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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Forster v Dewar

Details

AGLC: Forster v Dewar [2025] NZHC 287
Case: [2025] NZHC 287
Decision Date: 25 February 2025

CaseChat Overview and Summary

The case of Forster v Dewar, heard in the High Court of New Zealand, involved Ms Cisca Forster, the applicant, who sought to have a previous judgment by the court recalled. The judgment in question dismissed Ms Forster's proceeding under rule 5.35B of the High Court Rules 2016, finding it to be an abuse of the Court's process. The respondents to the recall application were David Gerard Dewar, Body Corporate 68792, Anthony Gambitsis, Alwyn O'Connor, Paul Surridge, and Stephen Iorns. The legal issues before the court were whether the grounds presented by Ms Forster were sufficient to justify the recall of the previous judgment under the established principles for such an application. Ms Forster argued that the judgment failed to consider certain documents and procedural errors and that information requested in memoranda filed in other proceedings should have been considered.

The court found that the application for recall was being used to relitigate matters that had already been considered and dismissed in the previous judgment. The court reiterated the principles that a judgment will only be recalled in limited circumstances, and it must be for some very special reason that justice requires the judgment to be recalled. The court concluded that the grounds presented by Ms Forster did not meet this threshold. Ms Forster's arguments, including references to additional information and procedural errors, were considered to be matters that could have been raised in the original proceeding and were not sufficient to warrant a recall of the judgment. The court declined the application to recall the previous judgment, emphasizing that the recall mechanism is not a substitute for appeal and cannot be used to address dissatisfaction with the outcome of a decision.

Orders