Du Preez v Kelly
[2024] NZHC 507
•11 March 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-562
CIV-2022-085-751 [2024] NZHC 507
BETWEEN WILLEM DU PREEZ
First Plaintiff
GETTA SNIJDERS
Second PlaintiffAND
PETER CRELLAN KELLY
First Defendant
DONALD JAMES RIDEN
Second DefendantAMY STOKS
Third Defendant
Hearing: 14 February 2024 Appearances:
Plaintiffs in person
R L Powell for Defendants
Judgment:
11 March 2024
JUDGMENT OF GRAU J
An ongoing dispute about a will
[1] Mr Willem Du Preez (Willem), Ms Getta Snijders (Getta) and Mr Peter Kelly (Peter) have been engaged in litigation since 2020 in both the District and High Courts in relation to the affairs of Peter’s aunt, Ms Barbara Anne Doornekamp-Wellman (Barbara), who died in January 2021.
[2] In November 2021, after receiving legal advice, Willem and Getta signed a settlement agreement with Peter, in which they agreed no further claims would be
DU PREEZ v KELLY [2024] NZHC 507 [11 March 2024]
made about matters associated with Barbara and/or her estate (the Settlement Agreement). Despite this agreement, Willem and Getta have continued to file proceedings based on their belief that Peter acted in a fraudulent manner in relation to his aunt’s final will, which Peter had executed on her behalf on 12 May 2020 (the 2020 Will), witnessed by his friends Donald Riden (Donald) and Amy Stoks (Amy). Willem and Getta believe Barbara’s final will is invalid because one of the witnesses’ signatures was forged and because it does not reflect Barbara’s testamentary wishes contained in an earlier will that Peter was aware of (the 2012 Will).
[3]Two sets of proceedings are currently before this Court:
(a)a claim by Willem and Getta against Peter with the underlying themes that Barbara’s 2020 Will does not reflect Barbara’s testamentary wishes, and that there was fraudulent behaviour by Peter in executing that will, including that he knew Barbara had an earlier will and that he withheld information from Willem and Getta until after they entered into the Settlement Agreement in 2021 (the 562 Proceeding); and
(b)a claim by Willem and Getta against Donald and Amy who witnessed Peter’s signature on Barbara’s 2020 Will. This claim is primarily concerned with Donald’s and Amy’s failure to provide handwriting samples that Willem and Getta wish to have examined by a Police document examiner to prove Donald’s signature is forged and therefore Barbara’s 2020 Will is invalid (the 751 Proceeding).
[4] Willem and Getta seek to be put back in the same financial position they were in before the litigation began between them and Peter. They seek a remedy equivalent to what they say was Barbara’s intention to leave Willem 20 per cent of her estate, purportedly set out in her 2012 will, and they also seek compensation for the emotional damage they say has been caused to them.
[5]There are four interlocutory matters to be determined in this decision:
(a)an application by Peter to strike out the 562 Proceeding;
(b)an application by Donald and Amy to strike out the 751 Proceeding;
(c)an application by Peter under s 166 of the Senior Courts Act 2016 (the SCA) for an order restricting the commencement or continuation of further proceedings by Willem and Getta; and
(d)an application by Willem and Getta for a freezing order against Peter to prevent him dissipating assets or disposing of property.
[6] I have used the first names of the parties throughout this decision. That is because they are variously plaintiffs, defendants, applicants and respondents in the combination of the underlying substantive proceedings and the interlocutory matters that are to be determined in this decision. No disrespect is intended; it is for ease of reference only.
The history of the dispute
Barbara and the making of her will in 2020
[7] Willem and Getta are a couple who knew and cared for Barbara through various arrangements between 2008 and 2019, until Barbara was hospitalised.
[8] Following her hospitalisation, Barbara was formally assessed as lacking capacity to manage her own affairs as to her property and welfare. On that basis, in November 2019, Peter was appointed as Barbara’s welfare guardian and property manager under the Protection of Personal and Property Rights Act 1998 (PPPRA).
[9] In Peter’s capacity as Barbara’s property manager, and after speaking to Barbara and the lawyer appointed in the PPPRA process (who had reported that there was no pre-existing will to the best of anyone’s knowledge), Peter applied to execute a will on Barbara’s behalf pursuant to s 55 of the PPPRA. The PPPRA process included the appointment of an independent lawyer to consult Barbara about her testamentary wishes. The independent lawyer considered it appropriate that a will be executed for Barbara, once her brother (Barbara’s closest surviving relative) was formally served.
[10] On 19 March 2020, a draft will was prepared and sent to the Family Court for approval. Barbara’s brother, who would inherit from Barbara under the intestacy provisions of the Administration Act 1969, filed a memorandum in support of the draft will.
[11] The impact of the COVID-19 pandemic in March 2020 and Barbara’s frail health led Peter to decide to execute the draft will. He contacted his friends Donald and Amy on 20 April 2020 to witness his signature on the draft will. Because COVID- 19 restrictions were in place, they witnessed Peter’s signature through a pane of glass, and they signed their witness statements on a different piece of paper.
