Iles v Whenua

[2018] NZHC 695

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2018-485-62

[2018] NZHC 695

BETWEEN

MICHAEL ARTHUR ILES

Plaintiff

AND

TANIA TE WHENUA

First Defendant

AND

ROBYN ANN HARRIS-ILES

Second Defendant

Hearing:

On the papers

Counsel:

Plaintiff in Person

First and Second Defendants in Person

Judgment:

17 April 2018

JUDGMENT OF CLARK J

[1]                 The defendants have applied to have this proceeding transferred to the Rotorua Registry of the High Court on the basis the first defendant resides in Rotorua and the second respondent resides near Rotorua.

[2]Mr Iles, the plaintiff, is vehemently opposed to the application.

[3]                 The proper registry of the Court is the registry nearest to the place where the defendant, or defendants, have their principal place of business. Rule 5.1 provides:

5.1      Identification of proper registry

(1)The proper registry of the court, for the purposes of rules 5.25 and 19.7, is,—

(a)when a sole defendant is resident or has a principal place of business in New Zealand, the registry of the court nearest to

ILES v TE WHENUA [2018] NZHC 695 [17 April 2018]

the residence or principal place of business of the defendant, but when there are 2 or more defendants, the proper registry is determined by reference to the first-named defendant who is resident or has a principal place of business in New Zealand:

…

(2)Despite subclause (1)(a), if the place where the cause of action sued on, or some material part of it, arose is nearer to the place where the plaintiff or the plaintiff first-named in the statement of claim resides than to the place where the defendant resides, the proper registry of the court for the purposes of subclause (1) is, at the option of the plaintiff or the plaintiff first-named, as the case may be, the registry nearest to the residence of the plaintiff or the plaintiff first-named, as the case may be.

(3)If a plaintiff proposes to exercise the option conferred by subclause (2), the plaintiff must file with the statement of claim and notice of proceeding an affidavit by the plaintiff or the plaintiff’s solicitor stating the place where the cause of action or the material part of it arose, and that that place is nearer to the place where the plaintiff or the plaintiff first-named in the statement of claim resides than to the place where the defendant resides.

(4)If it appears to a Judge, on application made, that the statement of claim has been filed in the wrong registry of the court, he or she may direct that the statement of claim or all documents filed in the proceeding be transferred to the proper registry.

(5)If it appears to a Judge, on application made, that a different registry of the court would be more convenient to the parties, he or she may direct that the statement of claim or all documents be transferred to that registry and that registry becomes the proper registry.

[4]                 Where the plaintiff claims the registry should be somewhere other than provided in subcl (1) the plaintiff must file an affidavit with the statement of claim and notice of proceeding stating where the cause of action arose and whether that place is nearer to the plaintiff’s place of residence or the defendants’. Mr Iles failed to file such an affidavit. Thomas J, in a minute issued 23 March 2018, recorded Mr Iles’ opposition to the application but also gave him an opportunity to file the affidavit required to be filed under r 5.1(3).

[5]                 In his affidavit sworn 27 March 2018 the plaintiff deposes to many matters including matters of dubious admissibility, and many which are narrated in intemperate terms. That point aside, Mr Iles deposes to the Wellington Registry being the correct registry because that is where the “whole of the cause of action” arose.

[6]                 I do not rely solely on Mr Iles’ evidence in reaching my decision. Mr Iles is unrepresented. Determining the actual cause of action from his statement of claim is challenging.

[7]I have, however, decided that the Wellington Registry is the correct registry:

(a)Without engaging with the detail of the specific allegations in the statement of claim it seems relief is sought (partly) on the basis of allegations about the influences on a consent memorandum. That memorandum was completed in order for Gendall AJ to issue orders following a settlement conference with family members in Wellington in June 2013.

(b)There are allegations of fraud connected to other aspects of that settlement conference.

(c)A complaint to the Wellington District Law Society and a subsequent investigation is also at the centre of other aspects of the claim although I hesitate to call them “causes of action”.

[8]                 The point is, from the plaintiff’s affidavit and the application of r 5.1(2), it appears that a material part of the cause of action sued upon is nearer to the plaintiff’s (that is Mr Iles’) place of residence than to the defendants’.

[9]For these reasons, the application to transfer the proceeding is declined.

[10]             The matter should be listed for a case management conference (which the defendants’ may attend by telephone) to progress the defendants’ application for strike-out and any other issues that should be addressed.

Karen Clark J

Solicitors:

Wotton Kearney, Wellington for First Defendant