Harrison v Harrison - [2017] NZHC 598

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-993 [2017] NZHC 598

UNDER The Trustee Act 1956 and others

IN THE MATTER

of Valerie Geard Family Trust

BETWEEN

PAULINE JANICE HARRISON Plaintiff

AND

GRAEME ROSS HARRISON First Defendant

ADRIENNE HARRISON Second Defendant

Hearing:
15 December 2016

Supplementary submissions 21 December 2016 (Defendants)
and 17 February 2017 (Plaintiffs)

Appearances:

(on papers)

Judgment:

29 March 2017

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

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

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

HARRISON v HARRISON & Anor [2017] NZHC 598 [29 March 2017]

[1] This proceeding was commenced in 2012. Little progress has been made in readying the matter for trial. One of the reasons has been that the plaintiff has not complied with in order for security for costs. That fact is one of the reasons why the defendants have brought one of the current applications. Orders striking out the proceedings have been filed as I discuss further on in this judgment.

[2] The other application which requires to be dealt with seeks an order striking the Valerie Geard Family Trust out of the proceeding. It is an application which I shall deal with first.

[3] It is not necessary to traverse the background which gave rise to the dispute in this case. It has been covered in other judgements such as that of Faire J in Harrison v Harrison.1

[4] The defendants are seeking two orders. The first seeks an order striking out a party which the plaintiff added to the proceeding, the Valerie Geard Family Trust. As I explain subsequently, the grounds are that that party does not appear to have anything to do with these proceedings and, in any event, was added without the consent of the court.

[5] On 1 March 2013, this Court made an order directing the plaintiff to provide security for costs.2 A substantial part of the security for costs order has apparently been satisfied, but the second plaintiff withheld an amount. This amount was the equivalent of an amount of an order for costs that she had been ordered to pay to the defendants. The plaintiff declines to take any steps to complete payment of the security for costs which were directed to be paid. The proceeding was stayed.

Application to strike out first plaintiff as improperly joined as a party by second plaintiff

[6] The defendants are seeking orders in the following terms:

1 Harrison v Harrison 2016] NZHC 574.
2 Valerie Geard Family Trust v Harrison [2013] NZHC 385.

(a) The “first plaintiff” herein, Valerie Geard Family Trust (sic. Valerie Geard Trust) be struck out of the proceeding under r.4.56(1)(a); and

(b) The proceeding, then carried on solely by the second plaintiff, be dismissed under r.15.2;

[7] The application is made in reliance on 4.56 which provides as follows:

4.56 Striking out and adding parties

(1) A Judge may, at any stage of…

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 598
Case: [2017] NZHC 598
Decision Date: 29 March 2017

CaseChat Overview and Summary

The case of Harrison v Harrison is an action under the Trustee Act 1956 and others. The plaintiff, Pauline Janice Harrison, is proceeding against the first defendant, Graeme Ross Harrison, and the second defendant, Adrienne Harrison. The primary issue in the case is the plaintiff's failure to comply with an order for security for costs, which has led to significant delays in the proceedings. The defendants have applied for the Valerie Geard Family Trust to be struck out of the proceedings as it was improperly joined without the court's consent or the consent of the trustees. Additionally, the defendants have sought to strike out the proceedings for want of prosecution under Rule 15.2 due to the plaintiff's failure to comply with the security for costs order.

The court found that the Valerie Geard Family Trust was improperly joined as a party since it had no connection to the proceedings. The court further determined that the plaintiff's failure to comply with the security for costs order had caused substantial prejudice to the defendants, as they were unable to bring the trust to completion and make distributions. The court held that the plaintiff's failure to prosecute the case and comply with the security for costs order justified the dismissal of the proceedings. The plaintiff was given 15 working days to comply with the security for costs order, failing which her claim would be struck out. The defendants were awarded costs on a 2B basis, as per Rule 14.2 of the High Court Rules.

The court's decision was based on the principles established in the cases of Jagwar Holdings Ltd v Fullers Corporation Ltd and J & T Christie Ltd (in rec) v Westpac Merchant Finance Ltd, which provide that a proceeding may be dismissed if the plaintiff fails to provide the ordered security for costs. The court also referred to the Court of Appeal decision in McLachlan v MEL Network Ltd, which emphasised the importance of protecting defendants against being drawn into unjustified litigation. The court found that the plaintiff's actions had led to an unsatisfactory state of affairs and had exposed the defendants to further costs. The court held that it was in the plaintiff's hands to advance the litigation and that she had shown no inclination to bring it to an end.

Orders