[12] The Family Court had issued a minute dated 15 April 2020 approving the draft will for execution. When Peter received the Court’s Minute on 7 May 2020, he emailed his lawyer a copy of the will that he had executed on 20 April 2020. Peter’s lawyer advised him to execute the will again—this time with the date of the Court order inserted and with the witnessing statement on the same page. He did so on 12 May 2020 (being the 2020 Will). Again, Donald and Amy witnessed Peter’s signature that day.
[13] Barbara died on 8 January 2021. Shortly after Barbara’s death and before applying for a grant of probate, on 19 January 2021, Peter informed Willem’s lawyer of the PPPRA-authorised 2020 will and asked if his clients, Willem and Getta, would get involved in probate. Peter sent a certified copy of the 2020 Will to Willem’s lawyer on 3 March 2021. No objections were raised. No caveat was filed. Nor was the existence of any other will raised.
[14]On 5 May 2021, probate was granted of Barbara’s 2020 Will.
[15] On 7 May 2021, Willem and Getta’s solicitor wrote to Peter’s solicitor providing a copy of a will by Barbara dated from 2012 and a 2019 Codicil (the 2012 Will and 2019 Codicil). Under the 2012 Will, Willem was left 20 per cent of Barbara’s estate. It is Willem and Getta’s position that they had not seen the 2012 Will and 2019 Codicil until their lawyer opened a sealed envelope Willem and Getta had provided to the lawyer for safekeeping after Barbara’s death. It is William and Getta’s position
that their lawyer did not open this envelope until after probate had been granted on the 2020 Will.
2020 District Court proceedings (the 201, 220 and 498 Proceedings)
[16] At the time Peter was appointed as Barbara’s property manager, he had concerns about potential financial abuse of Barbara by Willem and Getta. He obtained the available bank records. He was concerned about the amount of money that had been paid out of Barbara’s account to Willem and Getta during the period they cared for her. On 3 January 2020, Peter wrote to Willem and Getta asking them to explain or account for approximately $200,000 they had received from Barbara’s accounts.
[17] On 17 March 2020, Willem filed District Court proceedings against Peter as Barbara’s property manager, seeking approximately $150,000 (the 220 Proceeding).
[18] On 19 May 2020, Peter filed District Court proceedings against Willem and Getta, seeking repayment of the funds they had received from Barbara’s bank accounts (the 498 Proceeding).
[19]The 220 and 498 Proceedings were then consolidated.
[20] Peter was also concerned that Willem continued to visit Barbara and obtain her signature on documents after she had been declared not to have capacity. To address that concern, Peter filed a proceeding under the Family Violence Act 2018 seeking a temporary protection order in favour of Barbara and himself (the 201 Proceeding).
[21] On 14 August 2020, the 201 Proceeding was settled with undertakings given by Willem and Getta.
[22] On 25 August 2020, Willem and Getta filed an amended statement of claim in the 220 Proceeding, seeking approximately $110,000 from Barbara in relation to the cost of their care of her.
2021 High Court proceeding (the 257 Proceeding)
[23] On 17 May 2021, Willem filed a without notice application in the Wellington High Court against Peter, Peter’s sister, Peter’s former solicitors, Barbara’s bank, as well as Donald as a witness to the 2020 Will. The application sought an order that Donald should produce a handwriting sample. It also sought a freezing order.
[24] On 28 May 2021, Gault J directed that the freezing order application was to be put on notice and refiled, and that Willem was to file any substantive proceeding challenging the 2020 Will within 20 working days.1
[25] Willem did not file any substantive proceeding challenging the 2020 Will. Instead, on 12 July 2021, Willem filed an interlocutory application for particular discovery and/or inspection, asking that Donald and Amy create and produce handwriting samples because of his concerns about the witnessing of the 2020 Will. The basis of the application was a claim that the signatures of one or both of the purported witnesses were not genuine, such that the 2020 Will was invalid, and so Willem intended to apply for probate in solemn form of the 2012 Will.
[26] On 22 September 2021, Associate Judge Lester heard the interlocutory application and gave judgment against Willem and Getta on 1 October 2021.2 His Honour noted that, even if there was any procedural irregularity in the execution of Barbara’s final 2020 Will, an application could be made to validate it under s 14 of the Wills Act 2007.3 Further, his Honour said that, given the 2020 Will was approved by the Family Court with Barbara having had the benefit of independent counsel, there would be at least an arguable case for validation of the 2020 Will. Therefore, Willem’s intention to apply for probate in solemn form of the 2012 Will was a collateral attack on the Family Court judgment.4
[27] His Honour also noted that Donald had provided an affidavit about the witnessing of Barbara’s 2020 Will. Given that Donald’s word had not been accepted
1 Du Preez v Kelly HC Wellington CIV-2021-485-157, 28 May 2021 (Minute of Gault J).
2 Du Preez v Kelly [2021] NZHC 2611.
3 At [30].
4 At [31].
by Willem, Donald was not inclined to assist him.5 And discovery did not require a party to create documents that did not exist.6
The Settlement Agreement
[28] Settlement discussions took place between Peter, Willem and Getta in mid- 2021. In October 2021, there was a judicial settlement conference for the District Court matters but no settlement was reached. Negotiations continued, and on 2 November 2021, all matters in the District Court and the High Court were settled by written agreement between Willem, Getta and their company Gettwill Investment Services Ltd, and Peter as executor for Barbara. The Settlement Agreement was signed by Willem and Getta in the presence of their lawyer and after they had received legal advice from him. Willem promptly paid the settlement amount and filed the required notices of discontinuance for the 220 and 498 Proceedings in the District Court and the 257 Proceeding in the High Court.
