Gollan v Managh
[2014] NZHC 2205
•26 August 2014
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2011-419-1047 [2014] NZHC 2205
BETWEEN JAMES PATRICK GOLLAN
Applicant`
AND
JOAN IVY MAUREEN MANAGH, KENNETH JAMES MANAGH AND JOHN CAMPION as Trustees of the last Will of IRENE IVY MAUDE LUDERS Respondents
CIV-2011-419-660
BETWEEN JOAN IVY MAUREEN MANAGH, KENNETH JAMES MANAGH AND JOHN CAMPION as Trustees of the last Will of IRENE IVY MAUDE LUDERS Plaintiffs
ANDJAMES PATRICK GOLLAN First Defendant
VERONICA PATRICIA LYN GOLLAN Second Defendant
CANDICE GOLLAN Third Defendant
PETER GOLLAN Fourth Defendant
Hearing: 25 August 2014 Appearances:
Mr D M O'Neill for Plaintiffs
Mr Gollan in personJudgment:
26 August 2014
ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE
GOLLAN v MANAGH & ORS [2014] NZHC 2205 [26 August 2014]
[1] Mr and Mrs Gollan (“the Gollans”) were both bankrupted. Subsequently, the Official Assignee declined to continue with proceedings under the Law Reform (Testamentary Promises) Act 1949 and the Family Protection Act 1955 which they had commenced. The Gollans then requested the Official Assignee to assign the causes of action under the Law Reform (Testamentary Promises) Act and Mrs Gollan sought the assignment of a cause of action under the Family Protection Act. The Official Assignee did not agree to do either.
[2] Thereafter the Gollans filed proceedings seeking to have the Official Assignee’s decisions reversed. However Associate Judge Christiansen in the judgment dated 16 August 2013 declined to do so. Thereafter, the plaintiffs in CIV-
2011-419-600 through their counsel, Mr O’Neill, proposed that those proceedings be struck out. That is because the Gollans no longer had causes of action available to them.
[3] The Gollans however decided to appeal against Associate Judge Christiansen’s decision. They required leave to appeal. Over approximately the last year, the Gollans have been attempting to get an appeal off the ground. They had not obtained leave to appeal by the time that this matter was last before the Court which was in the Chambers List on 28 July 2014. Given the large number of appearances that had occurred since Associate Judge Christiansen delivered his decision last year and the time that had elapsed, I informed Mr Gollan that I would be adjourning the matter to the Chambers List for 25 August 2014. My minute stated:
By that time Mr Gollan must have at least either obtained a hearing date for the appeal or have filed an application for leave to extend time to appeal.
[4] When the matter was called in the Chambers List on 25 August 2014, I asked Mr Gollan if either of the steps contemplated in my minute had occurred. He told me that they had not. Mr Gollan expressed the view that what I had directed was that the Gollans should have used “all best endeavours” to obtain some progress with the appeal by 25 August 2014. That is not however what the minute said and nor
was that my understanding. I did not give any grounds to the Gollans for taking that view.
[5] For these reasons, I consider that the time has now arrived where striking out orders must be made. The Court has through several adjournments done its best to give the Gollans a fair chance to get their proceedings back on track. At the previous hearing of this matter today, Mr O’Neill reminded me that there are fairness considerations involved from his client’s point of view as well. They are awaiting final disposition of the testamentary promises and family protection proceedings so that they can take steps to obtain possession of the property which was going to be the subject of a claim for relief under one or either of the two proceedings. That
claim has been stalled since last year.1
[6] In my view orders striking out the proceeding CIV-2011-419-1047 are now required and I order accordingly.
[7] If the parties wish to be heard on the matter of costs they are to file brief memoranda not exceeding five pages within 10 working days of the date of this
judgment.
J P Doogue
Associate Judge
1 CIV-2011-419-600.
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