Gilby v Bradley
[2025] NZHC 1626
•18 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-2663 [2025] NZHC 1626
UNDER the Trustee Act 1996, Property Law
Act 2007 and Contract and Commercial Act 2017
BETWEEN GRAEME MICHAEL CHARLES GILBY
First plaintiff
GRAEME MICHAEL CHARLES GILBY and RENNIE COX TRUSTEES NO. 18
LIMITED as trustees of GMC GILBY FAMILY TRUST
Second plaintiffs
AND RICHARD LEE BRADLEY
First defendant
LURCHER LIMITED
Second defendantSHOWCO LIMITED
Third defendantBRADLEY TRUST LIMITED
Fourth defendant
Hearing: 11 June 2025 Appearances: First plaintiff in person
M D Pascariu and L Z Rong for defendants Date of judgment: 18 June 2025
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 18 June 2025 at 12.30pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
GILBY v BRADLEY [2025] NZHC 1626 [18 June 2025]
[1] In this proceeding, Mr Gilby alleges a range of misconduct by the defendants in relation to their dealings with a trust property at Auckland’s Pāremoremo (the property), previously occupied by him together with his former domestic partner. He seeks a variety of substantive relief against the defendants who are Mr Gilby’s former partner’s father and entities associated with him. The claims are defended.
An initial freezing order he obtained without notice is replaced by undertakings.1
[2] For my decision presently is the defendants’ interlocutory application for an order Mr Gilby file a more explicit claim, and a series of partly-responsive applications brought by Mr Gilby. Separately, and not for my present decision, Mr Gilby also has made further application for preservation orders and the defendants have sought leave to apply for summary judgment, on the basis the matters sought to be raised by Mr Gilby have been settled between the parties.
Background
[3] Mr Gilby is unrepresented. Although the proceeding also is contended to be brought in the name of the trustees of Mr Gilby’s family trust, as Mr Gilby previously has been told, he may not act for other than himself.2 Thus Mr Gilby’s application in respect of his co-trustee, who he seeks to substitute with another, is not able to be progressed by him. I will dismiss the application.
[4] Mr Gilby characterises his principal interlocutory applications as brought “to protect the integrity of the proceeding”, which he perceives is put at risk by various actions alleged of the defendants. His applications generally are to elevate his misapprehensions about law and procedure into new grounds for conflict, which he contends arise instead from “the Defendants’ sustained pattern of procedural deflection, evidentiary manipulation, and attempts to reframe the dispute to avoid scrutiny of fiduciary conduct”. That argumentative, conclusory and intemperate tone is maintained throughout his applications and supporting memoranda. Some measure of the dispute’s scope, the proceeding yet to progress beyond initial pleadings, is nearly 1000 pages of evidentiary and pleading documents provided for my determination.
1 Gilby v Bradley HC Auckland CIV-2024-404-2663, 5 December 2024 (Minute of Peters J) at [6].
2 Gilby v Bradley HC Auckland CIV-2024-404-2663, 10 March 2025 (Minute of Downs J) at [8].
[5] For example, in support of their application, the defendants filed a 25 February 2025 affidavit exhibiting Family Court orders in proceedings between Mr Gilby and his former partner. Mr Gilby’s same-day response was to seek orders striking out those documents as an abuse of process under r 15.1 of the High Court Rules 2016 and excluded under s 8 of the Evidence Act 2006, asserting the documents’ “sole function” to be “to prejudice the Court against [him] and distract attention from the Defendants’ fraudulent actions” and claiming the documents were “strategically engineered to financially exhaust [him], denying him an opportunity for a proper judicial determination”. Mr Gilby added the defendants’ reliance on the Family Court documents:
… is a calculated litigation tactic. This attempt mirrors previous actions in the Family Court, deliberately weaponized to deprive the Plaintiffs of resources, obstruct justice, and facilitate wrongful property acquisition.
The First Defendant, Richard Bradley, clearly orchestrated a coordinated litigation strategy across two jurisdictions, using the Family Court litigation to unlawfully remove the Plaintiff from his property, followed by a deliberately obstructed mortgagee sale executed through entitles he controls. Those actions were meticulously timed, funded, and executed, constituting a clear abuse of both the Family Court and now the High Court’s processes.