[29] The benefits of the Settlement Agreement were also conferred on Peter personally, by virtue of cl 3, which said:
This agreement confers benefits on a third party to the agreement enforceable by him, namely Peter Kelly in his personal capacity (Peter Personally).
[30]Clause 11 of the Settlement Agreement provided as follows:
The Parties agree that this Agreement is in full and final settlement of all matters between them (present or future and whether or not in the contemplation of the Parties and including all matters associated with Barbara Doornekamp-Wellman and/or her Estate) as to any claims, actions or complaints involving Peter Personally and agree that no further claims, actions or complaints regardless of form arising from any matters settled by this Agreement shall be taken other than: (1) to enforce the terms of this Agreement; or (2) relating to any future act that would be a breach of the Family Violence Act undertaking in favour of Peter Personally which shall remain in full force and effect.
[31]Also relevant is, cl 12 which stated:
Each of the parties acknowledges that in entering into this Agreement it has not relied on any representation, warranty, agreement, undertaking or statement not set out in this Agreement and that (in the absence of fraud) it
5 At [32].
6 At [20].
will not have any claim, right or remedy arising out of any such representation, warranty, agreement, undertaking or statement.
Proceedings continue after settlement
[32] Approximately seven weeks after the Settlement Agreement was signed, Willem and Getta filed a proceeding in the High Court (the 014 Proceeding). This proceeding continued the theme that Barbara’s 2020 Will was not properly witnessed, and it disputed the validity of the Settlement Agreement, including on the basis that Willem and Getta had signed it under duress.
[33] Around 25 January 2022, Willem and Getta filed a without notice interlocutory application against their former solicitor requiring him to produce various documents. Willem and Getta asserted they had entered into the Settlement Agreement under duress and without disclosure of important information. They sought orders for the provision of key documents in relation to the underlying dispute, including the 2012 Will, the 2019 Codicil and other documents created by Barbara. The orders were sought to preserve the evidence that was the subject of the claim.
[34] Justice Cooke declined this application on 2 February 2022.7 He directed that Willem and Getta’s lawyer and Peter were to be provided a copy of the decision,8 which is when Peter became aware of the existence of the 014 Proceeding. Peter filed a statement of defence on 27 February 2022 along with an application to strike out the proceeding, relying on the Settlement Agreement.
[35] A significant number of interlocutory applications and amending of pleadings followed, including an unsuccessful application by Willem and Getta for an amicus to be appointed on the basis that they were self-represented and could not afford to employ a lawyer.
[36] On 19 July 2022, Associate Judge Lester struck out the 014 Proceeding.9 His Honour was satisfied none of the grounds for challenging the Settlement
7 Du Preez v Estate of Barbara Anne Doornekamp-Wellman [2022] NZHC 70.
8 At [9].
9 Du Preez v Estate of Barbara Anne Doornekamp-Wellman [2022] NZHC 1722 at [29] [Decision of Associate Judge Lester].
Agreement were reasonably arguable because none of the grounds asserted were a misrepresentation, breach, or other misconduct by Peter.
[37] His Honour considered that the real complaint by William and Getta was of being let down by their solicitor in the settlement process, the responsibility for which could not be visited on Peter.10 Nor did his Honour accept there was any withholding of discovery by Peter. The responsibility for any failure to provide Peter’s discovery to Willem and Getta rested with their solicitor.11
[38] His Honour accepted the submission that the Settlement Agreement was intended to bring all matters between the parties to an end. Accordingly, it was a bar to the 014 Proceeding which was therefore an abuse of process.12
[39] An application to recall the judgment was declined on 9 September 2022.13 Indemnity costs were awarded in Peter’s favour.14
The current proceedings
[40] On 18 November 2022, Willem and Getta filed the 751 Proceeding against Donald and Amy in the District Court.
[41] On 11 September 2023, Willem and Getta commenced the 562 Proceeding against Peter in the High Court.
[42] The proceeding against Donald and Amy was subsequently transferred to the High Court, and the two proceedings were consolidated. Peter filed an affidavit in support of Donald and Amy in the 751 Proceeding.
[43] The 751 Proceeding against Donald and Amy contains the complaints about their failure to provide handwriting samples to enable Willem and Getta to investigate the signatures on Barbara’s 2020 Will, along with allegations about misleading
10 At [30].
11 At [32].
12 At [63].
13 Du Preez v Estate of Barbara Anne Doornekamp-Wellman [2022] NZHC 2299.
14 Du Preez v Estate of Barbara Anne Doornekamp-Wellman [2022] NZHC 2303.
affidavits by Donald and Amy (that Peter himself was now implicated in by filing an affidavit in support of Donald and Amy’s defence to the claim against them), and that Willem and Getta did not have the opportunity to present the 2012 Will and the 2019 Codicil to the Family Court until after probate was granted.
