v Bullock HC Auckland CIV-2021-404-2416, 30 May 2022 (Minute).

applications.    The plaintiff’s counsel requested that the timetable be amended to account for the defendants’ delays.

[50]              Following this, the defendants filed an affidavit of Dermot Nottingham dated 21 July 2022.

[51]              By memorandum dated 22 July 2022, the defendants sought to respond to earlier memoranda filed on behalf of the plaintiff. The defendants sought a further call of the proceeding.

[52]              The plaintiff subsequently filed his affidavit in opposition to the defendants’ 12 April 2022 applications. That affidavit was sworn on 28 July 2022. The plaintiff also filed affidavits sworn by  his  daughter,  Gailene  Patton,  and  a  solicitor,  Henry Brandts-Giesen.

[53]              The defendants filed affidavits in reply  sworn  by  Mr McKinney  and  Phillip Nottingham on 8 August 2022.

[54]              In a minute issued on 9 August 2022 following a telephone conference,2 Associate Judge  Taylor  made  amended  timetable  directions  in  relation  to  the  12 April 2022 applications, extending the deadline by which the defendants were to file their affidavits in reply.

[55]                The defendants sought that the hearing set down for 13 September 2022 be vacated on the basis that they were struggling to instruct counsel. The Judge directed that if the defendants wished to apply for the fixture to be vacated, they were to file an application within five working days of the minute; however, he indicated that any vacation of the hearing date was unlikely.

[56]              The  defendants  filed  further  affidavits  sworn  by  Mr Bullock   and   Phillip Nottingham, dated 18 and 19 August 2022 respectively. An additional affidavit sworn by Phillip Nottingham on 29 August 2022 was subsequently filed.

2      Beere v Bullock HC Auckland CIV-2021-404-2416, 9 August 2022 (Minute).

[57]              The defendants then filed an application dated 8 September 2022 seeking further orders and directions, including an order adjourning the proceedings, and an order that the hearing take place in person rather than by VMR.

[58]              Counsel for the plaintiff filed a memorandum dated 9 September 2022 stating that  the  defendants  had  filed   their   application   for   an   adjournment   of   the 13 September 2022 fixture out of time, that their application was non-compliant with the form requirements in the High Court Rules, that the defendants had provided no grounds to support their contention that an adjournment would be “in the interests of the administration of justice”, and that the application was unsupported by sworn evidence. The memorandum also stated that it was unclear whether a notice of opposition was required, as it was unclear whether the defendants’ application had been properly filed and accepted by the Court registry.

[59]              In a minute issued on 9 September 2022, Venning J declined the defendants’ application for adjournment of the 13 September 2022 fixture but made the order sought by the defendants that the hearing take place in person.3

[60]              The defendants subsequently filed a memorandum dated 9 September 2022 seeking that Venning J’s decision declining the adjournment application be recalled and that the application be considered afresh by a different judge. The defendants claimed that Venning J had made errors and had failed to uphold “procedural fairness” in declining the application.

[61]              The defendants later filed a further affidavit sworn by Phillip Nottingham on 12 September 2022,   which   was   intended   to   supplement   his   affidavit   of    29 August 2022.

[62]              The defendants’ application for recall/review of Venning J’s minute declining their adjournment application was dismissed by a further minute of Venning J issued on 12 September 2022.

3      Beere v Bullock HC Auckland CIV-2021-404-2416, 9 September 2022 (Minute).

[63]              The   defendants’   12 April 2022   applications    were    heard    by  Associate Judge Taylor on 13 September 2022. The defendants subsequently sought to file a further memorandum of submissions dated 19 September 2022.

[64]              In a minute issued on 21 September 2022, Associate Judge Taylor directed that the defendants’ 19 September 2022 memorandum was not to be admitted to the Court file.4 The Judge agreed with the objections raised by counsel for the plaintiff on the basis that the defendants were given full opportunity to make submissions during the hearing, the defendants had not applied for leave to file further submissions, and the defendants’ filing of a further memorandum was procedurally unfair.

[65]              The defendants subsequently filed an undated interlocutory application seeking that Associate Judge Taylor confirm that he lacked jurisdiction to refuse to admit the 19 September 2022 memorandum to the Court file or confirm his jurisdiction to refuse to admit the 19 September 2022 memorandum to the Court file with reference to the relevant law. It also seems that the defendants purported to advance this interlocutory application as a formal application for leave to make further submissions and sought that this leave application be considered by the Court and determined in the defendants’ favour. The defendants also applied for Associate Judge Taylor to recuse himself if he was unwilling to grant other aspects of their application. This application was supported by  an  affidavit  sworn  by  Phillip Nottingham on 28 September 2022.

[66]              The defendants filed a memorandum dated 29 September 2022 in which they alleged that an “unidentified” person had instructed one of the case officers involved with this proceeding to “impede” the filing of the defendants’ undated application seeking various forms of relief from Associate Judge Taylor.

[67]              The plaintiff subsequently filed a notice of opposition to that application, dated 30 September 2021.   The  defendants  also  filed  a  further  memorandum  dated   30 September 2022 in response to the plaintiff’s notice of opposition. Among other things, this memorandum contained challenges to many of the grounds set out in the plaintiff’s notice of opposition, allegations of dishonest conduct by the plaintiff and

4      Beere v Bullock HC Auckland CIV-2021-404-2416, 21 September 2022 (Minute).

his lawyers, and claims that the plaintiff’s failure to file an affidavit in support of the notice of opposition meant that the Court was bound to accept aspects of the defendants’ evidence unless the Court was prepared to provide the parties with the NTS record of the previous hearing. The defendants also claimed that the plaintiff’s notice of opposition did not seek to deny the evidence filed in support of the defendants’ interlocutory application, and that this suggested that the plaintiff’s lawyer was not prepared to deny the contents of that evidence.

[68]              The plaintiff filed an affidavit sworn on 7 October 2022 in which he made the following correction to his original affidavit filed in the proceeding:

In paragraph 58[of] that affidavit, I deposed that [a document] described as a “deed of variation of Trust retiring and replacing originating Settlor and Trustee Stephen Matthew Beere made this Tuesday, 1^st day of October 2019” was only executed by George Bullock and Robert McKinney. That statement was in error. The document in question was executed by Mr Bullock and   Mr Nottingham and witnessed by Mr McKinney. A copy of the document in question was annexed as exhibit HH to that affidavit.

[69]              In response, the defendants filed a memorandum dated 13 October 2022 in which they sought to characterise the error in the plaintiff’s affidavit as “perjury” and made various claims, including that the plaintiff’s lawyer deliberately included this incorrect information in the plaintiff’s affidavit, and that the plaintiff’s lawyers had acted dishonestly and made numerous false statements in the proceeding.

[70]              The defendants’ further submissions relating to the 13 September 2022 hearing were  ultimately  admitted  to  the  Court  file  pursuant  to  a  judgment  of  Associate Judge Taylor delivered on 21 April 2023.5 On a review of the relevant materials, the Judge considered that, as self-represented litigants, the defendants ought to be afforded some leniency in relation to their compliance with the Rules, and held that admission of the further submissions was appropriate, taking into account “the interests of justice and… the position of the defendants as lay litigants wishing to ensure that the [C]ourt had not overlooked the points raised”.6

5      Beere v Bullock [2023] NZHC 867.

6 At [20].

[71]              As noted above, the defendants’ 12 April 2022 applications were heard by Associate Judge Taylor, who issued a decision dated 31 May 2023.7

[72]              Associate Judge Taylor declined the application by the defendants for an order striking out the claim,8 but nevertheless found that the evidence presented by the defendants raised strong arguments that:9

(a)Phillip Nottingham carried out work on the Beazley Place property — the Judge noted that it was unclear whether Phillip Nottingham was owed money by the Trust for that work;

(b)Phillip Nottingham carried out significant work on the Northland properties and was owed money by the Trust for that work; and

(c)the Beazley Place property has remained in the Trust and the transfers of the Beazley Place property only reflect changes to the trustees.

[73]              Associate Judge Taylor considered that the following issues with the conduct of the trustees required examination:10

(a)The decision to transfer the Northland properties to Phillip Nottingham and the discharge by the trustees of their duties. The Judge held that:

(a)  questions remained as to how the value of Phillip Nottingham’s work on the Northland properties was established and corroborated;

(b)  questions remained as to whether the decision to transfer the Northland properties was in the interests of the beneficiaries of the Trust; and

7      Beere v Bullock [2023] NZHC 1172.

8      At [72(a)].

9 At [52].

10 At [53].

(c)  the documents of 6 and 7 September 2017 (described in further detail later in this judgment) required testing as, among other things, they:

(i)purport to reject the nomination of the Trust by Stephen Beere as the purchaser of the Northland properties notwithstanding that the Trust had become the registered proprietor of the properties; and

(ii)purport to allow Phillip Nottingham to make unrestricted claims against the properties without valuation or corroboration of those claims being required by the trustees.

(b)In relation to the Beazley Place property:

(a)  why the property was listed as an asset belonging to Stephen Beere in his will of 13 June 2015 when the property is ostensibly owned by the Trust;

(b)  the circumstances surrounding the mortgage and the GSA placed over the property in favour of Mr Leo and the discharge of those securities;

(c)  the work carried out on the property by Phillip Nottingham and the value of that work; and

(d)  the discharge by the trustees of their obligations in dealing with the amounts owed to Phillip Nottingham.

(c)Allegations that the Trust is a sham and has been involved in a number of sham transactions.

[74]              Dermot Nottingham was joined as the fourth defendant, in his capacity as trustee of the Trust, on 30 November 2023.11

[75]              Following the decision of Associate Judge Taylor, the plaintiffs filed an amended statement of claim dated 31 July 2024. The causes of action contained in the amended statement of claim had changed significantly from those advanced in the plaintiff’s original statement of claim.

The present applications

[76]              The defendants bring an application for strike-out and/or stay of the amended statement   of   claim.    Their   original    application   for   stay/strike-out    dated   23 January 2024 was directed at the first statement of claim; however, the application as advanced at the hearing addressed the amended statement of claim, which was filed only a few days prior. The defendants also pursue their December 2023 application for various orders they say can be made under the Court’s inherent jurisdiction.

[77]At the hearing, the defendants raised further issues for determination:

(a)The defendants say that the plaintiff has no standing to bring the proceeding.

(b)The defendants say that the plaintiff cannot resist their applications because he has not filed notices of opposition.

