Faloon v Public Trust HC Auckland CIV 2010-470-52
[2010] NZHC 2047
•30 September 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-470-0052
UNDER The Trustee Act 1956
IN THE MATTER OF THOMAS JOHN FALOON BETWEEN CLARENCE JOHN FALOON
Plaintiff
ANDRUTH ENID FALOON Second Plaintiff
ANDTHREE TRUSTEES IN THE 1977-YEAR DIVERSION OF THE KAWAU STREAM TRUST
Third Plaintiff
ANDPUBLIC TRUST Defendant
Hearing: 9 September 2010
Appearances: Mr C J Faloon in person
Mr J Oliver for Public Trust
Judgment: 30 September 2010 at 5 p.m.
JUDGMENT OF ASSOCIATE JUDGE DOOGUE
This judgment was delivered by me on
30.09.10 at 5 pm, pursuant to
Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar
Date……………
Solicitors:
Mr J Oliver, Karori, Wellington
Copy:
Mr CJ Faloon, 43B Twentieth Avenue, Tauranga 3112
FALOON AND ORS V PUBLIC TRUST HC AK CIV-2010-470-0052 30 September 2010
Introduction
[1] The defendant applies to strike out the statement of claim filed in these proceedings. The relevant rule reads as follows:
15.1 Dismissing or staying all or part of proceeding
(1) The court may strike out all or part of a pleading if 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.
(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4) This rule does not affect the court’s inherent jurisdiction.
[2] My conclusion is that the statement of claim contravenes the above rule. As I explain below I have reached that conclusion on two grounds: that the statement of claim discloses no reasonable cause of action and as well that it is likely to cause prejudice or delay and that it is vexatious. I shall deal with the first ground first.
The first cause of action
[3] I understand that the first part of the claim represents an attempt to obtain a remedy that recognises the actions of the late Mr Faloon who, it is said, rendered “improvements” to the four parcels of land following the realignment of the waterway. Those areas of land are/were owned by TLL, Mr Farquhar and the local authority.
[4] The sections of the statement of claim which precede the first cause of action start with reference to the Trustee Act 1956, but then make reference to The Administration Act 1969. The plaintiffs seek the appointment of a new trustee on the grounds that the Public Trust has renounced probate. I observe that the key concepts of executorship and trusteeship are entangled throughout the document. On the first page there is set out what seems to be the heart of the complaint by the plaintiffs. They allege that the Public Trust did not take “the fee” to four “improved” lands. All of this is sought to be achieved by invoking the Wills Act 1837. That enactment provides:
31 Trustees under an unlimited devise to take the fee in certain cases
Where any real estate shall be devised to a trustee, without any express limitation of the estate to be taken by such trustee, and the beneficial interest in such real estate, or in the surplus rents and profits thereof, shall not be given to any person for life, or such beneficial interest shall be given to any person for life, but the purposes of the trust may continue beyond the life of such person, such devise shall be construed to vest in such trustee the fee simple, or other the whole legal estate which the testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied.
[5] I heard no argument from the parties concerning what the objects of this enactment are. However, it is not necessary to consider that matter further because the enactment has no application to the circumstances of this case. That is because there has been no devise to a trustee in this case. None is pleaded and there is no evidence that such a devise occurred. It is apparent that the plaintiffs do not rely on a specific devise of land but rather seek to imply that the equivalent of such a devise occurred when the late Mr Faloon carried out improvements to land which was not his.
[6] The misplaced reliance on this section of the Wills Act which I have just quoted means that the cause of action which immediately follows reference to it cannot possibly succeed.
[7] One of the objectionable features of the statement of claim is the references to the relevant legal concepts and statutes which are scattered throughout the document as the following remarks are intended to show.
[8] In the preamble part of the statement of claim, reference is also made to section 129 of the Land Transfer Act 1952 which provides as follows:
129 Trusts of public reserves and other public lands
(1)The grantee or other person or body corporate in whom or in which any land under this Act now is or hereafter becomes vested as a public reserve shall hold that land subject to the trusts expressed or declared of and concerning the same in the Crown grant, or warrant in lieu of grant, or a certificate having the effect of a warrant issued under section 12 of the Act, or in any certificate of title following the terms of that grant, warrant, or certificate.
[9] Section 129 is directed towards ensuring that when land is transferred to an entity on terms that the land is to be held for the purposes of being a public reserve, that land should in fact be maintained and managed for that purpose, and not subsequently dealt with for purposes inconsistent with the trusts within which the land is impressed. There was no vesting of land in this case for the purposes of a public reserve. All that occurred was that the owner of the land agreed that a watercourse or stream should be realigned and agreed to the specific course that it should follow across the land. That is quite a different situation from which s 129 was enacted to cover. Section 129 has nothing to do with the management of the late Mr Faloon’s estate.
[10] Further, Mr Faloon did not own the land, and even if rights of the kind claimed in the statement of claim were viable, there is no basis upon which Mr Faloon or his legal successors could claim an entitlement to rights arising in respect of the land as a result of the operation of s 129.
[11] Apart from the consideration that the first cause of action does not disclose any reasonable cause of action, the pleading also infringes r 15.1 in that it is likely to cause prejudice and delay; it may also be vexatious. I have come to this conclusion on the basis that the document is largely unintelligible: see the commentary in McGechan at paragraph HR 15.1.03 citing Philipps v Philipps (1878) 4 QBD 127.
