Grant v Everett
[2022] NZHC 3109
•25 November 2022
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2021-442-000015
[2022] NZHC 3109
BETWEEN SAMANTHA JANE GRANT
Appellant
AND
JOHN EVERETT
Respondent
Hearing: 16 November 2021
Final teleconference 22 September 2022
Appearances:
Appellant in person
M A Ironside for the Respondent Respondent in person
Judgment:
25 November 2022
JUDGMENT OF GRICE J
Introduction
[1] Ms Grant and Mr Everett commenced a relationship in 2010 and began living together the following year. They were married on 12 December 2012. They did not have children together but each had a child or children from previous relationships. Together, they bought a family home in September 2015.
[2] Ms Grant and Mr Everett separated on 9 October 2018. Mr Everett issued relationship property proceedings shortly thereafter. A temporary protection order had been made in favour of Mr Everett against Ms Grant in October 2019. The division of their relationship property was determined in a judgment dated 20 December 2019
GRANT v EVERETT [2022] NZHC 3109 [25 November 2022]
(the relationship property judgment).1 The Judge directed that Mr Everett purchase Ms Grant’s share in the home. On the same date, orders were sealed which vested the house in Mr Everett and provided for payment to be made by him to Ms Grant for her share of the home with various adjustments. Settlement was to occur on 31 January 2020. Mr Everett then took possession of the house while Ms Grant was not present on 4 February 2020. Until then she had been in occupation. Settlement was effected by payment and transfer of the home on 28 February 2020. By arrangement, a moving company (the moving company) removed Ms Grant’s personal effects and chattels from the house in early March 2020.
[3] Ms Grant was represented by a lawyer during the relationship property hearing and for the subsequent settlement. No appeal against the relationship property judgment was lodged at that time.
[4] Ms Grant says that as a result of Mr Everett going into possession and purchasing her share of the home, she lost most of her possessions and some of those that she did get were damaged and not worth anything.
[5] As a result of breaches of the protection orders made against Ms Grant, she has spent periods in jail and on electronically monitored bail (EM bail). Ms Grant says that due to the conviction for the breach of the protection order she lost her career as a teacher, has no home and is now penniless. Ms Grant says that Mr Everett and his new partner continue to control her life by unfairly complaining of breaches of the protection order.
[6] In March 2020, Ms Grant filed a civil claim against Mr Everett, including a claim based on breaches of privacy and intrusion into seclusion, focused on events surrounding Mr Everett taking possession of the house on 4 February 2020 and the storage and uplift of Ms Grant’s chattels and personal possessions. The claim was struck out by the District Court on 11 March 2021 (the civil judgment).2 Ms Grant lodged an appeal against that decision. The civil claim was prefaced on the fact that the relationship property judgment was wrongly decided. However, no appeal against
1 Everett v Grant [2019] NZFC 10593 [the relationship property judgment].
2 Grant v Everett [2021] NZDC 4457 [the civil judgment].
that decision had been filed. This fact was pointed out at a case management conference on the strike out appeal. Ms Grant then lodged an application for extension of time to appeal the relationship property judgment.
[7]The following applications are therefore now before this Court:
(a)an application for special leave to appeal the relationship property decision, delivered in the Family Court at Nelson on 20 December 2019 (the relationship property judgment);3 and
(b)an appeal from the decision of the District Court dated 11 March 2021, striking out Ms Grant’s civil claims against the respondent (the civil judgment).4
Procedural background
[8] At a case management conference in relation to the appeal against the striking out of the civil proceedings, Cull J noted that underlying the appeal against the civil judgment was a challenge by Ms Grant to the relationship property judgment of 20 April 2019.5 The Judge then suggested that Ms Grant seek legal advice and take steps to file an appeal out of time.6 Timetable directions were made.
[9] Ms Grant did not seek legal advice but on 28 May 2021 filed an application to appeal out of time. In the application Ms Grant stated there were extraordinary circumstances for the appeal being out of time. She said that due to the actions of her former husband, she had been in prison and on EM bail, causing what she called a “loss of liberty”. The application went on to list the matters which she considered had been incorrectly determined in the relationship property judgment.
[10] The appeal came before me for a case management conference on 1 July 2021. Both parties were self-represented. At that conference I noted that Ms Grant had filed
3 The relationship property judgment, above n 1.
4 The civil judgment, above n 2.
5 Minute of Cull J, 19 May 2021, at [5]–[6].
6 At [6].
a number of documents in an attempt to comply with Cull J’s timetable directions.7 However, the documents were difficult to follow and did not comply with directions.8
[11] At that stage Mr Everett said he had not received the documents from Ms Grant. There was some dispute about this. Ms Grant consequently noted she was going to seek legal assistance. Mr Everett also indicated he would consider retaining a lawyer. The conference was adjourned.
