Beere v Bullock
[2025] NZHC 2990
•9 October 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-2416
[2025] NZHC 2990
UNDER the Trusts Act 2019 and in the inherent and equitable jurisdictions of the High Court IN THE MATTER OF
the BEERE FAMILY TRUST
BETWEEN
WARREN ERNEST BEERE
PlaintiffAND
GEORGE BULLOCK
First Defendant
PHILLIP RAYMOND NOTTINGHAM
Second Defendant
ROBERT EARLE McKINNEY
Third DefendantDERMOT GREGORY NOTTINGHAM
Fourth Defendant
Hearing: 11 August 2025 Appearances:
Andrew Steele for the Plaintiff
Dermot Nottingham for the Defendants (self-represented)
Judgment:
9 October 2025
JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR
[Application for leave to appeal]
Solicitors:
This judgment was delivered by me on 9 October 2025 at 3:00pm
Pursuant to Rule 11.5 of the High Court Rules 2016
……………………………………… Registrar/Deputy Registrar
Patterson Hopkins (William M Patterson), Auckland, for the Plaintiff
Copy for:
Andrew J Steele, Auckland, for the Plaintiff Defendants – all self-represented, Auckland
BEERE v BULLOCK [2025] NZHC 2990 [9 October 2025]
Application for leave to appeal
[1] On 31 May 2023 the Court delivered a judgment (the Judgment)1 which dismissed the defendants’ applications to strike out the proceedings, to debar the plaintiff’s counsel and find the plaintiff’s counsel in contempt of the Court.
[2] The defendants filed an application for leave to appeal the Judgment on 26 June 2023, and the plaintiff filed a notice of opposition to the application dated 4 July 2023.
[3] The defendants’ application for leave to appeal was to be heard on 30 November 2023. In preparation for that hearing the defendants filed submissions in support of the application dated 17 November 2023, the plaintiff filed submissions in support of their opposition to the application dated 23 November 2023. The hearing did not proceed on 30 November 2023 and the leave to appeal application was heard on 11 August 2025.
[4] For the hearing on 11 August 2025 the defendants filed a synopsis of submissions dated 7 August 2025 and also filed a document dated 11 August 2025 with oral submissions at the hearing.
[5] The plaintiff relied on the submissions filed on 23 November 2023 in anticipation of the hearing of the leave to appeal application on 30 November 2023 (which did not proceed).
Defendants’ application dated 4 March 2025
[6] Although not dealt with at the hearing on 11 August 2025, this application was set down to be dealt with in that hearing.2 Accordingly it is dealt with on the papers in this judgment.
1 Beere v Bullock [2023] NZHC 1172.
2 See minute of Wilkinson-Smith J dated 21 May 2025 at [9].
Legal principles
[7] No appeal3 lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court or by the Court of Appeal following the High Court’s refusal of leave.4
[8] The relevant principles are set out in the decision of the Court of Appeal in Greendrake v District Court where the Court of Appeal identified the following considerations:5
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
[9] The Court of Appeal in that decision also approved the observations of Fitzgerald J in Finemore Upholstery Ltd v Vaughan to the effect that the requirement for leave was a filtering mechanism to ensure that unmeritorious appeals of no great significance do not unnecessarily delay the proceedings in which the orders had been made.6
3 Except for those appeals provided for under s 56(4) of the Senior Courts Act (the Act).
4 Section 56 of the Act.
5 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].
6 Greendrake v District Court of New Zealand, above n 4, referring Finemore Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
The defendants’ submissions
[10]From the defendants’ application for leave the grounds for appeal appear to be:
(a)As the presiding Judge, I was “corrupt, dishonest and disingenuous” with regard to presiding over the defendants’ strike-out application and hearing, and in issuing judgment;
(b)as the presiding Judge, I committed acts amounting to a criminal breach of sections 100, 116 and 117(e) of the Crimes Act 1961, section 107 of the Crimes Act 1961, section 27 of the New Zealand Bill of Rights Act 1990 and section 18 of the Oaths and Declarations Act 1957;
(c)failed to address the alleged perjury by the plaintiff;
(d)failed to address the alleged fraudulent submissions by the plaintiff’s counsel at the hearing of the strike-out application;
(e)failed to report the statement of claim as an alleged criminal fraud when the respondents’ counsel withdrew their allegation and instead alleged equitable fraud;
(f)as presiding Judge, I acted in a criminal conspiracy with the plaintiff and the plaintiff’s counsel;
(g)as presiding Judge, I failed to follow the High Court Rules 2016, and in particular rr 5.62 and 5.63;
(h)in the judgment, I failed to deal with the “locus standii” issue in respect of the plaintiff, namely that the plaintiff as discretionary beneficiary under the Beere Family Trust, had no right to issue the proceedings.
