Davey v Cardinali

[2025] NZHC 1156

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2023-463-52

[2025] NZHC 1156

BETWEEN

HOWARD ADRIAN DAVEY

Plaintiff

AND

MYRA ANNE CARDINALI and ARLENE RENEE LU-ANA DAVEY-

DIESTERBECK as executors and trustees of the Estate of HOWARD ALBERT DAVEY First Defendants

MYRA ANNE CARDINALI and ARLENE RENEE LU-ANA DAVEY-

DIESTERBECK as executors and trustees of the Estate of KATHLEEN DAVEY

Second Defendants

ARLENE RENEE LU-ANA DAVEY- DIESTERBECK

Third Defendant

MYRA ANNE CARDINAI

Fourth Defendant

Hearing:

On the papers

Appearances:

Plaintiff is self-represented

E R Anderson for the First and Second Defendants
D Cowan/J E G San Diego for the Third and Fourth Defendants

Judgment:

15 May 2025

JUDGMENT OF ASSOCIATE JUDGE CLIVE TAYLOR

[Application for leave to appeal]

This judgment was delivered by me on 15 May 2025 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

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

DAVEY v CARDINALI [2025] NZHC 1156 [15 May 2025]

Introduction

[1]                 On 29 October 2024 the Court delivered a judgment (the Judgment) in respect of the defendants’ application for security for costs and the plaintiff’s application for security for costs.1 The Judgment determined that:

(a)the defendants’ application for security for costs against the plaintiff was successful and the plaintiff was ordered to pay the amount of security within 28 days of the date of the Judgment;

(b)the plaintiff’s application for security for costs was declined.

[2]                 On 12 November 2024 the plaintiff filed an application for leave to appeal the Judgment. On 18 February 2025 the defendants filed a notice of opposition to the plaintiff’s application for leave to appeal.

[3]On 7 March 2025 the Court issued a minute making the following directions:

(a)the plaintiff was to file submissions in support of his application for leave to appeal by 28 March 2025;

(b)the first to fourth defendants were to file submissions in opposition to the plaintiff‘s application by 11 April 2025;

(c)the plaintiff’s application would then be dealt with on the papers.

[4]                 The plaintiff filed submissions in support of his application for leave to appeal on 1 April 2025, the first and second defendants filed submissions in opposition to the application on 11 April 2025, and the third and fourth defendants filed submissions on the same date, endorsing the submissions filed by the first and second defendants.

1      Davey v Cardinali [2024] NZHC 3029.

Legal Principles

[5]                 No appeal2 lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court or by the Court of Appeal following the High Court’s refusal of leave.3

[6]                 The relevant principles are set out in the decision of the Court of Appeal in Greendrake v District Court where the Court of Appeal identified the following considerations:4

(a)a high threshold exists;

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

[7]                 The Court of Appeal in that decision also approved the observations of Fitzgerald J in Finemore Upholstery Ltd v Vaughan to the effect that the requirement for leave was a filtering mechanism to ensure that unmeritorious appeals of no great significance do not unnecessarily delay the proceedings in which the orders had been made.5

2      Except for those appeals provided for under s 56(4) of the Senior Courts Act (the Act).

3      Section 56 of the Act.

4      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

5      Greendrake, above n 4, referring Finemore Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

The plaintiff’s position

[8]                 While the submissions are not completely clear, the plaintiff’s grounds for leave to appeal appear to be:

(a)challenging the striking out of the plaintiff’s original claim before Campbell J (by minute issued on 29 May 2023) and suggesting that that decision be reversed;

(b)a claim that costs claimed by the defendants have been inflated;

(c)a claim that the defendants have denied the plaintiff access to information relating to the estates of the plaintiff’s parents, Mr H A Davey, deceased, and Mrs K Davey, deceased (the Estates);

(d)a claim that the defendants have mismanaged the Estates, referring to a report of Accounting Solutions BOP, Rotorua, which the plaintiff alleges discloses a claim against the defendants for an amount of

