Creser v Creser HC Wellington CIV 2009-091-466
[2010] NZHC 2056
•13 October 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2009-091-466
BETWEEN RICHARD JOHN CRESER Plaintiff
ANDJANINE MICHELLE CRESER First Defendant
ANDMARION NGAIRE CRESER Second Defendant
Hearing: 7 October 2010
Counsel: Plaintiff in Person
First Defendant in Person
J E Hodder and M B Rodriguez Ferrere for Second Defendant
Judgment: 13 October 2010
JUDGMENT OF RONALD YOUNG J
Introduction
[1] This is another set of proceedings involving Joy Creser’s estate, her son Richard John Creser and her daughters Janine and Marion who are trustees and executors of her estate.
[2] The plaintiff has filed a statement of claim with five causes of action against the two defendants as trustees in Joy Creser’s estate. The causes of action seek: the removal of trustees because of bias; a review of their decision to bankrupt the plaintiff; an application for an order of account pursuant to s 83B of the Trustee Act 1956; further disclosure, and exemplary damages. Although not pleaded as a
cause of action the plaintiff also alleges that his share in the residue of his mother’s
RICHARD JOHN CRESER V JANINE MICHELLE CRESER AND ANOR HC WN CIV 2009-091-466 13
October 2010
estate should have been applied to the costs awarded against him instead of the defendants pursuing him and ultimately bankrupting him, which he categorises as a form of set-off. (I do not distinguish between them.)
[3] The defendants seek to strike out all causes of action. They say this Court has already in effect struck out these claims. Further the courts have already adjudicated on each claim. This they submit justifies a strike out.
Background facts
[4] On 20 March 2003 Mrs Joy Creser died. She had made a will about a year earlier which appointed the two defendants her executors and trustees. They together with the plaintiff were given a share in the estate. However Mr Creser’s share was vested in an independent trust for his maintenance and support. Mrs Creser’s fourth child, Peter Creser was given a life interest in a house property owned by Mrs Creser. After Mrs Creser’s death the defendants applied for probate. However, Mr Creser lodged a caveat against the granted probate and in separate proceedings sought the removal of the defendants as executors and trustees. The
matter came before Gendall J in September 2003.[1] He struck out Mr Creser’s claim
and ordered costs against him.
[1] Re Creser HC Wellington CIV 2010-485-893, 2 September 2003.
[5] In November 2003 Mr Creser then applied to the Court for a temporary administrator to be appointed for the estate. In February 2004 the matter came before Associate-Judge Gendall. He struck out the plaintiff’s application.[2] In the meantime Mr Creser had failed to pay the costs on his unsuccessful application to remove the defendants as trustees. The trustees therefore sought to adjudicate him bankrupt and eventually, in March 2004, were successful.
[2] Re Creser HC Wellington CIV 2003-485-893/CIV 2003-485-2494, 2 February 2004.
[6] In June 2004 Miller J granted probate in solemn form to the defendants.
[7] In August 2005 Mr Creser appealed against the decision of the Official Assignee not to oppose the granting of probate in solemn form. Fogarty J dismissed the appeal.[3]
[3] Creser v Official Assignee HC Wellington CIV 2003-485-000893/ CIV 2003-485-00064/CIV 2005-485-001371, 17 August 2005.
[8] In October 2005 the Official Assignee applied to strike out a 2005 claim filed by the plaintiff against the executors and trustees and the Official Assignee. Mr Creser’s causes of action in this 2005 proceeding sought: removal of trustees for bias; review of the trustees’ decision to bankrupt Mr Creser; an order of account with respect to the trust assets and liabilities; order seeking pre-trial discovery against the trustees; and exemplary damages against the Official Assignee.[4] This application to strike out came before me on 6 October 2005. I struck out the plaintiff’s claim because Mr Creser lacked the ability to bring the proceedings given he was an
undischarged bankrupt. I considered the proceedings were frivolous and vexatious and also struck them out on that basis.
[4] Creser v Creser HC Wellington CIV 2005-485-1407, 6 October 2005.
