Heenan v Gore

[2015] NZHC 766

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-425-000096 [2015] NZHC 766

BETWEEN

DAVID STANLEY HEENAN

Plaintiff

AND

DA VELLA GORE First Defendant

AND

WAYNE GORE Second Defendant

Hearing:	20 April 2015 (On the papers)
Apperances:	Plaintiff in person D Lester as Counsel to Assist
Judgment:	20 April 2015

JUDGMENT OF DUNNINGHAM J

[1]      This is a decision responding to a document received by the Court, which was ostensibly an application by Mr Heenan for special leave under s 88B of the Judicature Act 1908 to commence proceedings to stop a caveat from lapsing.

[2]      As explained in the minute I issued on 14 April 2015, Mr Heenan received notice dated 7 April 2015 alerting him to the fact that the caveat lapsing procedure under s 145 of the Land Transfer Act 1952 had been triggered because an application had been lodged to transfer ownership of an 81/334 share of  a property which Mr Heenan had caveated.  Mr Heenan had 14 days after the notice was delivered or deemed to be delivered to him to apply to the High Court for an order preventing the lapsing of the caveat.

[3]      As  the  notice  was  dated  7 April  2015  and  I  received  the  document,  as

Duty Judge, on 14 April 2015, it seemed likely that Mr Heenan had only seven days

HEENAN v GORE AND ANOR [2015] NZHC 766 [20 April 2015]

in which to make an application that the caveat not lapse and then a further 28 days in which to obtain the requisite order from the Court and serve it on the Registrar- General of Land.

[4]      The complication in Mr Heenan doing this, was that he is the subject of an order under s 88B of the Judicature Act 1908 which requires him to obtain the leave of a Judge before instituting any civil proceeding.

[5]      Because the application this Court received from Mr Heenan did not assist the Court in determining whether it was appropriate that leave should be granted, nor did it articulate what interest was claimed by Mr Heenan to support the caveat or why the caveat was sought to be sustained, I referred the matter to counsel appointed to assist the Court in various proceedings involving Mr Heenan.  I requested counsel to urgently review the application and assist the Court in determining whether there was some basis for suggesting the caveat should be sustained, in which case the Court would be minded to grant leave, at least so that issues of whether there was a serious  question  to  be tried  and  whether  the  balance  of  convenience  supported sustaining the caveat, could be aired in Court.  Alternatively, if there was no obvious basis for taking this step, then counsel was to report to the Court accordingly.

[6]      Mr Lester, as counsel appointed to assist the Court, met with Mr Heenan to discern the basis upon which the caveat had been lodged and (if considered appropriate) to prepare an application to sustain it on the basis that leave to file under s  88B  of  the  Judicature Act  could  be  forthcoming.    Having  undertaken  those enquiries, Mr Lester has now reported to the Court by way of memorandum, explaining why he concludes there is no basis for issuing proceedings to attempt to sustain the caveat.

[7]      The caveat was lodged to sustain a notice of interest under s 42(1) of the Property (Relationships) Act 1976 (the Act).   Mr Lester now understands that the basis of the claim is that Mr Heenan considers Mrs Heenan, through fraudulent means, obtained funds from the Heenan Family Trust No. 2 and he believes those funds were used to acquire the property subject to the notice of claim.  However, as Mr Lester records, such a claim was not a claim to an interest in property pursuant to

the Act, but would be a claim by the Trust, and as such, a notice of claim under the

Act could not be sustained.

[8]      Mr Lester has also attached a minute of Judge Smith to his memorandum.  It relates to the relationship property proceedings between Mr and Mrs Heenan which concluded in 2005.  She recorded that, after a three day fixture in the Queenstown Family Court, there was, with a limited exception, little if any relationship property, and Mrs Heenan’s application was withdrawn on the basis that no costs would be sought by other parties.  The minute concluded by noting that this would “bring to a complete and utter end any proceedings in the Family Court and the resolution of the parties relationship property” and that the Judge “could not see any Court giving leave for either party to bring any further proceedings out of time”.  The title to the caveat of the property shows Mrs Heenan gained her interest in it in November 2008, well after the dissolution of marriage and determination of all relationship property claims in 2005.   Any application by Mr Heenan under the Act would also face significant limitation issues as the Act requires an application to be brought within

12 months of dissolution of marriage.

[9]      Mr Lester therefore concludes that Mr Heenan had “no claim under the Act capable of sustaining the notice of claim”, a view which Mr Heenan “reluctantly accepted”.  While Mr Heenan still maintains that Mrs Heenan used funds to which he was not entitled, he apparently accepts that any claim in relation to that is outside the Act and any such claim could not sustain a notice under s 42 which could only be supported by a claim under the Act.

[10]     Accordingly,  I am satisfied that there was no  proper basis on which  the caveat could be sustained and this is not an appropriate proceeding in which to grant leave pursuant to s 88B of the Judicature Act to allow Mr Heenan to commence proceeding to sustain the caveat.

[11]     The Court is indebted to Mr Lester for the prompt and thorough way he has dealt with this matter.  For the avoidance of doubt, his attendances were undertaken as an extension of Mr Lester’s appointment as counsel assisting the Court in the

CIV-2014-425-000096 proceedings, and I direct that his costs are to be met out of public funds in accordance with s 99A(1)(b).

Copy to: Mr Heenan

Mr Dale Lester, Amicus Curiae