[12] The case then came before Cooke J on 5 August 2021. Again, the parties were self-represented. The Judge noted that Ms Grant had not been able to obtain legal assistance and that Mr Everett was reluctant to instruct his lawyer to be involved given the uncertainties, but he might do so if that was required.9 The Judge indicated that further procedural directions were unlikely to be fruitful and therefore set the matter down for a hearing of no longer than a half day, with further timetabling directions (which were subsequently complied with).10
The relationship property proceeding in the Family Court
[13] Ms Grant’s submissions in support of the appeal and application for extension of time were wide-ranging, but were largely focused on alleged errors in the relationship property judgment. In explanation for the delay in filing an appeal against the relationship property judgment, Ms Grant said she:
(a)was in jail for periods of time due to breach of the protection order between 27 May 2020 and 16 June 2020 and 9 October 2020 to 16 December 2020;11
(b)was restricted in her movements by being on EM bail in the period 16 December 2020 to 9 February 2021; and
7 Minute of Grice J, 2 July 2021, at [5].
8 At [5].
9 Minute of Cooke J, 5 August 2021, at [3].
10 At [4]–[5].
11 It appears Ms Grant may also have been in jail overnight on earlier occasions for breach of the protection order.
(c)had no legal assistance or inadequate legal assistance in the relationship property judgment and subsequent settlement.
[14] Further, Ms Grant submitted that she had thought the civil claim for privacy and other breaches would be sufficient to enable the Court to review the relationship property judgment.
The law relating to applications for extension of time to appeal
[15] Section 39(2) of the Property (Relationships) Act 1976 (the PRA) allows a party to appeal a relationship property decision. Rule 20.4 of the High Court Rules 2016, which applies to appeals under the PRA, provides that if a party has a right of appeal, that appeal must be brought within the time specified in the enactment or in every other case within 20 working days. As s 39 of the PRA does not limit the time prescribed for bringing an appeal by special leave, the period is therefore deemed to be 20 working days after the decision is given. Special leave may, however, be granted to extend the time allowed for bringing the appeal.
[16] An extension of time is an indulgence at the discretion of the Court. In My Noodle Ltd v Queenstown Lakes District Council, the Court of Appeal set out the relevant factors to be taken into account in considering whether to exercise the discretion as follows:12
(a)the length of delay and the reasons for it;
(b)the parties’ conduct;
(c)the extent of the prejudice caused by the delay;
(d)the prospective merits of the appeal; and
(e)whether the appeal raises any issue of public importance
12 My Noodle Ltd v Queenstown Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at
[19] and [22].
[17] The more out of time the matter is, the more “indulgence” is required, so the stronger the case for an extension will need to be.
[18] Some of the issues Ms Grant raised in relation to the relationship property judgment concern determinations made by the Judge in his discretion. In an appeal against the exercise of a discretion, the appellant is required to show that the Judge has:13
(a)made an error of law or principle;
(b)taken into account irrelevant considerations;
(c)failed to take into account relevant considerations; or
(d)made a plainly wrong decision.
Relationship property judgment
[19] The relationship property judgment was delivered on 20 December 2019. Allowing for the Christmas and New Year holiday period, the notice of appeal should have been filed by 11 February 2020. Ms Grant’s application for leave to file out of time was not filed until 28 May 2021, over 18 months late.
[20] As noted above, the reasons Ms Grant advanced for the delay can be summarised as:
(a)the time she spent in jail;
(b)inability to obtain legal assistance; and
(c)bringing the civil claim instead of an appeal.
13 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32], citing May v May (1982) 1 NZFLR 165 (CA) at 170.
[21] As noted, a temporary protection order was made against Ms Grant in favour of Mr Everett in October 2019. Ms Grant was in occupation of the house at that time. Ms Grant was arrested for breach of the protection order on 28 January 2020, when Mr Everett went to the house property for an inspection which had been arranged between the parties’ lawyers. There was a further incident when the police were called after Ms Grant came to the house the day after her belongings were uplifted by the moving company in early March 2020.
[22] It appears Ms Grant spent short periods of time in custody as a result of those incidents. Ms Grant spent time in jail for breaches of the protection order from approximately 27 May 2020 until 16 June 2020. She was again imprisoned for breach of the protection order from 9 October 2020 until 15 December 2020. She was released on EM bail, with curfew conditions, on 15 December 2020. She was convicted of breaching the protection order and sentenced to supervision in February 2021. She unsuccessfully appealed that conviction in June 2021.
[23] As is apparent from those dates, the appeal period elapsed in the period before Ms Grant was put in jail. She said she was not able to get advice on the appeal. However, Ms Grant had been represented by a lawyer throughout the relationship property proceeding until settlement. When questioned, Ms Grant was unclear as to why she was not able to get advice when she had a lawyer representing her during and following the relationship property proceeding.
[24] The civil proceedings (breach of privacy and related breaches) were commenced by a statement of claim dated 18 March 2020 and served on 21 May 2020. The statement of claim is directed at breaches of privacy, as I have described above. It does not, on its face, purport to be an appeal or a challenge to the relationship property judgment. Nor did the civil claim seek remedies which indicated Ms Grant was disputing the findings of the Family Court.
[25] The civil claim alleges that Mr Everett moved into the house and changed the locks unlawfully. Ms Grant based that allegation not on an error in the relationship property judgment but on the fact that she remained entitled to possession because the
relationship property orders had not been sealed following judgment and neither had settlement occurred.