$624,000 arising from alleged mismanagement of the Estates by the defendants as executors;

(e)an allegation of tax evasion or tax fraud by the defendants as executors of the Estates;

(f)allegations concerning  beneficiary  distributions  being  made  to  Mrs K Davey, deceased, but no evidence that such distributions were received by her, again implying mismanagement in some way of the Estates by the defendants;

(g)issues regarding the lease of the farm owned by the family prior to it being sold;

(h)issues regarding alleged breaches of trust by the executors in relation to the management of the Estates;

(i)issues regarding compensation to the plaintiff for improvements made to the farm owned by the family prior to the sale of the farm;

(j)issues relating to repeated requests by the plaintiff for a forensic audit in the accounts of the Estates.

The defendants’ position

[9]                 The defendants submit that the plaintiff has not identified any arguable error of law or fact in the Judgment which could provide a genuine ground for the leave application. They submit the plaintiff simply repeats arguments he has made on multiple occasions that have no place in these proceedings.

[10]             The defendants submit the plaintiff again focuses on the appropriateness of a forensic order for the accounts of the Estates, which the Court has already indicated is not something it could or should consider and/or order. The defendants submit that irrespective of the merits (or lack thereof) of an order, it is not a matter that can be reasonably constituted as a relevant consideration for a security for costs application, let alone a request for leave to appeal.

[11]             The defendants submit that the alleged error of law or fact is a high threshold the plaintiff has to meet, and it is submitted that the leave application fails on this ground. There is no genuine error of law or fact raised and the application lacks any substantive merit.

[12]             The defendants submit that the plaintiff does not appear to allege that the matters raised in the leave application reaches the standard of general or public importance, but if this is incorrect, there is nothing in the leave application or the additional documents submitted by the plaintiff which meet the threshold for the Court to consider granting leave to appeal.

[13]             The defendants submit the interest of justice are not served by granting the leave application. They submit this is yet another example of the plaintiff taking up valuable Court time and resources while completely disregarding the orders of the

Court when they are not made in his favour. The defendants submit this matter has been struck out due to the plaintiff’s failure to pay security for costs, a further failure of the plaintiff to abide by the order of the Court.

Result

[14]             I am of the view that the plaintiff’s application for leave to appeal the Judgment should be dismissed. The reasons for my view are:

(a)His application simply repeats the allegations which are contained in his claim. The matters raised are irrelevant to Judgment in respect of granting the defendants’ application for security for costs and dismissing the plaintiff’s application, and the leave to appeal application does not raise either a question of law or fact capable of bona fide or serious argument;

(b)the application does not meet the high threshold for granting leave to appeal as set out in the Greendrake decision;

(c)there are no arguable errors in the Judgment;

(d)the plaintiff’s grounds of appeal do not raise issues of general or public importance or are otherwise of sufficient importance to the plaintiff to outweigh the lack of any general or precedential value;

(e)the interests of justice do not warrant granting leave. The application for leave is a continuation of the arguments the plaintiff has been asserting throughout his claim, which has been struck out twice for non- compliance by the plaintiff with orders of the Court, and it is not justifiable to impose the delay and cost on the defendants of allowing an appeal.

Orders

[15]I make the following orders:

(a)The plaintiff’s application for leave to appeal is dismissed;

(b)as the defendants are the successful parties, costs should follow the event, and accordingly the plaintiff is to pay to the defendants costs on a 2B basis plus disbursements, in respect of their opposition to the plaintiff’s application.

…………………………….. Associate Judge Taylor

Solicitors:

Braun Bond & Lomas (Erin Anderson), Hamilton, for the First and Second Defendants
Cowan Law (Doug Cowan/Jose San Diego), Parnell, Auckland for the Third and Fourth Defendants

Copy for:

Howard Adrian Davey, the Plaintiff