[44] The statement of claim in the 562 Proceeding alleges, among other things, that Barbara’s 2020 Will does not reflect her testamentary wishes. It also makes a number of allegations against Peter, including; his alleged knowledge of a previous will; fraudulent misrepresentations made to the Family Court that Barbara’s 2020 Will was valid; withholding of discovery before the Settlement Agreement; and that Willem and Getta were subject to duress in signing the Settlement Agreement.
Strike out principles
[45] Under r 15.1(1) of the High Court Rules 2016 (the HCR), a court may strike out all or part of a pleading where 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.
[46] The relevant guiding principles are well established. For the purposes of a strike out application it is assumed that the facts pleaded in the statement of claim are true, provided they are not purely speculative. The jurisdiction to strike out is exercised sparingly, and before the court will strike out a proceeding, the causes of action must be so clearly untenable that they cannot possibly succeed. Nevertheless, if the application requires questions of law to be determined, that will not exclude a strike out order being made.15
[47] What may amount to an abuse of process can take many forms. Such forms can include the filing of a statement of claim when a contractual limitation on
15 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33]; and Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
proceedings is extant,16 attempting to relitigate matters already determined,17 or launching a collateral attack upon a final decision in other proceedings.18
Peter’s application to strike out the 562 Proceeding
[48] Peter’s strike out application is made on the basis that the 562 Proceeding is an abuse of process and that it is barred by the Settlement Agreement. The statement of claim is also said to be so difficult to understand or respond to that it would cause prejudice or delay.
[49] Strike out is also sought on the basis that the 562 Proceeding is a collateral attack on the decision of Associate Judge Lester striking out the 014 Proceeding, and/or to the extent that the relief sought differs from previous proceedings, such claims ought to have been raised in the earlier proceedings between the same parties about the same subject matter.
Should the 562 Proceeding be struck out?
Does the Settlement Agreement preclude the 562 Proceeding?
[50] In my view, the 562 Proceeding against Peter is barred by the terms of the Settlement Agreement. As Associate Judge Lester has already determined, the Settlement Agreement was intended to bring all matters between the parties to an end. Both as executor and personally, the scope of the settlement in favour of Peter is broad.19 I accept Ms Powell’s submission that the complaints in this proceeding are essentially the same complaints made in the struck out 014 Proceeding, despite that causes of action have been reframed. For example:
16 Heinz-Wattie Ltd v Hamburg Sudamerikanische Dampfschiffahrts-Gesellschaft (1999) 14 PRNZ 227 at [18].
17 Little v New Zealand Law Society [2023] NZHC 1880 at [42]; Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541; and Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC) at 586.
18 Chamberlains v Lai [2006] NZSC 70, [2007] 2 NZLR 7 at [63]; see also Hong v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2020] NZHC 2205 at [51]; and Deliu v District Court at Auckland [2023] NZHC 658 at [27].
19 Decision of Associate Judge Lester, above n 9, at [61]–[62].
(a)The claim that Peter had made misleading allegations about Willem and Getta to third parties, which left them with no alternative but to “resign and walk away” from their role as Barbara’s caregiver, is essentially the same complaint that Peter unjustifiably dismissed them. Associate Judge Lester has already dealt with that claim, which he found was barred by the Settlement Agreement, or if not, it was not a claim within the jurisdiction of this Court.20
(b)The allegation that Barbara’s 2020 Will does not reflect her testamentary wishes or was witnessed or otherwise executed incorrectly is also barred by the Settlement Agreement. It is a claim that is a matter associated with Barbara’s estate involving Peter as Barbara’s executor and/or personally. In addition, it involves a challenge to the Family Court’s approval of the content and form of the 2020 Will. Approval was given following the PPPRA process, including provision of an independent lawyer for Barbara, which itself followed a formal assessment that she lacked capacity to manage her own affairs. Willem and Getta continue to dispute that Barbara lacked capacity. But by its approval of the 2020 Will, the Family Court has determined that she did lack capacity.
(c)The various allegations that Peter acted in a fraudulent manner in relation to the 2020 Will are not tenable either. Associate Judge Lester has already determined that none of the grounds asserted by Willem and Getta in that proceeding amounted to a misrepresentation, breach, or other misconduct by Peter.21
(d)More claims of fraudulent conduct are now based on discovery documents from the previous proceedings that Willem and Getta allege Peter withheld from them. But there remains no basis on which the Settlement Agreement could be set aside:
20 Decision of Associate Judge Lester, above n 9, at [66].
21 Decision of Associate Judge Lester, above n 9, at [29]
(i)The allegation that Peter intentionally withheld discovery has already been considered and determined by Associate Judge Lester. If Willem and Getta did not see the discovery until after the Settlement Agreement was signed, then their lawyer is responsible for failing to provide it to them, not Peter.22 They now allege their lawyer did not have the discovery either until after the Settlement was signed; on the basis that their lawyer would not risk his reputation, and he would not lie. That assertion appears to be based on their lawyer emailing the discovery to them post-settlement. But there is no evidence from their lawyer that he did not have the discovery until after the Settlement Agreement was signed. There is evidence, however, that Peter’s discovery documents were provided to Willem and Getta’s lawyer in September 2021, around two months before the Settlement Agreement was signed.