[26] The order produced was sealed on 20 December 2019. It vested the house in Mr Everett and set out the amounts of payments to Ms Grant with settlement specified to take place on 31 January 2020. The events the subject of the civil claim, however, occurred on 4 February 2020, when Mr Everett took possession while Ms Grant was out of the house, and thereafter. Settlement of the transfer of the house to Mr Everett then occurred and the required payments were made on 28 February 2020 by arrangement between the parties’ lawyers.
[27] Ms Grant was represented by a lawyer during the relationship property proceedings, including at the time the order was sealed and subsequently when settlement occurred.
[28] I do not consider there has been a reasonable explanation for the delay which justifies the length of delay.
[29] I now turn to the substantive merits of the appeal. Indeed, most of the time at the hearing of the appeal was taken by Ms Grant outlining the errors in the relationship property judgment.
[30]The relationship property pool was modest, with a net value of around
$470,468, the main asset being the family home. Ms Ironside, for Mr Everett, submitted that the equal division of the equity in the family home, as determined by the Judge having reviewed the valuations, and deduction of the joint debts (the mortgage and the pool), was an application of established law to the facts before the Judge. I now address, in summary, the main issues with which Ms Grant takes issue in the substantive judgment:
(a)The valuation of the house property was too low: It is apparent the Judge had two valuations, one provided by Ms Grant at $740,000 and one by Mr Everett for $785,000.14 The Judge took as the valuation a
14 The relationship property judgment, above n 1, at [21]–[22].
midpoint of $762,500.15 Although Ms Grant emphasised the property is now worth around $1.2 million, the present value of the house is not relevant. Taking the midpoint of the valuations provided by each party was a course open to the Judge.
(b)Ordering the vesting of the property in Mr Everett rather than Ms Grant: The Judge’s decision to allow Mr Everett to purchase the property and vest it in him was lawfully made pursuant to ss 25(1), 33(1) and (3) of the PRA, which allow for the vesting of property in one party and orders for payment of compensation to a spouse. Mr Everett’s evidence of his ability to purchase the property was not challenged.16 Ms Grant, by comparison, who was at that stage legally represented, provided no evidence that she could obtain the necessary finance to purchase the property.17 The Judge determined that Ms Grant was unable to service the required bank loan.18 This determination was one which was open to him. He made no error.
(c)Overpaid occupation rent: Ms Grant claimed that she should not have been ordered to pay occupation rent of $19,469.76.19 Section 18B(2) of the PRA provides for contributions made after separation. In the present case, this included the post-separation contribution of Mr Everett in allowing Ms Grant to occupy the family home while he accommodated himself elsewhere and Ms Grant received the benefit of income from boarders.20 As the Supreme Court has stated, the calculation of contributions may not be susceptible to exact mathematical calculations.21 The Judge approached this calculation in the following way. He took the estimated rental as $680.00 per week for the period Ms Grant had occupied the home. From this, the Judge subtracted the weekly outgoings she had paid, of $107.34, leaving a
15 At [25].
16 At [26].
17 At [31].
18 At [30]–[31].
19 At [60].
20 At [62].
21 Rose v Rose [2009] NZSC 49, [2009] 3 NZLR 1 at [46].
balance of $572.65. He then divided that amount between them, requiring Ms Grant to pay one half of that balance by way of occupation rent per week — the sum of $286.32 per week for the period of occupation.22 There is no apparent error in that approach. Ms Grant says that the Judge made a mistake in that she was paying far more than that on outgoings and she was paying occupation rent during the separation. There does not appear to have been evidence concerning that assertion before the Judge, however, nor could Ms Grant point to evidence supporting that assertion.
(d)Valuation of the business: The Judge found that the shares in Mr Everett’s business had decreased in value in the period of the relationship until separation. This was based on accountancy evidence on the value of the shares which was undisputed.23 There was no evidence upon which the Judge could have found that the share value had increased.24
(e)Pool fence: The Judge found there was an undisputed relationship debt at separation, being a bank loan of $5,190 for the cost of constructing a pool fence at the property during the relationship. The Judge directed that Mr Everett was to take the house property and take over the debt, including the mortgage and the pool debt. Therefore, the Judge directed that the pool debt be deducted from the value of the property together with the mortgage debt, before dividing the property equally.25 Ms Grant produced no evidence that she had earlier paid the full debt and there is in a schedule Ms Grant annexed to her affidavit a statement showing the mortgage repayment and a figure for fence allocation of
$5,190.26
22 The relationship property judgment, above n 1, at [58].
23 At [38] and [43].
24 At [44].
25 At [107].
26 Affidavit of Samantha Jane Grant, 20 April 2020.
(f)Unaccounted for stockcar: Ms Grant also contends that there was a stockcar worth $50,000 owned by the company which was not included in the relationship property calculations. However, the car was valued and included in the value of the business.27 Ms Grant referred to the fact she was joint guarantor of the business loans. However, the Judge did not consider any compensation under s 17 (sustenance of separate property) was warranted as he found that co-guarantee did not sustain the business.28 He found that Ms Grant had received the benefit of Mr Everett’s separate property current account during their relationship and the account had been eroded each year to meet family costs, so the guarantee was a s 18B contribution.29
(g)Superannuation entitlement: Ms Grant contends that Mr Everett had a superannuation entitlement in the United Kingdom. However, there was no evidence of this before the Judge.