[9] In 2006 family protection proceedings relating to Joy Creser’s estate came to Court. The Official Assignee, then acting on behalf of the plaintiff, challenged the testatrix’s decision to place the plaintiff’s portion of the residue of the estate in a protected trust. Miller J ordered that Mr Creser’s portion of the residue of the estate
be given to him unencumbered by any trust.[5]
[5] See Creser v Creser (2006) 25 FRNZ 902.
[10] In August 2007 the Official Assignee successfully applied for the release from administration of Mr Creser’s bankrupt estate. Mr Creser at the same time applied for an order that his bankruptcy be annulled but this was unsuccessful.
[11] Finally Mr Creser issued these proceedings. They were initially filed in the District Court in 2009 but transferred by that Court to the Wellington High Court when it was clear that the District Court did not have jurisdiction to make orders under the Trustee Act, part of the relief sought by Mr Creser.
[12] I record that prior to this hearing Mr Creser sought an order that I recuse myself. He made a similar application with respect to the 2005 proceedings which came before me in October 2005. In particular I refer to paragraphs [6] and [7] of my judgment of 6 October 2005.
[13] In his application that I recuse myself Mr Creser repleaded his claim that when I was Chief District Court Judge sitting at the Porirua District Court I had unlawfully imprisoned him. Further, he said my decision in his case had been overruled on appeal in the High Court.
[14] In 2005 I told Mr Creser that I had no recollection of such an event but did not consider the fact that Mr Creser claimed to have successfully appealed one of my decisions would be grounds for a recusal.
[15] Mr Creser has now filed a memorandum accepting that he had made a factual error and I had not been the Judge involved in any case or decision involving him in the Porirua District Court. Mr Creser accepted that he had not appealed successfully from any judgment I had given relating to him in the District Court. Those grounds seeking my recusal therefore disappeared. In any event I had previously given a decision in this case refusing Mr Creser’s application that I recuse myself.
Principles relating to strike out
[16] Rule 15.1(1) provides as follows:
15.1 Dismissing or staying all or part of proceeding
(1) The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
[17] The defendant’s application is based on r 15.1(c) and (d). Firstly, that the pleadings are frivolous and vexatious because this Court has already concluded that all claims, the subject of these proceedings, were frivolous and vexatious in its 2005 judgment. Thus the defendants say that both as a matter of fact and a matter of law the 2010 proceedings are frivolous and vexatious. Although the defendants’ submissions distinguished between these two grounds for the purpose of this judgment no distinction is necessary. This submission is based on the proposition that the 2005 and 2010 proceedings are substantially the same. Secondly, these proceedings are res judicata and thus are an abuse of process. An attempt to relitigate matters already determined (the principle behind a res judicata) is an abuse
of process for the purpose of r 15.1(d).[6]
[6] See Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541.
[18] It is well established that jurisdiction to strike out proceedings is to be used sparingly and only where a clear case is established.
Frivolous and vexatious claim
[19] The defendants submit that this claim is essentially identical to the plaintiff’s
2005 claim. In giving judgment on an application to strike out Mr Creser’s 2005 claim I said:
I would also strike out Mr Creser’s claims against the trustees on the base that they had already been litigated and were therefore frivolous and vexatious.
[20] The defendants accept that there are some differences between the 2005 and
2010 claims. They say this is explained by the presence of the Official Assignee as a party to the 2005 claim. They say, however, both the facts and the law as they relate to the 2005 and 2010 claims are substantially identical.
[21] The first issue therefore is whether the claims are substantially identical.
[22] Annexed to this judgment is a table prepared by the defendants which details each cause of action in the 2005 claim and the 2010 claim and compares them. I confirm its accuracy. It illustrates that the essential claims and the facts and the law underlying each claim are the same.
[23] Mr Creser did not really dispute that the 2005 and 2010 claims were substantially the same. As I understood his submission he said because each of the decisions made by the courts relating to his 2005 proceedings were based on fraud these 2010 proceedings could not be frivolous and vexatious or an abuse of process. He said he now had the evidence to establish this fraud. When the various judgments were given in these proceedings he had either been bankrupt or had not been given documents he was entitled to by the defendants. These circumstances had therefore prevented him from proving fraud in the other proceedings.
