Clements v Park Trust Limited - [2018] NZHC 2399

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002512

[2018] NZHC 2399

BETWEEN
MIRIAM CLEMENTS

Appellant

AND

PARK TRUST LIMITED

Respondent

On the papers

Judgment:

12 September 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 12 September 2018 at 1.00 pm pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Glaister Ennor, Auckland

Party:
M Clements

MIRIAM CLEMENTS v PARK TRUST LIMITED [2018] NZHC 2399 [12 September 2018]

[1]This judgment relates to the dismissal of an appeal.

Background

[2] Ms Clements filed three appeals in this Court against decisions of the District Court at Auckland, all arising out of the same issue. Two of those appeals were dismissed in a decision of Venning J dated 14 February 2018.1

[3] That left only this appeal, against a decision of Judge Harrison dated 13 October 2017, to be determined. In the District Court, Judge Harrison confirmed a decision of the Tenancy Tribunal, that a 90-day notice issued by Park Trust Limited under the Residential Tenancies Act 1986 to terminate Ms Clements’ tenancy was valid, and that Park Trust Limited was entitled to possession.

[4] In respect of this remaining appeal, Venning J noted that Ms Clements is currently an undischarged bankrupt and therefore has no ability to pursue the appeal in her own right. Venning J adjourned the appeal to a case management conference on 27 February 2018, to enable Ms Clements to pursue a possible discharge from bankruptcy with the Official Assignee, noting that the bankruptcy dated back to 26 February 2013.

[5] On 27 February 2018, I allowed a stay of this appeal on the basis that Ms Clements had apparently applied to annul her bankruptcy. I adjourned the case management conference to Tuesday, 24 April 2018 and directed that Ms Clements file a memorandum reporting on her application for annulment three working days prior to the conference.

[6] Ms Clements then sought to adjourn the 24 April 2018 case management conference, without indicating a clear period of adjournment. The respondent abided the decision of the Court and by further Minute dated 23 April 2018, I adjourned the case management conference (again) to Tuesday, 22 May 2018.

1 Clements v Parktrust Ltd [2018] NZHC 133.

[7] On 22 May 2018, Palmer J issued a Minute recording that Ms Clements had requested that the conference be further adjourned so that she could clarify her ability to bring the appeal as an undischarged bankrupt, her efforts to negotiate an annulment presumably having been unsuccessful. Ms Clements had apparently issued a proceeding against the Official Assignee alleging misconduct and inter alia seeking annulment of her bankruptcy. Mr Singh, for the respondent, had proposed an adjournment of three months to allow the proceeding against the Official Assignee to run its course. Palmer J accordingly adjourned the matter to the Appeals List on Tuesday, 11 September 2018 and directed that the parties file memoranda by 7…

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 Clements v Park Trust Limited

Details

AGLC: Clements v Park Trust Limited [2018] NZHC 2399
Case: [2018] NZHC 2399
Decision Date: 12 September 2018

CaseChat Overview and Summary

This case involved an appeal by Miriam Clements against a decision of Park Trust Limited to terminate her tenancy. The appeal was dismissed by the High Court of New Zealand. The primary issue before the court was whether the appeal should be dismissed on the basis of abandonment by the appellant or as an abuse of process under rule 15.1 of the High Court Rules 2016. The court found that the appeal was effectively abandoned by the appellant, as evidenced by her filings requesting the cancellation of all proceedings and her statement of disbelief in the New Zealand justice system. The court also noted that the appeal was without merit and constituted an abuse of process, given the appellant's failure to pursue annulment of her bankruptcy and the lack of substance in her objections. The court dismissed the appeal and awarded costs to the respondent on a standard basis.

The court found that the appellant had effectively abandoned the appeal, as indicated by her filings requesting the cancellation of all proceedings. The court also considered whether the appeal could be dismissed as an abuse of process under rule 15.1 of the High Court Rules 2016. The court noted that the appeal had no apparent substance or cogency, and the appellant's objections were targeted at numerous parties, largely excluding the respondent. Additionally, the appellant's status as an undischarged bankrupt and her failure to pursue annulment of her bankruptcy compounded the issue. The court concluded that the appeal constituted an abuse of process, and it would have dismissed the appeal on this basis had it not been for the appellant's abandonment of the appeal.

Orders