Heenan v Official Assignee

[2012] NZHC 168

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV2011-409-000665 [2012] NZHC 168

BETWEEN  DAVID STANLEY HEENAN Applicant

ANDOFFICIAL ASSIGNEE Respondent

Hearing:         3 February 2012

Appearances: D S Heenan (In Person)

H Stokes for Public Trust

D M Lester (Amicus) Judgment:  16 February 2012

FINAL JUDGMENT OF WHATA J

[1]      This  is  my  final  judgment  in  relation  to  Mr  Heenan’s  applications  to

commence proceedings.   In my judgment of 28 November 2011 I dismissed all

11 applications by Mr Heenan (a vexatious litigant) as they were then currently framed.     I did, however, seek a report from the Public Trust dealing with the distribution of funds held by the Heenan No. 2 Family Trust.  By virtue of an earlier order of this Court the Public Trust was appointed to administer that Trust, which held funds resulting from the sale of property formerly held by Mr and Mrs Heenan.

[2]      I duly received the report of the Public Trust.   It details the distribution of funds to a discretionary Trust, the beneficiaries of which are Mrs Heenan, her daughters and grandchildren.  The sum of approximately $390,000 was distributed to that discretionary Trust.   The report also records that offers have been made to Mr Heenan to look at distributing the balance of the No. 2 Trust funds to him subject to a similar Trust of which he, his children and grandchildren are the discretionary beneficiaries.  It was further suggested that the funds could be invested in a property

owned by that trust.

HEENAN V OFFICIAL ASSIGNEE HC CHCH CIV 2011-409-000665 [16 February 2012]

[3]      The report refers to various requests for information by Mr Heenan, and to the refusal by the Public Trust to supply details of Ms Heenan’s Trust Deed.

[4]      Late last year the Trust approved $80,000 for the purposes of purchasing a large motor home and $10,000 for expenses in obtaining the motor home.   This payment was made conditional on the monies going directly to the vendor.  Of this

$2,000 was paid to Mr Heenan for some associated expenses.

[5]      At Mr Heenan’s request I convened a telephone conference shortly before Christmas as Mr Heenan was seeking to have all the monies released to him on an unconditional basis.  I indicated to Mr Heenan that I did not have the jurisdiction to make any directions in relation to the monies but that it seemed to me there was a pragmatic solution including the payment of the sum to Mr Lester who could ensure that the monies reached their destination as sought by the Public Trust.  I left it to Mr Heenan and the Public Trust and Mr Lester to resolve that aspect.   That was rather hopeful on my part.

[6]      Mr Heenan has now lodged various additional applications, including for directions that the $88,000 be paid to him, being the monies that the Public Trust had already authorised for the purpose of the motor home purchase.

Injunctions and other allegations claiming impropriety and breach of duty by the Public Trust

[7]      Mr Heenan has sought to file papers seeking various injunctions against the Public Trust.   He has also purported to amend his 11 applications, presumably to overcome the concerns detailed in my previous judgment.  He also has sought to file documents alleging various serious allegations of impropriety by Fogarty J.

[8]      Before  I  proceed  further,  Mr  Heenan’s  claims  against  Fogarty  J  are outrageous.   This is past tiresome.   The allegations are scandalous  and without proper foundation.  To compound matters the applications are barely legible, do not conform to the rules and no filing fees have been paid.  The Registry was right to

refuse them for filing, quite independently of the fact that Mr Heenan is a vexatious litigant.

[9]     Turning to the other various applications.   The purported “injunction proceedings”  comprise  a  litany  of  assertions  with  no  clearly  identifiable  basis. Mr Heenan  repeats  the  various  allegations,  albeit  with  different  emphasis.    In particular the papers repeat allegations about the Heenan 1960 Trust and the Heenan No. 2 Family Trust that I have found cannot be asserted again.   There are also assertions regarding Mr Stokes’ conduct before me which are simply wrong.

[10]     As  to  the  “amended  applications,”  they  simply  repackage  the  issues Mr Heenan failed to successfully ventilate previously.  They are in essence a rehash of what has gone before and my judgment deals with them in full.

[11]     Returning to the position of the Public Trust, the approach taken by the Public Trust is uncontroversial.  The Public Trust has a broad discretion to manage the distribution of Trust monies as it thinks appropriate.  I was initially concerned that the Public Trust was not treating Mr Heenan in an even-handed manner, given that it had so readily allowed funds to be distributed to Mrs Heenan, albeit via a Trust arrangement.   Whatever residual concern I had was allayed by Mr Stokes’ indication that the Public Trust was prepared to step aside and allow Mr Heenan to appoint two replacement trustees to the Heenan No. 2 Family Trust.  Mr Stokes said that the Trust of which Mrs Heenan is now beneficiary is essentially on the same terms as the Heenan No. 2 Family Trust.  Plainly, therefore, the Public Trustee was prepared to treat Mr Heenan in an even-handed manner and on a similar basis to Mrs Heenan.

[12]     Given the foregoing, I see no merit whatsoever in allowing Mr Heenan to commence further proceedings against the Public Trust.  I can see no basis for the Public Trust divulging information.   Indeed, the orders now sought by Mr Lester would serve no useful purpose.  Mr Lester, as amicus, appropriately accepted that is now right.

[13]     As noted in my minute of 3 February, I directed that Mr Lester confer with Mr Heenan about the appointment of new trustees as perhaps a method of resolving his most immediate concerns, namely, access to funds.  I now have the report of Mr Lester as amicus.

[14]     It transpires that Mr Heenan did not need to meet with Mr Lester as he is aware of the implications of the Public Trust’s position.   Mr Lester advises that Mr Heenan is now in the process of appointing two new trustees.

Conclusion

[15]     In light of all of the above therefore I decline in all respects Mr Heenan’s

application for leave to commence proceedings.

Postscript

[16]     I  wish  to  add  one  additional  comment.    Mr  Heenan  has  enjoyed  the considerable largesse of this Court at significant cost of judicial and staff time and therefore at a significant cost to the public.  The point has been reached where the procedural latitude afforded to Mr Heenan results in unfairness to other litigants, including lay litigants that at least try to conform to the proper rules of this Court for the commencement of proceedings.  While I cannot bind Mr Heenan to seeking legal advice before he commences any further proceedings, I direct Registry staff to refuse to accept Mr Heenan’s papers unless:

(a)       They are filed in a form at least approximating to the requirements of the High Court Rules; and

(b)      They are submitted with the appropriate filing fee.

Solicitors:

Wynn Williams & Co, Christchurch, for Respondent

cc: D S Heenan

D M Lester