[24] Mr Creser did not claim any fraud relating to the circumstances under which the various Judges ruled on his claims. For example, he did not suggest the Judges had been fraudulently misled. His claims of fraud related to the merits of each set of proceedings. There is no claim of fraud in the 2010 or 2005 pleadings by Mr Creser. The judgments referred in my judgment of October 2005 at [36] have not been the subject of successful appellate challenge. Nor have those mentioned at [41]–[46] in this judgment.
[25] In this strike out application the merits of those judgments cannot be challenged. The fact there may or may not be further evidence relating to the various judgments referred to is not a basis to defeat a strike out application. Mr Creser’s approach is essentially a further attempt to challenge the merits of those other decisions. That approach is not available to him.
[26] I therefore reject Mr Creser’s submissions. They provide no argument to dispute the making of an order striking out the causes of action. I therefore turn to consider the merits of the defendants’ application.
[27] As to the first cause of action this seeks the removal of trustees because of bias. All four grounds alleging bias in this first cause of action in the 2010 claim match exactly four of those in the 2005 claim.
[28] As to the second cause of action this is based in an attempt to review the trustees’ decision to bankrupt the plaintiff. Once again each of the five grounds on which the review is sought in these proceedings are identical to the 2005 proceedings.
[29] As to the third cause of action this is an application pursuant to s 83B of the Trustee Act for an order to account. There are some slight differences but they are of no consequence.
[30] In the 2005 proceedings the complaint was that the first and second defendants had not produced any accounts in the three years they had been responsible for administering the trust. In the 2010 proceedings it is alleged the first and second defendants have not produced any satisfactory accounts since taking responsibility for administering the trust. Otherwise each of the three allegations made in 2010 are matched by three allegations in 2005.
[31] As to the fourth cause of action this relates to disclosure. It is not by itself a cause of action. The only difference in the four grounds in support of this cause of action and the 2005 action, are the removal of the words “made known to the plaintiff” from the 2010 cause of action when compared with the 2005 pleadings.
[32] The fifth cause of action is said to be a claim for exemplary damages. By itself a claim for exemplary damages is not a cause of action. The only difference between 2005 and 2010 and the four pleaded grounds for claiming exemplary damages is essentially the substitution of the one or both of the trustees (in 2010) for the Official Assignee (in 2005). Further, there is an additional element to the 2005 pleadings which relates to actions by the Official Assignee not relevant in these proceedings.
[33] This analysis makes it clear that the causes of action in 2010 are identical to those in 2005. There are some further allegations in 2005 pleaded with respect to some of the causes of action, for example, first, third and fifth causes of action but they are of no relevance to the 2010 causes of action. Essentially all of the 2010 claims are mirrored in the 2005 claim.
[34] The next question is therefore whether or not my previous adjudication in
2005 that Mr Creser’s claims against the trustees were frivolous and vexatious was a consideration on the merits.
[35] In my judgment of 6 October 2005 I concluded that s 42 of the Insolvency
Act 1967 prevented Mr Creser bringing these claims.
[36] I then said:
[16] I am also satisfied that the causes of action against the first and second defendants are essentially an attempt to re-litigate decisions previously given by the Courts. See Creser v Creser (HC, Wellington, CIV 2003-485-893, Gendall J, 2 September 2003); Creser v Creser CA 193/03, 8 October 2003, CA; Creser v Creser (HC Wellington, CIV 2003-485-893, Gendall AJ, 2 February 2004); Creser v Creser, CA 110/04, 2 September 2004; Creser v Official Assignee (HC Wellington, CIV 2003-485-000893, 000644, 001371, Fogarty J, 17 August 2005).
[17] Secondly, Mr Creser has already been able to challenge (unsuccessfully) the decision to bankrupt him arising from the costs order. Part of Mr Creser’s arguments before the Court of Appeal was that he should not have to pay any costs orders because of his entitlement under his mother’s estate. That was rejected by the Court of Appeal. Causes of action relating to pre-trial disclosure depend upon a valid statement of claim. Here there is none.
[18] I would also strike out Mr Creser’s claims against the trustees on the basis that they had already been litigated and were therefore frivolous and vexatious.
[37] This was an adjudication on the merits.
[38] It can be seen, therefore, as I identified in my previous judgment of
6 October 2005, that all of the causes of action against the defendants had previously been litigated. I concluded that the 2005 proceedings were frivolous and vexatious. It must therefore follow that these proceedings are also frivolous and vexatious.