(c)The defendants object to the filing of the amended statement of claim.

(d)The defendants say that the plaintiff’s claim is an abuse of process and has no prospect of success. They want the proceedings brought to an end.

[78]              The plaintiff says that there are serious issues to be tried and the defendants’ approach to the litigation has been vexatious.

11     Beere v Bullock HC Auckland CIV-2021-404-2416, 30 November 2023 (Minute).

[79]              He says that the defendants’ application for a stay/strike-out is an attempt to relitigate matters already decided by Associate Judge Taylor and that the defendants seek to avoid proper scrutiny of their actions as trustees.

[80]              The plaintiff claims that the defendants have conducted various improper dealings in relation to Trust property and that whichever parties are currently in office as trustees ought to be removed.

[81]              He seeks orders vesting the Northland properties in an independent trustee, together with associated declarations and other relief.

[82]              The plaintiff also seeks orders striking out the defendants’ December 2023 application as an abuse of process and preventing the defendants from filing further applications in this proceeding without the leave of the Court.

Issues

[83]The issues to be decided are as follows:

(a)Does the plaintiff have standing to bring the proceeding?

(b)Do procedural defects such as a failure to file notices of opposition to the defendants’ applications prevent the plaintiff from now opposing the defendants’ applications?

(c)Should the plaintiff be permitted to amend the statement of claim?

(d)Should the plaintiff’s amended statement of claim be stayed or struck out?

(i)Is the defendants’ application for stay/strike-out of the amended statement of claim a relitigating of matters already decided by Associate Judge Taylor?

(ii)Are the causes of action in the amended statement of claim each clearly untenable?

(iii)Was the filing of the amended statement of claim an abuse of process?

(e)Is the defendants’ December 2023 application, seeking orders under the inherent jurisdiction, an abuse of process which should be struck out?

(f)Should the defendants be required to seek the leave of the Court before filing any further applications?

(g)Should the Court exercise its inherent jurisdiction to make orders:

(i)requiring all evidence filed by the plaintiff to be removed from the Court file;

(ii)requiring the plaintiff’s lawyers to admit the defendants’ allegations that they have deceived the Court, and to withdraw and correct, or explain, the alleged deception;

(iii)requiring the plaintiff’s lawyer, Mr Dixon, to admit to preparing certain affidavits filed in the proceeding and to admit that these affidavits contain false information as alleged by the defendants;

(iv)requiring the plaintiff’s lawyers to admit that in their pleadings they have falsely alleged, and continue to allege, that the defendants have committed “criminal fraud”;

(v)requiring the plaintiff’s lawyer, Mr Patterson, to admit that he and his firm were criticised for dishonest conduct in the  United Kingdom judgment of JSC Mezhdunarodniy

Promyshlenniy Bank v Pugachev,12 so that this criticism may be offered as propensity evidence in the present proceeding;

(vi)requiring the plaintiff’s lawyers to withdraw from acting in the proceeding, or debarring them from acting;

(vii)requiring the plaintiff’s lawyers to admit that the plaintiff stole or was in receipt of the full Trust file and Stephen Beere’s last will, that the plaintiff knew of the existence of the “resolution adopting the will”, and that the plaintiff could have pleaded any issues around any of the documents which are now disputed at an earlier stage;

(viii)requiring the plaintiff’s lawyers to admit that they were aware that probate had been granted in respect of Stephen Beere’s last will both in New South Wales and New Zealand, that this will included the Trust property, and that this will and any resolution by  the  trustees  that  “adopted”  the   will   invalidated Stephen Beere’s previous will and memorandum of wishes;

(ix)requiring the plaintiff’s lawyers to admit that they were aware that Stephen Beere had executed his last will and the “resolution adopting it”, and that these documents made their claims relating to the previous will and memorandum of wishes “wholly invalidated” and “fraudulent”;

(x)requiring Associate Judge Taylor to recuse himself from dealing with this proceeding;

(xi)directing that allegation made in the December 2023 application against the Court and the plaintiff’s lawyers be referred to the police, the Head of Bench, the Attorney-General, the Solicitor-General, the New Zealand Law Society, and the

12     JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev [2017] EWHC 2426 (Ch), 20 ITELR 905.

“United Nations Committee Regarding the Convention Against Corruption”;

(xii)setting out any other terms that are “essential to protecting the administration of justice”, including an order rescinding all prior judgments issued by the Court in this proceeding pursuant to r 7.51 of the High Court Rules, and an order confirming that the plaintiff has admitted to the criminal conspiracies alleged in the original statements of defence as a result of non-compliance with rr 5.62 and 5.63 of the High Court Rules;

(xiii)relating to the filing of affidavits, and requiring LINZ to provide documents and information sought by the defendants; and/or

(xiv)awarding indemnity and “punitive” costs to the defendants on “the same scale as senior counsel”?

Does the plaintiff have standing to bring the proceedings?

[84]              The defendants claim that as a discretionary beneficiary of the Trust, the plaintiff does not have standing to bring a proceeding in respect of Trust assets. Their written submissions refer to the cases of Hunt v Muollo and Erceg v Erceg in support of this argument.13

[85]              The Court in Hunt v Muollo confirmed that ordinary discretionary beneficiaries do not have any interest, whether legal or equitable, in the assets of a normal discretionary trust.14 Similarly, the Supreme Court in Erceg v Erceg described discretionary beneficiaries as having “a mere expectation in relation to the assets of

[a] trust, rather than any fixed or contingent proprietary interest”.15 However, it has been acknowledged that while a discretionary beneficiary has “no entitlement to  any

13     Hunt v Muollo [2003] 2 NZLR 322 (CA); and Erceg v Erceg [2017] NZSC 28, [2017] 1 NZLR 320.

14     At [11]

15 At [20].

interest in the trust property… a discretionary beneficiary may well be able to bring proceedings to compel proper administration of the trust”.16

[86]              A similar argument was raised in Little v Howick Trustee DL Ltd as trustee of the Woodside Trust,17 where Brewer J found that a discretionary beneficiary was excluded from bringing an application under s 68 of the Trustee Act 1956 (now repealed) on the basis that they did not meet the statutory standing requirement of being “beneficially interested in any trust property”, but a discretionary beneficiary could, in some circumstances, engage the supervisory jurisdiction of the Court to compel proper administration of the trust.

[87]Brewer J said:

[29]      …I consider that discretionary beneficiaries are excluded from making applications [under s 68 of the Trustee Act]. A mere expectancy cannot be said to amount to a beneficial interest. As has been made clear, the interest held by a discretionary beneficiary does not crystallise into a right to trust property until and unless the trustee’s discretion is exercised in the beneficiary’s favour. This may never happen. In circumstances where the fruition of a beneficiary’s interest in trust property depends entirely on the unfettered discretion of the trustee, I do not think the beneficiary can be said to be beneficially interested in the said property for the purposes of s 68.

[30]      This conclusion does not deprive discretionary beneficiaries of redress in the face of an unreasonable exercise of trustee discretion. It is material to note that, in certain circumstances, discretionary beneficiaries may compel proper administration of a trust by engaging the Court’s supervisory jurisdiction. Established grounds for intervention are when the trustee exercises their discretion in bad faith or ultra vires.

(footnotes omitted)

[88]              Section 8(1) of the current Trusts Act 2019 confirms that the Court’s inherent jurisdiction to “supervise and intervene in the administration of a trust” is unaffected by the passage of the Trusts Act, except to the extent that that Act provides otherwise.

[89]              As the cases discussed above suggest, there is a distinction to be drawn between standing to bring proceedings which rely on a proprietary interest in the assets of  a  trust  and  proceedings  to  compel  the  proper  administration  of  a  trust.

16     Johns v Johns [2004] 3 NZLR 202 (CA) at [34].

17     Little v Howick Trustee DL Ltd as trustee of the Woodside Trust [2018] NZHC 1884, (2018) 4 NZTR 28-013.

A discretionary beneficiary has no existing proprietary interest in trust property and cannot sue to enforce a non-existent proprietary right.

[90]              The situation is different when the issue is the proper administration of a trust. A discretionary beneficiary has an existing interest to protect — namely, an interest in the proper administration of the trust. The plaintiff is a beneficiary of the Trust. If he is only a discretionary beneficiary, he still has standing to the extent that the causes of action relate to the proper administration of the Trust and can be dealt with in the exercise of the Court’s inherent supervisory jurisdiction.

[91]              In this case, the causes of action do relate directly to the proper administration of the Trust. The plaintiff claims that the defendants have acted ultra vires and outside the terms of the trust deed, transferred property ultra vires, used Trust property/funds as security for imprudent borrowing of funds, invalidly executed a deed purporting to appoint a replacement trustee, and purported to execute various (allegedly invalid) deeds relating to the Trust without due and proper consideration by the trustees and in breach of the trustees’ fiduciary obligations. Whether those claims are correct is the issue that the substantive hearing will decide. It may be arguable that the plaintiff’s fifth cause of action alleging knowing receipt of  the  Northland properties  by  Phillip Nottingham does not concern the proper administration of the Trust and instead relies on the plaintiff having an interest in the Trust property; however, this is not an issue that can be decided at this interlocutory stage. This is especially so given that the issue of whether Phillip Nottingham was a trustee at the time he is said to have received the Northland properties will only be determined at the substantive hearing. Accordingly, any further argument as to whether the plaintiff has standing in relation to his fifth cause of action will need to be heard during the trial of this proceeding.

[92]              I note that some aspects of the relief sought by the plaintiff are provided for in the Trusts Act. Specifically, the Trusts Act empowers the Court to make orders removing trustees and appointing new trustees “[w]henever it is necessary or desirable” to do so and it is “difficult or impracticable to do so without the assistance

of the court”.18 The relevant provisions of the Trusts Act do not appear to impose any restrictions on who may bring an application for removal or replacement of a trustee.

[93]              Further, s 127(3)(a) of the Trusts Act provides that the Court may set aside the act or decision of a trustee if satisfied on the balance of probabilities that the act or decision was not reasonably open to the trustee in the circumstances, following an application for review of the act or decision under s 126. Section 126(2) provides that the Court may only undertake a review of a trustee’s act or decision under that section on the application of a “beneficiary”, which is defined in s 9 to include “a discretionary beneficiary”. Section 126(4)(a) also confirms that ss 126 and 127 do not affect “the court’s jurisdiction to supervise trusts”.

