McMahon v Royal New Zealand Foundation of the Blind Incorporated
[2021] NZHC 2052
•9 August 2021
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2020-488-112
[2021] NZHC 2052
UNDER the Senior Courts Act 2016 IN THE MATTER OF
proceedings brought by Angeline Clark McMahon against the Royal New Zealand Foundation of the Blind Incorporated
BETWEEN
ANGELINE CLARK McMAHON
Appellant
AND
THE ROYAL NEW ZEALAND FOUNDATION OF THE BLIND INCORPORATED
Respondent
Hearing: 21 April 2021
Further submissions 9, 11 and 21 May 2021
Counsel:
G J Thwaite for appellant N J Hartwell for respondent
Judgment:
9 August 2021
RESERVED JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 9 August 2021 at 4.30pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Gregory J Thwaite, Auckland for appellant WRMK Lawyers, Whangarei for respondent
McMAHON v THE ROYAL NEW ZEALAND FOUNDATION OF THE BLIND INCORPORATED [2021] NZHC 2052 [9 August 2021]
Introduction [1]
The proceeding in the Tenancy Tribunal [2]
The appeal from the District Court [3]
The application for an extended order under s 166(1) Senior Courts Act 2016 [4]
The background facts [5]
The applications to validate the will and for grant of letters of administration [9]
The engagement of Henderson Reeves by the Foundation [18]
The steps taken to terminate Ms McMahon’s tenancy [19]
The possession proceeding before the Tenancy Tribunal [25]
Ms McMahon’s application to the Tenancy Tribunal for a rehearing [28]
Ms McMahon’s appeal to the District Court [31]
The District Court’s decision [33]
The appeal to this Court on questions of law [38]
Ms McMahon’s challenges to the District Court’s decision [38]
The Foundation’s response to the appeal [42]
Decision on the appeal [45]
What is the effect of Henderson Reeves acting for the Foundation? [45]
The merits of Ms McMahon’s rehearing application [51] Ms McMahon’s application for remedies – Residential Tenancies Act [55] Foundation’s application for extended order under ss 166 of the Senior Courts Act 2016 [60]
The alleged grounds for the section 166 order [61]
The Court of Appeal’s decision in Mawhinney v Auckland Council [65]
The sale of the Tavinor Road property [67]
The merits of the two sets of proceedings [71]
The rehearing application and subsequent appeals [71]
The application for relief in reliance on s 60 RTA [74]
Are there two proceedings that were totally without merit? [78]
Should an order be made? [79]
Orders [90]
Costs [92]
Introduction
[1] This judgment concerns separate but related proceedings arising from decisions of the Tenancy Tribunal and District Court about the occupation of a property at 145 Tavinor Road, Otaika, near Whangārei (the Tavinor Road property) by the appellant, Ms Angeline Clark McMahon. The property was part of the estate of Mr Graham Rowles who died on 2 February 2017. It has two dwellings on it, one occupied by Mr Rowles at the time of his death and the other occupied by Ms McMahon, who had been paying rent up to and including 31 October 2016.
The proceeding in the Tenancy Tribunal
[2] On 16 March 2020, the Tenancy Tribunal made an order under s 64 of the Residential Tenancies Act 1986 (the RTA) granting possession of the property to a firm of solicitors, Henderson Reeves Connell Rishworth Lawyers Limited (Henderson Reeves), as landlord. The law firm was acting as representative of the late Mr Rowles’ estate. On 7 September 2020, the Tribunal refused an application by Ms McMahon under s 105 of the RTA to grant her a rehearing following its 16 March 2020 decision.
The appeal from the District Court
[3] On 30 November 2020, Judge D J McDonald dismissed Ms McMahon’s appeal against the Tribunal’s refusal of a rehearing. Ms McMahon appeals to this Court against that decision, under s 115 of the RTA.
The application for an extended order under s 166(1) Senior Courts Act 2016
[4] The other proceeding before the Court is an interlocutory application made by the Royal New Zealand Foundation of the Blind Incorporated (the Foundation), the sole beneficiary of Mr Rowles’ estate. It had been substituted for Henderson Reeves as a party to the Tenancy Tribunal proceeding and now seeks an extended order under s 166(1) of the Senior Courts Act 2016 restraining Ms McMahon from commencing or continuing civil proceedings on matters related to the Tavinor Road property and Mr Rowles’ estate. The Foundation asserts that such an order is justified because at least two proceedings brought by Ms McMahon about the matters before the Tenancy Tribunal, in the District Court and in this Court, were or are without merit. I set out
the somewhat unusual background facts before addressing the legal issues that arise on the appeal and the application.
