Du Preez v Estate of Doornekamp-Wellman

[2022] NZHC 2299

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-14

[2022] NZHC 2299

BETWEEN

WILLEM DU PREEZ

First Plaintiff

GETTA SNIJDERS
Second Plaintiff

AND

ESTATE OF BARBARA ANNE DOORNEKAMP-WELLMAN

First Defendant

PETER CRELLAN KELLY (as Executor) Second Defendant

PETER CRELLAN KELLY, PPPRA

Property & Welfare (discharge) Third Defendant

PETER CRELLAN KELLY (as nephew)

Fourth Defendant

Hearing:	(On the papers)
Appearances:	W du Preez (First Plaintiff) in person G Snijders (Second Plaintiff ) in person R L Powell for Defendants
Judgment:	9 September 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Recall)

DU PREEZ v ESTATE BA DOORNEKAMP-WELLMAN [2022] NZHC 2299 [9 September 2022]

[1]                  In a judgment released on 19 July 2022, I struck out the plaintiffs’ amended statement of claim in its entirety essentially on the ground the proceeding was an abuse of process given a comprehensive settlement between the plaintiffs and the defendants.1

[2]                  On 11 August 2022, the plaintiffs filed a memorandum called “Memorandum in support of recalling of judgment”.

[3]                  The circumstances where a recall will be ordered under r 11.9 of the High Court Rules 2016 are as follows:2

(1)where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance in high authority;

(2)where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and

(3)where for some other very special reason, justice requires that the judgment be recalled.

[4]                  The third category, some other very special reason, can arise where the Court has failed to address a material issue properly put to it. However, where the Court has misunderstood or arguably misunderstood a party’s submission, that is a matter for appeal.

[5]                  The first point to note is the settlement agreement which founded the strike out application is dated 2 November 2021. In their application for recall, the plaintiffs review the history prior to the settlement agreement. I concluded in the strike out judgment there was no arguable basis for the plaintiffs to challenge the validity of the strike out agreement and accordingly, I do not see matters pre-dating the settlement

1      De Preez v Estate Barbara Anne Doornekamp-Wellman [2022] NZHC 1722.

2      Horowhenua County v Nash (No. 2) [1968] NZLR 632 at 633.

agreement as giving rise to very special reasons to recall. The matters raised in support of recall were raised at the strike out hearing.

[6]                  The plaintiffs say that the settlement agreement was signed under duress and they came under a lot of mental pressure to sign. This is not grounds for recall. The circumstances in which the settlement agreement was signed are dealt with in the strike out judgment. The duress and pressure complained of by the plaintiffs came from their own solicitor.

[7]                  The plaintiffs then refer to their company, Gettwill Investments Limited (Gettwill).   The  plaintiffs  say  the  circumstances  concerning  Gettwill  mean  the 2 November 2021 settlement agreement is void.

[8]                  Again, this is not a ground for recall of the judgment. That Gettwill was not removed from previous litigation as the plaintiffs would have desired, is beside the point. I see no merit in this point.

[9]                  The plaintiffs then refer to discussions that took place at a Judicial Settlement Conference (JSC). Matters discussed at a JSC are confidential and without prejudice. I do not have regard to those paragraphs.

[10]The final paragraph of the recall memorandum is as follows:

41. Looking back we are still bewildered at the pressure and stress of numerous emails and phone calls by our council [sic] and the speed and the demands from our council and Mr Kelly as per emails, especially the 31 October 2021 email to our council to submit us to sign against our will.

[11]              This   paragraph   reinforces   that   the   plaintiffs   concerns   around   the     2 November 2021 settlement agreement cannot be visited on Mr Kelly. As noted earlier, the plaintiffs say they were pressured by their own solicitor to sign the settlement agreement. This issue was dealt with in the strike out judgment and is not a ground for recall.

[12]              None of the matters raised by the plaintiffs bring their case within the circumstances where a recall would be ordered. Their application for recall is declined.

Costs

[13]              The defendants declined to file any response to the application for recall Accordingly, there is no order for costs.

Associate Judge Lester

Solicitors:

Lance Pratley Law, Wellington (for Defendants)

Copy to counsel:
R : Powell, Barrister, Christchurch (for Defendants)

Copy to:

W du Preez (self-represented First Plaintiff) G Snijders (self-represented Second Plaintiff)