[11]I deal with each of the points of appeal in turn.
Alleged improper conduct by the presiding Judge
[12] The sections referred to by the defendants in the Crimes Act 1961, the New Zealand Bill of Rights Act 1990, and the Oaths and Declarations Act 1957, have no application or relevance to the manner in which I determined the issues involved in the Judgment and the allegations are unsubstantiated and meritless. These allegations do not form any proper basis for granting leave to appeal the Judgment.
[13] The defendants pursued the strike-out application in the misconceived belief that their application required the Court to address and resolve the substantive issues and contests in the proceedings generally. As a consequence, the defendants filed multiple lengthy affidavits and annexed copious exhibits in an attempt to establish their defence while not addressing the applicable legal tests whether or not a statement of claim with specific causes of action ought to be struck out. These tests in a strike- out application proceed on the assumption that pleaded facts are true unless those pleaded facts are entirely speculative or without foundation.7
[14] The defendants have not demonstrated any error of law or fact in the Judgment. The Judgment applied well-settled principles in relation to the strike-out. There are conflicts of evidence, and a number of the documents put forward by the defendants to prove their defence, as noted at [53] of the Judgment, require testing, given the plaintiff’s allegations. These issues could not be resolved in the context of a strike- out application, and accordingly the strike-out application was dismissed.
Alleged perjury
[15] The defendants assert that I failed to address perjury by the plaintiff. There is no admitted perjury by the plaintiff. All that occurred was that the plaintiff filed an affidavit correcting a mistake in his earlier affidavit. There are also other allegations of perjury by other advisers to other parties who are not parties to the proceedings.
7 Attorney-General v Price and Gardiner [1998] 1 NZLR 262; Couch v Attorney-General
[2008] NZSC 45, [2008] 3 NZLR 725 at [33].
[16] The issue in the strike-out application was whether or not the statement of claim contained tenable causes of action which, on the evidence before the Court, I concluded that the causes of action in the statement of claim were not untenable, and therefore the strike-out application should be dismissed. Any issue relating to the purported perjury by the plaintiff (which the plaintiff and his counsel deny) or other allegations of perjury (if proved to be correct) are not relevant to the test to be applied on whether a strike-out application should be granted or not.
Alleged fraudulent legal submissions by the plaintiff ’s counsel
[17] The defendants allege that the plaintiff’s counsel made fraudulent submissions in the proceeding. Counsel for the plaintiff denies making any fraudulent submissions, and in response to the defendants’ application, asserts that either the relevant fraudulent submission alleged was not made, or the alleged fraudulent submission related to submissions in respect of the law, and in any event submissions are conveying the plaintiff’s counsel’s belief to the Court which cannot constitute lies.
[18] I am of the view that the defendants’ allegations in this respect are unsubstantiated and meritless.
Statement of claim – criminal fraud v equitable fraud
[19] The defendants allege that I failed to report that the statement of claim contained an alleged criminal fraud and the respondent’s counsel removed that allegation and instead alleged equitable fraud.
[20]Counsel for the respondent, in response, submits:
(a)Fraud is not pleaded in the statement of claim. Instead, the claim alleges breach of trust and dishonesty against the trustees. The claim is a civil one so “criminal type fraud” is irrelevant and would not have been pleaded even if it was considered to have occurred;
(b)the plaintiff takes the stance that to succeed in his claim all he must establish is a breach of trust by the trustees, and whether or not such
breach of trust also constituted an equitable fraud is irrelevant to the plaintiff’s case and hence not pleaded.
[21] The statement of claim does not allege fraud, and the plaintiff’s position that it is a civil claim alleging a breach of trust and dishonesty, is correct. Therefore this ground of appeal is baseless.
Presiding Judge acted in a criminal conspiracy with the plaintiff and the plaintiff ’s counsel
[22] This is an unsubstantiated and meritless allegation. The Judgment dismissing the strike-out application applied well-settled principles of law applicable to a strike- out applications and there is no evidence that I was involved in any criminal conspiracy with the plaintiff or the plaintiff’s counsel. This ground for leave to appeal is baseless.
The presiding Judge failed to follow the High Court Rules, in particular rr 5.62 and 5.63
[23] In answer to this ground, the plaintiff‘s counsel had previously put forward the position that the defendants’ statement of defence was so prolix, discursive, and irrelevant that it was not possible to determine clearly the affirmative defences to be answered. In relation to an application for strike out, the focus on whether the cause of action in the statement of claim are tenable or not and the application of rr 5.62 and
5.63 are not relevant to that issue.