The background facts
[5] At the time of his death, Mr Rowles owned the Tavinor Road property. Ms McMahon had occupied the smaller of the dwellings for some years and, although she occupied the dwelling at the time of Mr Rowles’ death, she had ceased paying rent after 31 October 2016.
[6] Mr Rowles is not survived by family members or any other dependant. He did not leave a valid will but, not long after his death, Ms McMahon found among his papers a typewritten but unsigned document purporting to be his last will and testament. The document reads:
THIS IS THE LAST WILL AND TESTAMENT OF GRAHAM CECIL ROWLES, BORN IN WIMBLEDON, SOUTH LONDON, ENGLAND ON THE 26TH JULY 1935.
1.HAVING NO DEPENDANTS, I LEAVE MY ENTIRE ESTATE TO THE NEW ZEALAND GUIDE DOGS FOR THE BLIND ASSOCIATION, AS SOLE BENEFICIARY.
2.ONE OF THE FEW FAULTS I DO NOT HAVE IS THAT OF HYPOCRISY SO AFTER DEATH REQUIRE [SIC] CREMATION WITHOUT ANY RELIGIOUS INPUT AND DISPOSAL OF MY ASHES ON NON-CONSECRATED GROUND, WITHOUT IDENTIFICATION.
N.B. Arrange for ashes to be mixed with ground bait and thrown into River Severn from the bridge over the river at Bewdley, Worcestershire, England (where I first started fishing at aged 8 years!) ensuring my ex-wife is unaware of the arrangement. XXXXX X FIND DETAILS OF SECRETARY OF LOCAL FISHING CLUB TO REQUEST ASSISTANCE. E-MAIL JOHN
GOODRICK FOR HELP
[7] Ms McMahon also located a “financial health-check” prepared by financial adviser, Neville Glaser, as at May 2015. It indicated that Mr Rowles’ assets then comprised:
·the Tavinor Road property, estimated to have a value in 2015 of
$1 million
·NZ$520,000 in shares in overseas funds
·NZ$1 million in fixed interest bonds in Luxembourg
·NZ$1 million in cash held in a Singapore bank account
·$500,000 held in a New Zealand bank (Westpac).
[8]The total value of the assets was estimated to be $4,020,000.
The applications to validate the will and for grant of letters of administration
[9] In early May 2017, Ms McMahon took the typewritten document and other papers belonging to Mr Rowles, including bank statements, to Henderson Reeves and sought advice. A solicitor employed by the firm, Ms Gabrielle Thompson, took her instructions. On 3 May 2017, Mr Thomas Biss, a director of the firm, wrote a letter addressed to:
Estate of Graham Cecil Rowles C/- Angeline McMahon
145 Tavinor Road
RD 10Whangarei 0170
[10] The letter was emailed to Ms McMahon’s business address. It was headed “Estate Administration” and began:
Thank you for asking us to work with you on this matter. In this letter we will set out the terms on which we will provide our services to you.
Services to be provided
You have asked us to act on behalf of you in relation to the administration of the late Graham Rowles estate.
[11] The letter set out the names and charge-out rates of personnel within the legal practice and terms for payment of fees. There was provision at the end of the letter for acceptance of the terms as follows:
The above terms are accepted and you are requested to act in this matter.
[12] Ms McMahon signed the acceptance on 4 May 2017. That day, Ms Thompson wrote to Westpac Bank, which held accounts in Mr Rowles’ name, saying:
LATE GRAHAM CECIL ROWLES
We confirm we are acting in respect of the Estate of Graham Cecil Rowles. We have been instructed by Ms Mahon [sic] who is applying for Letters of Administration for the above named.
The application will be made in due course.
[13] Ms Thompson took detailed instructions from Ms McMahon on 17 May 2017 in connection with a proposed application under s 14 of the Wills Act 2007 to have Mr Rowles’ typewritten document declared to be his valid will. That was on the basis that Ms McMahon had given instructions that she simply wished Mr Rowles’ testamentary wishes to be given effect. The Foundation had been identified by Henderson Reeves as the likely intended beneficiary referred to in Mr Rowles’ document as “the New Zealand Guide Dogs for the Blind Association”. After being advised that the Administration Act 1969 required a beneficiary to apply for probate, Ms McMahon had approved Mr Biss’s proposal that, once the will was declared valid, a representative of the Foundation would make the application. On 14 July 2017, he obtained Ms McMahon’s express approval to the firm’s acting for the Foundation in applying for letters of administration on the basis of the fee arrangements which had previously been agreed by Ms McMahon.
