Beere v Bullock

[2025] NZHC 387

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2416

[2025] NZHC 387

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:	On the papers
Appearances:	Andrew J Steele and Luke W Dixon for the Plaintiff Defendants are self-represented
Judgment:	5 March 2025

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application for leave to appeal]

This judgment was delivered by me on 5 March 2025 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:

Patterson Hopkins (Bill Paterson/Luke Dixon), Auckland, for the Plaintiff

Copy for:

Andrew J Steele, Barrister, Auckland, for the Plaintiff

G Bullock/P R Nottingham/R E McKinney/D G Nottingham, Auckland, (the Defendants/Applicants)

BEERE v BULLOCK [2025] NZHC 387 [5 March 2025]

[1]                 By judgment dated 31 October 2024, the Court dismissed the defendants’ application  for  an  order  for   me   to   recuse   myself   from   the   proceedings  (the Judgment).1 The defendants, by interlocutory application dated 11 November 2024 are seeking leave the appeal the Judgment. The plaintiff filed a notice of opposition to the application, dated 15 November 2024.

[2]By minute dated 20 December 2024 the Court made the following directions:

(a)The defendants were to file and serve written submissions in support of the application for leave by 24 January 2025;

(b)the plaintiff was to file and serve written submissions in opposition to the application by 7 February 2025;

(c)the application was to be determined on the papers.

[3]                 The defendants  filed submissions in support of the leave to  appeal dated    24 January 2025, counsel  for  the  plaintiff  filed  submissions  in  opposition  dated 7 February 2025 and the defendants filed submissions in reply dated 21 February 2025. The defendants also filed a further affidavit sworn by Phillip Raymond Nottingham, dated 22 January 2025.

Legal principles

[4]                 No appeal2 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.3

1      Beere v Bullock [2024] NZHC 3174.

2      Except for those appeals provided for under s 56(4) of the Senior Courts Act.

3      Section 56 of the Act.

[5]                 The relevant principles are set out in the decision of the Court of Appeal in Greendrake v District Court4 where the Court of Appeal identified the following considerations:

(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.

[6]                 The Court of Appeal in that decision also approved the observations of Fitzgerald J in Finemore Upholstery Ltd v Vaughan5 to the effect that the requirement for leave was a filtering mechanism to ensure that unmeritorious appeals of no great significance did not necessarily delay the proceedings in which the orders had been made.

The defendants’ submissions

[7]                 Much of the defendants’ submissions of 24 January 2025 and the reply submissions of 21 February 2025 relate to the original arguments put forward by the defendants in support of their strike-out application. Having reviewed the submissions, the defendants are essentially repeating a number of grounds that were put forward in the original recusal application, which can be summarised as follows, namely that I:

(a)ignored the allegations in the statement of claim and the defendants’ evidence that the statement of claim was fraudulent as demonstrated by evidence supplied by the defendants supporting positive allegations of fraud as affirmative defences in the statement of defence and that the plaintiff refused to answer as required under rr 5.62 and 5.63 of the

4      Greendrake v District Court [2020] NZCA 122 at [6].

5      Finemore Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

High Court Rules 2016. The defendants submit that this means the Court was required to find the allegations by the defendants against the plaintiff and its lawyers were true, requiring the Court to strike out the statement of claim and finding the plaintiff and its lawyers in contempt;

(b)ignored the fact that the plaintiff’s counsel refused to give instructions as to whether they were involved in the alleged theft of trust documents when it was proved they were;

(c)ignored the perjury proven by correction in the plaintiff’s counsel’s lies as to what constitutes perjury and misconduct and not admitting perjury until after the trial.

(d)failed to restrict the plaintiff in his responses to the issues actually raised in the statement of claim, or if I felt the additional issues had merit, required the plaintiff to amend his statement of claim appropriately.

[8]                 As in the original application for recusal, the defendants allege I have acted perversely in that:

(a)I did not strike out the plaintiff’s proceedings notwithstanding there was a strong case that there was a transfer to Mr Phillip Nottingham of the Northland properties for a considerable consideration; the statement of claim containing criminal fraud allegations had been knowingly made when the plaintiff was aware the statement was false; and the false statement had been promoted to the Registrar-General of Lands in order to obtain a caveat, including the false declarations and undertakings given by the plaintiff to the Registrar General of Lands;

(b)I did not strike out the plaintiff’s claim in respect of the Beazley Place property, notwithstanding there was a strong  case  the  transfer  to  Mr Phillip Nottingham was not a transfer to him in his personal capacity and the Property remained in the control of the trust, meaning

that the allegations of a criminal fraud had been made where no consideration was paid which were patently false, and this allegation had been made when the plaintiff was aware the statement was purposely false;

(c)the Court did not report the admissions of the plaintiff’s solicitors to the Registrar General of Lands and he had only a suspicion and held no evidence whatsoever to support the caveat;

(d)I did not report the plaintiff as a discretionary beneficiary who had no standing and could not bring a suit, and even if he could bring a suit in a derivative claim, “special circumstances” are only fraud or other dishonesty, and no dishonesty occurred, as admitted by the plaintiff’s counsel in his submissions;

(e)I did not take action in respect of the alleged perjury and the filing of false submissions by the plaintiff’s counsel;

(f)I did not take account of the propensity of evidence relating to the plaintiff’s solicitor put forward by the defendants (the Pugachev case).

