Korda Mentha v Siemer - [2012] NZHC 1074

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2005-404-001808 [2012] NZHC 1074

BETWEEN KORDA MENTHA (FORMERLY FERRIER HODGSON)
First Plaintiff

ANDMICHAEL PETER STIASSNY Second Plaintiff

ANDVINCENT ROSS SIEMER Defendant

CIV 2012-404-001133

AND BETWEEN VINCENT ROSS SIEMER Plaintiff

ANDMICHAEL PETER STIASSNY First Defendant

ANDKORDA MENTHA Second Defendant

Hearing: 19 March 2012

Appearances: P Hunt for Korda Mentha and M P Stiassny
F Deliu and M McFarland for V R Siemer in CIV-2012-404-001133
V R Siemer in person CIV-2005-404-001808

Judgment: 18 May 2012

(RESERVED) JUDGMENT OF ANDREWS J [Application by defendants to strike out statement of claim in CIV-2012-404-001133]

This judgment is delivered by me on 18 May 2012 at 2:30pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors: McElroys, DX CP20526, Upper Shortland Street peter.hunt@mcelroys.co.nz
F C Deliu, PO Box 68559, Newton 1145, Auckland fdeliu@amicuslawyers.co.nz

And to: V Siemer

KORDA MENTHA & ANOR V SIEMER HC AK CIV 2005-404-001808 [18 May 2012]

Introduction

[1] There are two proceedings, and two applications, before the Court. They are related.

(a) On 21 November 2011 (amended on 28 February 2012) Mr Siemer applied for an order to recall or set aside the judgment given by Cooper J on 23 December 2008 in the proceeding CIV-2005-404-
1808, in which Korda Mentha (formerly Ferrier Hodgson) and Mr

Stiassny are plaintiffs and Mr Siemer is defendant.

(b) On 28 February 2012 Mr Siemer issued the proceeding CIV-2012-

404-1133, in which he is plaintiff and Korda Mentha and Mr Stiassny are defendants. In his statement of claim Mr Siemer alleges that the judgment of Cooper J delivered on 23 December 2008 was obtained by fraud. He claims, by way of relief, an order setting Cooper J’s judgment aside. The defendants in the 2012 proceeding have applied to strike out Mr Siemer’s statement of claim in that proceeding, on the grounds that it is an abuse of process.

[2] In this judgment I shall refer to the proceeding brought by Korda Mentha and Mr Stiassny against Mr Siemer as “the 2005 proceeding”, to the judgment delivered by Cooper J on 23 December 2008 as “the 2008 judgment”, and to Mr Siemer’s application for an order for recall or setting aside that judgment as “Mr Siemer’s recall application”. I shall refer to the proceeding brought by Mr Siemer against Korda Mentha and Mr Stiassny as “the 2012 proceeding”, and to the application brought by Korda Mentha and Mr Stiassny to strike out Mr Siemer’s statement of claim as “the strike-out application”.

[3] Mr Siemer’s recall application, and the strike-out application, were both set down for hearing on 19 March 2012. This was pursuant to a direction of Allan J, recorded in a Minute issued after the strike-out application had been listed for mention in the Duty Judge list on 14 March 2012. His Honour directed that the strike-out application and Mr Siemer’s recall application were both to be before the

Judge at the hearing on 19 March 2012, so that the…

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.

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Details

Case: [2012] NZHC 1074
Decision Date: 18 May 2012

CaseChat Overview and Summary

The matter before the Court was an application by the defendants, Korda Mentha (formerly Ferrier Hodgson) and Michael Stiassny, to strike out a statement of claim filed by the plaintiff, Vincent Ross Siemer. The dispute arose from a proceeding between the parties in 2005, in which Siemer was debarred from defending and Cooper J subsequently awarded damages to Stiassny and Korda Mentha. Siemer filed a statement of claim in 2012, alleging that the 2008 judgment was obtained by fraud and seeking an order setting that judgment aside. The defendants argued that the 2012 proceeding was an abuse of process, and that the statement of claim should be struck out. The Court held that the statement of claim should be struck out, as it was an abuse of process. The Court found that the issues raised in the statement of claim had already been addressed and determined by the Court of Appeal and the Supreme Court, and that the 2012 proceeding was an attempt to re-litigate matters that had already been determined. The Court also rejected Siemer's allegations of fraud, finding that they had been dismissed by the higher courts. The defendants were awarded costs on a 2B basis.

Orders