(h)Separate property: Ms Grant also contends there should have been an adjustment to account for a home she owned which was separate property and was put towards the purchase of the family home. However, it appears that was not a matter which was argued in the Family Court. The family home was the only significant asset involved and that was subject to equal division under ss 8(1)(a) and 11(1)(a) of the PRA.
[31] Apart from the issue of the United Kingdom superannuation and the claim that there should have been an adjustment for the contribution of the proceeds from Ms Grant’s earlier home, all the matters Ms Grant raised in her submissions were dealt with by the Judge in the relationship property proceedings. The findings on the items of significant value, the valuation of the house and the adjustment for contribution to the business required the Judge to rely on the valuation and accountancy evidence before him. While a different Judge may have approached the adjustments differently,
27 The relationship property judgment, above n 1, at [59].
28 At [70]–[75].
29 At [56] and [75].
the approach the Judge took was available to him. There was no evidence before the Court in relation to the United Kingdom superannuation or the separate property contribution Ms Grant contends was made out of the sale of her previous home.
[32]I conclude that the merits of an appeal are not strong.
[33] Since the relationship property judgment, Ms Grant has pursued a number of claims against Mr Everett and various government departments. In addition to the present civil proceedings and the relationship property proceedings, other proceedings Ms Grant has brought include:
(a)Proceedings in the Family Court in 2020,30 in which Ms Grant made cross-applications for protection, occupation, and tenancy orders against Mr Everett in his application for a protection order. The cross-applications were dismissed by Judge Barkle and the final protection order was made against Ms Grant on 28 February 2020.31
(b)District Court proceedings against the Attorney-General, which were struck out as misguided and without merit. Costs were awarded against Ms Grant.32
(c)Applications filed in the Family Court in May 2021 seeking to have the final protection order made against her on 27 August 2020 withdrawn.33
[34] Ms Ironside referred to a number of additional other proceedings, but they are of limited relevance to those before me. She submitted that Ms Grant’s conduct since the relationship property judgment towards Mr Everett had been unreasonable and put him to undue expense.
[35] Ms Grant pointed out that the house was now worth substantially more than it was apparently worth at the date the Court made the orders in December 2020. It
30 FAM-2019-042-351.
31 Everett v Grant [2020] NZFC 421 [the protection order judgment] at [85].
32 Everett v Attorney General [2020] NZDC 2663 [the police vetting judgment]; and Everett v Attorney General [2020] NZDC 6341.
33 FAM-2019-042-351, above n 30.
appears that property prices in Nelson have increased substantially in that time (along with prices throughout the rest of the country). This fact, however, is not a matter that I can take into account on appeal, as Ms Grant urges me to. The relationship property Judgment was settled on the basis of valumetrics of the time of the hearing. For that reason alone, it is likely Mr Everett as purchaser of the property would be prejudiced by any appeal being allowed after the substantial length of time that has elapsed.
[36] Ms Ironside submitted that the “clean break” principle was also an important factor to be taken into account.34 The Court of Appeal has articulated this principle in the following way:35
… The Act proceeds on the premise that on the breakdown of marriage the matrimonial property should be divided and adjustments made between the spouses and they should then be free to go their separate ways without any competing continuing demands on the property of each other.
[37] Overall, therefore, I conclude that the reasons given do not justify the delay in filing the appeal against the relationship property judgment. The substantive appeal does not appear strong and prejudice would likely accrue to Mr Everett because of the length of time since the settlement of the relationship property between the parties.
[38] The application for extension of time to appeal the relationship property decision is dismissed.
[39] The reason for some delay in finalising this application was due to the need to consider issues of incapacity of Ms Grant to act for herself or provide instructions in relation to the matters before this Court.36 However, following the appointment of a lawyer to assist the Court, as well as further information now before the Court, I am satisfied that Ms Grant is capable in a legal sense to conduct this litigation. While capacity is not an issue, the documents filed and Ms Grant’s submissions indicate that she has an inflexible belief in the strength of her claims against Mr Everett and she is unlikely to accept judgment against her. In addition, the fact that Ms Grant is not a trained lawyer puts her at a disadvantage in presenting her case. However, it is not
34 This has been referred to by the Supreme Court in Scott v Williams [2017] NZSC 185, [2018] 1 NZLR 507 at [286].
35 Z v Z (No 2) [1997] 2 NZLR 258 (CA) at 269.
36 Minute of Grice J, 22 June 2022 (confidential to the parties).
necessary to be a lawyer in order to self-represent and she is entitled to present her own case.
Appeal against strike out orders in relation to the civil judgment
[40] I now turn to Ms Grant’s appeal against the strike out orders made in relation to the civil judgment.