[6] The following day, Mr Gilby sought orders to prevent the defendants from dealing in any way with those documents in this Court, pending determination of his 25 February 2025 application. On that application, Mr Gilby asserted the documents were filed “in clear violation of sections 11B–11D of the Family Court Act 1980 and Rule 429 of the Family Court Rules 2002”. He contended such “misconduct” on the part of the defendants:
(a) Undermined procedural fairness by presenting selective, incomplete Family Court records to create a misleading narrative;
(b) Distorted the evidentiary landscape in this High Court proceeding, improperly introducing material that is both prejudicial and irrelevant to the core claims of fiduciary breaches, bad faith actions, and the fraudulent mortgagee sale; an issue already subject to sworn evidence before this Court
… which provides direct, factual evidence of the Defendants’ actions in obstructing legitimate buyers and improperly influencing the mortgagee sale process;
(c) Created a risk of judicial inefficiency, diverting this Court's attention away from the substantive issues requiring resolution.
He sought interim orders including to require the defendants “withdraw all Family Court documents currently included in their pleadings and evidence”.
[7] When the defendants then filed a redacted 27 February 2025 affidavit to replace its impugned original, the following day, Mr Gilby sought orders preventing such replacement without leave obtained under r 9.72(3), contending replacement was “not a simple administrative correction but a deliberate attempt to sanitize and alter sworn evidence already before the Court”, which raised “serious concerns about procedural integrity and the credibility of the Defendant’s sworn testimony”. He sought orders directing retention of the original affidavit, requiring explanation for its replacement and preventing the defendants’ revision of filed affidavits.
Discussion
[8] However, first, “evidence relating to interlocutory applications is given by affidavit”.3 An affidavit relevantly is to “be confined … to matters that would be admissible if given in evidence at trial by the deponent”.4 That means evidence with “a tendency to prove or disprove anything that is of consequence to the determination of the proceeding”, unless inadmissible under or excluded by statute.5 Mr Gilby does not say the impugned documents lack such tendency. In the present circumstances— of Mr Gilby’s contest with entities associated with his former partner, in relation to property they occupied—it is implausible the documents are inconsequential. Indeed, Mr Gilby’s claim refers to the Family Court proceeding as central to his claim against the defendants.
[9] Next, nothing in the Evidence or Family Court Acts renders the impugned documents pre-emptively inadmissible or excluded. A Judge nonetheless may exclude unfairly prejudicial evidence.6 Section 11B of the Family Court Act prohibits publication of a report of proceedings in the Family Court that includes particular identifying information. If inclusion of Family Court documents in affidavits filed in
3 High Court Rules 2016, r 7.27.
4 Rules 7.29 and 9.76(1)(d)(i).
5 Evidence Act 2006, s 7.
6 Section 8.
the High Court constitutes a report of those proceedings, as they may do,7 Mr Gilby also does not say the documents include the proscribed information. While the defendants concede they do, to the extent only of identification of Mr Gilby’s former partner as a “vulnerable person” in respect of a protection order under the Family Violence Act 2018, even to that limited extent there may be no publication by filing or service if the parties to the present proceeding already had notice of that identification.8 Given the parties’ associations with the Family Court proceeding, they may well have done. Certainly the defendant trustees had notice of any order touching the property at issue. Parties to the proceeding (and their lawyers) have rights to inspect any document relating to the proceeding on the court file.9
[10] In any event, and last, the defendants’ omission of that information from the redacted affidavit cures any contended impropriety. Rule 9.72 does not expressly apply to affidavits filed in support of interlocutory applications.10 It is to be remembered it is Mr Gilby who referred to the Family Court’s tenancy order in his claim, contending it to have been obtained by some otherwise unspecified “material non-disclosure”. That clearly puts the entirety of the Family Court proceeding in frame. It was then his obligation to serve on the defendants, together with the claim, at least “all the documents referred to in that pleading”.11 None of the exceptions to that obligation are relied on by Mr Gilby. It sits poorly in Mr Gilby’s mouth to claim the defendants’ misconduct in relation to provision of the Family Court orders to the Court when he had not addressed his own obligations in relation to provision of the orders by service.
[11] In the result, I see no basis on which to grant any of the interlocutory relief sought by Mr Gilby on these three applications. I will dismiss them.