[39] On that basis I strike out all causes of action and thus these proceedings.
[40] Further, the defendants say, as an additional ground in support of their application that the plaintiff in bringing the 2010 claim is abusing the process of the courts because each of the causes of action in the 2010 claim are attempts to relitigate issues already the subject of adjudication.
[41] The first cause of action was dealt with in a decision of MacKenzie J in his
2007 Judgment when he said: [7]
[7] Creser v Creser HC Wellington CIV 2003-485-2225, 24 August 2007.
[11] ...
(a) First, he submits that the first respondent’s decision to take bankruptcy proceedings against him breached the rules of fair play, natural justice and the spirit, intent and purpose of the Act. That ground cannot succeed. The first respondent had a debt which was owed to her by Mr Creser, her brother, arising from costs orders in an early stage of the litigation to which I have referred. Bankruptcy proceedings were brought and were the subject of the order of adjudication. No breach of the sort alleged is made out.
[42] As to the second cause of action, a review of the trustees’ decision to bankrupt Mr Creser pursuant to s 68 of the Trustee Act, MacKenzie J said in the same judgment:
[11] ...
(d) The fourth ground is that the first respondent’s use of the funds of the trust to pursue a beneficiary of the trust is a criminal breach of trust as defined by s 229 of the Crimes Act 1961. It is sufficient on this ground to say that there is no evidence to suggest that assets of the trust have been used by the first respondent in pursuing the bankruptcy proceedings. The ground must fail.
[43] As to the third cause of action Fogarty J in his 17 August 2005 judgment said:[8]
[34] The Official Assignee also appointed its own forensic accountant to review financial materials of the estate held at the offices of Johnston Lawrence Elder. Forensic accountant, Mr John Rowe, reported that the files indicated that the affairs in the estate had been conducted in a professional manner and nothing untoward was noticed.
[8] Creser v Official Assignee HC Wellington CIV 2003-485-000893, CIV 2003-485-000644, CIV 2005-485-001371, 17 August 2005.
[44] As to the fourth cause of action this is not a discrete cause of action by itself as I have identified at [31].
[45] As to the fifth cause of action, exemplary damages, as I have previously observed at [32] this is not a discrete cause of action but relief sought should a cause of action succeed.
[46] Finally the set-off point was dealt with by the Court of Appeal in its
2 September 2004 Judgment in this way:[9]
[8] Secondly, Mr Creser argued that he should not have to pay the costs orders because of his entitlement under his mother’s estate. He should be able, he said, to set off these orders against that entitlement. There is nothing in that point, however, as Mr Creser has no vested interest in his mother’s estate. His “share” has been left to an institutional trustee who has a discretion to pay income to Mr Creser. In any event, Mr Creser’s earlier proceeding against his sister was not a claim against the estate: it seems to have been a misguided attempt to prevent his sister from applying for probate.
[9] Creser v Creser CA110/04, 2 September 2004.
[47] I have concluded the 2010 claim is near identical to the 2005 claim that has been struck out. While there may have been some additional pleadings in 2005 all of the 2005 claim is incorporated in the 2010 claim. There are some minor differences arising from the plaintiff’s bankruptcy at the time of the 2005 proceeding but they make no difference to the essential point that in substance, both factually and legally, the two claims are the same.
[48] Thus even if it could be said that I did not make an adjudication on the merits in my 2005 judgment as to the question of cause of action estoppel it is clear from today’s analysis that previous proceedings have resolved all of the issues which currently make up the 2010 pleadings.
[49] Finally for reasons I have given it is clear that each of the causes of action pleaded in the 2005 and 2010 proceedings, and previously adjudicated, are the same.
[50] For those reasons also I strike out the plaintiff’s claim.
Costs
[51] Should the second defendant seek costs she should file a memorandum within
14 days with a right of response by the plaintiff within a further 14 days.
Ronald Young J
Solicitors:
J Creser, 4 Rothwell Street, Titahi Bay 5022, email: [email protected]
J M Creser, C/- Post Office, Kohu Kohu, Northland
J E Hodder, Chapman Tripp, PO Box 993, Wellington, email: jack[email protected]
M B Rodriguez Ferrere, Chapman Tripp, PO Box 993, Wellington email: [email protected]
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