[14] A draft affidavit was sent to Ms McMahon on 19 September 2017. She requested some changes and the amended draft was sent to her on 29 September 2017. According to an affidavit sworn and filed by Mr Biss in support of the will validation application, he tried to contact Ms McMahon “on multiple occasions over many months to ask her to finalise the draft affidavit”. He said that, for reasons he did not understand, Ms McMahon had not attended Henderson Reeves’ offices. Up to that point the firm had done no more than take instructions from Ms McMahon on two occasions and prepare the draft papers for the will validation application. Ms McMahon had never claimed any interest in Mr Rowles’ estate and had said only that she wished Mr Rowles’ wishes should be respected.
[15] Although it had been intended initially that Ms McMahon would apply for the validation of the will and that the Foundation would then apply for letters of administration, the failure of Ms McMahon to respond to Henderson Reeves’ requests for instructions regarding the will validation application led to the Foundation, through Mr Gregory Hurn as its nominee, taking over the role of applicant in both proceedings.
[16] On 23 October 2018, an order was made by the High Court declaring the typewritten document to be the valid will of Mr Rowles.
[17] On 24 January 2019, letters of administration were granted to Mr Hurn, as the nominee of the Foundation, to administer Mr Rowles’ estate for the Foundation’s benefit.
The engagement of Henderson Reeves by the Foundation
[18] The Foundation paid Henderson Reeves’ fees for the firm’s services from the time it was first given the draft will by Ms McMahon until the grant of the letters of administration. The correspondence and affidavits make it clear that Henderson Reeves considered that any relationship that it had had with Ms McMahon as her solicitors regarding Mr Rowles’ affairs had terminated through her failure to respond to Mr Biss’s requests for her to complete the affidavit in the will validation proceeding.
The steps taken to terminate Ms McMahon’s tenancy
[19] Conflict between Henderson Reeves and Ms McMahon became apparent on 18 February 2019 when Henderson Reeves wrote to Ms McMahon advising her that letters of administration in relation to the will had been granted. Ms McMahon was asked:
(a)what the arrangement was between Mr Rowles and her in terms of the payment of rent;
(b)what she understood were the terms of her tenancy of the dwelling on the Tavinor Road property which she occupied; and
(c)whether she held the keys to the Tavinor Road property and, if not, whether she knew who did.
[20] The letter also said that, subject to Ms McMahon’s responses to those questions, the estate would shortly be giving her formal notice to terminate her occupation of the property.
[21] Ms McMahon responded by email that day without answering the questions raised. Instead, she alleged that Henderson Reeves’ engagement as the Foundation’s solicitors was in conflict with her instructions to the firm and that Henderson Reeves had failed to keep her informed. Henderson Reeves replied saying that whatever complaint she might have against the firm, she was living on estate property and again sought her response to the questions.
[22] On 30 March 2019, Ms McMahon emailed Mr Hurn, referring to a meeting they had had on 28 February 2019. She alleged that Henderson Reeves had obtained information from her “by false pretence and had acted contrary to and outside the scope of her instructions to the firm”. She said that she did not expect Henderson Reeves should have any further involvement in matters pertaining to her or the administration of Mr Rowles’ estate. She proposed that she and her children should be recognised as beneficiaries of the real properties and other chattels at Tavinor Road and that she should be considered as the person who should be acting in the capacity as administrator of the estate. Mr Hurn instructed Henderson Reeves to respond to the email.
[23] On 5 July 2019, Mr Biss emailed Ms McMahon saying Henderson Reeves had always understood that she had no interest in, or claim on, the estate. Mr Biss told Ms McMahon that, as administrator of the estate, Mr Hurn’s duty was to collect in the estate’s assets and distribute them. He said part of that would involve selling the Tavinor Road property and that formal notice would be given to her.
[24] On 23 July 2019, a letter from Mr Biss was hand-delivered to Ms McMahon’s letterbox by a process server. It informed Ms McMahon that the firm was acting for Mr Rowles’ estate and that the letter served as notice to terminate her tenancy at the
Tavinor Road property. The last day of the tenancy was to be 31 October 2019. Ms McMahon did not leave the property.