[41] Ms Grant filed civil proceedings against Mr Everett in the District Court on 18 March 2020. The pleadings refer to two particular events which give rise to the pleaded claims of breach of privacy, intrusion into seclusion and breach of human rights. The first related to an arranged inspection of the house, when Mr Everett videoed the house before he took possession of it. The second related to Mr Everett taking possession of the house, which was effected by his changing the locks when Ms Grant was out on 4 February 2019. Ms Grant says that Mr Everett took possession of the house illegally by changing the locks and denying her access to uplift her belongings. Ms Grant says she was the lawful occupier and by taking possession Mr Everett breached the notice period required under the Residential Tenancies Act 1986.
[42] The pleadings also refer to the difficulties Ms Grant encountered in collecting her belongings. She says that Mr Everett’s partner continued to go to the house while Ms Grant’s personal belongings were inside the house, despite Ms Grant having trespassed her from the matrimonial home.
[43]The three causes of actions pleaded are:
(a)Breach of privacy: Ms Grant says that Mr Everett breached her privacy under the Privacy Act 2020 and at common law, as well as under the New Zealand Bill of Rights Act 1990 (the NZBORA) and the Residential Tenancies Act. The claim is also based on “intrusion into seclusion”, described as “a tort for such a breach in privacy”.
(b)Breach of human rights: Ms Grant says she was the legal owner and occupier of the house and had had tenants in the house. Ms Grant says
her human rights were breached as the required notice under the Residential Tenancies Act was not given before Mr Everett took possession. Ms Grant cites art 12 of the Universal Declaration of Human Rights in this respect, which is in general terms a right to protection of arbitrary interference with “privacy, family, home or correspondence”.
(c)“Humiliation”: This relates to the alleged breach by Mr Everett’s partner of the trespass notice issued by Ms Grant against her. Ms Grant alleges that the partner unlawfully came onto the property, seeing Ms Grant’s personal belongings, including relationship property. It is also pleaded that the partner made various posts to Facebook which were defamatory.
[44] The Judge analysed the various causes of action and concluded that none of the proposed causes of action could succeed.37 They were struck out.38
The District Court civil judgment
[45] The thrust of the civil proceeding in the District Court was that Mr Everett’s occupancy of the house was not lawful. This was said to be because as on 4 February 2020, when Mr Everett took possession, the property relationship money had not been paid to her, that no order allowing possession had been sealed, and that it had been agreed that both had to first agree how to proceed.
[46]In his decision, the Judge noted:
(a)Mr Everett had a temporary protection order issued on 17 October 2019.39
(b)The hearing of the relationship property proceedings took place in Nelson on 3 September 2019, with the judgment delivered on
37 The civil judgment, above n 2, at [38].
38 At [38].
39 At [12].
20 December 2019 and orders were sealed in accordance with that judgment on the same date.40
(c)The family home was to vest in Mr Everett and he would take responsibility for the mortgages.41 Settlement of the property transfer was to take place on 31 January 2020.42
(d)Ms Grant had legal advice throughout the property proceedings including at the hearing. The lawyers continued to act for Ms Grant in respect of settlement of the purchase of the property by Mr Everett.43
(e)There had been an agreement between counsel for Ms Grant and Mr Everett that inspection of the house property by Mr Everett would take place on 28 January 2020. Mr Everett had understood the lawyers’ agreement included that Ms Grant would not be present when the inspection took place. However, she was at the property, which meant the inspection was not completed. Ms Grant was charged with a breach of the temporary protection order.44
(f)On 4 February 2020, Mr Everett (in Ms Grant’s absence) took possession of the property and changed the locks.45 He placed Ms Grant’s personal property in the garage of the property and made arrangements for an associate of Ms Grant to pick up a trailer-load of personal property shortly after. Arrangements were then made through Ms Grant’s lawyer for the moving company to uplift the remaining property of Ms Grant.46
40 At [13].
41 At [14].
42 At [14].
43 At [15].
44 At [16].
45 At [17].
46 At [18].
(g)Final settlement of the purchase took place on 28 February 2020. Mr Grant’s property was picked up by the moving company on 3 March 2020.47
[47] The Judge then set out the legal principles relating to strike out applications, and referred to the three causes of action as set out above.48
[48] The Judge went on to note that each of the causes of action appeared to be based on Ms Grant’s belief that she had been evicted from the property or premised on an assumption that she had occupancy, legal tenancy, or legal rights in relation to the property.49
[49] The Judge noted that the claim contemplated that Ms Grant’s eviction was a breach of her human rights and that, in addition, Mr Everett’s occupation of the house with Ms Grant’s chattels and personal property still in the house amounted to the tort of “intrusion into seclusion”.50 Ms Grant also claimed that she had been evicted on 4 February 2020, which was a breach of her rights under the Privacy Act and contravened her rights under the Residential Tenancies Act.51
[50]The Judge said, however, that:52
(a)Mr Everett was lawfully entitled to take possession on 4 February 2020, as a result of the Family Court relationship property decision of 20 December 2019 and the sealing of those orders; and
(b)there had been no appeal from the Family Court decision.
