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Forster v Dewar

Forster v Dewar

Case [2024] NZHC 3995 20 December 2024

Civil Litigation & Procedure

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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…

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 [2024] NZHC 3995
Case: [2024] NZHC 3995
Decision Date: 20 December 2024

CaseChat Overview and Summary

Ms Cisca Forster filed a substantive application against six defendants, seeking orders regarding what she perceives as fraudulent judgments obtained by lawyers acting without legal authority in relation to proceedings involving Body Corporate 68792. The defendants include David Gerard Dewar, the first respondent, who was the solicitor for the Body Corporate, and various other parties connected to the ongoing litigation between Ms Forster, Mr Memelink, and the Body Corporate. The application was referred to the court based on the belief that it is an abuse of the court's process. Ms Forster's claims centre around issues she believes stem from previous proceedings, including allegations of illegally acting for parties, conspiring to defraud, ongoing conflicts of interest, and obtaining judgments by deception.

The court examined whether the proceeding constituted an abuse of process under r 5.35A of the High Court Rules 2016. This provision allows the court to intervene if a proceeding appears to be an abuse of the court's process. The court considered whether Ms Forster's claims were attempts to relitigate issues that had already been determined, or whether they sought to challenge the legitimacy of the receivership of Link Trust, which had been the subject of previous decisions. The court found that many of the claims were repetitive and aimed at challenging the procedural aspects of prior court decisions, which had already been addressed.

The court concluded that the proceeding was an abuse of process. It noted that the claims were not new and had been previously considered by the court, making this proceeding an attempt to relitigate settled issues. Additionally, the claims were concurrent with other ongoing proceedings involving the same subject matter, which would also constitute an abuse of process. Therefore, the pleading was struck out, and the proceeding was dismissed. The defendants were given a right to appeal the decision to the Court of Appeal under s 56 of the Senior Courts Act 2016.

Orders