[94]              In the present case, the plaintiff has not explicitly framed any aspect of his claim as an application for removal or replacement of a trustee under s 112 or 114 of the Trusts Act, or an application for review seeking that trustee acts or decisions be set aside under ss 126 and 127. Instead, he seeks relief of this nature alongside other forms of relief in relation to broader causes of action, such as claims alleging breach of trust. However, whether or not the plaintiff’s claims can be treated as applications falling within the statutory framework, the Court would not be acting inconsistently with the legislation by hearing and determining claims brought by a discretionary beneficiary for either of these types of relief. It follows that, whether these specific forms of relief are to be provided pursuant to the relevant statutory provisions or the Court’s inherent jurisdiction, they are available in response to a claim by a discretionary beneficiary.

[95]              I note that the defendants’ argument that the plaintiff lacks standing on the basis that he is a discretionary beneficiary of the Trust is somewhat inconsistent with their position that the June 2015 deed of variation of trust is valid. Under that variation the plaintiff is no longer a discretionary beneficiary. However, the plaintiff has standing in relation to most of his causes of action regardless of whether or not he is a discretionary beneficiary, and nothing turns on this issue at this stage.

18     Trusts Act 2019, ss 112 and 114(1).

Do procedural defects such as a failure to file notices of opposition prevent the plaintiff from now opposing the defendants’ applications?

[96]              At the hearing of the interlocutory applications, the defendants submitted that the plaintiff was not entitled to oppose their applications because he had not filed and served notices of opposition in advance of the hearing.

[97]              Subpart 2 of pt 7 of the High Court Rules deals with interlocutory applications and interlocutory orders. Within that subpart, r 7.24(1) provides that a respondent who intends to oppose an application must file and serve a notice of opposition to the application on every other party. The Rules provide a timeframe for doing so, being before the end of the tenth working day after being served with the application, and no less than three working days before the hearing date.19

[98]              The Rules require the notice of opposition to state the respondent’s intention to oppose the application and the grounds of opposition; and to refer to any particular enactments or principles of law or judicial decisions on which the respondent relies.20 The notice of opposition must be in form G 33, which is provided in sch 1 to the High Court Rules.21

[99]              As this Court has noted, however, the failure to file and serve a notice of opposition in accordance with r 7.24 has no formal legal effect.22 The Court may, in the exercise of its inherent jurisdiction, decide to hear submissions by a party seeking to oppose an interlocutory application even where no notice of opposition has been filed and served.23

[100]          In Mihinui v Attorney-General for the Ministry of Education, the Court stated that:24

…The purpose of a notice of opposition is to ensure the parties and the court are aware in advance of the precise issues in dispute. Ordinarily, the failure to file a notice of opposition will be a factor counting in favour of the application

19     Rule 7.24(1).

20     Rule 7.24(2).

21     Rule 7.24(3).

22     Ruscoe v Houchens [2023] NZHC 3224 at [18]; and Mihinui v Attorney-General for the Ministry of Education [2017] NZHC 654 at [13].

23     Ruscoe v Houchens, above n 22, at [13].

24     Mihinui v Attorney-General for the Ministry of Education, above n 22, at [18].

being granted. But the court must still assess any application on its merits, according to law. Failure to file a notice of opposition does not guarantee an application’s success.

[101]          In this case, the plaintiff’s opposition to the defendants’ December 2023 application was made clear by the application to strike the December 2023 application out as an abuse of process. In circumstances where the plaintiff clearly intended to continue the proceeding, as evidenced by both his strike-out application in relation to the defendants’ December 2023 application and the filing of an amended statement of claim some days before the interlocutory hearing, the fact of his opposition to the defendants’ stay/strike-out application would also have been apparent before that hearing took place.

[102]          Regardless, the plaintiff’s failure to file notices of opposition to either of the defendants’ interlocutory applications is not fatal. The Court is more concerned with the actual issue between the parties than the form of the documents filed, including the failure to file notices of opposition. That principle benefits both the plaintiff and the defendants in this case, as it is clear that many of the documents filed by the defendants are unconventional in part. That does not matter. The main concern is to address the actual dispute between the parties.

Should the plaintiff be permitted to amend the statement of claim?

[103]          The defendants contend that the plaintiff was not entitled to file an amended statement of claim without the leave of the Court after a date had been fixed for the trial of the substantive proceeding.

[104]          Rule 7.77 of the High Court Rules deals with the filing of amended pleadings and provides that a party may file an amended pleading before trial.25 An amended pleading may introduce relief in respect of a fresh cause of action which is not statute-barred, or a fresh ground of defence.26

25     Rule 7.77(1).

26     Rule 7.77(2).

[105]          If a new cause of action has arisen since the filing of the statement of claim, it may be added only by leave of the Court.27 There are costs consequences for the filing of an amended pleading but that too is subject to the discretion of the Court.28

[106]          Further, no amended pleading may be filed after the close of pleadings date without the leave of a Judge.29 Otherwise, a party may amend its pleadings as of right at any time before the close of pleadings date, though, as noted, leave will be required if a party seeks to introduce a new cause of action that arose after the statement of claim was filed.30

[107]          Leave can be granted in the absence of a formal application. The learned authors of McGechan on Procedure have observed that “…leave is likely to be granted readily, in the absence of unusual prejudice to the defendant”.31

[108]In this case, the original statement of claim was filed on 17 December 2021.

[109]          It is not clear when the seventh cause of action in the amended statement of claim, alleging breaches of trust in relation to payment of Trust funds to non-beneficiaries, arose, as the amended statement of claim states that the plaintiff does not know when the relevant Trust funds were (allegedly) transferred to two non-beneficiaries  in  breach  of  trust.    It  is  possible  that  this  occurred  after     17 December 2021 when the statement of claim was filed.

[110]          It is also unclear when the sixth cause of action in the amended statement of claim, alleging “[b]reach of trust occasioned by imprudent borrowing secured by Trust property”, arose — though this appears to be closer to 10 December 2021 which is said to be the approximate date on which Phillip Nottingham and Mr McKinney drew down the sum of $288,363 from the loan facility provided by Kensington Finance.

27     Rule 7.77(4).

28     Rule 7.77(8).

29     Rule 7.7.

30     Rule 7.77(4)–(5).

31 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters)  at  [HR7.77.04]. The authors refer to Commodore Pty Ltd v Perpetual Trustees Estate & Agency Company of New Zealand Ltd [1984] 1 NZLR 324 (CA).

[111]          To  the extent that leave is required in respect of those causes of action,         I consider that leave should be granted so that the issues between the parties can be determined by the Court if they cannot resolve those issues themselves.

[112]          On 11 April 2025, this proceeding was allocated a five-day trial commencing on 27 July 2026.32 A close of pleadings date was not expressly allocated. Therefore, the close of pleadings date falls to be determined in accordance with r 7.6(4A) of the High Court Rules — it will be the later of the two dates referred to in that sub-rule. In this case, the later of those dates is the date that is 60 working days before the trial date allocated;33 that is, 30 April 2026.

[113]          Accordingly, the plaintiff filed his amended statement of claim before the close of pleadings date and did not require leave to do so under r 7.7(1). Leave was only required in relation to any causes of action that arose after the first statement of claim was filed.

Is the amendment nevertheless an abuse of process?

[114]          At the hearing of the interlocutory applications, the defendants took issue with the extent to which the plaintiff’s amended statement of claim differs from the original statement of claim. The defendants say that such a significant amendment amounts to an abuse of process.

[115]          It is true that the plaintiff has made significant changes in his amended statement of claim, including by adding causes of action and altering the grounds on which existing causes of action are pursued. The fact that the defendants have been put to the cost and effort of almost four years’ worth of litigation in defending a claim that has now changed in material respects does raise fairness concerns.

[116]          Having said that, the law imposes very few restrictions on the extent to which pleadings may be changed prior to the close of pleadings date, beyond requiring a

32     Beere v Bullock HC Auckland CIV-2021-404-2416, 11 April 2025 (Minute).

33     Rule 7.6(4A)(a).

grant of leave before a litigant adds a cause of action that arose after the statement of claim was filed.34

[117]          Rule 7.77(2)(a) of the High Court Rules makes clear that an amended pleading may introduce relief in respect of a fresh cause of action that is not statute-barred, either as an alternative or in addition to the causes of action in the original pleading.

[118]The way in which any unfairness is addressed is largely through costs.

[119]          Rule 7.77(8) is designed to provide some response to the unfairness that may arise from changes to a party’s pleading in providing that the party filing the amended pleading must bear the costs of and occasioned by the original pleading and any application for amendment, absent any court order to the contrary.

[120]          It must be remembered that if the plaintiff had formally discontinued the original proceeding under r 15.19 of the High Court Rules, he would still have been entitled to bring another proceeding arising from the same or substantially similar facts against the same defendants provided he had satisfied any costs order made in relation to the original proceeding under r 15.23.35

[121]          On that basis, it is not an abuse of process for the plaintiff to file an amended statement of claim. There are, however, costs implications.

Defendants’ application for stay/strike-out of proceeding

[122]          The defendants filed an application dated 23 January 2024 seeking an order staying or striking out the proceeding for “abuse of process and perjury”. As noted above, this application was directed at the plaintiff’s original statement of claim.

[123]          The filing of the amended statement of claim a few days before the hearing of these interlocutory applications necessitated significant changes to the defendants’ stay/strike-out application — the defendants presented a substantially different

34 High Court Rules 2016, r 7.77(4).

35 Rule 15.24. Rule 15.23 provides that “[u]nless the defendant otherwise agrees or the court  otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance”.

application at the hearing that essentially sought strike-out of the proceeding as set out in the amended pleading. However, I was satisfied that it was appropriate to hear the defendants’ application for strike-out of the amended statement of claim in the absence of a formal written application. The Court of Appeal has confirmed that “the power to strike out a proceeding under r 15.1 of the High Court Rules… does not depend upon an application having been made”.36 Further, the plaintiff did not take issue with the defendants pursuing a substantially modified application.

[124]          The plaintiff does, however, oppose the application, and submits that the truth or otherwise of any evidence given in the proceeding is a matter for the presiding judge to determine in the course of the substantive trial. The plaintiff submits that the application for stay/strike-out is misconceived and constitutes an abuse of process.