The plaintiff’s submissions

[9]                 Mr Steele, for the plaintiff, in his submissions reviewed the background and the procedural history of the proceeding, and then dealt with the applicable law in respect of the Court granting leave to appeal. He then addressed each of the factors set out in the Greendrake decision that should be considered in the Court deciding whether or not to grant leave to appeal. I deal with each of these in turn.

Have the defendants identified an arguable error of law or fact?

[10]              Mr Steele submits the grounds articulated in the November 2024 application are lengthy and discursive and are not directed at the issues which are meant to be considered by the Court in disposing of an application for leave to appeal. Mr Steele summarises the defendants’ grounds for the application are that I failed to take into

consideration certain issues the defendants consider that I ought to have taken into consideration, took into consideration matters I ought not to have taken into consideration, and predetermined my Judgment against the defendants.

[11]              Mr Steele submits the Judgment carefully sets out the matters taken into consideration and there is no basis to allege that I failed to take into account any relevant considerations nor that any of the matters taken into consideration were not relevant. He submits the fact the Judgment reached a conclusion the defendants reject is not grounds to grant leave to appeal.

[12]              As to the allegations that I predetermined the outcome, Mr Steele submits this is tantamount to an allegations of bias and submits that any such allegations are without foundation and ought to be disregarded.

[13]              On this issue, Mr Steele sums up by submitting that the defendants have not identified any error of fact or law which warrants 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 the lack of general or precedential value?

[14]              Mr Steele submits there is no alleged error of general or public or other sufficient importance warranting leave to appeal.

Do the circumstances warrant incurring further delay?

[15]              Mr Steele submits that the defendants intend to use the proposed appeal to relitigate issues which have been determined against them, both in the Judgment and in relation to various other interlocutory applications they have brought in the proceedings.

[16]              Mr Steele submits that the matter has been assigned to Downs J for intensive case management, it is likely that I will have limited ongoing involvement in the file and to that extent the recusal application is largely moot.

[17]              Mr Steele submits the proceedings were filed in December 2021 and there has been little substantive progress since then, largely because the defendants have pursued allegations against the plaintiff and his legal representatives. Mr Steele submits the plaintiff is in his early eighties and is prejudiced by the delays occasioned by the defendants’ tactics.

[18]              Mr Steele submits that the circumstances do not warrant further delays which would be occasioned by granting leave to appeal.

Are the interests of justice served by granting leave?

[19]              Mr Steele submits the interests of justice are not served by granting leave. He submits the plaintiff has filed his proceedings in good faith and is entitled to have them determined  in  as  speedy,  expeditious,  and  cost-effective  manner  as  possible.  He submits that if there is substance in the defendants’ defences then it is in the defendants’ own interests for the substantive issues to be determined, rather than the proceedings to be bogged down in endless procedural matters. He submits the defendants’ proposed appeal has no reasonable prospect of success and will only occasion further delays.

Result

[20]              I am of the view that the defendants’ application for leave to appeal should be declined. The allegations by the defendants made against me as grounds for my recusal are without foundation. My view of the application of the factors set out in the Greendrake decision they are as follows:

(a)the defendants have not identified any arguable error of law or fact. The grounds for their application for leave to appeal are essentially the same as the grounds in the original application for my recusal. I have already set out at [22] of the Judgment my views on these grounds. It is not necessary to repeat them again. They have not demonstrated that I failed to take into account relevant matters or took into account irrelevant matters;

(b)there is no alleged error of general or public importance or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value. The recusal application has no importance beyond the immediate parties and, given my likely limited involvement in the proceedings in the future, is not sufficiently important to the defendants to warrant granting leave;

(c)the circumstances of an appeal do not warrant further delay. The proceedings were filed in December 2021 and after three years no progress has been made in the substantive proceedings. Delays have been occasioned by the defendants’ interlocutory applications and no further delay is justified by the appeal, which in my view has no prospect of success. Accordingly, the interests of justice are not served by granting leave to appeal.

Orders

[21]I make the following orders:

(a)the defendants’ application for leave to appeal the Judgment is dismissed;

(b)the plaintiff as the successful party is entitled to costs on a 2B basis, together with disbursements.

…………………………….. Associate Judge Taylor