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 it, it would be preferable for someone from Crown Law Office (or another Crown Solicitor’s office) to appear as counsel at the hearing.  I leave that for the Crown defendants to consider.  I reserve Mr McNab’s and Mrs Mathiesen’s position.   Should a decision be made that Mr McRae continue, they would have the right to apply for him not to act further if necessary.

[6]      A notice of opposition and affidavits in opposition shall be filed and served on or before 15 August 2014.  Any affidavits in reply shall be filed and served on or before 5 September 2014.  The application is set down for one day in the High Court at Timaru at 10am on 15 September 2014.

[7]      I  canvassed  with  Mr  McNab  and  Mrs  Mathiesen  the  possibility  of  an application for an annulment being made under s 309(1)(a) of the Insolvency Act

2006 so that the central issue concerning the validity of the adjudication order could be addressed directly.  Subject to whatever another Judge may say, I would not see that as arising directly in the contempt proceeding; but I stand to be corrected if another Judge takes a different view.  However, Mr McNab has indicated that that will not go far enough for Mrs Mathiesen’s purposes as his concern is that the bankruptcy proceeding be quashed in full rather than the adjudication order itself.

[8]      In those circumstances, I do not press the point.  My intention had been to have the two applications set down together if there was an intention to pursue them. As it stands at present only the contempt proceeding will be called and dealt with on

15 September 2014.

[9]      All questions of costs in relation to the contempt proceeding are reserved.

P R Heath J

Solicitors:

Crown Solicitor, Timaru
Crown Law Office, Wellington

Copies to:

GP Mathiesen, First Plaintiff
G W C McNab, Second Plaintiff