Duval v Clift
[2015] NZHC 209
•19 February 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-00059 [2015] NZHC 209
BETWEEN BILL MATTHEW COWLEY DUVAL
Plaintiff
AND
JENINE LORNA CLIFT First Defendant
BRETT MAURICE BENNISON Third Defendant
Hearing: 5 February 2015 Counsel:
Plaintiff in Person
J Schlooz for DefendantsJudgment:
19 February 2015
JUDGMENT OF FOGARTY J
This judgment was delivered by me on 19 February 2019 at 4.30 p.m., pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Paddy Orr, Auckland
DUVAL v CLIFT [2015] NZHC 209 [19 February 2015]
Introduction
[1] On 27 August 2014 I delivered a judgment in favour first and third defendants. It rejected four claims of breach of contract against Ms Clift, a claim of harassment by Ms Clift, a breach of privacy by Ms Clift, physical and psychological violence by Ms Clift, defamation by Ms Clift and incest counselling in the community against Ms Clift, exposing him and the public to risk. It also rejected a claim of defamation against the third defendant, Mr Bennison, and a claim of intrusion on seclusion against Mr Bennison. It upheld the counterclaims of Ms Clift that Mr Duval was in breach of an obligation to purchase Ms Clift’s rights and interest in a residential property co-owned between the two, no later than
20 February 2013, and various other breaches of contract by Mr Duval. The remedies Ms Clift sought were granted and then commenced with an order for immediate sale of the property.
[2] In 2007, Mr Duval and Ms Clift had jointly purchased a leaky home in Auckland. Ms Clift had brought to the bargain her savings in excess of $200,000 and her creditworthiness as she was able to, by reason of her employment, to obtain a loan from her bank. Mr Duval purported to bring his expertise as a leaky home consultant and a commitment to buy out Ms Clift after two years. When the property was purchased there was a property sharing agreement known by the parties as “the psa” entered into between the parties. This agreement was renegotiated and a variation of it binds the parties as from September 2009. Both psas obliged Mr Duval to purchase Ms Clift’s share of the property and this has not happened.
[3] Mr Duval appealed the decision, filing the appeal on 22 September 2014. On
8 December 2014, a letter was sent by him to the Court of Appeal seeking extension of time to meet payment for security for costs. He says the Registrar did not accept the letter and, rather, deemed the claim abandoned as of 23 December 2014. The Registrar then issued a Notice of Result to the parties on 14 January 2015.
[4] Mr Duval is relying on r 43(3) of the Court of Appeal (Civil) Rules 2005. Rule 43 provides:
43 Appeal abandoned if not pursued
(1) An appeal is to be treated as having been abandoned if the appellant does not apply for the allocation of a hearing date and file the case on appeal within 3 months after the appeal is brought.
(2) The Court, on application, may—
(a) grant an extension of the period referred to in subclause (1);
and
(b) grant 1 or more further extensions of any extended period.
(3) An application for the grant of an extension may be made before the expiry of the period to which the application relates or within 3 months after that expiry; but no extension may be granted on an application that is made later than 3 months after that expiry.
(4) This rule overrides rules 5(2) and 6.
(5) If any days in the period commencing on 25 December in one year and ending on 15 January in the next year are comprised in the 3- month period calculated in accordance with subclause (1) or subclause (3), that 3-month period is extended by the number of those days.
[5] It is uncertain as to whether this application will be lodged and granted. From the bar I was advised that the original reason why the appeal was treated as abandoned is that Mr Duval was unable to pay the security for costs. Mr Duval agreed that he was unable to meet the costs. This is a significant fact in the ensuing analysis. As the judgment records on a number of occasions, one of the essential reasons why Mr Duval did not meet his contractual obligations with Ms Clift is due to impecuniosity. That is not essentially denied by Mr Duval, although he does not expressly admit it. But the link between his defamation claims and his defence of non-performance of the contract is that he claimed that by reason of defamation on the part of Ms Clift and Mr Bennison, he was unable to earn a good living as a real estate agent.
[6] When asked what his goal was if he succeeds in the Court of Appel on appeal on the contract arguments, he said that he would obtain the right for him to sell the property at the best price and, alternatively, to buy the property himself. He would be able to do this if he were able to get work, the barrier to which he perceives to be the defamation of his character by Ms Clift and Mr Bennison and by another man, Mr Beardly.
[7] It is in this context that I sat to resolve the current issues consequent upon the judgment. There are four issues:
(a) Determining the merit of Mr Duval’s application for a stay of the
judgment of the High Court;
(b)On the Court’s motion, an examination of whether or not new proceedings subsequent to the judgment in defamation against Mr Beardly and Ms Clift and others1 are a abuse of process;
(c) Determining the efficacy of the first and second defendants’ proposed
orders for sealing; and
(d) Information regarding the sale of the property. (That is Mr Duval’s
formulation of the issues.
[8] The principal issue is whether or not the High Court judgment should be stayed. I defer examination of that by resolving the other three matters as the resolution of those three matters informs the issues to be judged on the question of stay of the High Court judgment or not.