[51] The Judge noted that insofar as Ms Grant’s personal property was concerned, all that was involved was moving Ms Grant’s items into the garage and arrangements
47 At [18].
48 At [20]–[22].
49 At [23].
50 At [23].
51 At [23].
52 At [26]–[27].
being made to pick up what was immediately necessary.53 There had been no claim of damage or unreasonable dealing with that property.54
[52]The Judge concluded:
(a)Mr Everett’s partner was entitled to be on the property, being an invitee of Mr Everett, who was himself in lawful occupation.55
(b)Ms Grant was not a tenant at the time, and therefore the Residential Tenancies Act did not apply. While she was in occupation of the house up to the time Mr Everett took possession, that was as a consequence of her ownership right, as opposed to any tenancy.56
(c)The Privacy Act deals with the issue of collection and disclosure of personal information by agencies. Such breaches are referable to the Privacy Commissioner.57 A breach of a privacy principle is not an enforceable right in a court of law.58
(d)The NZBORA allows an individual to seek redress in relation to conduct or acts by government departments or judicial branches but does not provide redress as between individuals.59
(e)The tort of invasion of privacy under Hosking v Runting requires publicity of private facts, and there was no allegation of that taking place on the part of Mr Everett.60
53 At [29].
54 At [29].
55 At [30].
56 At [31].
57 At [32].
58 At [32], pursuant to s 11(2) of the Privacy Act 1993, now s 31(1) of the Privacy Act 2020.
59 At [33].
60 At [34], citing Hosking v Runting [2005] 1 NZLR 1 (CA).
(f)The tort of intrusion into seclusion referred to in C v Holland did not apply.61 There was no pleading providing an evidential basis for that tort.62
[53] The Judge accordingly concluded that none of the proposed causes of action could succeed and each would be struck out.63
Appeal
[54] Ms Grant lodged the present appeal against that decision by notice of appeal dated 30 March 2021. The notice of appeal does not set out the grounds of appeal succinctly but rather refers to the relationship property issues in some detail, as well as the events leading to Ms Grant being charged with breach of the protection order.
[55] However, distilling the allegations made, the primary ground of appeal appears to be that the Judge incorrectly based his decision on Mr Everett’s right to occupy the matrimonial home, which Ms Grant said was held in a joint tenancy. She says that means she had the right to live in it. She had tenancy and vendor rights which were breached by her removal from the house.
[56] Ms Grant says she was wrongfully deprived of her belongings which were in the house. In addition, Ms Grant says her privacy had been breached by Mr Everett going through her personal belongings when they were left at the house. She said this amounted to breach of privacy and breach of the tort of “intrusion into seclusion”, which is a developing tort.
[57]Included in the grounds of appeal was the following:
31. Miss Grant is applying for her Relationship property division to be heard in this court as it is all related. There is no appeal accepted for filing to open the matter of RPS and she would like this to be heard “fast track’ please. Alternatively Miss Grant would be open to a conversation where Mr Everett rectifies the property division and damages caused.
61 At [35], citing C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672.
62 At [35].
63 At [38].
[58] The relief sought in the notice of appeal seeks remedies related to the relationship property, for instance further equity in the home of $95,000 and recovery of $19,469.76, being the overpayment of occupation rent and similar claims.
Principles relating to strike out applications
[59] The established principles relating to strike out applications apply. The Court of Appeal recently set out those principles as follows:64
… we assume the pleaded material facts are true save for those that are entirely speculative and without foundation and we also bear in mind that the strike out jurisdiction is to be exercised sparingly and only in clear cases. We must be certain the claim is so untenable it cannot succeed and slow to strike out claims in any developing area of law. The fact a claim involves a complex question of law which requires extensive argument should be no bar provided we have the requisite materials and assistance to determine the matter.65 We must also be mindful of the well established principle that if any deficiencies can be cured by an amendment to the pleadings, allowing the claim to proceed on condition the necessary amendments are made, is preferable to strike out.66
[60]In addition, where a novel cause of action is alleged, the Court of Appeal in
Smith v Fonterra Co-Operative Group Ltd stated:67
… The bare assertion of the existence of a new tort without any attempt to delineate its scope cannot of itself be sufficient to withstand strike out on the basis of speculation that science may evolve by the time the matter gets to trial
… The purpose of the strike-out jurisdiction is to ensure that parties are not put to unnecessary expense and precious court resources are not squandered by claims that have no chance of success. It demands an element of rigour in the interests of justice. The mere fact of novelty cannot be enough. Otherwise any claimant would be able to proceed to trial simply by asserting a new tort.
[61] Evidence is generally not permitted to be adduced on strike out applications. The evidence is generally limited to that which is undisputed. The Court will not usually consider evidence inconsistent with the pleading, as a strike out application is dealt with on the footing that the pleaded facts can be proved.68 However, there may
64 Smith v Fonterra Co-Operative Group Ltd [2021] NZCA 552 at [38].
65 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267, endorsed in Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] and North Shore City Council v Attorney-General [2012] NZSC 49, [2012] 3 NZLR 341 at [146].
