Forster v Dewar

[2024] NZHC 3995

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-737 [2024] NZHC 3995

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 [2024] NZHC 3995 [20 December 2024]

On the Papers
Counsel:	Applicant in Person
Judgment:	20 December 2024

JUDGMENT OF RADICH J

[1]                   On 7 November 2024, Ms Cisca Forster filed this proceeding, naming six defendants, together with an accompanying affidavit. A Registrar has referred the proceeding to me under r 5.35A of the High Court Rules 2016 on the basis of a belief that, on the face of the proceeding, it is plainly an abuse of the process of the Court.

[2]                   The claim relates, in broad terms, to issues that Ms Forster sees as arising from previous proceedings relating to a Body Corporate—Body Corporate 68792—with which she is involved.

The statement of claim

[3]                   The statement of claim is difficult to follow. It begins with the following paragraph:

1.I  will apply on2024 to the court for orders regarding the resolution and “Striking out” as applicable for these following important matters:

A.   Illegally acting for parties and the BodyCorp 68792,

B.  Conspiring to defraud,

C.   Ongoing conflict of interest,

D.   Obtaining judgment by deception and deceit,

E.  Illegal voting,

F.  Illegal special levy,

G.   Illegal extra special levy,

H.   Illegal funds transfer,

I. Actions to divert course of justice,

J.  Theft of funds,

K.  Actions & ethics unbecoming of lawyers.

[4]                   The defendants that Ms Forster has named are all parties who are connected in some way with the ongoing litigation between Ms Forster and Mr Memelink, on the one hand, and Body Corporate 68792 (the Body Corporate) or persons associated with it, on the other. The Body Corporate is responsible for a multi-unit commercial premises in Lower Hutt. The first defendant, Mr Dewar was the solicitor for the Body Corporate. The third defendant, Mr Gambitsis, is the Body Corporate’s administrator. The fourth defendant, Mr O’Connor, appears to have acted for the Body Corporate in previous proceedings. The fifth and sixth defendants, Mr Surridge and Mr Iorns, are named as supervising lawyers for Mr O’Connor.

[5]                   The allegations made in the statement of claim can be described as falling within five groups.

[6]                   In the first, Ms Forster takes issue with being “attached to the invalid CIV-2015-485-202, CIV-2022-485-802, CIV-2021-485-419 fraudulently obtained judgment cases” on the basis that she was “not named a party on the originating order”.

[7]                   The 2015 proceeding was brought by the Body Corporate against various parties, including Mr Memelink. It resulted in the appointment of Mr Gambitsis as administrator for the Body Corporate. The 2021 proceeding was brought by the Body Corporate (and two other bodies corporate) against Mr Memelink and Ms Forster as trustees of Link Trust No. 1 (Link Trust), in which Mr Memelink and Ms Forster are the trustees. Link Trust owns six units in the Lower Hutt premises for which the Body Corporate is responsible. The 2022 proceeding was brought by the Body Corporate against Mr Memelink and Ms Forster, again as trustees of Link Trust, to restrain them from interfering with certain insurance issues relating to the Body Corporate.

[8]                   The basis for the first aspect of Ms Forster’s claim in this proceeding appears to be that she is not named as a party in the 2015 proceeding. However, she appears to allege also that the “originating documentation” in that proceeding “does not have a legal and valid recorded receipt”. She goes on to plead that:1

1      Statement of claim, at [f].

… Two of the High Court Officers have confirmed there is no record of the payment by Alwyn O’Connor or Anthony Gambitsis  or  the  Body Corporate 68792. The filing was accepted into the Wellington High Court by Deputy Registrar Raphael Renata.

[9]                   The second group of allegations relates to Mr Dewar’s role as the solicitor for the Body Corporate. It is alleged that it is not possible for him to have this role as his engagement needed to be authorised by a vote of unit owners. In a number of places in the statement of claim, Ms Forster pleads, in relation to Mr Dewar “I require you to apologise to the Court for wasting everyone’s time and withdraw from the case promptly”.

[10]               It is alleged that Mr Dewar in acting, had a conflict. Ms Forster says, on this topic:

The other issue pointed out to Justice  Brown,  and  he  agreed,  is  that  David Gerard Dewar was acting for the body corporate. If this is true then he can not act for the six individuals, as he did and continues to.

[11]               In the third group of allegations, it is said that Mr Dewar, again, is required to apologise and withdraw from the case due to a lack of evidence that Ms Forster and ‘Lynx Trustees Ltd’ were not and never have been registered on the BC68792 register, as required by Section 85 of the Unit Titles Act 2010, in order to be liable for any debts.

