Cusack v Serrant
[2021] NZHC 1380
•10 June 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-000262
[2021] NZHC 1380
BETWEEN CRAIG RONALD CUSACK
Plaintiff
AND
KELLY SERRANT
First Defendant
AND
ABBY JANE CARRUTHERS
Second Defendant
AND
DAVID MILLER LIVINGSTONE DINGWALL
Third Defendant
Representation: Plaintiff in person Judgment:
10 June 2021
(Determined on the papers)
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 10 June 2021 at 4.15 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date
CUSACK v SERRANT [2021] NZHC 1380 [10 June 2021]
[1]The Registrar has referred this proceeding to me as duty Judge.
[2] The reference is made under r 5.35A High Court Rules. The documents filed generally meet the formal requirements of rr 5.3–5.16. That is with the exception of a document entitled “Affidavit of Truth”, which is neither sworn as an affidavit nor a document appropriately filed in this proceeding.
[3]The core documents filed are a statement of claim and a notice of proceeding.
[4] For the purposes of this judgment I leave to one side aspects of the statement of claim which are plainly defective in terms of the requirements of pleading. Rather than pleading a series of facts followed by a statement of the relief sought, the statement of claim across its 27 paragraphs contains relatively few assertions of fact but many “claims” in the nature of legal submissions, including irrelevant claims such as “I claim that the [New Zealand Bill of Rights of Act 1990] binds the Crown”.
Abuse of process
[5] The Court has under r 5.35B High Court Rules various powers, including the power to strike out a proceeding, if satisfied that the proceeding is plainly an abuse of the process of the court.
[6] On the face of Mr Cusack’s statement of claim, this proceeding is plainly an abuse of the process of the Court.
[7] In a “Summary” at the start of the statement of claim, Mr Cusack explains the source of his apparent grievance:
I claim that the case bought forward by David M L Dingwall leading to the oral judgement IN THE DISTRICT COURT AT CHRISTCHURCH CIV-
2020-009-001932 [2021] NZDC 2634 is void of judgement as per Deeds Registration Act 1908 s 37 Avoidance of judgement, etc.
[8] Thereafter the statement of claim contains assertions as to the conduct of Mr Dingwall leading to the District Court judgment, the actions of Ms Serrant and Ms Carruthers following that judgment, and steps pursuant to a “writ of execution”.
[9]The concluding paragraph in the statement of claim reads:
I claim by the Defendant’s actions by the use of void document CIV-2020- 009-001932 [2021] NZDC 2634 by definition is conspiracy to kidnap, causing three counts of kidnapping, the Defendants are in breach of the Crimes Act 1961 s 209 Kidnapping (a), (b).
[10] The plaintiff then sets out a series of 14 heads of compensation sought as remedies, totalling $855,000, together with interest at $250 per day.
[11] The District Court judgment to which Mr Cusack refers is the 17 February 2021 in Official Assignee in the Bankruptcy of the Property of Craig Ronald Cusack v Cusack.1
[12] The District Court judgment was given on the plaintiff’s summary judgment application, Mr Cusack having neither appeared nor filed any appearance.
[13]The District Court judgment records:
(a)Mr Cusack and his partner, Ms Stuart, were adjudicated bankrupt on 21 June 2018;2
(b)the property of Mr Cusack was thereby vested in the Assignee;3
(c)the Assignee intended to sell a Christchurch property owned by Mr Cusack and Ms Stuart (the latter co-operating with the Assignee) in order to benefit Mr Cusack’s creditors, but Mr Cusack had remained at the property and refused to co-operate with the Assignee.4
[14] On the Assignee’s application, summary judgment was granted for possession of the property, with an order that Mr Cusack vacate the property on or before 26 February 2021 so that the Assignee might take possession.5
1 Official Assignee in the Bankruptcy of the Property of Craig Ronald Cusack v Cusack [2021] NZDC 2634.
2 At [3].
3 At [4], citing s 101 Insolvency Act 2006.
4 At [5]–[6].
5 At [28].
[15] It emerges from the District Court judgment that the first defendant in this proceeding (Ms Serrant) was the Deputy Assignee who filed the affidavit in support of the District Court summary judgment application. She had deposed that Mr Cusack had failed to file the Statement of Affairs required under the Insolvency Act and had failed to vacate the property pursuant to s 152 of the Act.
[16] It also emerges from the District Court judgment that the third defendant (Mr Dingwall) was counsel appearing for the Assignee in the District Court. The occupation or role of the second defendant (Ms Carruthers) is not identified in the District Court judgment but it appears from content in the statement of claim that Ms Carruthers may also work for the Assignee.
[17] There is no suggestion in Mr Cusack’s statement of claim that he has appealed the District Court judgment. It stands as a final judgment.
[18] What is clear from Mr Cusack’s statement of claim is that he rejects the validity of the District Court judgment and the actions taken by officers of the Ministry for Business Innovation and Employment pursuant to the orders made. There is also a reference in the statement of claim to actions taken by the Police, “handcuffing and being bundled off in the back of a Police vehicle” but without any tenable pleading as to the basis on which the defendants would be liable in law for the actions of the Police.
[19] The decision of this Court in Re McNab is instructive.6 In that proceeding, Mr McNab and one Ms Mathiesen in substance sought to challenge the actions of the Registrar/Sheriff of the High Court in relation to the sale of a property and to challenge the actions of the Assignee in Ms Mathiesen’s bankruptcy. The Court had earlier made directions for the sale of the property in issue, which orders had been breached by Mr McNab.
[20]In striking out Mr McNab’s proceeding, Venning J observed:
[9]No matter how it is dressed up the proposed proceeding is plainly an abuse of process as it seeks to collaterally challenge and raise issues that were dealt with in previous judgments of the Court.
6 Re McNab [2018] NZHC 1817, (2018) 24 PRNZ 224.
[10]The grounds cited in support and the memoranda filed by Mr McNab and Ms Mathiesen confirm the vexatious nature of the proposed application. It is clear the applicants seek to challenge the actions of the Official Assignee and former trustees. Those matters have been dealt with in the former numerous proceedings involving Ms Mathiesen and Mr McNab.
Outcome
[21] This proceeding is plainly a collateral challenge to the orders made in the District Court. While those orders remained in force (as they do) Mr Cusack had no right to continued possession of his property, the denial of which forms the basis of his claims.
[22] As the proceeding is plainly an abuse of the process of the Court it will be struck out.
Order
[23]I order that this proceeding is struck out.
Right of appeal
[24]The applicant has the right to appeal this decision.7
Section 167 Senior Courts Act 2016
[25] For the purposes of s 167 Senior Courts Act 2016, I record that this proceeding is totally without merit.
Mr Cusack’s receivership
[26] As a matter of public record, on 13 January 2020 a receiver was appointed over all of the property of Mr Cusack and Ms Stuart, pursuant to powers under a general security agreement. The fact of the receivership is not identified by Mr Cusack in the statement of claim. It is not recorded whether the claims for compensation are brought with the approval of his receiver. That said, the receivership has not contributed to the
7 High Court Rules, r 5.35(B)(3).
decision to strike out the proceeding – I record it as a matter which might need to be taken into account at a later point.
Osborne J
Copy to:
C-R Cusack
Official Assignee at Christchurch
0