[12] Mr Gilby’s applications then turn to seek discovery from non-party real estate agents involved in the property’s allegedly improper disposition. Rule 8.21 entitles a judge to order a non-party to discover relevant documents, but the discretion is
7 Newsroom NZ Ltd v Solicitor-General [2024] NZCA 101, [2024] 2 NZLR 216 at [107], endorsing Television New Zealand Ltd v Solicitor-General [2008] NZCA 519, [2009] NZFLR 390 at [54] and [66].
8 Compare Peters v Electoral Commission [2016] NZHC 394, [2016] 2 NZLR 690 at [39].
9 Senior Courts (Access to Court Documents) Rules 2017, r 9.
10 High Court Rules, r 7.29.
11 Rule 8.4.
exercised with regard to, among other things, the adequacy of other sources of evidence,12 such as may be forthcoming from the parties on discovery. Discovery yet to have been conducted in this proceeding, the application for non-party discovery remains premature.13 I will dismiss the application.
[13] Mr Gilby’s final interlocutory application is for a three-working day extension of time to file his reply to the defence, which he filed on 20 February 2025. While there is no opposition to the application, its utility is dependent on the pleadings’ overall adequacy, the subject of the defendants’ application to which I now turn.
[14] The defendants say Mr Gilby’s claim “does not come remotely close to compliance with r 5.26”. Rule 5.26 requires a claim “show the general nature of the plaintiff’s claim to the relief sought”, with “sufficient particulars … to inform the court and the party or parties against whom relief is sought of the plaintiff’s cause of action”. The rules require pleadings to be divided into consecutively numbered paragraphs, each “so far as possible be[ing] confined to a single topic”;14 to set out “distinct causes of action … founded on separate and distinct facts … if possible … stated separately and distinctly”.15 ‘Fair notice’ of the cause of action is required.16
[15] Mr Gilby’s claim is brought as contended beneficiary of a Bradley Paremoremo Trust of which the first and fourth defendants are trustees, under a Deed of Arrangement dated 2 November 2020 by which Mr Gilby is said to have been granted a 50 per cent beneficial ownership in the property. Stripped to its essence, the claim contends the defendant trustees and entities associated with them breached fiduciary duties owed to Mr Gilby and acted in bad faith in obtaining rental income from the property, withholding relevant evidence from the Family Court, manipulating the property’s mortgagee sale, and obtaining removal of Mr Gilby’s caveat of the property by duress.
12 Vector Gas Contracts Ltd v Contact Energy Ltd [2014] NZHC 3171, [2015] 2 NZLR 670 at [30];
Rae v Commissioner of Police [2025] NZCA 75 at [5].
13 Gilby v Bradley, above n 2, at [5].
14 High Court Rules, r 5.14.
15 Rule 5.17(1).
16 Rule 5.21.
[16] Without distinction between defendants, Mr Gilby seeks to recover damages for lost rental income and capital gains, wasted subdivision costs, loss of his employment and its $295,000 annual salary and other financial benefits. He seeks to restore a position allegedly conceded under duress. He also seeks exemption from liability for legal costs, compensation for improvements made to the property and to know of the application of proceeds from an insurance policy over the property. Alternatively he proposed to settle the proceeding on payment of $550,000 within “31 working days” of service.
[17] With due regard for Mr Gilby’s unrepresented capacity, that is a construction of the claim in terms most favourable to Mr Gilby. For example, it wholly is unclear what trustee duty to Mr Gilby may be alleged breached by any contended withholding of evidence from the Family Court; neither is it obvious this Court has any jurisdiction to deal with Mr Gilby’s employment relationship problems.17 While my characterisation of Mr Gilby’s claim is on the basis the defendant trustees are alleged to have breached their obligations to Mr Gilby in particularised ways, the claim’s actual structure is to assert each of those particular ways as a standalone cause of action with associated relief.
[18] The claim is expressed in similar argumentative, conclusory and intemperate tone as resonated through Mr Gilby’s interlocutory applications. For example, in prefatory description of the parties, Mr Gilby alleges “the Defendants have deliberately acted … [in] bad faith”; he has “supporting evidence” Mr Bradley “orchestrated a series of actions intending to strip [Mr Gilby] of his beneficial interest”, the second defendant “was used in bad faith to facilitate a manipulated mortgagee sale process”, the third defendant “was used to benefit from the manipulated sale of the property” and the fourth defendant “directly benefited” from Mr Bradley’s actions. And these are just the paragraphs identifying the parties. How are they meant to respond, even if only to admit they are the individuals and entities Mr Gilby identifies, when such admission would be to admit also the collateral allegations bundled into those introductory paragraphs?
