Mathieson v Hodges - [2014] NZHC 1722

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV 2014-476-47 [2014] NZHC 1722

BETWEEN
GABRIELLE PAULETTE MATHIESEN

First Plaintiff

GORDON WALLACE CAMERON McNAB, as one of the Trustees of the Sweet Pea Trust

Second Plaintiff

GORDON WALLACE CAMERON McNAB, as one of the Trustees of the Sweetpea Family Trust (the other Trustee being TREVOR DAVID HAY)

Third Plaintiff

GORDON WALLACE CAMERON McNAB, as one of the Trustees of the Greenpark Family Trust (the other Trustees appointed being TREVOR DAVID HAY and RONALD DUNCAN HERRON)

Fourth Plaintiff

AND

ALICE CLARE HODGES First Defendant

CRAIG ALAN O'CONNOR Second Defendant

JOHN MATTHEWS Third Defendant

ROB OSBORNE Fourth Defendant

ROBYN ANN COX, Official Assignee (South Island) and DEBORAH COLES Fifth Defendant

MANDY McDONALD Sixth Defendant

MATHIESEN v HODGES [2014] NZHC 1722 [23 July 2014]

RUSSELL FILDES Seventh Defendant

DAVID MILLER Eighth Defendant

Hearing: 23 July 2014

Counsel:

G P Mathiesen, G W C McNab and T D Hay, Plaintiffs
A R McRae for Defendants

Judgment:

23 July 2014

(ORAL) JUDGMENT OF HEATH J

[1] Today was the first call of a proceeding brought by Mrs Mathiesen, Mr McNab and Mr Hay, in varying capacities, alleging contempt in respect of a number of persons. They include two Associate Judges of this Court, a Registrar and Deputy Registrar of the Court, a barrister and solicitor from Timaru, and Official Assignees. The proceeding concerns the bankruptcy of Mrs Mathiesen.

[2] At the commencement of today’s hearing Mr McNab asked that I recuse myself. Out of fairness, he indicated that he was prepared to put the grounds in writing if necessary. One of the specific points that he raised with me concerns the person who acted as solicitor for the creditor who brought bankruptcy proceedings against Mrs Mathiesen.

[3] The applicant creditors’ solicitor was Mr David Nielson of Nielson Law in Hamilton. Mr McNab raised with me the fact that I had been in partnership with Mr Neilson when in practice. I accept that. To the best of my recollection, my time in partnership with him ceased around 1994, some 20 years ago. Certainly, I knew nothing about the present proceeding or any involvement that he may have had in it.

[4] In any event, based on orthodox authority, there is no need for me to recuse myself in circumstances where procedural orders are to be made rather than dealing with a substantive question. As I would not, in any event, be the Judge who would

hear the substantive application, I intend today to make procedural orders and to leave substantive decisions for the Judge hearing them. That being so, it is not necessary for me to rule expressly on the recusal application.

[5] A second point that has been raised concerns Mr McRae’s appearance today, on behalf of all defendants. He is appearing on instructions from the Crown Law Office. I have raised with Mr McRae the need to reconsider his involvement as one of his partner’s is named as a defendant. On the face of…

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 Mathieson v Hodges

Details

AGLC: Mathieson v Hodges [2014] NZHC 1722
Case: [2014] NZHC 1722
Decision Date: 23 July 2014

CaseChat Overview and Summary

In Mathieson v Hodges, the plaintiffs, including Mrs Mathieson and Mr McNab in various capacities, filed a proceeding in the High Court of New Zealand, Timaru Registry, against several defendants alleging contempt in relation to Mrs Mathieson's bankruptcy. The defendants included two Associate Judges, a Registrar and Deputy Registrar of the Court, a local barrister and solicitor, and Official Assignees. The primary focus of the proceeding was on the bankruptcy of Mrs Mathieson. The plaintiffs sought various orders related to the contempt proceeding, including the potential annulment of the bankruptcy adjudication order.

The court was tasked with addressing preliminary procedural issues before reaching the substantive merits of the case. The key legal issues included whether the judge should recuse himself due to prior professional relationships with one of the parties' solicitors, and whether the representative of the Crown defendants should continue to act given potential conflicts of interest. Additionally, the court considered whether to combine the contempt proceeding with an application for annulment of the bankruptcy adjudication order.

The judge declined to recuse himself, noting that the matter before him was procedural rather than substantive. The court also suggested that it might be preferable for someone other than Mr McRae, who was appearing on behalf of all defendants and whose partner was named as a defendant, to represent the Crown defendants. The court set deadlines for filing notices of opposition and affidavits, and scheduled the hearing for one day in September 2014. The judge indicated that while he had considered an application for annulment of the adjudication order, he would not press this point further if the plaintiffs intended to pursue a full quashing of the bankruptcy proceeding instead.

This case underscores the importance of addressing potential conflicts of interest and ensuring procedural fairness in court proceedings, particularly in complex matters involving multiple parties and potential judicial bias. The court's decision to reserve judgment on costs and to set a clear timetable for the proceeding reflects a measured approach to managing the complex issues presented.

Orders