Hita v Hita
[2023] NZHC 752
•5 April 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2021-419-126
[2023] NZHC 752
UNDER Part 18 High Court Rules, equity IN THE MATTER OF
an application for recall of probate
AND IN THE MATTER OF
an application to grant letters of
administration in solemn form in respect of the estate of EDWARD WILLIAM
BENJAMIN HITA, late of Te Kuiti, deceasedBETWEEN
EMORA HITA
Plaintiff
AND
SAMANTHA JUNE URAIATA HITA, sole
executor to the estate of EDWARD
WILLIAM BENJAMIN HITA (deceased),administrator to the estate of NGAPOKO HITA (deceased)
Defendant
Hearing: 7 February 2023 Appearances:
P Depledge for the Plaintiff Defendant in person
Judgment:
5 April 2023
JUDGMENT OF GAULT J
This judgment was delivered by me on 5 April 2023 at 2:30 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
HITA v HITA [2023] NZHC 752 [5 April 2023]
[1] The defendant, Ms Samantha Hita,1 applies to strike out the claim by her older sister Ms Emora Hita in relation to the will of their late father, Mr Edward William Benjamin Hita (the Will).
[2] Emora’s claim is that the Will was brought about by Samantha’s undue influence and was not properly executed.2 Her claim seeks orders:
(a)for recall of probate;
(b)setting aside the Will; and
(c)for grant of letters of administration.
[3]Samantha seeks to strike out the claim on the ground that it is fraudulent.
Background
[4]Mr Hita and his wife had five children together.
[5] On 10 February 2019, Mrs Hita died. Mr and Mrs Hita had been married for over 40 years.
[6] On 18 May 2019, Mr Hita signed the Will. The Will appointed Samantha as sole executor and left Mr Hita’s entire estate to her.
[7] The statement of claim pleads that Samantha drafted the Will for Mr Hita without the assistance of legal representation, that her influence was to have Mr Hita execute a will which favoured her to the exclusion of Mr Hita’s other children, and that Mr Hita was vulnerable having recently lost his partner and relied on Samantha for advice and care.
[8]On 24/25 December 2020, Mr Hita died.
1 I will use first names not for informality but for ease of differentiation.
2 I was advised there is a separate Family Protection Act proceeding in the Family Court, and that judgment was pending in relation to an application to dismiss that proceeding.
On 1 March 2021, the Will was admitted to probate.
[10] Mr Hita’s estate consisted of a property at 40 Awakino Road, Te Kuiti, Kiwisaver funds and Holden Rodeo and Subaru Legacy vehicles.
Approach on strike out applications
Rule 15.1(1) of the High Court Rules 2016 provides:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
[12] The approach on applications to strike out on the ground of no reasonably arguable cause of action is well established.3 The Court proceeds on the assumption that the facts pleaded in the statement of claim are true. Before the Court may strike out proceedings, the causes of action must be so clearly untenable that they cannot possibly succeed. The jurisdiction is to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material, but the jurisdiction is not excluded by the need to decide difficult questions of law requiring extensive argument.
[13] The other grounds for strike out are somewhat interrelated. In Commissioner of Inland Revenue v Chesterfields Preschools Ltd, the Court of Appeal said:4
3 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267-268, approved in Carter Holt Harvey Ltd v Ministry of Education [2016] NZSC 95; [2017] 1 NZLR 78 at [10].
4 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].
The grounds of strike out listed in r 15.1(1)(b)–(d) concern the misuse of the court’s processes. Rule 15.1(1)(b), which deals with pleadings that are likely to cause prejudice or delay, requires an element of impropriety and abuse of the court’s processes.5 Pleadings which can cause delay include those that are prolix; are scandalous and irrelevant; plead purely evidential matters; or are unintelligible. In regards to r 15.1(1)(c), a “frivolous” pleading is one which trifles with the court’s processes, while a vexatious one contains an element of impropriety.6 Rule 15.1(1)(d) – “otherwise an abuse of process of the court”
– extends beyond the other grounds and captures all other instances of misuse of the court’s processes, such as a proceedings that has been brought with an improper motive or are an attempt to obtain a collateral benefit.7 An important qualification to the grounds of strike out listed in r 15.1(1) is that the jurisdiction to dismiss the proceeding is only used sparingly. The powers of the court must be used properly and for bona fide purposes. If the defect in the pleadings can be cured, then the court would normally order an amendment of the statement of claim.8
[14] As the Court of Appeal said in Dotcom v District Court at North Shore,9 a case involving the abuse of process ground:
The jurisdiction to strike out should be exercised sparingly.10 In Reid v New Zealand Trotting Conference we observed that the purpose of the strike-out power is fundamentally to avoid the misuse of judicial processes which tend to undermine confidence in the administration of justice.11 The re-litigation of matters already determined may constitute an abuse of process for precisely that reason.12
Discussion
[15] The strike out application is brought on the basis of fraud by perjury. Samantha submitted that Emora has made false statements and falsified evidence to bring the proceeding attempting to recall probate and have letters of administration granted to her.