17 Employment Relations Act 2000, s 161(1).
[19] Mr Gilby’s recitation of alleged background facts then mixes factual assertion with a range of his opinions and submissions, including wholly improper reference to multiple seemingly hallucinated or non-existent legal citations,18 while as improperly appending a series of generally self-serving “exhibits” and setting out particular evidence from them. His stipulation of the apparent grounds for his claim and the relief sought on it maintain the theme, combining assertion with claimed supportive evidence and law. The claim does not identify the “separate and distinct facts” relied on by Mr Gilby as foundation for his claim, whatever it may be. It does not give ‘fair notice’ of the claim to which the defendants must respond.
[20] I accordingly consider the claim is defective. In its current form, no constructive or sensible response is possible. While the defence stipulates its own paragraph-by-paragraph contention of relevant facts, that is on the basis of its largely comprehensive denial of the claim’s paragraphs. Mr Gilby’s reply only exacerbates the problem by repeating much of what the claim already improperly asserted while ramping up its argumentativeness. The claim, defence and reply together provide no proper basis for consequent litigation. The Court’s indulgence of them in their current form would be to its disrepute. An amended claim meeting the High Court Rules’ pleading requirements is necessary.
[21] The defendants’ application for a more explicit claim thus is justified. Characteristically, Mr Gilby’s opposition to it uses the same tone as transfuses his pleading, to assert the application is “a transparent delay tactic aimed at procedural obstruction rather than substantive engagement”. As must be obvious, I disagree.
[22] I therefore will grant the defendants’ application and dismiss Mr Gilby’s application for an extension of time to file his reply.
Result
[23] Mr Gilby’s six interlocutory applications variously dated 17, 25, 26 (x 2) and 28 February and 4 March 2025 are dismissed.
18 For example, “Williams v Walker [2007] NZCA 304”, which citation is to Accident Compensation Corporation v Ambros; “Mcintyre v Nemesis DBK Ltd [2009] NZCA 345”, R v Spark; “Harris v Harris [2011] NZCA 365”, Blackburn v R.
[24]The defendants’ interlocutory application dated 12 February 2025 is granted.
Next steps
[25] Given further pleading endeavour is unnecessary if the defendants are successful in their application for summary judgment, I direct:
(a)Mr Gilby file and serve an amended statement of claim within 10 working days after the defendants’ application for summary judgment is dismissed or withdrawn;
(b)the defendants file and serve any statement of defence to the amended claim within five working days after service;
(c)Mr Gilby file and serve any reply to the defence within five working days after service;
(d)all filed documents are to comply with the pleading requirements of the High Court Rules; and
(e)the proceeding is recalled in a duty Judge’s list, at least 20 working days after the defendants’ application for summary judgment is dismissed or withdrawn, for further case management directions.
Costs
[26] In my preliminary view, as the unsuccessful party19—in this proceeding of average complexity,20 in which a normal amount of time is considered reasonable for each step21—Mr Gilby should pay the defendants 2B costs and disbursements. Although Mr Gilby has contributed unnecessarily to the time or expense of the steps in the proceeding by failing to comply with the rules in his pleading,22 I attribute that predominantly to his unrepresented status. While he repeatedly has been urged by this Court to obtain legal advice or representation, I refused his last-minute application for
19 High Court Rules, r 14.2(1)(a). 20 Rules 14.2(1)(b) and 14.3(1). 21 Rules 14.2(1)(c) and 14.5(b). 22 Rule 14.6(3).
adjournment of the present hearing to pursue such late prospect.23 Again in my preliminary view, I therefore do not consider he should be liable for increased costs on the present applications.
[27] If any party disagrees, and they cannot otherwise agree, costs are reserved for determination on short memoranda each of no more than five pages—annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate—to be filed and served by the defendants within 10 working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.
—Jagose J
Solicitors:
Hamilton Locke, Auckland
Copy to:
First plaintiff
Wynn Williams, Auckland
23 Gilby v Bradley HC Auckland CIV-2024-404-2663, 10 June 2025 (Minute of Jagose J).
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