66 Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 (CA) at 324; and Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at [66].
67 Smith v Fonterra Co-Operative Group Ltd, above n 64, at [124].
68 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Brookers) at [HR15.1.06], citing Attorney General v McVeagh [1995] 1 NZLR 558 (CA) at 566.
be cases where an essential fact or allegation is “so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further.”69
Analysis
[62] I have dismissed the application for an extension of time for appeal of the relationship property judgment. There has been no appeal of the protection order which was made in October 2019 and which prevented Ms Grant from going onto the property once Mr Everett was in possession. That protection order remains in force, although Ms Grant indicated a review of that protection order was underway, as I have mentioned above. Therefore, the Judge was not in error in relying on the relationship property judgment and orders, as well as the effect of the protection order, in his judgment.
[63] Ms Grant’s claim that she had rights as owner and occupier of the house and that the tenants of the house were not given sufficient notice under the Residential Tenancies Act is not tenable. 70 Ms Grant does not claim she was a tenant in terms of the Residential Tenancies Act. However, it appears that the claim is based on the fact that she had taken boarders into the house while she was in occupation.
[64] At the time of the events giving rise to the claims the boarders were not in the house, nor are they parties to this proceeding. If they have any claim, it is for them to bring. Such a claim would be pursued in the Tenancy Tribunal.71 No other court or other body has originating jurisdiction in respect of matters within the jurisdiction of the Tribunal.72
[65] The claim insofar as it is based on breaches of the Universal Declaration of Human Rights and the NZBORA is untenable as neither give rise to a cause of action between private individuals.
69 At [HR15.1.06], citing Attorney General v McVeagh, above n 68, at 566.
70 Ms Grant’s notice of appeal referred to the “Tenancy Act”. However, I have taken the reference to the “Tenancy Act” as being a reference to the Residential Tenancies Act 1986.
71 Residential Tenancies Act, s 77.
72 Section 82. The claim may be transferred to the District Court by order of the Tribunal: s 83(1) and (4).
[66] Ms Grant also said she was not permitted by the Judge to elaborate on her arguments in support of her claim in privacy and in particular the existence of the tort “intrusion into seclusion” and its applicability here.
[67] There is no general right guarding against a breach of privacy. Neither does the limited tort recognised in Hosking v Runting, which requires publication of private facts in circumstances where such publication would be highly offensive, apply here.73
[68] In relation to the tort of “inclusion into seclusion”, the New Zealand cases have indicated limited application of the tort. The tort was first developed in the case of C v Holland, where the defendant videoed the plaintiff in the shower.74 In Faesenkloet v Jenkin, Asher J considered the application of the tort in relation to video footage taken by cameras placed on a garage on a property adjacent to the plaintiff’s property.75 The cameras were trained on a driveway running into Mr Faesenkloet’s property. His Honour emphasised that it was the circumstances of the intrusion, and the reasonable expectation of the person intruded upon, that were key factors.76 He found that given the public ownership and the relatively public nature of the driveway which was being videoed, there was no reasonable expectation of privacy of the driveway area filmed.77 In addition, he found the filming was not highly offensive, and concluded there was no serious question to be tried as to whether the defendant had committed the tort of invasion of privacy.78
[69] In the notice of appeal, Ms Grant submitted that Mr Everett had looked through her personal belongings when he gave the person appointed to uplift them those items. Ms Grant referred to Todd on Torts, stating:79
As noted in Todd on Torts this tort does not depend upon publication of information about a plaintiff, rather it depends upon the invasion of a plaintiff’s private space, e.g. filming a person in private, installing a tracking device, unwanted physical intrusion into property, and looking through their belongings.7 “
73 Hosking v Runting, above n 60.
74 C v Holland, above n 61.
75 Faesenkloet v Jenkin [2014] NZHC 1637.
76 At [37].
77 At [45].
78 At [52]–[53].
79 Notice of appeal, 30 March 2021, at [28].
[70] Ms Grant, in her synopsis of submissions dated 27 October 2021 filed in support of this appeal, further noted in support of the argument that the tort of inclusion into seclusion applied, that:
(a)Mr Everett’s partner trespassed by going into the house and being around Ms Grant’s personal belongings, thereby humiliating Ms Grant;
(b)as a result of the manner in which Mr Everett packed Ms Grant’s belongings, including leaving food in the fridge and deep freezer and a chip fryer filled with oil that leaked through her belongings, his packing and moving was humiliating for her and “absolute intrusion, highly offensive and in breach of Ms Grant’s right to not having someone go through her personal property”;
(c)Mr Everett’s taking of possession on 4 February 2020 was unjust and unfair;
(d)intrusion occurred when Mr Everett and his partner packed Ms Grant’s belongings, and there was “no way her privacy was preserved”; and
(e)the house was only vested in Mr Everett and he had not given written notice to the tenants of the house of any eviction and had not applied to the Court for an occupancy order.
