Beere v Bullock - [2023] NZHC 867

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2416

[2023] NZHC 867

IN THE MATTER OF the Beere Family Trust

BETWEEN

WARREN ERNEST BEERE

Plaintiff

AND

GEORGE BULLOCK

First Defendant

PHILLIP RAYMOND NOTTINGHAM
Second Defendant

ROBERT EARLE McKINNEY

Third Defendant

Hearing: 13 September 2022 and 27 March 2023

Appearances:

Andrew J Steele for the Plaintiff Defendants are self-represented

Judgment:

21 April 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

Application to rescind an order, pursuant to r 7.49

This judgment was delivered by me on 21 April 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Patterson Hopkins (William M Patterson), Auckland, for the Plaintiff
Copy for:
Andrew J Steele, Auckland, for the Plaintiff

WARREN ERNEST BEERE v GEORGE BULLOCK [2023] NZHC 867 [21 April 2023]

Introduction

[1] This proceeding was the subject of a one-day hearing which took place on 13 September 2022. On 19 September 2022 the defendants attempted to file further submissions. Mr Steele, counsel for the plaintiff, opposed the Court allowing the submissions, submitting that:

(a)the defendants were given full opportunity to raise any matter they wished to raise in the first round of submissions and in reply submissions;

(b)no request for leave had been made to the Court for filing the further submissions by the defendants after the matter had been heard; and

(c)the plaintiff objected to the filing of the submissions on the basis that it was procedurally unfair and unjust.

[2] On 21 September 2022 the Court issued a minute rejecting the submissions sought to be filed by the defendants on the basis that the matters raised could have been dealt with in submissions or the reply submissions at the hearing, and to allow the submissions to be filed without the plaintiff having an opportunity to respond to them was procedurally unfair to the plaintiff.

[3] On 28 September 2022, the defendants filed an interlocutory application seeking orders set out at paragraphs (a) to (d) of the application, and an affidavit of Phillip Raymond Nottingham, sworn on 28 September 2022, in support. The plaintiff filed a notice of opposition dated 30 September 2022. Subsequently, the defendants have filed further memoranda dated 29 September 2022, 30 September 2022 and 13 October 2022.

[4] Although the defendants’ application did not expressly rely on r 7.49 of the High Court Rules 2016, the Court treated the application as an application for rescission of the Court’s minute of 21 September 2022. The matter was set down for a hearing which was held on 27 March 2023.

Affidavits and memoranda filed in relation to the application

[5] In relation to the application, the defendants have filed an affidavit of Phillip Raymond Nottingham, dated 28 September 2022, a memorandum dated 30 September 2022, further affidavits of Phillip Raymond Nottingham dated 28 November 2022 and 22 March 2023 respectively, and an affidavit of Jonathan Wayne McGoram dated 7 February 2023.

[6]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beere v Bullock

Details

AGLC: Beere v Bullock [2023] NZHC 867
Case: [2023] NZHC 867
Decision Date: 21 April 2023

CaseChat Overview and Summary

Warren Ernest Beere, the plaintiff, filed a proceeding against George Bullock, Phillip Raymond Nottingham, and Robert Earle McKinney, the defendants, in relation to the Beere Family Trust. The primary issue before the court was whether the defendants' application for rescission of an earlier minute, which rejected their attempts to file further submissions, should be allowed. The court had to determine if the defendants' application, made under rule 7.49 of the High Court Rules 2016, was valid and whether the late submissions should be admitted. The defendants argued that the court had overlooked some critical issues and procedural matters, while the plaintiff's counsel opposed the application, asserting that the defendants had ample opportunity to present their arguments during the hearing and that allowing late submissions would be procedurally unfair.

The court considered the applicable legal principles, including rule 11.8A and Practice Note regarding further submissions after a hearing, and rule 7.49 concerning the variation or rescission of an order. The court also noted that the defendants, being self-represented litigants, should be granted some latitude. Upon reviewing the defendants' submissions, the court determined that while the late submissions did not align well with the Practice Note, the interests of justice and the defendants' status as lay litigants warranted allowing the submissions of 19 September 2022. Consequently, the court rescinded the earlier minute and admitted the defendants' submissions dated 19 September 2022. There was no order as to costs.

Orders