Relevant law

[125]          Rule 15.1 of the High Court Rules provides that a court may strike out all or part of a proceeding if it discloses no reasonably arguable cause of action. A strike-out application proceeds on the assumption that the facts pleaded in the statement of claim are true,37 though this assumption does not apply to pleaded allegations that are advanced without foundation.38 The Court can only strike out a proceeding if the causes of action are “so clearly untenable that they cannot possibly succeed”.39 The jurisdiction is to be exercised sparingly and only in clear cases.40

[126]          The Court will take a cautious approach in dealing with an application to strike a claim out short of a trial and will only do so where the Court can be certain that the claim will not succeed even if the pleaded facts are true.41 In declining a strike-out application, the Court is not making a finding that the pleaded facts are true. A plaintiff may succeed on a strike-out application but lose on the substantive claim.

36     Siemer v Stiassny [2011] NZCA 1 at [14].

37     Attorney-General v Prince [1998] 1 NZLR 262 at 267.

38     Siemer v Stiassny HC Auckland CIV-2008-404-6822, 30 November 2009 at [21].

39     Attorney-General v Prince, above n 37, at 267.

40     Attorney-General v Prince, above n 37, at 267.

41     See Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

Is the defendants’ application for stay/strike-out a relitigating of matters already decided by Associate Judge Taylor and if not, are the causes of action in the amended statement of claim each clearly untenable?

[127]          The defendants’ current “stay” application, as advanced at the hearing, essentially seeks that the plaintiff’s amended statement of claim be struck out.

[128]          Associate Judge Taylor decided an earlier application by the defendants which sought an order “[s]triking out the proceedings with a permanent stay”.42 That application was brought in relation to the plaintiff’s original statement of claim. Associate Judge Taylor declined the application. To the extent that the current application amounts to an attempt to relitigate  issues  already  decided  by  Associate Judge Taylor, it would be inappropriate to come to a fresh decision on those same matters. Any challenge to the findings of Associate Judge Taylor would need to be brought by way of an appeal against his decision.

[129]            The first cause of action in the amended statement of claim which the defendants seek to have struck out alleges that the deed entered into by Stephen Beere and Mr Bullock on or around 14 June 2015, which purported to vary the terms of the Trust, is not valid.

[130]          The amended statement of claim sets out that the purported variation involved replacing the primary beneficiaries named in the original trust deed with Mr Bullock, Evan Bradshaw, Craig Beere, Mr McKinney, and Warren and Frances Beere together in equal shares,  as  to  the  sum  of  $50,000  each,  and  Dermot Nottingham,  Phillip Nottingham and Mr Leo in equal shares as to  the  residue;  removing  Stephen Beere as a primary beneficiary and excluding him from having any beneficial interest or right to consideration by the trustees as a discretionary beneficiary; converting the Trust from a discretionary settlement to a fixed-interest settlement in which each beneficiary had a fixed interest in the Trust fund to take effect on Stephen Beere’s death; and stipulating that any “primary beneficiary” whose interest was limited to $50,000 and who received a payment of such sum from Stephen Beere’s estate would not be entitled to payment from the Trust.

42     Beere v Bullock, above n 7, at [18].

[131]The grounds on which this deed of variation is said to be invalid are that:

(i)the purported variation is inconsistent with the principal purpose of the Trust; namely, to benefit Stephen Beere, his children, grandchildren and parents;

(ii)the variation was not made with due and proper consideration by Stephen Beere and Mr Bullock in their capacities as trustees;

(iii)Mr Bullock failed to exercise any independent judgement or discretion when exercising or purporting to exercise the powers conferred on him by the trust deed; instead, he signed documents at Stephen Beere’s request without reading them or considering how they would impact the interests of the primary beneficiaries or the Trust as a whole; and

(iv)the purported variation was in breach of the fiduciary obligations owed by Stephen Beere and Mr Bullock to the existing beneficiaries, and otherwise was in excess of the power conferred on them as trustees by the trust deed.

[132]            The first cause of action in the amended statement of claim is not connected with any of the specific issues that Associate Judge Taylor held should be determined at a substantive hearing. It contains an entirely new challenge to the validity of the deed of variation executed in relation to the Trust on or around 14 June 2015. The defendants are not seeking to relitigate matters already determined by applying to have this cause of action struck out.

[133]            However, this new cause of action raises issues requiring determination at a substantive hearing. The trust deed contains powers to vary the Trust, the variation was executed by the settlor of the Trust and the documents taken as a whole seem to support an intention on the part of Stephen Beere that the plaintiff would be entitled to the sum of $50,000 in total, either as a beneficiary of the Trust or as a beneficiary under his will.

[134]            The defendants appear to be on strong ground in respect of some aspects of this cause of action but not to the extent that I can say that the cause of action is untenable. I understand that this finding will be a significant irritant to the defendants. From their point of view, Stephen Beere made his intention quite clear that the most his father could expect from his assets, including as a beneficiary of the Trust, was

$50,000.

[135]            The documents strongly suggest that Stephen Beere wanted his friends, Phillip Nottingham and Dermot Nottingham, to benefit from the bulk of his estate both as beneficiaries of the Trust and under his will. Stephen Beere, in his will, treats Trust property as if it were part of his estate, which it is not unless the Trust is a sham trust.

[136]            In addition, Phillip Nottingham appears to have carried out significant work in expectation of an interest in Trust properties.

[137]            There is a real question as to whether the Trust is a sham trust. If it is, the property will fall to be distributed in accordance with Stephen Beere’s will. Under the terms of the will, the plaintiff would inherit $50,000 and the residual estate would go to Phillip Nottingham, Dermot Nottingham and Mr Leo.

[138]However, this is also not an issue that can be decided without a hearing.

[139]            The lack  of  any  quantification  of  the  value  of  the  work  done  by  Phillip Nottingham, and the lack of any independent trustee raises issues. It is not sufficient for trustees to insist that beneficiaries accept assurances that they have administered the trust in good faith and according to law. The obligation to properly account is a primary obligation of a trustee.

[140]          The second cause of action in the amended statement of claim alleges that two further deeds relating to the Trust, which were executed in September 2017, are invalid on the grounds that they were executed with the intention and purpose of benefiting Phillip Nottingham at the expense of the beneficiaries of the Trust, and they were executed for an improper purpose, without due and proper consideration by the

trustees, and were in breach of trust and the trustees’ fiduciary obligations to the Trust’s beneficiaries.

[141]The deeds referred to are:

(i)a deed dated 6 September 2017 which was executed  by  Phillip Nottingham on his own behalf and purportedly on Stephen Beere’s behalf relying on a deed of delegation and power   of   attorney   granted    to    Phillip Nottingham    on 19 January 2008, and which the plaintiff says purported:

(i)to repudiate a deed of agreement and power of attorney dated 9 June 2016 whereby  Stephen Beere,  Mr Bullock  and  Phillip Nottingham had covenanted and agreed that the loan of

$300,000 advanced by Phillip Nottingham to the Trust and secured by the mortgage registered over the Kohukohu Road property had been repaid in full, and that the mortgage could be discharged;

(ii)to declare that the Trust and Stephen Beere in his personal capacity owed Phillip Nottingham “the full mortgage value and stipulated interest [at default rate] on 447 Kohukohu Road without deduction of any kind”;

(iii)to require Stephen Beere to execute a deed binding the Trust to pay “all [owed] to Phillip Raymond Nottingham Pursuant to the

$300,000 mortgage and all monies, obligations, duties, encumbrances, liens, work rates, funding, interest payments, etc, without limitation, or deduction, or cross demand or counterclaim of any kind whatever, on the development of  447 Kohukohu    Road,     Kohukohu,     and     107     and  129 Allen Bell Drive, if the total, or separate, [owed] exceed the value of the properties held in trust…”

(iv)to  declare  that  the   Trust   and   Stephen Beere   owed Phillip Nottingham “any amounts owed on the properties at 447 Kohukohu Road, Kohukohu, as they are developed pursuant to the agreement and partnership [inclusive of being held in Trust for the sole and exclusive and unfettered benefit of Phillip Raymond Nottingham] until all amounts owed are paid   to   Phillip   Raymond   Nottingham,    of    which Phillip Raymond Nottingham shall be the sole decider of such amounts owed”;

(v)to vest the  full  value  of  the  Northland  properties  in  Phillip Nottingham; and

(vi)to repudiate the deeds of nomination whereby Stephen Beere nominated himself and Mr Bullock, in their capacities as trustees of the Trust, to settle the purchases of the Northland properties, notwithstanding that Stephen Beere and Mr Bullock were, in their capacities as trustees, already the registered owners of the Northland properties; and

(ii)a  deed  dated  7 September 2017  which  was  executed  by  Mr Bullock as a trustee of the Trust, and by Phillip Nottingham purportedly on Stephen Beere’s behalf pursuant to a deed of delegation and power of attorney granted to him on or around 19 January 2008, and which the plaintiff says purported:

(i)to give “full unconditional acceptance” by the Trust of the     6 September 2017 deed;

(ii)to declare that Stephen Beere had “no actual financial interest in funds previously invested in either the Beere Family Trust or the properties at Kohukohu Road, Kohukohu  or  107  and  129 Allen Bell Drive”;

(iii)to declare that the Trust had “no legitimate standing as a Trust and  that  the   effective   transfer   of   its   property   to  Phillip Raymond Nottingham in trust is recognition that he is its     largest     and     only     creditor     other     than    Robert Earle McKinney”; and

(iv)to declare that the Trust undertook, warranted and irrevocably agreed that “all property it holds it holds in trust for Phillip Raymond Nottingham until such time as he is paid in full for whatever he claims pursuant to the annexed  agreement [the   6 September 2017 deed] and any other agreements that he has, or will be made…”

[142]          Although the second cause of action in the amended statement of claim challenging the validity of  the  6  and  7  September  2017  deeds  is  new,  Associate Judge Taylor  said in his 31 May 2023 judgment that “the documents of    6 September 2017 and 7 September 2017 require testing in the Court.”43 Any challenge to the validity of these documents needs to proceed to trial in accordance with the finding of Associate Judge Taylor.

[143]          The third cause of action in the amended statement of claim is a claim that the purported appointment of Phillip Nottingham as a trustee of the Trust by deed dated 1 October 2019 was invalid. This is a new cause of action and does not appear to directly relate to any issues that Associate Judge Taylor said would require determination at trial. However, this cause of action cannot be deemed untenable ahead of trial. The plaintiff’s claim is that, following Stephen Beere’s death, the power to appoint new trustees for the Trust vested in Phillip and Dermot Nottingham as executors of Stephen Beere’s estate,  and  that  the  purported  appointment  of  Phillip Nottingham in October 2019 was  rendered  invalid  by  the  fact  that  Dermot Nottingham did not sign the relevant deed. A copy of the deed has been provided to the Court, and it is apparent that it was not, in fact, signed by

43     Beere v Bullock, above n 7, at [53(a)(iii)].

Dermot Nottingham. Accordingly, it appears that this cause of action cannot be deemed untenable at this stage, and it ought to proceed to trial for determination.