The locus standii issue
[24] The defendants allege that the plaintiff has no standing to bring the claim as a discretionary beneficiary of the Trust. In response, counsel for the plaintiff submits that while a discretionary beneficiary does not have any interest in the Trust property, a discretionary beneficiary can bring an action to enforce proper administration of the Trust and in relation to a breach of trust, referencing the case of Johns v Johns.8
8 Johns v Johns [2004] 3 NZLR 2002 at [34]-[35].
[25] The plaintiff’s position on this point is certainly reasonably arguable and hence the causes of action in the statement of claim are not untenable. Accordingly, this issue is not a ground for granting leave to appeal.
Is the alleged error of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh lack of general or precedential value?
[26] In my view, the defendants have not established any alleged error of general or public importance in the Judgment.
[27] As has been noted above, the grounds of appeal are unsubstantiated and without merit and do not in my view, have sufficient importance to justify granting leave given there is no general or precedential value of the application.
Do the circumstances warrant incurring further delay?
[28] Counsel for the plaintiff submits that the circumstances in the present case strongly militate against granting leave to appeal, given the prospects of success of the appeal are slight, and the delay in the proceeding has already been considerable. Counsel submits that the proceedings were filed in December 2021 and there has been little substantive progress since then, largely because of the defendants’ continued applications. He submits the plaintiff is in his early 80s and is prejudiced by the delay occasioned by the defendants’ tactics.
[29] I am of the view that further delay in these proceedings which would be occasioned by granting leave to appeal is not justified. The grounds of the appeal do not have sufficient merit, the proceedings have been on foot for almost four years with little progress in the substantive proceeding, and the plaintiff is prejudiced by the delay.
Are the interests of justice served by granting leave?
[30] In my view, as has been noted above, the grounds of appeal are unsubstantiated and lack merit. The defendants have failed to demonstrate any error of law or fact in
the Judgment. The matters raised on appeal are not capable of a bona fide and serious argument.
[31] As noted at [54] of the Judgment, the extensive history and factual conflicts in relation to the Trust, the actions of the trustees and documents put forward by the defendants in an attempt to prove their defence in respect of the Trust, cannot be resolved in the context of a strike-out application and accordingly the strike-out application wasdismissed.
[32] The defendants have not met the high threshold required for the granting of leave to appeal.
Application to debar the plaintiff’s counsel/solicitor and find them in contempt?
[33] In the Judgment at [68] and [69] the applications were dismissed for lack of evidence. The propensity evidence which the defendants put forward in relation to Mr Patterson in respect of the Pugachev case is irrelevant9 and does not provide evidence of any impropriety by the plaintiff’s solicitors or counsel in the present case.
[34]Accordingly there are no grounds for granting leave to appeal on these issues.
Defendants’ application dated 4 March 2025
[35] While this application was not addressed by either the plaintiff or the defendants at the hearing on 11 August 2025, it was scheduled to be dealt with at that hearing.
[36] Under the application, the defendants are seeking an order that I give formal notice to the parties to explain why Moore J became involved in the proceedings.
9 JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev9 [2017] EWHC 2426 (Ch).
[37] The application then deals with, in effect, grounds for my recusal which has already been dealt with by a judgment dismissing the application,10 and a judgment dismissing the application for leave to appeal that judgment.11
[38] The remainder of the application repeats the allegations in relation to grounds for my recusal, and reiterates the issues that the defendants have raised in the hearing for the application to strike-out, the application for recusal, and various other applications that have been made by the defendants and have been dealt with by the Court.
[39] In relation to Moore J’s involvement in the proceedings, it was simply an administrative procedure within the Auckland High Court in relation to case management cases where, in circumstances which would be beneficial to the management of the case Associate Judges can refer cases to be managed by a High Court Justice. This is what occurred. The orders sought by the defendants in the application are inappropriate and will not be made by the Court.
[40]Accordingly the application is dismissed.
Orders
[41]I make the following orders:
(a)The defendants’ application for leave to appeal the Judgment is dismissed;
(b)the defendants’ application dated 4 March 2025 for various orders is dismissed;
(c)as the plaintiff is the successful party, costs should follow the event. The parties are to submit memoranda as to costs within 10 working days of the date of this judgment.
………………………………………..
Associate Judge C B Taylor
10 Beere v Bullock [2024] NZHC 3174.
11 Beere v Bullock [2025] NZHC 387.
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