Burchell v Police - [2015] NZHC 769

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-266 [2015] NZHC 769

BETWEEN
LLEWELLYN BURCHELL AND JOAN

BURCHELL Plaintiffs

AND

NEW ZEALAND POLICE First Defendant

DEPENDABLE PROPERTY MANAGEMENT LIMITED Second Defendant

RUSSELL PETER NORDSTRAND Third Defendant

SUKHMINDER SINGH Fourth Defendant

ALEX LI

Fifth Defendant

Hearing: 1 April 2015

Appearances:

LW and JR Burchell in person
J McBride for the Second, Third, Fourth and Fifth Defendants
Appearance for First Defendant excused

Judgment:

20 April 2015

RESERVED JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 20 April 2015 at 4.00pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Counsel: J McBride, Auckland

Date

BURCHELL v NZ POLICE & ORS [2015] NZHC 769 [20 April 2015]

Introduction

[1] The second, third, fourth and fifth defendants seek to strike out the amended statement of claim filed by the plaintiffs – Mr and Mrs Burchell - in these proceedings.

[2] This application is opposed by the Burchells.

[3] Notwithstanding the fact that the hearing on this application was concluded on 1 April 2015, Mr and Mrs Burchell have persisted in deluging the Court with documents. I have ignored those documents. With one exception, none of them are relevant to the issue in dispute. The only exception is a memorandum Mr Burchell has filed endeavouring to dispute assertions made on behalf of the defendants at the hearing. After Mr McBride for the defendants had addressed me in reply, Mr Burchell attempted to make further submissions. I refused to allow him to do so. He had his opportunity to be heard. His filing of the memorandum is an attempt to circumvent that ruling. This judgment is confined to the materials which were presented at the hearing.

Background

[4] These proceedings were commenced as long ago as February 2014. Initially the only defendants were the New Zealand Police and the second defendant, Dependable Property Management Limited (“Dependable”).

[5] The proceedings concern events relating to Mr and Mrs Burchell’s tenancy of a house in Weldene Avenue, Glenfield. The house belonged to a Mr Singh and the tenancy was managed by Dependable. The house in Weldene Avenue was rented to the Burchells pursuant to a fixed term tenancy. It began on 9 August 2012 and it was to end on 16 March 2014.

[6] On 18 February 2013, Mr Nordstrand, the sole director of Dependable, went to the property and served on Mr Burchell a 14 day notice to remedy various alleged bond arrears.

[7] Mr Nordstrand considered that something of an altercation took place, and on

26 April 2013 he spoke to the Police in this regard. He said in a Police witness statement that Mr Burchell answered the door and threatened to do harm to him personally, to his family and to his property.

[8] On 20 November 2013 Mr Nordstrand served a 90 day notice on Mr Burchell purporting to terminate the fixed term tenancy. Under the notice, Mr and Mrs Burchell were obliged to vacate the property by…

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 Burchell v Police

Details

AGLC: Burchell v Police [2015] NZHC 769
Case: [2015] NZHC 769
Decision Date: 20 April 2015

CaseChat Overview and Summary

The plaintiffs, Llewellyn Burchell and Joan Burchell, sought to have the amended statement of claim filed in these proceedings struck out. The defendants were the New Zealand Police, Dependable Property Management Limited, Russell Nordstrand, Sukhminder Singh, and Alex Li. The plaintiffs alleged that the defendants had conspired to harm them, that the Police had acted with malfeasance, and that they had been unlawfully evicted from their tenancy. The defendants sought to have the amended statement of claim struck out under r 15.1(1) of the High Court Rules on the grounds that it disclosed no reasonably arguable cause of action, was likely to cause prejudice or delay, was frivolous or vexatious, and was an abuse of the process of the court. The court found that the amended statement of claim was a rambling series of suspicions, assertions, invective, and emotion. It made allegations which were entirely speculative and intrinsically unlikely, in some cases against persons who were not parties to the proceeding. The pleading was the antithesis of what was required in a statement of claim. It did not state precisely the case of facts on which the plaintiffs relied, nor did it clearly define the issues which the defendants had to meet. As the pleading stood, it would be impossible for the defendants to prepare for trial. Much time would be wasted, and the court would be faced with an enormous number of irrelevancies. Prejudice would be caused to the defendants and it was likely that there would be inordinate delay as attempts are made to clarify issues. The defendants should not be expected to put up with this. The amended statement of claim was struck out, and the defendants were awarded their reasonable costs and disbursements on a category 2B basis.

Orders