(ii)The allegation Peter was aware of a prior will appears to rely on an email sent to Peter by his sister in 2011, wondering if there was a possibility Barbara would change her will to favour Willem. In my view, that email falls very far short of demonstrating any knowledge by Peter of the existence of a prior will.
(iii)There was an allegation that I understand to be about Barbara having money in a trust that Peter obtained by deception. The documents I was referred to also fall well short of establishing any wrongdoing. All that is apparent is that some family trusts existed, which Barbara was a discretionary beneficiary of, and there was some discussion between Peter and other family members about that.
22 At [31].
(iv)I have already referred to Willem and Getta’s continued belief that Barbara lacked capacity. They believe that Peter lied to the Family Court about his aunt’s state. That ignores the fact that Barbara was formally assessed as lacking capacity to manage her own affairs. Peter is not responsible for that assessment.
(v)The allegations of duress by Willem and Getta’s lawyer and/or there was prejudicial collaboration between Peter and their lawyer which led to the Settlement Agreement being signed were also dealt with and rejected by Associate Judge Lester. As his Honour found, Peter cannot be responsible for any claims by Willem and Getta that they signed the Settlement Agreement under duress. The complaint about Peter’s direct communication with their lawyer is also a complaint about the conduct of their own lawyer. 23
[51] I have, in common with Associate Judge Lester, found that there were no misrepresentations, fraud or other misconduct by Peter. That disposes of the argument a remedy would be available to Willem and Getta under cl 12 of the Settlement Agreement. I also accept the submission of Ms Powell that Willem and Getta signed the Settlement Agreement after legal advice, so they cannot maintain they were induced to enter into it because of any misrepresentation by Peter.
Is the 562 Proceeding a collateral attack on the decision of Associate Judge Lester?
[52] The simple answer is yes, and that is another basis on which the claim must be struck out.
[53] Associate Judge Lester heard and determined many of the same allegations which are about exactly the same subject matter. Although some the causes of action in the 562 Proceeding are framed differently now and the relief sought may differ, the 562 Proceeding essentially raises the same issues that have already been determined. The principal basis for the 562 Proceeding appears to be the discovered documents
23 Decision of Associate Judge Lester, above n 9, at [36]–[43].
that Willem and Getta allege Peter withheld from them. As above, I do not accept that claim. The responsibility to provide the documents to Willem and Getta lay with their own lawyer, and there is no evidence to suggest he did not have those documents. There is only evidence that their lawyer did have the discovered documents.
[54] I add here that the only proper use of the discovered documents was for use in the previous proceedings, as Willem and Getta’s lawyers advised them at the time they provided those documents to them.24 But they have now been used as a foundation for a new proceeding.
[55] The Courts are clear that claims cannot be undertaken by instalment.25 To relitigate the decision of Associate Judge Lester and add ostensibly new claims based on documents discovered in earlier proceedings is an abuse of process.
Is the statement of claim likely to cause prejudice or delay?
[56] I also agree with Ms Powell that the statement of claim for the 562 Proceeding, at some 45-pages in length, being an amalgam of evidence and submissions, is confusing and difficult to understand. It would impose a significant and unacceptable burden on Peter in terms of the time and expense that would be required to make sense of and respond to it.
[57] The alternative is that the Court could require an amendment to the statement of claim instead of striking it out. In my view that is not a realistic alternative. First, because I have already found there are two other grounds on which the proceeding should be struck out. Secondly, I do not consider that Willem and Getta would be able to confine themselves to an appropriate pleading.
Donald and Amy’s application to strike out the 751 Proceeding
[58]The statement of claim in the 751 Proceeding appears to set out the following:
24 Pursuant to r 8.30 of the High Court Rules 2016, a person may only use discovered documents in the proceeding for which they were obtained.
25 Faloon v Planning Tribunal [2020] NZCA 170 at [2]; and Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 (Ch) at 115 cited in Craig v Stringer [2020] NZCA 260 at [17].
(a)The first pleaded cause of action is in gross negligence. The claim is that Donald and Amy had a duty to act in accordance with laws concerning wills, and not to commit any fraud or forgery concerning the 2020 Will or its presentation in or out of Court.
(b)The second cause of action is that Donald and Amy provided misleading affidavits.
(c)The third cause of action is that Peter misinformed the Family Court that Barbara had no previous will.
(d)The fourth cause of action is that cl 11 of the Settlement Agreement is overridden by cl 12 because there was fraud.
[59]All four causes of action are clearly untenable and could not possibly succeed.
[60] I consider there is no available cause of action against Donald and Amy for gross negligence. The real complaint here is Willem and Getta’s belief that Donald and Amy have acted in a fraudulent manner in relation to the circumstances of the execution of Barbara’s 2020 Will by Peter. It is correct that Donald and Amy were required to comply with the law, as all people are required to. The only thing they have done is to witness their friend sign a document. That does not give rise to a duty of care owed to Willem and Getta that could form the basis of a claim in negligence.
[61] Underlying this claim is the failure by Donald and Amy to provide their signatures so that Willem and Getta could have them examined by a Police document examiner. This Court has already confirmed Donald and Amy had no obligation to do so. In any event, in July 2021, Donald and Amy did in fact offer to provide handwriting samples, but this opportunity was not taken up by Willem and Getta. It is not therefore realistic for Willem and Getta to complain that Donald and Amy’s failure to provide handwriting samples has caused loss to them.