[12] It is not for the Court or the defendant to painstakingly analyse an unintelligible pleading and by a process of logical progression demonstrate that the
pleading is incoherent. If the document when subjected to an open-minded and careful consideration is confusing, uncertain in its meaning, ambiguous and unclear, it ought not to remain on the Court file. Such a document is the antithesis of what the rules require. A defendant ought not to be subjected to a pleading to which such a document is of central importance. The statement of claim in this proceeding offends in all the ways which I have just stated.
Second cause of action
[13] The second cause of action, too, is very confused and unclear.
[14] This part of the statement of claim is introduced by an assertion that the plaintiffs are entitled to apply for the appointment of a “new trustee” to the trusts which were established by the will of the late Mr Faloon. The application is purportedly made pursuant to variously s 67 and 68 of the Trustee Act 1956. Thereafter the statement of claim seems to move away from consideration of the appointment of a new trustee and focuses on the position of the defendant as executor under the will of T J Faloon. There follow claims that the three plaintiffs are aggrieved by an act or omission of the “trustee in renouncing probate of the will” and the claim then seeks an order under s 68 of the Trustee Act 1956.
[15] The relief sought is a series of declarations under the Administration Act
1969 including granting Mr C J Faloon the administration of the estate.
[16] This is not a case where the trustee wishes to retire and seeks the assistance of the Court to do so. It is a case where the plaintiffs assert that there has been dereliction of duty on the part of the trustee in not seeking to enforce rights available to it as trustee. It would seem that the plaintiffs, in other words, assert that the trustee has mis-conducted itself in the administration of the estate. If the Court so finds, it has the power under s 51 of the Trustee Act 1956 to appoint a new trustee. The particular omission complained of is “renouncing probate of the will before taking the fee under section 31 of the Wills Act 1837”. As I have already concluded that the section has no application in the circumstances of the present case, it follows that there has not been any omission on the part of the trustee to take a step that it
ought reasonably to have taken. Therefore there are no grounds for removal of the trustee and its replacement.
[17] Not only is there no reasonably arguable cause of action disclosed in this part of the statement of claim, the pleading itself is unintelligible and will undoubtedly cause prejudice and delay and is vexatious – all in contravention of r 15.1.
The third cause of action
[18] There are numerous fatal difficulties with this third cause of action. The plaintiffs seek to have the Court review the acts and omissions or decisions of the Public Trust. Essentially the complaint is repeated that the Public Trust failed to “take the fee” under the Wills Act. But there is a further complaint that the defendant failed to assert a purported interest in the copyright to engineering plans which were used as the basis for the diversion of the stream. I understand that the complaint is that the defendant failed to use the surveying plans as the foundation for a claim for compensation against the parties who made use of those plans (including, presumably, the late Mr Faloon’s company, TLL), or perhaps even to assert an interest over the land which was affected by the drainage realignment depicted in the plans.
[19] But the alleged omission was not concerned with anything that the defendant was required to do. I say that for the reasons that the plans were likely to have been brought into existence by TLL, and not the late Mr Faloon; more importantly, the late Mr Faloon and TLL clearly consented to works being carried out on the basis of the plans. That after all was the whole point of having the plans prepared. The time at which those two parties or either of them could have held out for compensation was before the works which the plan provided for were to be carried out and not now.
[20] Quite apart from the foregoing difficulties, Mr Oliver pointed out that any claim that the Faloon interests might have arising out of the survey plans is now almost certain to be subject to the statute of limitations and able to be defended on that basis.
[21] To the extent that the present proceedings seek the removal of the trustee in substitution because of dereliction of duty, this cause of action is hopeless too and ought to be struck out. This part of the statement of claim also offends r 15.1(1) (b) and (c).
Exercise of discretion
[22] To summarise to this point, I have concluded that all the claims by the plaintiffs are not founded upon reasonably arguable causes of action and that all of the causes of action are defectively pleaded in terms of r 15.1 (1) (b) and (c).
[23] I appreciate that the Court does not lightly come to a conclusion that a plaintiff should not have its claim heard in accordance with the usual processes of the Court, but it is also necessary to balance the interests of the plaintiffs against those of the defendant. It would be wrong, in my judgment, to require that the defendant be put to the trouble and expense of grappling with the unclear and often incomprehensible statement of claim which the plaintiffs have filed.
[24] Mr Oliver referred me to the fact that strike out orders are being made in numerous other cases against Mr Faloon and those who are associated with him in the present proceeding. I would prefer not to base my decision on those earlier judgments. They were concerned with different factual circumstances and different legal issues arose. They do not, of course, have precedent value which would assist me in determining the present case. I understand though why reference was made to them. Even after many attempts the plaintiffs have been unable to translate their complaints into a recognisable claim.
[25] It has been noted in other cases that Mr Faloon plainly has a strong sense of grievance arising out of these matters which occurred some 35 years ago. But the sincerity of his beliefs should not be confused with cogency of his legal arguments. The matters that he has raised in the proceeding which has been under review in this case do not pass muster as matters of substantial legal merit. It is high time that Mr Faloon ceased to bring claims of this kind before the Court although I have little hope that he will heed this advice that I give him.
Conclusion
[26] There will be an order striking out the plaintiffs’ proceeding. The parties should file brief memoranda on the issue of costs within 14 days.
J.P. Doogue
Associate Judge
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