Harrison v Harrison - [2017] NZHC 3052

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-993 [2017] NZHC 3052

UNDER The Trustee Act 1956 and others

BETWEEN

PAULINE JANICE HARRISON Plaintiff

AND

GRAEME ROSS HARRISON First Defendant

ADRIENNE HARRISON Second Defendant

Hearing:
11 August 2017

(on papers)

Appearances:

Ms P J Harrison - Plaintiff
Mr R Parmenter for Defendants
(on papers)

Judgment:

8 December 2017

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
08.12.17 at 3.30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

HARRISON v HARRISON & ANOR [2017] NZHC 3052 [8 December 2017]

[1] By an application dated 30 June 2017, the plaintiff appears to apply for several measures:

(a) An application for leave to appeal against the judgment dated 29 March

2017 in which the plaintiff’s claim was struck out (the “strike out judgment”);1

(b) An application for leave to appeal against the judgment dated 30 June

2017 in which costs were fixed and directing payment of those costs

(the “costs judgment”);2 and

(c) An application for a stay – presumably as to the payment of costs.

[2] It is difficult to understand what the grounds put forward for the various applications are. However, I apprehend that in regard to application “(c)” the ground is that the plaintiff is currently a bankrupt.

[3] The intituling also includes Ms A J Harrison as an intended appellant. This is not the first time that Ms P J Harrison has appended the name of her daughter, Ms A J Harrison, to proceedings in this Court in circumstances where Ms A J Harrison was never a party to the proceedings. Therefore, whatever other orders might be able to be made on the application, it will not be possible to make orders in favour of Ms A J Harrison.

[4] The applications for leave to appeal concern both a determination that I made striking out the proceedings brought by Ms P J Harrison and the costs decision that I made consequent upon that order.

The strike out judgment

[5] The proceedings have been struck out due to non-payment of security for costs.3

1      Harrison v Harrison [2017] NZHC 598 [Strike out judgment].
2      Harrison v Harrison [2017] NZHC 1498.
3      Strike out judgment, above n 1.

[6] The plaintiff seeks leave to appeal that decision. The defendants filed a memorandum in response.

[7] Clause 10(1) of sch 5 to the Senior Courts Act 2016 provides:

All proceedings pending or in progress in a court operating under the relevant Act immediately before the commencement of this clause may be continued, completed, and enforced only under the relevant Act (including the relevant rules of court) as if that Act had not been repealed by this Act.

[8] Therefore, a proceeding pending on 1 March 2017 continues under the relevant Act, which is defined as meaning the Judicature Act 1908.4 I also note that cl 11(2) of sch 5 confirms that a proceeding pending on…

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 Harrison v Harrison

Details

AGLC: Harrison v Harrison [2017] NZHC 3052
Case: [2017] NZHC 3052
Decision Date: 8 December 2017

CaseChat Overview and Summary

In Harrison v Harrison, Pauline Janice Harrison applied to appeal a decision to strike out her claim against her ex-husband and daughter, Graeme Ross Harrison and Adrienne Harrison respectively. She sought leave to appeal the strike out judgment and the costs judgment which followed, as well as an application for a stay of payment of the costs. The defendants opposed the applications. The court held that the applications for leave to appeal could not be heard by the High Court as the Court of Appeal had jurisdiction over such appeals. The applications for leave to appeal were dismissed. The court also held that the application for a stay should be declined as the defendants would not be prejudiced if they enforced the costs judgment and it was later overturned on appeal. The plaintiff had not moved promptly to appeal the judgments and had not demonstrated a bona fide appeal. The court awarded the defendants indemnity costs for the applications on the basis that the applications were vexatious, frivolous, improper, or unnecessary.

The court held that an appeal against the strike out judgment and costs judgment must be made to the Court of Appeal within 20 working days in accordance with the Court of Appeal (Civil) Rules 2005. The plaintiff had to apply for an extension of time to appeal if she wished to appeal after the 20 working day period. The High Court did not have jurisdiction to grant such an extension. The court also held that the application for a stay should be declined on the basis that the defendants would not be prejudiced if they enforced the costs judgment and it was later overturned on appeal. The plaintiff had not moved promptly to appeal the judgments and had not demonstrated a bona fide appeal.

The court awarded the defendants indemnity costs for the applications on the basis that the applications were vexatious, frivolous, improper, or unnecessary. The litigation had been based on meritless claims and the plaintiff had continued to pursue further applications in the High Court despite her claims having little prospect of success. The court considered that considerations of justice required that the approach to fixing costs in this case reflect the need to protect the defendants from continuing relentless litigation.

Orders