Forster v Dewar

[2025] NZHC 287

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-737

[2025] NZHC 287

UNDER

the Crimes Act 1961, Unit Titles Act 2010 (the Act), Unit Titles Regulations 2011 (the Regulations), High Court Rules 2016,

Lawyers & Conveyancing Act 2016, Bill of Rights Act 1990, Human Rights Act 1993

IN THE MATTER

of a substantive application regarding fraudulently obtained judgments by lawyers acting without legal authority relating to: CIV-2015-485-202

CIV-2020-485-374 CIV-2021-485-419 CIV-2022-485-802 CIV-2024-485-325

BETWEEN

CISCA FORSTER

Applicant

AND

DAVID GERARD DEWAR

First Respondent

AND

BODY CORPORATE 68792 (BC68792)

Second Respondent

AND

ANTHONY GAMBITSIS

Third Respondent

AND

ALWYN O’CONNOR

Fourth Respondent

AND

PAUL SURRIDGE

Supervising lawyer to Alwyn O’Connor Fifth Respondent

AND

STEPHEN IORNS

Supervising lawyer to Alwyn O’Connor Sixth Respondent

FORSTER v DEWAR & ORS [2025] NZHC 287 [25 February 2025]

On the Papers
Counsel:	Applicant in Person
Judgment:	25 February 2025

JUDGMENT OF RADICH J

[Recall application]

[1]        In an application of  6 January 2025,  Ms Forster  has  sought  to  have  my  20 December 2024 judgment,1 dismissing her proceeding under r 5.35B of the High Court Rules 2016, recalled.2

[2]        The application referred to a supporting affidavit which was to be filed and which, it was said in the application, “will outline the significant procedural and substantive errors in the judgment”.3

[3]        In the 20 December decision, I found that the claims made in this proceeding were plainly an abuse of the Court and that they should be struck out accordingly. I reached that conclusion on the basis that the proceeding repeats many of the same claims that have been brought by Ms Forster or Mr Memelink4 and considered already by the Court and, to the limited extent that they were not, amounted to challenges to procedural aspects of previous decisions of the Court.

[4] Ms Forster’s application is said to be made in reliance on a broad list of statutes, decisions and other materials including the New Zealand Bill of Rights Act 1990, the Lawyers and Conveyancers Act 2006 and the Crimes Act 1961.

1      Forster v Dewar [2024] NZHC 3995 [the 20 December decision].

2      Under r 5.35B of the High Court Rules 2016, a Judge may (among other things) strike a proceeding out if satisfied that it is plainly an abuse of the process of the court.

3      Ms Forster filed a further application for leave to recall the 20 December decision on 3 February. It is in essentially the same terms as the 6 January 2025 application but it refers to the affidavit of 3 February 2025—filed at the same time—and refers in a new paragraph to “relief sought”. However, the relief sought is in the nature of substantive relief, rather than to relief on the recall application.

4      The proceeding is, for the reasons explained in the 20 December decision, connected with ongoing litigation between Ms Forster and Mr Memelink, on the one hand, and a particular body corporate on the other.

[5]        Ms Forster’s 3 February 2025 affidavit includes 140 pages of exhibits, which are referred to in support of a range of matters covered in the body of the affidavit.

[6]        A judgment will be recalled only in limited circumstances. The principle of finality in litigation is such that final determinations may be revisited only within prescribed limits.5 It is not in any way a substitute for an appeal.6 Accordingly, it must be that “for some other very special reason justice requires that the judgment be recalled”.7 With these principles in mind, it is clear that a recall application cannot be used as a means of collateral attack on a decision; it cannot be used to relitigate matters if a party is dissatisfied with the terms of a decision. I  am drawn to  conclude that Ms Forster’s recall application is being used in these ways.

[7]        The first basis for making the application, as explained in the 3 February affidavit is that “… I am requesting that the Court make an order requiring Body Corporate 68792 to provide to me the information requested in my memorandum of 13 December 2024 pursuant to s 206 of the Unit Titles Act 2010”. In a memorandum filed subsequently by Ms Forster on 11 February 2025, she has said that “the recall seeks that the matters raised and requests made in my memorandum to the Court dated 19 December 2024 need to be taken into consideration”.8

[8]        Ms Forster’s 13 December 2024 memorandum is a memorandum that she filed in three different proceedings.9 Mrs Forster’s memorandum of 19 December 2024 is intituled in this proceeding but it begins  with  the  words  “Dear  Judge  Skelton” (the Associate Judge who has been managing other proceedings, including bankruptcy proceedings, relating to Ms Forster) and thanks him for a response to the

5      Gibson v Official Assignee [2019] NZHC 532, (2019) 29 NZTC 24–005 at [21]; and Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [28].