[62] The first cause of action also includes another complaint that Peter withheld discovery that they did not receive until after the Settlement Agreement was signed.
This is the same complaint raised in the 562 Proceeding against Peter and, as I (and Associate Judge Lester) have already determined, it is a matter between Willem and Getta and their lawyer. This cannot found a claim in a proceeding against Donald and Amy, who had nothing whatsoever to do with discovery in a previous proceeding that only involved Peter.
[63] The second cause of action is again about Donald and Amy’s failure to provide handwriting samples. It is also claimed that they provided misleading affidavits about the circumstances of the signing of Barbara’s 2020 Will. There are also complaints about Peter and the information he is alleged to have withheld. I can discern no intelligible cause of action and these matters have already been litigated and determined.
[64] The third cause of action appears to relate to Peter and the allegation he lied to the Family Court that Barbara had no prior will. That is not an allegation relating to either Donald or Amy. It then goes on to challenge the validity of the 2020 Will, alleging Peter, Amy and Donald made false affidavits about the circumstances in which the 2020 Will was signed. It is alleged that Donald and Amy did not observe Peter sign the 2020 Will. I can discern no intelligible cause of action under this head either and/or it concerns the same subject matter as contained in other causes of action.
[65] The fourth cause of action relates to the Settlement Agreement and, in common with the 562 Proceedings, it alleges fraud. Donald and Amy were not parties to that Agreement – although, as I discuss below, the Agreement is likely wide enough to include them in its ambit. More importantly though, the fraud alleged appears to be fraud by Peter. There is no intelligible cause of action against Donald and Amy.
[66] Further, the statement of claim in the 751 Proceeding suffers from the same defects as the statement of claim in the 562 Proceeding. It is also a complicated amalgam of evidence and submission that is very difficult to understand. I do not consider the defects could be cured by requiring repleading.
[67] I also consider the 751 Proceeding against Donald and Amy should be struck out because it seeks to re-open the dispute about Barbara’s 2020 Will that has already
been settled. It is based on the same factual background as the 014 Proceeding that Associate Judge Lester struck out and seeks to re-litigate the same matters by attempting to frame them in a slightly different way.
[68] It appears to me too that cl 11 of the Settlement Agreement is wide enough to bar this claim against Donald and Amy because the claims Willem and Getta make against Donald and Amy amount to “… claims, actions or complaints involving Peter Personally …”. Donald and Amy have only been brought into this continuing course of litigation because they assisted Peter by witnessing his signature on the 2020 Will he prepared for his aunt. The claims against Donald and Amy must therefore amount to claims involving Peter personally. Therefore, cl 11 of the Settlement Agreement would appear to act as a bar to the 751 Proceeding against Donald and Amy.
Conclusion on strike out applications
[69] For the reasons set out above, I would grant the applications of Peter, Donald and Amy striking out the 562 and 751 Proceedings in their entirety. The pleadings disclose no reasonably arguable causes of action or are otherwise an abuse of process.
[70] There does not seem to me to be any legal basis left on which Willem and Getta can validly challenge the 2020 Will. Probate was granted on the 2020 Will on 5 March 2021. Willem and Getta did not apply at that time to have the grant of probate recalled, nor did they seek a caveat preventing distribution of the estate or bring any action under any applicable statute to challenge the 2020 Will. The estate was finally distributed in December 2021. Any earlier will—whether the 2012 Will, the 2019 Codicil or otherwise—was superseded by the 2020 Will once it was validly executed, granted probate and duly administered. This much is clear from cl 1 of the 2020 Will, which states, “I revoke all previous wills”. And, in any event, as pointed out by Associate Judge Lester, the 2020 Will can nevertheless be declared valid by the Court under s 14 of the Wills Act.
[71] It appears that the real hurt that Willem and Getta have suffered is to their feelings, as a result of the steps Peter took to end their care of Barbara, and the financial impact on them from continuing to pursue their claims through the Court. Those are not matters that can found another round of litigation about the same subject.
Application for order restricting commencement or continuation of proceedings
[72] Peter has also applied for an extended order under s 166 of the SCA to stop Willem and Getta from filing any more proceedings that relate to Barbara. He describes their conduct as an unceasing and ever-shifting campaign. He has provided a schedule detailing all of Willem and Getta’s claims and applications, being six separate proceedings and numerous interlocutory applications all of which, bar one,26 have been unsuccessful.
[73] Willem and Getta’s position is that they commenced proceedings after the Settlement Agreement because of Peter’s alleged fraud, because Peter accused them of fraud in relation to Barbara’s affairs, and because they do not accept Barbara lacked capacity. They believe Peter’s motivation in respect of Barbara’s affairs is his own personal gain.
Criteria for a s 166 order
[74] A Judge of the High Court may, under s 166 of the SCA, make an order restricting a person from commencing or continuing civil proceedings where at least two proceedings commenced or continued by that person in any court or tribunal are or were totally without merit.27 The orders can take three forms that vary in their level of restriction; a limited order, which applies to a particular matter; an extended order, which applies to a particular or related matter; or a general order, which applies to any civil proceeding.28 The grounds for making the various types of orders are set out in s 167 of the SCA:
167 Grounds for making section 166 order
(1)A Judge may make a limited order under section 166 if, in civil proceedings about the same matter in any court or tribunal, the Judge considers that at least 2 or more of the proceedings are or were totally without merit.