[144]          The fourth cause of action in the amended statement of claim is a claim for breaches of trust in relation to the Northland properties, arising from the transfers of these properties from Mr Bullock to Phillip Nottingham in November 2019.

[145]          While this cause of action was included in the original statement of claim, the basis for the breach of trust cause of action has changed somewhat. The original claim was essentially that Phillip Nottingham, who was said to be neither a trustee nor a beneficiary of the Trust, did not provide consideration for the transfers. The basis of the amended claim is that there was no “valid and enforceable” obligation or debt owed by Mr Bullock (either as a trustee or in his personal capacity), Stephen Beere or Stephen Beere’s estate to Phillip Nottingham, meaning he was not entitled to receive Trust property as a non-beneficiary; or alternatively, that Mr Bullock, Stephen Beere and Stephen Beere’s estate had no right to be indemnified from Trust funds for debts owed by them to Phillip Nottingham.

[146]          The amended statement of claim also provides additional details not contained within the original statement of claim, including claims that:

(a)Phillip Nottingham  and  Mr Bullock   signed   an   agreement   dated 6 November 2019 which provided that Mr Bullock would transfer the Northland properties to Phillip Nottingham “in full satisfaction of any financial sum that is owed to him in respect of his financial contributions to the purchase price and subsequent development of the properties”;

(b)on or around 6 November 2019, Mr Bullock falsely and fraudulently declared in a statutory declaration that he and Stephen Beere were “registered as proprietors as joint tenants of an estate or interest comprised in the said computer register 552190, NA64C/389 and NA77A/480 in [their] own right and free from all trusts and equities” when he was aware that he and Stephen Beere were in fact the

registered owners of the Northland properties in their capacities as trustees of the Trust, and subject to the trusts, powers and conditions thereof;

(c)in the same declaration, Mr Bullock falsely and fraudulently declared that he and Stephen Beere were “in agreement to hold the property in Trust for Phillip Raymond Nottingham” when he was aware that he and Stephen Beere did not hold the Northland properties on trust for Phillip Nottingham, but actually held those properties in their capacities as trustees of the Trust and subject to the trusts, powers and conditions thereof; and

(d)at all material times, both Mr Bullock and Phillip Nottingham were aware of the terms of the Trust; that Stephen Beere and Mr Bullock were the registered proprietors of the Northland properties in their capacities as trustees of the Trust; and that Stephen Beere, Mr Bullock and Phillip Nottingham had, by deed dated 16 June 2016, covenanted and agreed that the loan from Phillip Nottingham to the Trust had been repaid in full and that there were no amounts secured by mortgage number 10127186.1.

[147]          The fifth cause of action in the amended statement of claim alleges knowing receipt of the Northland properties by Phillip Nottingham.

[148]          The fourth and fifth causes of action in the amended statement of claim relate to matters that Associate Judge Taylor held must be determined at trial.

[149]          As alleged in the original statement of claim, the plaintiff says that at all material times, Phillip Nottingham knew that the Northland properties were assets of the Trust, but adds that Phillip Nottingham received the Northland properties knowing that Mr Bullock, in his capacity as trustee, did not have any valid or enforceable obligation to transfer any of these properties to him.

[150]            Further and/or alternatively, the plaintiff maintains his claims set out in the original statement of claim that Phillip Nottingham received these properties knowing that he had not provided the Trust with valid or good consideration, and that further and/or alternatively, Phillip Nottingham received these properties knowing that he had received them in breach of trust.

[151]          Many of the issues identified by Associate Judge Taylor as needing to be examined at trial are relevant to these causes of action. As the Judge acknowledged, there remain issues as to how the value of Phillip Nottingham’s work on the properties was established and corroborated and whether the decision to transfer the properties was in the interests of the beneficiaries.44

[152]          The fourth and fifth causes of action will also be affected by the outcome of the first cause of action because the disputed June 2015 deed of variation of trust purported to introduce Phillip Nottingham as a new beneficiary of the Trust.

[153]          Accordingly, the fourth and fifth causes of action in the amended statement of claim give rise to issues that ought to be determined at trial.

[154]          The sixth cause of action in the amended statement of claim alleges breaches of trust in relation to the Beazley Place property. The plaintiff alleges two separate breaches of trust in relation to this amended cause of action; namely:

(a)a breach of trust relating to the May 2021 transfer of the Beazley Place property referred to in the original statement of claim, which the plaintiff says was procured dishonestly; and

(b)a breach of trust “occasioned by imprudent borrowing secured by Trust property”.

[155]          The plaintiff maintains his original claim that Mr Bullock instructed a solicitor to register the May 2021 transfer of the Beazley Place property from himself and

44     Beere v Bullock, above n 7, at [53(a)(i)–(ii)].

Stephen Beere as transferors to himself and Phillip Nottingham as transferees, and that in doing so, that solicitor gave a number of false certificates.

[156]          However, the plaintiff has made some amendments to the claims underlying this cause of action. He claims in his amended pleading that, as the result of a deed of retirement and  appointment of new trustee  executed on or around 24 May 2021,   Mr Bullock ceased to be a trustee and therefore ceased to be entitled to be registered as an owner of the Beazley Place property; and that Phillip Nottingham was not validly appointed as a trustee of the Trust so was not entitled to be appointed a registered owner of the Beazley Place property.

[157]          The   plaintiff   also   claims   that   on   or   around   8 December 2021, Phillip Nottingham and Mr McKinney entered into a term loan agreement with Kensington Finance and executed an authority and instruction form whereby they instructed a solicitor to register a transfer of title of the Beazley Place property from Phillip Nottingham and Mr Bullock to Phillip Nottingham and Mr McKinney; to discharge the mortgage secured over  the  Beazley Place  property  in  favour  of ANZ Bank; and to register a new mortgage in favour of Kensington Finance.

[158]          The amended statement of claim sets out that on or around 10 December 2021, Phillip Nottingham and Mr McKinney drew down the sum of $288,363 from the loan facility provided by Kensington Finance, and that part of the loan funds were subsequently applied in repayment of ANZ Bank’s existing loan; the discharge of the mortgage secured over the Beazley Place property was registered; a new mortgage was registered against the record of title for the Beazley Place property in favour of Kensington Finance; and the second transfer of title to the Beazley Place property to Mr Bullock and Mr McKinney took place.

[159]            The plaintiff’s claim is that the Trust has insufficient income to meet the payments due to Kensington Finance and has no liquid assets sufficient to repay the Kensington Finance loan when it falls due; and that in the circumstances, the decision by Phillip Nottingham and Mr McKinney to borrow at least $288,363 on the security of the Beazley Place property was “improvident, imprudent and reckless” and has

exposed the Trust’s beneficiaries to a risk that the Beazley Place property will be sold pursuant to a mortgagee sale.

[160]          The sixth cause of action in the amended statement of claim also raises matters that Associate Judge Taylor found would need to be determined at trial, including “why the [Beazley Place] property is listed as an asset of [Stephen Beere] in his will of 13 June 2015 when the property is ostensibly owned by the Trust”.45

[161]          This is relevant to the defendants’ claim that the Trust was a sham. That is not a matter that can be determined in the absence of a hearing, as Associate Judge Taylor acknowledged.46

[162]          The seventh cause of action in the amended statement of claim alleges breaches of trust in relation to payments of Trust funds to non-beneficiaries.

[163]The plaintiff claims that on or around 10 December 2021, the sum of

$242,334.73 was paid from the solicitor’s trust account of Aaron Kashyap to a bank account controlled by Phillip Nottingham and Mr McKinney, and that on dates unknown to the plaintiff, Phillip Nottingham and Mr McKinney used funds borrowed from Kensington Finance to pay Craig Beere and Evan Bradshaw, two legatees named in Stephen Beere’s will of 13 June 2015, at least $50,000 each when they were not beneficiaries of the Trust and therefore had no entitlement to receive the Trust funds.

[164]          The plaintiff claims that the payment of funds raised on the security of the Beazley Place property to non-beneficiaries was a breach of trust.

[165]          The seventh cause of action in the amended statement of claim is new but cannot be said to be untenable without a substantive hearing. Again, the sustainability of this cause of action is likely to be affected by the outcome of the first cause of action which disputes the validity of the deed of variation of trust that purported to add Craig Beere and Evan Bradshaw as beneficiaries of the Trust.

45     Beere v Bullock, above n 7, at [53(b)(i)].

46     Beere v Bullock, above n 7, at [53(b)(v)].

[166]          It follows from the above discussion that none of the plaintiff’s claims in the amended statement of claim are clearly untenable, and the matter will need to proceed to a substantive hearing.

Plaintiff’s application to strike out defendants’ December 2023 application

[167]The plaintiff applies for orders:

(a)striking out the defendants’ December 2023 application;

(b)directing that no further application by the defendants be accepted for filing in proceeding CIV-2021-404-2416 without the  leave  of  a  High Court Judge, and that any such application filed without leave be dismissed summarily without requiring the plaintiff to file a notice of opposition or otherwise appear; and

(c)requiring the defendants to pay indemnity costs on and in connection with the plaintiff’s application.

[168]          The grounds on which the plaintiff brings his strike-out application are as follows:

(a)The December 2023 Application seeks by a way of interlocutory application the same or substantially similar relief which the defendants have already sought in interlocutory applications dated 12 April 2022, 19 September 2022, 28 September 2022 and 26 June 2023.

(b)The December 2023 Application is prolix, repetitive and tendentious and is a document in the nature of submission and accordingly [does not] comply with the High Court Rules 2016.

(c)The December 2023 Application contains irrelevant and scandalous allegations about his Honour Associate Judge Taylor, Court staff, the plaintiff, his solicitors and counsel and various third parties all of which allegations have no basis in fact or law and are unsupported by evidence.

…

(d)It may be reasonably inferred that the December 2023 Application is intended to vex and oppress the plaintiff, to delay the timely resolution of the substantive proceedings and to drive up the plaintiff's costs.

(e)The December 2023 Application seeks relief which is the same or substantially similar to relief sought by the defendants in previous applications filed in these proceedings.