6      Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19–832 (HC) at [13].

7      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633. The two other possible reasons for recalling a judgment: where, since the hearing, there has been an amendment to a relevant statute or regulation or a new judicial decision on point and, secondly, where counsel have failed to direct the Court’s attention to a provision or decision of relevance—neither of which apply here. These principles have been applied by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76 and by the Court of Appeal in Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [3] and [23].

8      The 11 February 2025 memorandum was filed for the purposes of seeking an extension of time to appeal from the 20 December 2024 decision until the recall application is determined.

9      CIV-2015-485-202, CIV-2022-485-802 and CIV-2024-485-325.

13 December 2024 memorandum that was made. It would seem that Ms Forster is referring  here  to  a  minute  in  the  CIV-2024-485-325  proceeding  from  Associate Judge Skelton in which he referred to her 13 December memorandum, observed that no order is sought from the Court in the memorandum and confirmed that the memorandum had been put on the court file for that proceeding.

[9]        However, it would appear from the terms of Ms Forster’s affidavit in this proceeding, and in her subsequent memorandum  of 11 February, that she sees the  13 and 19 December memoranda filed in different proceedings to be relevant here. Those memoranda seek for a range of documents to be provided—but in which proceeding they are sought is not clear. For the purposes of this decision, I will treat them as being sought in this proceeding. However, the terms of those memoranda do not have a bearing on Ms Forster’s recall application.

[10]      My 20 December decision relates, as it must, to the terms of the statement of claim filed in the proceeding, not to information requested in memoranda. Had the terms of the statement of claim been in any way sustainable, and not an abuse, then documents sought by Ms Forster might have been available to her through the discovery process. But that is a different matter.

[11]      In her affidavit, Ms Forster goes on to say that the 20 December decision “references Justice Grice’s minute of 13 September 2024, but fails to mention that a hearing is set down for 24 March 2025 to determine these issues. The information requested in the current proceeding is critical for this hearing, and declining this application will seal the fate of that hearing and guarantee a miscarriage of justice”.

[12]      Reference was made in the 20 December decision to Grice J’s 13 September minute for the purpose of summarising the nature of the related 2022 proceeding, in which the minute was prepared. This proceeding cannot be used for the purpose of providing information in another proceeding.

[13]      Ms Forster’s affidavit goes on to say that “further evidence has been obtained regarding the fraudulent invoice” and interactions are described between a member of

the High Court Registry and Ministry of Justice staff. Interactions of that sort have no bearing on the application.

[14]      Ms Foster’s affidavit then goes on to repeat matters that are contained in the statement of claim in the proceeding, including that “My name should never have been added to any of the cases eg 802, 202, 419 …” and “… I have been used as a scapegoat for fraudulent costs awards…” and “My name is not on the Body Corp Register, therefore my name should never have been added to anything”. However, these are all matters that are within the terms of the proposed statement of claim to which the 20 December decision relates and there is no basis for revisiting them here.

[15]      Ms Forster has, in her affidavit, mentioned some additional matters including a reference to a defamation claim, the need for “an order of adjudication” not to be made because of “corruption, fraud, deceit and dishonesty” revealed in affidavits in other proceedings, and to “unlawful voting of the administrator”. The relevance of these broad and unexplained allegations to the Court’s limited jurisdiction to recall a previous decision is not apparent.

[16]      There is, then, nothing in the grounds advanced by Ms Forster that would amount to a very special  reason  of  such  a  nature  that  justice would  require the 20 December decision to be recalled. The application is declined accordingly.

[17]      In her memorandum of 11 February 2025, Ms Forster has said “I seek the permission of the Court to extend the time for appeal until such time as the recall application is determined”. It is the Court of Appeal which (or a Judge of that Court who) has jurisdiction to extend time for appealing under r 29A of the Court of Appeal (Civil) Rules 2005.

Radich J