5 McGechan on Procedure (online ed, Thomson Reuters) at [HR15.1.03].
6 At [HR15.1.04].
7 At [HR15.1.05(1)].
8 See Van der Kaap v Attorney-General (1996) 10 PRNZ 162 (HC) at 165, discussing r 186 of the former High Court Rules and citing Marshall Futures Ltd (in liq) v Marshall [1992] 1 NZLR 316 (HC).
9 Dotcom v District Court at North Shore [2018] NZCA 442, [2018] NZAR 1859 at [16]. See also
Sutcliffe v Tarr [2018] NZCA 135, [2018] NZAR 696 at [27]-[28].
10 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [31].
11 Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) at 9.
12 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541; and Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 482.
[16] Samantha’s allegations of perjury essentially relate to Emora’s evidence about the value of Mr Hita’s estate, including documents about the value of the vehicles, in Emora’s affidavit of 11 June 2021 filed in support of the Part 18 proceeding and her reply affidavit of 26 November 2021.13 For example, Samantha alleges that Emora falsely inflated the value of the vehicles.
[17] Samantha relied on Shannon v Shannon, where Potter J’s striking out of a claim was upheld by the Court of Appeal.14 In particular, Samantha pointed to Potter J’s statement of the principles relating to strike out and fraud pleadings, referred to by the Court of Appeal:15
(a)The Court will normally assume that the allegations made in the statement of claim are true but, if the allegations are entirely speculative and without foundation, that stance need not be adopted.
(b)The jurisdiction to strike out is to be exercised sparingly and only in a clear case where the Court is satisfied it has the requisite material.
(c)Where fraud is alleged the allegations must be fully and distinctly pleaded and particularised.
(d)Unless the fraud alleged as fully particularised raises a reasonable prospect of success and was clearly discovered since the judgment complained of, the action will be stayed or dismissed as vexatious and an abuse of process of the Court (Birch v Birch [1902] P 130; Boswell v Coaks (No 2) (1894) 86 LT 365 (HL); Ongley v Brdjanovic [1975] 2 NZLR 242). This principle was, we note, also stated by her in Shannon v Shannon [2002] 3 NZLR 567 at [51] — see at [17] above.
(e)Where the Court is satisfied that in reality an allegation of fraud is a delayed application for a new trial or an attempt to relitigate matters already determined by the Court, the Court may exercise its discretion to strike out under r 186(b) or (c) or both.
(f)Fraud, if proved, overcomes res judicata. Lord Denning in Lazarus Estates Limited v Beasley [1956] 1 QB 702 at 712 stated that fraud unravels everything — it vitiates judgments. Potter J adopted the definition of fraud from Derry v Peek (1889) 14 App Cas 337 at 374 (HL), which held that fraud is a false statement made knowingly, or without belief in its truth, or recklessly, careless as to whether it be true or false.
13 The affidavit of 26 November 2021 was sworn in reply to Samantha’s affidavit of 8 November 2021, rather than Samantha’s affidavit of 20 September 2021 which was in opposition to Emora’s (unrelated) application to strike out Samantha’s statement of defence.
14 Shannon v Shannon [2005] NZCA 83, (2005) 17 PRNZ 587.
15 At [53].
[18] Shannon v Shannon was concerned with strike out of an application to set aside a judgment on the basis it was obtained by fraud (perjury at the earlier hearing) where the statement of claim did not contain adequate particulars of perjury. Potter J struck out the application to set aside the judgment on the grounds that it disclosed no reasonable cause of action and was an abuse of process.
[19] This case is quite different. Emora’s claim does not plead fraud. She claims undue influence and irregularities with the Will. It is Samantha’s strike out application that alleges fraud on the part of Emora. Shannon v Shannon does not assist Samantha. It does not allow me to bypass the normal assumption on a strike out application that the factual allegations in the statement of claim are true. That includes the pleaded factual allegations relating to undue influence, which call for explanation.16
[20] Moreover, it is no part of the Court’s function on this strike out application, nor is it possible on affidavit evidence, to assess whether Samantha’s allegations of fraud and perjury have merit.17 Like the undue influence and invalidity claims, they are issues for trial.
[21] I cannot conclude on this interlocutory strike out application that the statement of claim discloses no reasonably arguable cause of action or is an abuse of process.
[22]For these reasons, the strike out application cannot succeed.
Result
[23]The strike out application is dismissed.
[24]The plaintiff is entitled to 2B costs and disbursements as fixed by the Registrar.
16 Green v Green [2015] NZHC 1218 at [100].
17 In relation to the seriousness of perjury, Samantha referred to the criminal sentencing case of
Nisbet v R [2017] NZCA 476.
[25] I direct the registry to convene a case management conference as soon as convenient so that the proceeding can be timetabled to a substantive hearing.
Gault J
Parties / Solicitors:
Mr P Depledge, Barrister, Hamilton The Defendant
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