[9] The new defamation proceedings arise out of a publication by a man called Mr McCreedy who runs a private criminal prosecution service. It is alleged that he broadcasted into the commercial community his instructions to bring private prosecutions against Mr Duval by Ms Clift And Mr Bennison defaming Mr Duval’s competence as a leaky home consultant and alleging that he took advantage of susceptible women in that regard.
[10] In the course of the case management, prior to the hearing of these proceedings, Associate Judge Bell on 21 May 2014 addressed the question of Mr Duval wanting to file a new cause of action with respect to these press releases.
In his minute of that date, Bell AJ said:
1 CIV-2014-404-0033000.
[3] If the plaintiff wishes to make a claim against the defendant in respect of this new incident, that would be a fresh cause of action. Under r
7.77(3), an amended pleading may introduce a fresh cause of action, even if the cause of action arose after the proceeding started. Accordingly, Mr
Duval would need to file a new statement of claim adding new causes of action against the first defendant. I note that the close of pleadings date is 26
May 2014.
[4] The plaintiff is not required to include this new incident as a fresh cause of action in this proceeding. The plaintiff may wish to consider whether it might be more appropriate to issue a separate proceeding. The defendants for this new alleged defamation may include not only the first defendant in this proceeding but other people who are not otherwise involved in the proceeding.
[5] Another possibility is that the plaintiff does not want to use the new incident to plead a fresh cause of action in this proceeding but simply wishes to use it evidentially – that is, he may believe that this new incident may help him prove his other causes of action without seeking specific relief for this new incident. That would be a matter that goes to evidence. It would be for the trial judge to rule on its relevance or otherwise.
[6] If the plaintiff is to amend his pleadings, it would be necessary to consider what changes if any should be directed to the current timetabling arrangements, including granting leave to other parties to file pleadings after the close of pleadings date.
[11] In his minute of 22 May, Bell AJ noted that counsel for the plaintiff (Mr Duval had representation at that time) stated he had not received instructions from his client who was in Utah but he was of a mind that he may wish to use the fresh incident evidentially. And that:
[3] … It would be for the trial judge to rule on the relevance or
admissibility of the new evidence Mr Duval intends to rely on.
[12] In his minute of 30 May 2014, Bell AJ noted that Mr Duval will represent himself and he advised that he wanted to plead a fresh cause of action against the first and third defendants in respect of the press release of 15 April 2014. Bell AJ stated:
[4] If I were to grant leave to Mr Duval to add a new cause of action, it is inevitable that the existing fixture would have to be vacated. The hearing is to start on 4 August 2014. That does not allow enough time for pleadings to be exchanged, further discovery to be undertaken and evidence in relation to this new cause of action to be exchanged.
…
[6] Accordingly, I decline leave for Mr Duval to file and serve a new statement of claim adding causes in respect of the press release of April
2014.
[7] I discussed with Mr Duval whether he wished to use the press release evidentially, as recorded in my minute of 22 May 2014. After discussion, Mr Duval advised he would not use the evidence for his current causes of action against the defendants.
[13] I should say that Mr Duval says that was not his advice but the advice of his solicitor.
[14] At the commencement of the trial, I was unaware of this background. In the course of the trial Mr Duval was cross-examining Ms Clift and put it to her that she had made a formal complaint to the police. She agreed she had gone to the police station. She was then asked, “Do you know who Mr McCreedy is?” She agreed she did and it appeared that Mr Duval was about to discuss affidavits from Ms Clift that she had provided to Mr McCreedy (which I now know would have been for a private prosecution). Mr Schoolz objected and, in the course of the objection, I learned of the case management of Bell AJ (summarised above) and subsequent case management of Venning J. I was advised by Mr Schoolz that Mr McCreedy is an employee of New Zealand Private Prosecution Service who has circulated information relating to the bad deeds of Mr Duval and now Mr Duval is seeking to cast aspersions on my client. Mr Schoolz then led me into the telephone conferences before Bell AJ.
[15] There ensued a discussion between myself and Mr Duval leading to the ruling by myself as follows:
Mr Duval, I am not going to allow you to open up this McCreedy issue. If it is a separate cause of action, you will have a right to raise that. There will be no ruling either way on it. If you want to issue another court case, well, that’s up to you but it is simply too late mid-trial and I do not accept that Justice Venning left this issue hanging for me to deal with it at the trial, on my interpretation of his minute of 25 July. That’s my ruling.
[16] The minute of Venning J of 25 July made a number of rulings preventing Mr Duval from delaying resolution of the matter. In [10] there is a short one- sentence cross-reference to Bell AJ’s reasoning on 30 May, saying”
For those reasons he declined Mr Duval’s leave to file and serve a new further statement of claim. Despite that Mr Duval seeks again to delay resolution of this matter.