[12]               The fourth group of allegations relates to Ms Forster’s view that, in order for certain decisions of the Court to be valid, sealed orders are required. It is alleged that Mr Dewar cannot produce a copy of the sealed order relating to the judgment of interim orders made by Grice J in December 2022 restraining  Mr Memelink  and  Ms Forster from certain insurance dealings relating to the Body Corporate.2 She alleges also that the order appointing Mr Gambitsis as administrator of the Body Corporate was not sealed until 9 October 2023 such that, it is pleaded, it was unlawful for him to act as administrator before that time. And she says that the “Lawyers, Receivers / Liquidators, OA and Court Officers that were acting, failed their due diligence” as a consequence.

2      Body Corporate 68792 v Memelink and Forster [2022] NZHC 3498.

[13]               The fifth group of allegations relates to documents filed in other proceedings. It  is  pleaded  that  the   “affidavit   and   memorandum   of   Roy Bassett-Burr   of 21 October 2024 regarding the Liquidators’ Eleventh Report to creditors and shareholders of Lynx Trustees Ltd (in liquidation) show several ongoing criminal offences, which require urgent investigation by the Court, as Officers if [sic] the Court are directly involved”. Then it is said that “issues raised in the Statement of Claim against Gary Naylor should be investigated and reported to the Police for theft as a servant of the BodyCorp taking Trust Funds”. The statement of claim referred to here appears to be the statement of claim in a proceeding filed in the Lower Hutt District Court by Mr Memelink.

[14]               With the exception of the pleading set out in [3] above, no particular relief is apparent from the pleading.  The  pleading  demands  apologies  to  the  Court,  to Ms Forster and to Mr Memelink, and claims also that the Court has “failed to investigate” various “inconsistencies” identified in earlier proceedings.

Approach to r 5.35

[15]               If, in terms of r 5.35B, I am satisfied that the proceeding is plainly an abuse of the process of the Court, then I may, of my own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with the rules including an order under r 15.1 that the proceeding be struck out or stayed.

[16]               The nature of the powers conferred under r 5.5B reflect the Court’s inherent power to prevent its procedures from being misused.3 The powers should not be used in cases where a claim sought to be advanced may later be shown to be untenable as a matter of law, particularly in circumstances where certain key factual and legal issues were not clear at an early point in the proceedings.4 It must be clear that an applicant is seeking to use court processes for an ulterior or improper purpose.

3      Mills v Dalzell [2024] NZHC 581 at [3]–[4]; citing Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board [2023] NZCA 63 at [14]–[17].

4 At [16].

[17]               A claim that seeks to relitigate claims that have been determined already will be an abuse of process.5

Procedural history

[18]               The statement of claim in this proceeding needs to be considered in the context of the ongoing litigation between Mr Memelink, Ms Forster and the Body Corporate. The extensive background to the litigation is described in decisions of Grice J in the 2021 proceeding6 and in  another  proceeding  between  the  parties,  Body  Corporate 68792 v Memelink of 21 December 2023, in which Grice J said:7

[128] While most of Mr Memelink’s litigation discussed in  this judgment has involved some aspect of the body corporate dispute and the levies which he continues to dispute, his claims have been made against numerous parties, including  the  professionals  involved   and   body   corporate   members.  Mr Memelink’s approach to litigation is to make extreme allegations against anyone who does not agree with him. This is not limited to the professionals and other businesspeople who have dealings with him. Churchman J described the  distress  caused  to  members  of   another   body  corporate  in  which Mr Memelink was involved due to his trust being a member of the body corporate. The judgment quotes from affidavits referring to the ability of the body corporate members to enjoy their home having been badly affected by Mr Memelink’s conduct over many years. Reference is made to the manner in which Mr Memelink conducts the business of his trust, bringing “endless chaos, disruption and disharmony to us as a group of owners.”

[footnotes omitted]

[19]               In that decision, Grice J made an order against Mr Memelink restraining him from commencing or continuing civil proceedings relating to the Body Corporate. Justice Grice was of the view that the manner in which Mr Memelink had been carrying out a litigation involving the Body Corporate for a number of years had all the hallmarks of vexatious litigation.8

5      See, for example, Young v Ross [2023] NZHC 2795, where the plaintiff attempted to use a judicial review proceeding to resurrect claims that had been dealt with conclusively and was struck out accordingly. See also Re McNabb [2018] NZHC 1817, (2018) 24 PRNZ 224 where a proposed proceeding sought to challenge collaterally, and raise issues that had been dealt with already in, previous decisions of the Court. It was held to be plainly an abuse of process.