…

(f)The December 2023 Application is an abuse of process.

Relevant law

[169]          The plaintiff seeks to rely on rr 5.35A and 5.35B of the High Court Rules in applying for strike-out of the defendants’ December 2023 application. However, the power to strike out a “proceeding” under r 5.35B arises only if the Registrar refers the proceeding to a Judge for consideration in the belief that it is “plainly an abuse of the process of the court” under r 5.35A. This has not occurred, and as explained below, the defendants’ application is an “interlocutory application” rather than a “proceeding”,47 meaning that different rules apply.

[170]The plaintiff also seeks to rely on r 15.1 of the High Court Rules.

[171]            Again, this rule deals with the Court’s power to dismiss or stay all or part of a proceeding rather than an interlocutory application. Rule 15.1(1) sets out the principles governing strike-out of a pleading — under r 1.3, the term “pleading” is defined to include “a statement of claim, a statement of defence, a reply, and a counterclaim”. Accordingly, r 15.1 does not appear to be directly applicable on its own.

[172]          The December 2023 application purports to be an “interlocutory application” though it does not strictly comply with the definition of “interlocutory application” in r 1.3 of the High Court Rules, which provides that: “interlocutory application means an application made in accordance with rule 7.19 or 7.41”. Rule 7.41 deals with oral applications for interlocutory orders and therefore has no relevance here.

[173]Rule 7.19 relevantly provides:

7.19     Contents, form and filing of interlocutory application

47     “Proceeding” is defined in r 1.3 of the High Court Rules as “any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application”.

(1)An interlocutory application must—

(a)state the relief sought and the grounds justifying that relief; and

(b)refer to any particular enactments or principles of law or judicial decisions on which the applicant relies.

(2)The application need not ask for general or other relief.

(3)The application is made by filing it in the court.

(4)The application must be in form G 31 or G 32.

…

[174]          The December 2023 application at least loosely complies with all the requirements of r 7.19 except the form requirement in subs (4). However, the defendants have purported to provide all the information required by Form G 31, albeit in a slightly different and less structured form from that prescribed. I therefore consider it appropriate to treat the December 2023 application as an interlocutory application.

[175]          Rule 7.42A of the High Court Rules empowers the Court to strike out an interlocutory application on its own initiative if satisfied it is “plainly an abuse of the process of the court”:

[176]          The Court also has an inherent power to strike out an interlocutory application that amounts to an abuse of the process of the Court, where doing so is not inconsistent with the Rules.48

[177]          What constitutes an “abuse of the process of the Court” has been explored in case law dealing with rr 5.35B and 15.1(d).

[178]          In Commissioner of Inland Revenue v Chesterfields Preschools Ltd, the Court of Appeal stated that:49

48     See, for example, Mao v Kim [2023] NZHC 3145 at [3]; and Gower v FTG Securities Ltd [2020] NZHC 1105 at [15].

49     Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89] (footnotes omitted).

Rule 15.1(1)(d) — “otherwise an abuse of process of the court” — extends beyond the other grounds and captures all other instances of misuse of the court’s processes, such as a [proceeding] that has been brought with an improper motive or [is] an attempt to obtain a collateral benefit…

[179]In D v RMC, the High Court said:50

An abuse is “improper use of [the court’s] machinery”;51 use of that process “for a purpose or in a way significantly different from its ordinary and proper use”.52

Discussion

[180]          Many of the orders proposed in the December 2023 application are sought by the defendants on the basis of allegations of conspiracy/misconduct by the plaintiff, his counsel and the Court for which no evidence has been provided.

[181]          The defendants have made unsubstantiated allegations of a similar nature in numerous documents filed in this proceeding, including several memoranda that appear to have been filed shortly after the December 2023 application. Further, aspects of the application are prolix and incomprehensible, including the nature of the relief sought at [XIII],53 and the descriptions of several of the grounds raised in support of the application.

[182]          The defendants have also applied for at least one of the orders sought in the December 2023 application previously — an earlier application to have the plaintiff’s counsel debarred was declined in Associate Judge Taylor’s decision of 31 May 2023,54 and the defendants’ application for leave to appeal against that decision was also declined on 9 October 2025.55 The December 2023 application effectively seeks to

50 D v RMC [2021] NZHC 1633 at [6].

51  Commissioner  of  Inland  Revenue  v  Chesterfields  Preschools  Ltd,  above  n  49, at [87], citing Simon Goulding, DB Casson and William Blake  Odgers  Odgers  on  Civil  Court  Actions (24th ed, Sweet & Maxwell, London, 1996) at [10.15].

52 Attorney-General v Barker [2000] 1 FLR 759 (Divisional Court) at 764.

53 Described in the December 2023 application as “DIRECTIONS AS TO THE FILING OF AFFIDAVITS AND THE SUPPLY BY LINZ of the full file, and whether the statement of claim was the only “evidence” of fraud submitted to LINZ, so that these applications can be best made out and argued pursuant to the [Court’s] obligations under the United Nations Convention Against Corruption, and pursuant to HCR’s 5.62, 5.63, and 7.51, and the Guidelines for Judicial Conduct etc.

54 Beere v Bullock, above n 7.

55 Beere v Bullock [2025] NZHC 2990.

relitigate this aspect of the defendants’ previous application outside of the appeal process provided for by statute.

[183]          However, and while this may be surprising, I do not think  that  the  December 2023 application was brought for the purposes of vexing and oppressing the plaintiff, causing delay in the determination of the substantive proceedings and increasing the plaintiff’s costs, rather than as a means of resolving genuine issues arising in the proceeding.

[184]          Rather, the application reflects the defendants’ genuinely felt outrage at allegations of wrongdoing that they feel are obviously unfounded on the basis of the 2015 will and the June 2015 deed of variation of trust, both of which strongly suggest that Stephen Beere intended to leave a maximum of $50,000 to the plaintiff with the residue going to Phillip Nottingham, Dermot Nottingham and Mr Leo.

[185]            Some of the issues with the conduct of this litigation have arisen because the defendants are self-represented but that is not through choice. They have made efforts, albeit unsuccessful, to engage legal counsel to argue what it now transpires may be a stronger position than was initially apparent.

[186]          I consider that the December 2023 application reflects a misapprehension of the legal process, or possibly a misguided view of what the legal process should be, rather than an attempt to abuse the processes of the Court.

[187]          Accordingly, I do not consider it appropriate to dispose of the defendants’ December 2023 application by way of strike-out.

Plaintiff’s application for further orders

[188]          The plaintiff seeks an order directing that no further application by the defendants be accepted for filing in this proceeding without the leave of a High Court Judge, and that any such application filed without leave be dismissed summarily without requiring the plaintiff to file a notice of opposition or otherwise appear.

[189]          The plaintiff seeks this order in reliance on r 7.52 of the High Court Rules and s 166(6) of the Senior Courts Act 2016.

[190]          Rule 7.52(1) of the High Court Rules provides that a party who fails on an interlocutory application must not apply again for the same or a similar order without first obtaining the leave of a Judge. Leave may only be granted in special circumstances.56

[191]          The plaintiff seeks this order on the grounds that the various documents filed by the defendants in the proceeding are not compliant with the High Court Rules and contain “scandalous” allegations against the plaintiff, his solicitors and counsel, Associate Judge Taylor and court staff; and it may be inferred that the defendants have filed various documents in the proceeding for the purpose of vexing and oppressing the plaintiff, delaying resolution of the substantive claim and driving up the plaintiff’s costs.

[192]          The plaintiff says that the various applications filed by the defendants have already seriously delayed progress in the substantive proceedings, and unless the order is made, it can reasonably be inferred that the defendants will continue to file “groundless and abusive applications” in the proceedings.

[193]            The plaintiff is aged 82 and says he is seriously prejudiced by the delays caused by the defendants’ applications. He contends that the ongoing applications filed by the defendants place an undue burden on the Court’s resources.

[194]          I understand the plaintiff’s position and reasons for making this application. I agree that the defendants’ misunderstanding of the rules of court, the processes of court administration, the manner in which evidence is placed before the Court and what the Court is able to determine at different stages of a proceeding have, in combination, caused the defendants to file a multitude of applications, affidavits and memoranda.

56     Rule 7.52(2).

[195]            The plaintiff submits, with some justification, that the defendants’ use of intemperate language, and their unjustified allegations against the plaintiff’s solicitors and counsel and the judiciary, are highly inappropriate.

[196]          I will not make an order requiring the defendants to seek leave for further filings, but I will make an order that any additional applications or memoranda filed be referred to me for a direction as to whether a response is required.

Defendants’ application for orders pursuant to inherent jurisdiction

[197]          The defendants seek various orders pursuant to the Court’s inherent jurisdiction.

Inherent jurisdiction — legal principles

[198]          The High Court’s  inherent  jurisdiction  is  confirmed  by  s 12  of  the  Senior Courts Act.

[199]In Siemer v Solicitor-General, the Supreme Court stated that:57

The courts’ inherent powers include all, but only, such powers as are necessary to enable a court to act effectively and uphold the administration of justice within its jurisdiction…The inherent powers of a court do not, however, extend to furthering the general public interest beyond that concerned with the due administration of justice.

[200]          The Court’s inherent jurisdiction is broad, but it is not unfettered. It is subject to legislation.58

Orders sought under the inherent jurisdiction

[201]The defendants seek orders described in their application as follows:

VARIOUS ORDERS RELATING TO INADMISSIBLE PLEADINGS AND EVIDENCE    FILED    BY    THE    PLAINTIFF’S    SOLICITORS,  [such

inadmissible content being falsehoods of fact, opinion, and belief, and/or matters of unsubstantiated speculation amounting to absolute [unqualified] concoction - [See reliance on Statute, Schedules, Rules, and common law] -

57     Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 at [114].