26 An interlocutory application to the District Court for retrospective leave to file proceedings against Barbara when she was subject to a property order: Minute of Judge Grace, dated 19 October 2020, FAM 2019-085-431.
27 Senior Courts Act 2016, s 167.
28 Senior Courts Act, s 166.
(2)A Judge may make an extended order under section 166 if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
(3)A Judge may make a general order if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
(4)In determining whether proceedings are or were totally without merit, the Judge may take into account the nature of any interlocutory applications, appeals, or criminal prosecutions involving the party to be restrained, but is not limited to those considerations.
(5)The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons.
(6)For the purpose of this section and sections 168 and 169, an appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding.
[75] An order under s 166 restrains a party from commencing or continuing any proceeding of any type specified in the order without first obtaining leave of the High Court.29 A “proceeding” is defined in r 1.3 of the HCR as “any application to the High Court for the exercise of its civil jurisdiction other than an interlocutory application”. That said, in determining whether a proceeding was totally without merit, the Judge may still take into account interlocutory applications.30 The order generally has effect for a period of three years, although the Judge may specify a longer period not exceeding five years if satisfied that there are exceptional circumstances justifying such a term.31 A party to any proceeding may apply for a limited or extended order.32
[76] It has been established that the courts should be slow to make a restraint order, given that it amounts to a breach of a person’s right to access justice. However, the court is also required to be conscious of “the worry and expense that the opponents of meritless litigation face, and the barely sufficient resources of the judicial system to afford justice without unreasonable delay to those who have genuine grievances”. On
29 Section 168(1).
30 Section 167(4).
31 Section 168(2).
32 Section 169(1).
this basis, the court can exercise its discretion to make such an order in the appropriate case.33
[77] The courts have generally adopted a two-step process in determining whether a s 166 order should be granted:34
(a)the court first considers whether there are at least two proceedings that are or were totally without merit; and
(b)if so, the court then considers whether it is appropriate to exercise its discretion to make an order.
[78] The Court of Appeal in Mawhinney v Auckland Council considered the meaning of the “totally without merit” test.35 The Court confirmed that “a proceeding is totally without merit if it is bound to fail”. If a Judge considers that a proceeding is not bound to fail, the presence of other factors—such as whether the proceeding was brought without regard to its merits or that it exposes the defendants to inconvenience or harassment—cannot be “called in aid to assist it across the threshold”.36
Are there two or more proceedings totally without merit in this case?
[79] Given my decisions above to strike out the 751 and 562 Proceedings, it follows I am satisfied that there are two proceedings totally without merit, in the sense they meet the threshold test of being bound to fail. Those two proceedings therefore qualify for the purpose of making an order under s 166.
[80] The earlier 014 Proceeding also falls in the same category, when many of the pleaded causes of action were complaints Willem and Getta had with the conduct of their own solicitor and not Peter, and when those proceedings were commenced notwithstanding the litigation bar contained in the Settlement Agreement. Accordingly, it was inevitable that the 014 Proceeding would be struck out.
33 Harrison v Harrison [2020] NZHC 3066 at [24]; citing Auckland Council v Mawhinney [2019] NZHC 299 at [55].
34 See Auckland Council v Mawhinney, above n 33, at [115].
35 Mawhinney v Auckland Council [2021] NZCA 144, [2021] 3 NZLR 519 at [56]–[60].
36 At [58].
[81] On this basis, there are three proceedings that are, or were, totally without merit.
Should a s 166 order be made?
[82] The question in the second stage of the inquiry is whether the Court should exercise its discretion to grant a s 166 order. At this stage, the conduct of Willem and Getta in bringing proceedings can be taken into account.37 I note the following:
(a)Willem and Getta have firmly entrenched views about what happened in relation to Barbara’s affairs and cannot accept any alternative reality. They continue to hold their views despite evidence to the contrary. For example, they will not accept the evidence that Peter complied with his discovery obligations and so any failure to provide the information to them is the responsibility of their lawyer. They will not accept the circumstances of the signing of Barbara’s 2020 Will, despite clear and consistent explanations from the three people who were present, and they persist in maintaining Barbara had testamentary capacity despite a formal assessment she did not and the decision of the Family Court to approve the 2020 Will.
(b)Willem and Getta have filed six separate proceedings in relation to Barbara; each proceeding essentially raising the same complaints. The three proceedings that I have found were without merit (the 014, 562 and 751 Proceedings) included interlocutory applications, none of which have been decided in their favour. Yet, they continue to advance arguments that have already been rejected. The two proceedings that I have struck out amount to collateral challenges to matters that have already been determined, namely the Family Court’s approval of Barbara’s 2020 Will, and Associate Judge Lester’s strike out of the 014 Proceeding (which was itself barred by the Settlement Agreement).
37 Mawhinney v Auckland Council, above n 35, at [115].
(c)Pleadings have been unduly long and confusing. They appear to repeat the same grievances in several different ways. An undue burden would fall on Peter, Donald and Amy to make sense of and respond to the claims against them.