6      Body Corporate 81012 v Memelink [2023] NZHC 1749.

7      Body Corporate 68792 v Memelink [2023] NZHC 3850 [Restraining order decision].

8 At [129].

[20]               In  addition,  in  December 2022,  Churchman J   made   orders   requiring  Mr Memelink and Ms Forster to obtain leave from the Court before bringing any application challenging the exercise of the powers of the receivers of Link Trust.9

[21]               Ms Forster has continued to make applications in which she has sought to challenge  aspects  of  the  previous   proceedings.   It   would  appear  that,  since  Mr Memelink has been restrained from commencing or continuing proceedings relating to the Body Corporate without leave, Ms Forster has commenced or continued proceedings on his behalf. For example, in the 2022 proceeding, Ms Forster has, recently, applied for a recall of a decision of Grice J in 2022. Justice Grice summarised the application in the following way:10

Ms Forster’s application sets out several grounds in support of her “application for an order recalling and dismissing the interlocutory application and judgment”. These include that no originating application was served and no directions were made; that the administrator had no rights to act on the judgment of 16 December 2022 as it was not sealed; and that the “application” was invalid due to procedural errors, and fraud by Mr Gambitsis and his lawyer.

[22]               Justice Grice was of the view that the “confused nature” of the application meant that it was an abuse of process. She declined to strike out the proceeding at that point on the basis that Ms Forster was an unrepresented litigant, giving her instead the opportunity to remedy defects. In the same decision, Grice J struck out a similar application by Mr Memelink for being an abuse of process.11

Analysis

[23]               This proceeding repeats many of the same claims that have been brought by Ms Forster, or Mr Memelink and considered already by the Court.

[24]               In particular, a good part of the current proceeding appears to relate to an alleged failure on Mr Gambitsis’ part to seal the order of the Court appointing him as

9      Body Corporate 81012 v Memelink and Forster [2022] NZHC 3307 at [9] and [35] and Body Corporate 81012 v Memelink and Forster [2022] NZHC 1244 in which Churchman J appointed receivers over the Link Trust.

10 Forster v Body Corporate 68792 CIV-2022-485-802 (minute of Grice J of 13 September 2024 at [5]).

11 At [7] and [12].

administrator. This claim has been dealt with by Grice J already.12 Justice Grice has found already that any defects in  the  process  did  not  make  the  appointment  of Mr Gambitsis null and void.13 In this proceeding, Ms Forster is seeking to raise the same issues.

[25]               The same is so of the claims against counsel who have represented the Body Corporate. In the same decision, Grice J said that Mr Memelink had alleged that “Mr Dewar, who is the solicitor on the record for the Body Corporate, has a conflict of interest because he previously acted for Mr Memelink and for the Body Corporate many years ago”.14 As mentioned, Grice J dismissed Mr Memelink’s application in that decision as being an abuse of process.

[26]               To the extent that Ms Forster’s claim in this proposed proceeding relates to other proceedings involving the Body Corporate, Mr Memelink and Ms Forster, or for example to the affidavit of Mr Bassett-Burr which was filed in the 2021 proceeding in October 2024, they are in my view clearly an abuse of process. They are all part and parcel of other proceedings and it will be an abuse for a plaintiff to bring concurrent proceedings relating to the same subject matter.15

[27]               The claims  relating  to  counsel  for  the  Body  Corporate,  the  claim  that Ms Forster was not named as a party in the 2015 proceeding and the claim about a filing fee not having been paid in the 2015 proceeding do not appear to have been determined already. However, they are all claims that are aimed at challenging the legitimacy of the receivership of the Link Trust. They are challenges to procedural aspects of previous decisions of this Court. The concerns underlying the claims that Ms Forster brings in this proceeding have all been the subject of previous decisions. I am satisfied that the allegations in the statement of claim that Ms Forster has now filed are not new and that it would be an abuse to let them proceed.

12     Body Corporate 68792 v Memelink [2023] NZHC 3637 at [51]. See also Restraining order decision above n 9 at [31] and Memelink v Body Corporate 81012 [2023] NZCA 639 at [10].

13     Body Corporate 68792 v Memelink, above n 14 at [51].

14 At [31].

15     Dunstan v Auckland High Court [2022] NZCA 478 at [13].

Result

[28]               Accordingly, the pleading is struck out and the proceeding is dismissed. Under r 5.35B(4) a copy of this decision is, if practicable, to be served on the respondents.

[29]               Under r 5.35B(3) if, as is the case here, an order is made on a Judge’s own initiative, without giving the plaintiff an opportunity to be heard, the order is to contain a statement of the rights that the person who has filed the proceeding has to appeal against the decision. Under s 56 of the Senior Courts Act 2016, the plaintiffs have a right to appeal against this decision to the Court of Appeal. That right may be exercised through the application of relevant rules in the Court of Appeal (Civil) Rules 2005.

Radich J