[17] I was not as fully informed as I am now of the issue. But I am satisfied that Mr Duval was in fact prevented from trying again to introduce the McCreedy matter into the trial following the assurance that either he directly or his counsel gave to Bell AJ that there would be no attempt to use the McCreedy material or Private Prosecution Service material. Mr Schoolz was entitled to prepare for the trial without preparing to have to deal with the McCreedy/Private Prosecution material.
[18] I do agree, however, that in the circumstances the subsequent pleading of this other matter is the proceedings CIV-2014-404-0033000 are not an abuse of process inasmuch as they conflict with the doctrine of merger of cause of action in judgment.
[19] Mr Schoolz argues they are nonetheless an abuse of process for other reasons. He endeavoured to argue those in this hearing. I rejected that. I said that if he wished to mount an argument that those proceedings are an abuse of process, he would need to make an application supported by affidavits in the usual way.
[20] That leaves two matters before I return to the question of stay of judgment. The first is the content of the orders now sealed for the sale of the property. As it appears from [16] and [17] of the judgment, the parties by contract entered into quite specific terms as to the on-sale of the property. The orders for sealing broadly followed those terms. They provide that the property is to be immediately listed with Harcourt’s Glenfield for sale by auction 30 days after it is listed. They provide that the first defendant, Ms Clift, has sole discretion to accept or decline any offers received from prospective purchasers prior to, at or after the auction of the property. They provide for a solicitor of Auckland, Mr G H W Seaton, to assign all documents on behalf of Mr Duval.
[21] As the terms of the contract set out in [16] and [17] of the judgment disclosed, it was always envisaged that Mr Seaton would have power of attorney to sign documents for Mr Duval in the alternative to Mr Duval. The difference here is
there is no provision for Mr Duval to sign but the order for sealing goes straight to the alternative.
[22] Against the history of this litigation, that makes a great deal of sense, for there is a continuous history of Mr Duval preventing all attempts by Ms Clift to sell the property. Indeed, that is what the litigation was about. I regard that interpretation of my judgment, providing for Mr Seaton to be consistent with the judgment.
[23] Mr Duval’s main opposition was to Ms Clift listing with Harcourt’s and, secondly, Ms Clift having sole discretion to accept or decline any offers. As to Harcourt’s, he argues that they cannot be relied upon because they are too close to Ms Clift. I reject that argument. This is particularly because the property is listed with them for auction. Secondly, and related to the Harcourt’s objection and to the sole discretion point, Mr Duval argued that these terms allow Ms Clift to buy the property for nothing. I thought there was absolutely no merit in this contention at all when it was manifest that the orders sealed provided for sale of the property by auction. However, I obtained personal assurances from both Mr Schoolz, as counsel, and from Ms Clift directly that their goal is to sell the property for the highest price that the market can obtain and to do that by way of auction; that Ms Clift has no intention to try to buy the property herself. Mr Duval remained cynical and was of the view that there was some kind of scheme afoot whereby the property would be sold at a cheap price.
[24] In a discussion on the terms of sale, Mr Schoolz acknowledged that in some auctions the date of the auction might be brought forward if a significant offer had been made. I agreed that this is common practise in the Auckland market. Mr Schoolz, on behalf of his client, agreed that there should be a provision in the listing agreement with Harcourt’s that the auction date could be brought forward only upon written advice of the auctioneer.
[25] I do not think that the sealed judgment needs to be amended to incorporate that. It is sufficient to record in this judgment that Mr Schoolz and Ms Clift, in my
presence, have agreed that term or a term to that effect will be included in the listing
agreement with Harcourt’s.
[26] As to the schedule of costs, this was not on the list of agenda items of Mr Duval. He has not made any argument against any of the numbers taken from the schedule used to compile the final costs.
[27] That then brings one back to the ultimate issue as to whether or not there should be a stay. In my view, there are two material facts mitigating against a stay in this case. The first is that there is a long history of impecuniosity on the part of Mr Duval which appears to be continuing and is the reason for the abandonment of the appeal. The second is that this is a very good time to sell this property which remains still tainted as a leaky home on the market. The judgment is a tale of delay and woe for Ms Clift. Mr Duval says he is trying by way of the appeal to the Court of Appeal to get himself into a position where he has the ability to sell the property rather than Ms Clift. He had that ability by contract for several years, long expired, as from 2010. He claims he was not able to fix up the property for sale because of the defamations. But, essentially, it would appear he had no reliable income during those years and nor does he have it now.
[28] The findings of fact in the judgment under appeal are expressed robustly and deliberately so.
[29] It is not for this Court to question the ultimate judgment of the Court of
Appeal, should the appeal be reinstated which is itself doubtful. [30] The result is:
(a) The application for stay is refused.
(b) Proceedings CIV-2014-404-0033000 are not an abuse of process.
(c) The draft orders proposed by the first and second defendants shall be sealed.
(d)There are no further orders as to sale, it being sufficient to note in paras [23] and [24] the assurances given to the Court.
(e) The defendants have succeeded and are entitled to costs in respect of this hearing, reduced by 30 per cent to allow for orders (b) and (d).
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