58     R v Iuvale [2024] NZHC 2882 at [19]–[20].

requiring all evidence filed by the plaintiff to be removed from the Court file] AND;

…

THE PLAINTIFFS SOLICITORS TO ADMIT DECEPTION OF THE COURT, AS TO THE LAW AND FACT, AND FORMALLY WITHDRAW, AND CORRECT, THE FALSITIES, AND/OR TO QUALIFY HOW THE FALSE SUBMISSIONS AND FALSE FACTS ARE NOT A DECEPTION OF THE COURT WITH SPECIFIC REFERENCE TO THE LAW AND EVIDENCE THAT PROVES NO DECEPTION OF THE COURT OCCURRED OR WAS INTENDED…

FORMAL ADMISSIONS OF LAWYER LUKE DIXON TO PREPARING THE AFFIDAVITS OF HENRY BRANDTS-GIESEN, GAILENE PATTON, WILLIAM PATTERSON, AND WARREN BEERE, AND FORMAL ADMISSIONS TO THE DECEPTIONS CONTAINED THEREIN WHICH ARE [NOT] INCONTESTABLE…

(footnotes omitted)

[202]          The defendants’ December 2023 application sets out a number of grounds for all of the orders sought, and it is not entirely clear which of the claimed grounds are intended to correspond with each order.

[203]          However, it seems that the basis on which the three orders above are sought is a contention by the defendants that the plaintiff’s counsel have formed a corrupt agreement with the Court to facilitate the Court’s acceptance of false pleadings, evidence and submissions in this proceeding.

[204]The defendants’ allegations include:

The affidavit of Warren Ernest Beere contains perjury or admitted false evidence at Paragraph 58 of the Affidavit and contains other perjury designed to defeat the course of Justice in collusion with Henry [Brandts-Giesen], and Gailene Clare Patton, and the [plaintiff’s] lawyers, not least of all Andrew Steele.

…

That the liar Mr Warren Beere has confessed that his affidavit contained

Incorrect opinion, belief, submission, wrong evidence, and the lies in his affidavit was submitted to AJ Andrew, and other officers of the High Court in order to defeat Justice and subvert justice by obtaining orders by fraud.

[205]          The plaintiff’s position is that the false information that the defendants refer to in his affidavit was a genuine mistake. The plaintiff has provided a correcting affidavit dated 7 October 2022, which states the following:

In paragraph 58 of [the plaintiff’s earlier affidavit], I deposed that [a document] described as a “deed of variation of Trust retiring and replacing originating Settlor and Trustee Stephen Matthew Beere made this Tuesday, 1^st day of October 2019” was only executed by George Bullock and Robert McKinney. That statement was in error. The document in question was executed by Mr Bullock and Mr Nottingham and witnessed by Mr McKinney. A copy of the document in question was annexed as exhibit HH to that affidavit.

[206]          Given the plaintiff’s correction of the error, there is nothing to suggest that he deliberately misled the court in order to “defeat” or “subvert” justice, or to obtain orders by fraud. While the defendants have suggested in other documents filed with the Court that this error is material, there are no compelling reasons to conclude that it was deliberate or included to increase the apparent strength of the plaintiff’s claims

— notwithstanding his correction of the error, the plaintiff is able to maintain that the document referred to did not validly appoint Phillip Nottingham as a trustee on the basis that it was not signed by Dermot Nottingham.

[207]            The defendants’ allegations set out above do not provide grounds for making the orders sought.

[208]          The defendants’ further allegations of falsity in various documents filed by the plaintiff are almost entirely unsubstantiated. Even if substantiated, the relevance will need to be determined at the hearing of the substantive issues.

[209]          The claim in para [2.11] of the defendants’ December 2023 application is not entirely clear; however, it appears to allege that there are a number of false statements in the plaintiff’s statement of claim. These allegations cannot be determined in the course of an interlocutory application but would be determined in the course of the substantive hearing.

[210]            The defendants also take issue with a submission they claim the plaintiff has made at some stage in the proceeding — specifically, that the statement of claim does

not plead criminal fraud. In circumstances where the matter has clearly progressed as a civil proceeding, there seems to be little merit in this claim by the defendants.

[211]          The defendants’ application states that an affidavit provided by  lawyer  Henry Brandts-Giesen in the proceeding contains “perjury” as it sets out that one of Mr Brandts-Giesen’s staff members  received  a  threatening  phone  call  from Phillip Nottingham, and that Mr Brandts-Giesen’s firm  does  not  know  how  Phillip Nottingham acquired that staff member’s contact details. The implication is that the phone number was acquired by some wrongdoing. The defendants’ position is that the phone number was on documents sent to them and the statement was deliberately untrue.

[212]          I can understand that the defendants regard the affidavit as an attempt to portray them in a bad light, but they do not dispute the fact of the phone call and I cannot decide in the course of an interlocutory hearing whether there was any deliberate lie involved — nor am I persuaded that even if a lie were proved, it would assist in determining the substantive matters pertaining to the Trust.

[213]          I do not think that the Court can exercise its inherent jurisdiction to make orders requiring all evidence filed by the plaintiff to be removed from the Court file, requiring the plaintiff’s solicitors to admit to deceiving the Court and to withdraw, correct or explain the alleged deception, or to require Mr Dixon, a lawyer acting for the plaintiff, to admit to preparing certain affidavits and to admit that they contain “deceptions”.

[214]          Many of the statements that the defendants claim to be false also seem to have minimal relevance to the validity of the plaintiff’s claim.

[215]            The Court’s inherent powers are limited to those that are “necessary to enable [it] to act effectively and uphold the administration of justice within its jurisdiction”.59 A decision by the Court to make the orders sought on the basis of the defendants’ allegations against the plaintiff would arguably undermine the administration of justice, especially in circumstances where it is not clear how any correction or

59     Siemer v Solicitor-General, above n 57, at [114].

withdrawal of many of the statements alleged to be false would weaken the plaintiff’s case.

[216]          The defendants will have an opportunity to test the credibility of evidence provided in support of the plaintiff’s substantive claim when that claim is heard.60

[217]The defendants seek an order that:

THE [PLAINTIFF’S] SOLICITORS ADMIT THAT THEY PLEADED

‘CRIMINAL FRAUD’ [dishonesty or deceitful act] IN THE STATEMENT OF CLAIM, [and have lied about not pleading criminal fraud], AND AS THE STATEMENT OF CLAIM REMAINS UNCHANGED STILL PLEAD CRIMINAL FRAUD, AND THAT THEY HAVE MISLED THE COURT AS TO CRIMINAL FRAUD BEING PRESENT WHEN THEY WERE AWARE, AND/OR SHOULD HAVE BEEN AWARE THAT CRIMINAL FRAUD WAS NOT PRESENT AS PLEADED BECAUSE PHILLIP NOTTINGHAM DID ALL OF THE WORK ON THE PROPERTIES, WAS OWED CONSIDERABLE SUMS, WAS A TRUSTEE AND A BENEFICIARY, AND OBTAINED VALUATIONS TO SUPPORT HIS CLAIMS…

[218]          This matter has proceeded as a civil claim. It is unclear what utility the proposed order would have. The Court’s inherent powers do not extend to the making of such an order.

[219]The defendants seek an order requiring:

FORMAL ADMISSION BY INSTRUCTING SOLICITOR WILLIAM PATTERSON THAT HE AND HIS FIRM WERE THE LAWYERS SEVERELY CRITICISED BY BIRSS J IN THE “PUGACHEV” JUDGMENT FILED IN EVIDENCE IN THIS PROCEEDING RELATING TO DECEPTIONS AND INTENTIONS TO MISLEAD THE UNITED [KINGDOM’S] SUPERIOR COURTS RELATING TO FAMILY TRUSTS AND MULTI BILLION DOLLAR MONEY LAUNDERING SCHEMES [for

the purpose of propensity evidence in relation to similar conduct in suborning the perjury of [Henry] Brandts-Giesen, Gailene Patton, William Patterson, and Warren Beere]…

60 The defendants also make several allegations, which are largely unsubstantiated, in a number of further memoranda filed with the Court after the filing of the December 2023 application. It is unclear whether these memoranda were intended to be filed in support of the December 2023 application. Again, there does not seem to be any strong basis for the allegations in these memoranda — for example, in a memorandum dated 5 December 2023, the defendants repeat their claim that Mr Beere’s affidavit contains false information, but subsequently set out that this was rectified in Mr Beere’s correcting affidavit.

[220]          It appears that the “Pugachev judgment” referred to in the December 2023 application is JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev,61 a decision of the England and Wales High Court. William Patterson, a lawyer acting for the plaintiff in the present matter, was a witness in that case, and the reliability of his evidence was criticised by Birss J.62

[221]          There does not seem to be any need for an order requiring Mr Patterson to admit that he and his firm were subject to criticism in the Pugachev judgment — that is evident from the judgment’s clear references to “William Patterson, a New Zealand solicitor” and his firm, “Patterson Hopkins”.63

[222]The defendants seek an order that:

THE       [PLAINTIFF’S]       SOLICITORS      WITHDRAW      FROM REPRESENTATION OR BE DISBARRED FROM CONTINUING…

[223]          The defendants sought what was essentially the same relief in a previous application  filed  with  the   Court.   That   application   was   declined   in  Associate Judge Taylor’s decision of 31 May 2023.64

[224]          As noted above, the defendants filed an application seeking leave to appeal Associate Judge Taylor’s decision of 31 May 2023, and that application was declined on 9 October 2025.65

[225]          The defendants’ present application does not raise any grounds for deviating from the appeal process provided for in the legislation and allowing the defendants to effectively relitigate part of their previous application.

[226]            It would be inappropriate to invoke the inherent jurisdiction to entertain this aspect of the defendants’ current application.

[227]The defendants seek orders requiring that:

61     JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev, above n 12..

62 At [357].

63     At [15]–[16].

64     Beere v Bullock, above n 7.

65     Beere v Bullock, above n 55.

THE [PLAINTIFF’S] SOLICITORS ADMIT THAT THE PLAINTIFF STOLE, OR WAS IN RECEIPT OF, THE FULL TRUST FILE, AND THE LAST WILL, AND WAS AWARE OF THE EXISTENCE OF THE RESOLUTION ADOPTING THE WILL, AND COULD HAVE PLEADED ANY ISSUES AROUND ANY OF THE DOCUMENTS NOW SPURIOUSLY CLAIMED TO BE DUBIOUS…

[V]       THE [PLAINTIFF’S] SOLICITORS ADMIT THAT THEY WERE AWARE THAT LAST WILL HAD BEEN PROBATED BOTH IN NSW AND NEW ZEALAND AND IT INCLUDED THE TRUSTS PROPERTY AND THAT THEREFORE THE LAST WILL AND ANY RESOLUTION ADOPTING THE LAST WILL BY THE TRUST INVALIDATED THE PREVIOUS WILL AND MOW RELIED UPON BY THE PLAINTIFF IN THE STATEMENT OF CLAIM…

[VI]      THE [PLAINTIFF’S] SOLICITORS ADMIT THAT THEY WERE AWARE THAT THE LAST WILL AND THE RESOLUTION ADOPTING IT WERE EXECUTED BY THE SETTLOR AND MADE THE CLAIMS RELATING TO THE 2008 WILL AND MEMORANDUM OF WISHES WHOLLY INVALIDATED AND A FRAUDULENT CAUSE OF ACTION…

[228]          This issue is closely related to the plaintiff’s claim challenging the validity of the 2015 deed of variation of trust and is best dealt with in that substantive context. The orders that the defendants seek are not orders that I consider could or should be made in the exercise of the inherent jurisdiction.

