Huljich v Huljich - [2018] NZHC 2205

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FURTHER ORDER OF THE COURT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-002631

[2018] NZHC 2205

BETWEEN
ELIZABETH HULJICH

Plaintiff

AND

CHRISTOPHER PETER HULJICH

First Defendant

AND

PETER KARL CHRISTOPHER HULJICH

Second Defendant

AND

MICHAEL STEPHEN HULJICH

Third Defendant

Hearing: 17 August 2018

Appearances:

John Katz QC and Aaron Nicholls for the Plaintiff Jenny Cooper QC and Honor Ford for the Defendants

Judgment:

24 August 2018

JUDGMENT OF MOORE J

This judgment was delivered by me on 24 August 2018 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

HULJICH v HULJICH & ORS [2018] NZHC 2205 [24 August 2018]

Introduction

[1] Unless orders are self-executing; the sanction applies without further order if the party in default fails to comply with the order by the time specified.1 But where the breach was not deliberate, and the interests of justice so require, it may be excused.

[2] Unless orders were made on 24 May 2018 and 24 July 2018. The deadline for compliance passed on 1 August 2018. The issue here is whether this is a case where temporary relief from sanction should be granted.

Background

[3] It is unnecessary to traverse the lengthy background to this proceeding in detail. What is relevant is that the plaintiff, Elizabeth Huljich, has had proceedings on foot against one of her sons since October 2014. The proceedings have their genesis in events in preceding years. Since August 2015 and May 2017, she has also pursued claims against a further son and a grandson.

[4] The present proceedings have been plagued by delay and non-compliance by the plaintiff. This has included a chronic failure to provide particulars and the engagement then termination of various counsel. For long periods, the plaintiff has been self-represented.

[5] In April this year Associate Judge Smith delivered a judgment ordering the provision of further particulars in a sixth amended statement of claim.2 Neither that claim, nor the two which followed, satisfactorily complied with the order. The eighth amended statement of claim is currently before the Court. It too remains deficient in certain respects.

[6] The trial was scheduled to commence on 13 September 2016; then 9 July 2018. I adjourned the fixture to 3 December 2018 on 24 May 2018. At the same time I made unless orders requiring a sixth amended statement of claim to be filed and served by 5:00 pm on 29 June 2018, and for briefs of evidence and an index of documents for

1 SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494 at [29].
2 Huljich v Huljich [2018] NZHC 836.

the common bundle to be filed by 13 July 2018. If the plaintiff failed to comply, her claim would be struck out.

[7]…

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 Huljich v Huljich

Details

AGLC: Huljich v Huljich [2018] NZHC 2205
Case: [2018] NZHC 2205
Decision Date: 24 August 2018

CaseChat Overview and Summary

In Huljich v Huljich, the plaintiff, Elizabeth Huljich, sought relief from sanctions imposed on her for non-compliance with court orders in proceedings against her sons and grandson. The defendants argued that the plaintiff's claim should be struck out entirely. The issues before the court were whether the plaintiff's non-compliance was deliberate, whether justice required relief from the sanctions, and if so, what form that relief should take.

Moore J concluded that while the plaintiff's non-compliance was irresponsible, it was not deliberate due to her age-related mental health issues. The court found that justice required a limited period of relief to allow the plaintiff a final opportunity to remedy the deficiencies in her claim. The court granted relief on the condition that the plaintiff provide further particulars by 31 August 2018, failing which the claim would be struck out. The court also rescinded an earlier order prohibiting the filing of further evidence and granted a short extension until 31 August 2018, subject to certain conditions.

The court ordered that the plaintiff provide further particulars and file a ninth amended statement of claim by 31 August 2018. The claim for equitable damages under the sixth cause of action was struck out. The defendants were required to serve their briefs of evidence by 31 October 2018. The defendants were awarded indemnity costs for the proceedings before the court.

Orders