[71] Ms Grant also referred to the decision of the District Court at Hamilton in Everett (Grant) v Attorney General (the police vetting judgment).80 This was a claim by Ms Grant against the police for release of a police vetting report to prospective employers. The claim alleged breach of privacy, including the right to privacy in law, defamation and publication of name suppressed material.81 In the course of that judgment, the Judge had considered the tort of “intrusion into seclusion” which Ms Grant had raised. The Judge noted that the scope of Ms Grant’s claim had expanded since the filing of the original statement of claim on 1 May 2018. The Judge
80 The police vetting judgment, above n 32.
81 At [13].
struck out all the claims. In the course of doing so, however, he set out the elements of the claim of intrusion into seclusion recognised in C v Holland as requiring the plaintiff to prove:82
(a)an intentional unauthorised intrusion;
(b)into seclusion (namely intimate personal activity, space or affairs);
(c)involving infringement of a reasonable expectation of privacy; and
(d)that is highly offensive to a reasonable person.
[72] The Judge noted the comments from Todd on Torts I have set out above.83 However, the Judge said that as the police were acting under their own duty when they visited Ms Grant’s house and obtained the information which was put into the police vetting report, they were not trespassing but rather acting in the execution of their duty.84 In those circumstances, the cause of action could not be made out on the facts, and the claim was struck out.85
[73] The formulation of the tort that Ms Grant put in her notice of appeal is a copy of the paragraphs in the police vetting judgment where the Judge discussed the elements of the tort.86.
[74] This is a case where the Court is being asked to extend a developing tort beyond the areas to which it has typically been applied, that is as an unauthorised intrusion into private seclusion (intimate personal activity, space, or affairs) involving an infringement of a reasonable expectation of privacy that is highly offensive to a reasonable person.87
82 At [134], citing C v Holland, above n 61.
83 At [135], referring to Stephen Todd and others Todd on Torts (8th ed, ) at [17.6.01].
84 At [138].
85 At [136].
86 Also included in Ms Grant’s authorities was an article from the Canterbury Law Review by William Fussey, an LLM candidate: William Fussey “Determining reasonable expectation of privacy and the intrusion into seclusion tort” (2016) 22 Canterbury Law Review 269.
87 C v Holland, above n 61.
[75] Insofar as it pleaded that Mr Everett’s partner was a trespasser in the house and intruded into Ms Grant’s seclusion by being in the vicinity of Ms Grant’s belongings is a claim which should be brought against the partner, not Mr Everett.
[76] In relation to the claim as it relates to Mr Everett packing up Ms Grant’s belongings and putting them in the garage and then arranging for the moving company to pick them up, in this case, the allegations arise following a determination of relationship property.
[77] First, the intrusion into the house was not unauthorised, as Mr Everett has a right as an owner of the property with an order vesting the property in him. Moreover, the packing up of Ms Grant’s personal property and chattels was pursuant to arrangements made to return Ms Grant’s property to her. Secondly, the intrusion is not into seclusion as it is not affecting “intimate personal activity, space or affairs”. Mr Everett was in lawful possession of the house and therefore could be no intrusion into intimate personal activity, space or affairs.
[78] Ms Grant says it was her personal property and therefore might put her argument on the basis that the property was itself of an intimate and personal nature. However, to establish the tort requires more than an assertion that the defendant has handled someone else’s private belongings.
[79] While the Court must be careful about striking out a claim in what is a developing area of the law, the Court of Appeal has noted that the purpose of the strike out jurisdiction is to ensure the parties are not put to unnecessary expense and precious Court resources are not squandered due to claims that have no chance of success.88 This is such a case. The Judge made no error in striking out the claims.
[80] I have considered whether the Judge should have allowed Ms Grant to consider an amendment to the pleadings. However, the various claims were struck out because of the fact that the elements could not be established on the facts as pleaded which Ms Grant asserts as the basis of the claim. Furthermore, nothing in her submissions
88 Smith v Fonterra Co-Operative Group Ltd [2021] NZCA 552 at [124].
on appeal indicated that there was any tenable basis for the privacy and related claims as pleaded.
[81] Ms Grant in her submissions extended her allegations to claim that damage was done to her property. However, this appears to be in relation to whiteware items, rather than the personal belongings which were the focus of the struck out claims. This is a completely different claim to that originally pleaded and should therefore, if it is to be brought at all, be brought as a separate claim. I do not consider the Judge erred in declining to allow an opportunity to amend the pleadings.
[82] Accordingly, I dismiss the appeal against the striking out of the civil proceeding.
Result
[83] Ms Grant’s application for special leave to appeal the relationship property judgment is declined.
[84] The appeal from the civil judgment striking out Ms Grant’s civil claims against Mr Everett is dismissed.
Costs
[85] Ms Ironside sought that costs be reserved. Ms Grant submitted that costs should fall where they lie.
[86] In the circumstances, it is appropriate that I reserve the matter of costs. If the respondent seeks costs, it should file an application and supporting memorandum within seven days of the date of this judgment and any response by Ms Grant should be filed and served within a further seven days. Any reply, limited to the matters in the response, should be filed and served within a further three days.
Grice J
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