[229]The defendants seek relief described in their application as follows:

ADDITIONAL APPLICATION FOR RECUSAL BASED ON THE HEARING OF 30 NOVEMBER 2022 AND THE SUPPLY OF THE TRANSCRIPT OF THE HEARING OF 30 NOVERMBER 2023…

THE COURT DIRECTS THAT THE MATTERS BE REFERRED TO THE POLICE, THE HEAD OF BENCH, THE ATTORNEY-GENERAL AND THE [SOLICITOR-GENERAL], THE NEW ZEALAND LAW SOCIETY, AND TO THE UNITED NATIONS COMMITTEE REGARDING THE CONVENTION AGAINST CORRUPTION.

[230]          The grounds on which the defendants seek these orders appear to be a series of allegations that Associate Judge Taylor colluded with counsel for the plaintiff to make various findings and/or statements that were unfavourable to the defendants in the proceeding.

[231]          It is not entirely clear when or where all of the findings and/or statements referred to were made, though the defendants appear to take issue with aspects of Associate Judge Taylor’s decision of 31 May 2023 where the Judge refused to strike out the proceeding, and with statements  made  by  the Judge during  a  hearing  on 30 November 2023.66 The defendants’ claims of collusion seem to be largely founded on mere disagreement with conclusions reached by the Judge. Accordingly, there is no evidence of misconduct that would warrant referral to the individual officers or bodies specified in the December 2023 application.

[232]          So far as the issue of recusal is concerned, the High Court recusal guidelines provide that “[t]he question of recusal is for the judge hearing the case”.67 I cannot determine an application for Associate Judge Taylor’s recusal.

[233]The defendants seek:

ANY OTHER ORDERS ESSENTIAL TO PROTECTING THE ADMINISTRATION OF JUSTICE - TWO SUCH ORDER[S] BEING THAT THE COURT  RESCIND  ALL  ITS  JUDGMENTS  PURSUANT  TO HCR 7.51, AND THAT ADMISSIONS WERE MADE TO THE CRIMINAL [CONSPIRACIES] ALLEGED IN THE STATEMENT OF CLAIM PURSUANT TO [NONCOMPLIANCE] BY THE  PLAINTIFF  WITH HCR 5.62 AND HCR 5.63…

[234]          In relation to the first of the two orders specified, the defendants refer to r 7.51 of the High Court Rules, which provides that a Judge may rescind any order that has been “fraudulently or improperly obtained”.

[235]          There is no evidence, beyond bare allegations, that any judgments/orders of the Court in this proceeding have been “fraudulently or improperly obtained”.

[236]There are accordingly no grounds for making the first order specified.

[237]          In relation to the second of the orders specified, the defendants seem to be claiming, in reliance on rr 5.62 and 5.63 of the High Court Rules, that because they

66 This proposed order also refers to a a hearing on 30 November 2022. This is presumably an error; there was no hearing on that date.

67    Justice G J Venning “High Court recusal guidelines” (12 June 2017) Ngā Kōti o Aotearoa/Courts of New Zealand < court-recusal-guidelines>.

raised affirmative defences in their statements of defence (apparently alleging that the plaintiff and his lawyers are party to a conspiracy to “defeat justice and obtain orders by fraud”) which the plaintiff has not replied to, the plaintiff has admitted to the allegations forming the basis of the affirmative defence.

[238]Rules 5.62 and 5.63 of the High Court Rules read as follows:

5.62Duty to file and serve a reply

If a statement of defence asserts an affirmative defence or contains any positive allegation affecting any other party, the plaintiff or that other party must, within 10 working days after the day on which that statement of defence is served, file a reply and serve it on the party serving the statement of defence.

5.63Contents of reply

(1)A reply must be limited to answering the affirmative defence or positive allegation and otherwise must comply with the rules governing statements of defence so far as they are applicable.

(2)An affirmative defence or positive allegation in a statement of defence that is not denied is treated as being admitted.

[239]          The statements of defence filed by the first, second and third defendants do contain allegations regarding the plaintiff’s involvement in unlawful conspiracies, though these do not appear to be expressly pleaded as affirmative defences. However, even if these allegations can be treated as “affirmative defences” or “positive allegations” for the purposes of r 5.63(2), that rule is not to be interpreted as automatically barring a plaintiff from denying a defence if they do not file a reply within the required timeframe, especially where that defence has questionable merit.

[240]            In Frankton Gateway Apartments (2003) Ltd (in liq) v Sullivan, the Court said:68

[30]      The difficulty, however, in interpreting r 5.63(2) in the way urged on me by the defendants is that a slip in the process of refining the pleadings would have the effect of denying [the plaintiff] the right to argue the validity of the positive defence claimed — in other words, it would bring all or part of [the plaintiff’s] claim to a peremptory halt, even though the claimed positive

68 Frankton Gateway Apartments (2003) Ltd (in liq) v Sullivan [2012] NZHC 2399 (citations omitted). Paragraph [30] was cited in Craig v Social Media Consultants Ltd [2017] NZHC 1315 at [17].

defence might, in some cases at least, lack merit. I do not think that the rule was intended to have that effect. It may be compared with the situation that applies when a statement of defence is not filed within time. The Rules allow a plaintiff to obtain judgment by various steps depending on the nature of the proceeding. In contrast there are no equivalent rules which specifically allow a defendant to seek a permanent stay or strike-out of a [plaintiff’s] claim on the ground that a reply has not been served. In my opinion this supports an interpretation of rr 5.62 and 5.63 as a mechanism to bring about prompt definition of the issues in a case. I do not think these rules are to be interpreted so as to deprive a plaintiff of access to justice. The phrase “treated as being admitted” should be interpreted as having procedural effect only, not substantive.

[31]      In my opinion it is open to the Court to find that a reply has been sufficiently given in another formal document filed in the interlocutory process, including by way of a memorandum filed by counsel for the purposes of a case management conference, and that in the absence of any document sufficiently constituting a reply, and putting the defendants on notice that a claimed positive defence is in issue, it is appropriate where the interests of justice so require, to extend time.

[241]          In their earlier interlocutory application dated 12 April 2022, the defendants raised the following ground in seeking various orders:

[iv] [Counsel’s] corruption, money laundering, coercion, blackmail, theft, conflicts, and involvement in proved actionable fraud by the Plaintiff, Plaintiff's counsel, and the law firm of Patterson Hopkins, against the Defendants, and their Lawyers, as admitted by the Plaintiff, Plaintiff's counsel, and the law firm Patterson Hopkins, when failing, and refusing to reply, [thus admitting HCR5.62[2]] to the positive allegations and affirmative defences of the defendants pursuant to HCR 5.62 and 5.63.

[242]          In responding to that paragraph of the application in his notice of opposition, the plaintiff said:

Paragraph [iv] - The Applicants’ allegations against the Respondent, against the solicitor-on-the-record and the law firm Patterson Hopkins are patently false and scandalous to the extent that [they] likely constitute an improper use of the court’s process. The Respondent has made no admissions in respect to the Applicants’ allegations and conjecture. For the avoidance of doubt the allegations are denied.

[243]               The plaintiff also stated in that notice of opposition that he had not yet filed a reply to the defendants’ original statements of defence because “the statements of defence filed by the Applicants do not comply with the High Court Rules or usual principles of pleading because they are prolix, contain scandalous and irrelevant material, and plead evidential matters and submissions of law.”.

[244]          There is no reason to invoke the inherent jurisdiction to grant relief confirming that these allegations have been admitted. It is entirely obvious that the allegations are not admitted. The defendants’ approach is overly concerned with form.

[245]The defendants seek:

DIRECTIONS AS TO THE FILING OF AFFIDAVITS AND THE SUPPLY

BY LINZ of the full file, and whether the statement of claim was the only “evidence” of fraud submitted to LINZ, so that these applications can be best made out and argued pursuant to the Courts obligations under the United Nations Convention Against Corruption, and pursuant to HCR’s 5.62, 5.63, and 7.51, and the Guidelines For Judicial Conduct etc.

[246]          If this proceeding continues there will be timetable orders for the filing of evidence.

[247]          LINZ is not a party to this proceeding. This application seems to be more relevant to the defamation proceedings which the defendants have brought and which will likely follow these proceedings as the factual findings in this proceeding may have a bearing on the defamation proceedings.

[248]The defendants seek an order that:

INDEMNITY AND PUNITIVE COSTS [BE] AWARDED TO THE APPLICANTS ON THE SAME SCALE AS SENIOR COUNSEL.

[249]          The costs regime is found in the High Court Rules. There is no need to resort to the inherent jurisdiction to determine this aspect of the defendants’ application.

[250]          The defendants could make an application for security for costs if the grounds are made out. They are self-represented, but costs are now available to self-represented litigants.69

[251]          The issue of costs is otherwise best determined at the end of the proceedings. While r 14.8(1) of the High Court Rules requires that costs on an opposed interlocutory application be fixed when the application is determined absent special reasons to the contrary, I consider that special reasons exist to justify delaying the determination of

69     See High Court Rules, sch 2, pt 2.

costs on all three applications dealt with in this judgment. The issues arising from these applications are closely related to the substantive issues to be determined at trial, and the conclusions reached on the substantive claims will have an impact on whether any costs award made against the defendants may be paid from Trust funds. In my view, it is not appropriate to determine costs on the interlocutory applications before these key issues relating to the substantive claims are decided.

Result

[252]          The defendants’ application for stay or strike-out of the plaintiff’s amended claim is declined.

[253]          The plaintiff’s application to strike out the defendants’ December 2023 application is declined.

[254]          The defendants’ December 2023 application for various orders to be made in the exercise of the Court’s inherent jurisdiction is declined.

[255]          I order that any additional applications or memoranda filed by the defendants be referred to me in the first instance for a direction as to whether a response is required.

Wilkinson-Smith J