(d)Willem and Getta’s conduct has caused distress, in particular to Peter. Peter has deposed that they have at times turned up unannounced to the homes or workplaces of Peter, Donald, and/or Amy to serve them with documents. In relation to Peter, such contact appears to be a breach of undertakings Willem and Getta had given, as well as being a breach of the Settlement Agreement. Donald and Amy were only bystanders who assisted their friend by witnessing his signature but they have been drawn into the ongoing proceedings. They have no place in the substance of the dispute.
(e)Willem and Getta claim that Peter (and Amy and Donald) have caused them loss. They blame them for the legal costs they have incurred and for their loss of an expectation they would inherit from Barbara. They do not appear to be able to accept their role in continuing to pursue their claims and the way in which they have done so. In particular, they have persisted despite agreeing there would be no further claims associated with Barbara and her estate and including claims involving Peter personally. As above, I consider that the complaints against Donald and Amy are about matters that involve Peter personally.
[83] I agree with Ms Powell’s submission that this is a clear case where an extended order should be made under s 166 of the SCA to prevent Willem and Getta from bringing further proceedings related to Barbara or her estate, and/or proceedings that would be otherwise precluded by the Settlement Agreement. I am of the view that, if an order was not granted, further unmeritorious proceedings would be likely.
How long should the order last?
[84] An order under s 166 has effect for a period of up to three years but, pursuant to s 168 of the SCA, a longer period may be specified (not exceeding five years) if the
Judge is satisfied there are exceptional circumstances justifying the longer period. Peter seeks an order for a five-year period.
[85] Ms Powell submitted that the primary difference in this case compared to other cases where such an order has been made is that a contract was signed agreeing to stop litigation, yet it persisted. She also relied on what she described as a campaign of harassment by letters to third parties alongside the proceedings.
[86] A large amount of material has been sent by Willem and Getta to a wide range of people. The upset caused to Peter is self-evident. I agree too that Willem and Getta appear to have disclosed material they received through the discovery process. Indeed, that material, which they consider was evidence withheld from them, forms a significant part of their complaints in the current proceedings.
[87] I do not consider however, that an order over three years is justified. I note the following cases:
(a)In Harrison v Harrison a five-year order was made.38 I note however, the context was some 13 years of litigation. Similarly, in Auckland Council v Mawhinney, the five-year order was considered appropriate in light of a 13–25-year timespan of litigation.39 In the present case, although there have been numerous proceedings filed, the period of litigation is considerably shorter, and the proceedings that I have found to be without merit are from mid-2022 onwards.
(b)No exceptional circumstances were found in Paterson v Lepionka & Company Investments Ltd where settlements had been entered into but proceedings nevertheless continued.40
38 Harrison v Harrison, above n 33, at [31].
39 Auckland Council v Mawhinney, above n 33, at [159].
40 Paterson v Lepionka & Company Investments Ltd [2020] NZHC 2184 at [166]; although I note the existence of a settlement agreement does not appear to have been expressly considered when setting the length of the order.
(c)In a different context, in AB v CD, litigation was ongoing despite a contracting out agreement under the Property (Relationships) Act 1976.41 The order in that case was for a three-year term.
[88] I do not consider there are exceptional circumstances here justifying an order longer than three years. The behaviour in this case does not appear to be of a different order to other cases in which a three-year period was ordered. Additionally, a further order can be made at the end of the three years if that is necessary.42
Application for freezing order against Peter
[89] The purpose of a freezing order is to ensure that a potential judgment is not undermined by a lack of remedy. Given that the substantive proceedings have been struck out, the issue of a freezing order falls away because there is now no potential judgment that might be so undermined.
[90]Both parties agreed this result would follow.
[91] I observe here that Donald, Amy and seven other third parties are also named in the freezing order application as further secondary respondents (although they are not named as respondents in the intituling). For the avoidance of doubt, the application is declined as against all of the additional respondents.
Result
[92]For the reasons set out above:
(a)the 562 Proceeding against Peter is struck out;
(b)the 751 Proceeding against Donald and Amy is struck out;
(c)an extended order pursuant to s 166(2) of the Senior Courts Act 2016 is made preventing Willem Du Preez and/or Getta Snijders from
41 AB v CD [2023] NZHC 610.
42 Body Corporate 68,792 v Memelink [2023] NZHC 3850 at [138].
commencing or continuing any civil proceedings (or any matter arising out of any civil proceeding) on any matter related directly or indirectly to the subject of Barbara Anne Doornekamp-Wellman or her estate, or any matter within the scope of the Settlement Agreement between Gettwill Investment Services Ltd, Willem Du Preez, Getta Snijders and Peter Kelly dated 2 November 2021, in a senior court, another court or a tribunal for a period of three years; and
(d)the application by Willem and Getta for a freezing order against Peter (and any other respondents it may also relate to) is declined.
[93] Peter, Donald and Amy are entitled to costs on their respective applications. I note they propose to seek an order for increased or indemnity costs. Memoranda are to be filed within 15 working days of this judgment following which Willem and Getta will have 15 working days to respond. Memoranda shall be no more than five pages, together with necessary supporting documentation. I will then determine costs on the papers.
Grau J
Solicitors:
Summit Law, Christchurch for Defendants
0
19
0