The possession proceeding before the Tenancy Tribunal
[25] On 14 November 2019, Henderson Reeves filed in the Tenancy Tribunal an application for a possession order under the RTA. Henderson Reeves was the named applicant in the proceeding. After a hearing on 13 March 2020 attended by Ms McMahon, the order was made on 16 March 2020. The reasons for the order affirmed Henderson Reeves’ right to make the application as the agent of the executor of the estate. The Tribunal held that:1
(a)the sale of the property pursuant to Mr Hurn’s duty to distribute the estate gave him the power to terminate Ms McMahon’s right to occupy the property;
(b)the tenancy was lawfully terminated on 31 October 2019; and
(c)Henderson Reeves, as agent, was entitled to the order for possession under s 64 of the RTA.
[26] Ms McMahon had until 30 March 2020 to file a notice of appeal against the Tribunal’s decision.2 She did not appeal and, despite the Tribunal’s order, she did not leave the property.
[27] On 12 June 2020, Henderson Reeves filed an application with the Tenancy Tribunal to enforce the possession order; Ms McMahon was told she had until 29 June 2020 to leave the property voluntarily. A settlement offer involving the payment of a substantial sum of money was made but Ms McMahon neither accepted the offer nor vacated the property. In a letter dated 10 July 2020 addressed to counsel then acting for Ms McMahon, Ms McMahon was informed that a bailiff would be instructed to proceed with her eviction.
1 Henderson Reeves Connell Rishworth Lawyers Ltd v McMahon [2020] NZTT Whangarei 4215700 (16 March 2020).
2 Residential Tenancies Act 1986, s 117(6).
Ms McMahon’s application to the Tenancy Tribunal for a rehearing
[28] On 13 July 2020, Ms McMahon applied for rehearing of the Tribunal’s possession order and sought a stay of proceedings. The application for a rehearing was made under s 105(1) of the RTA on the grounds that:
· Henderson Reeves was not entitled to represent the owner of the property because it was acting for Ms McMahon at relevant times;
· the application should not have been brought in the name of Henderson Reeves as agent;
· the Tribunal did not have jurisdiction in the matter because it had not been established that there was a tenancy agreement between Ms McMahon and Mr Rowles and Ms McMahon had not been paying rent since October 2016; and
· Ms McMahon had a continuing right to occupy the premises because the eviction notice was invalid.
[29] The Tribunal granted a stay on 15 July 2020. Although the Tribunal’s decision does not say so expressly, it is clear that the stay was intended to preserve Ms McMahon’s position pending the disposition of her application for a rehearing.
[30] The rehearing application was dismissed by order of the Tribunal on 7 September 2020,3 principally for the reasons that the grounds for the application were a challenge to the substantive reasons for the Tribunal’s original decision and did not afford grounds for a rehearing. The Tribunal held that, as properly appointed agent of the Foundation, which owned the property, Henderson Reeves was the landlord within the definition of “landlord” in the RTA4 and was entitled both to bring the proceeding in the Tribunal in its own name and also to issue a 90-day termination notice.
3 Henderson Reeves Connell Rishworth Lawyers Limited v McMahon [2020] NZTT Whangarei 4215700 (7 September 2020).
4 Residential Tenancies Act 1986, s 2.
Ms McMahon’s appeal to the District Court
[31] The notice of eviction was re-activated and, on 21 September 2020, a bailiff attended at the Tavinor Road property. On becoming aware of the bailiff’s presence, Ms McMahon filed a notice of appeal in the District Court that day and applied for a stay of proceedings, which was granted. The grounds of appeal were:
(a)the Tribunal had failed to take into account the ethical obligations of Henderson Reeves because the firm had acted for Ms McMahon at the outset and should not have acted against her on behalf of the Foundation when it came to applying for an order for possession of the property;
(b)Henderson Reeves should not have issued the eviction notice;
(c)the Tribunal had failed to establish that a tenancy existed;
(d)the adjudicator had failed to address substantial grounds advanced in support of the rehearing application; and
(e)Ms McMahon had been denied access to a lawyer to represent her.
[32] The Foundation was substituted as respondent in place of Henderson Reeves in an oral decision delivered by Judge McDonald during the hearing of Ms McMahon’s appeal on 14 October 2020.5
The District Court’s decision
[33] On 30 November 2020, Judge McDonald dismissed Ms McMahon’s appeal.6 After traversing the background, including the procedural history of the proceeding in the Tribunal, the Judge agreed with the adjudicator’s view that Ms McMahon’s challenges to the substance of the original decision were not grounds upon which a rehearing could be granted. The Judge held that the proper procedure for challenging the Tribunal’s order for possession on the basis she asserted was an appeal.
5 McMahon v Royal New Zealand Foundation of the Blind [2020] NZDC 21308.
6 McMahon v Royal New Zealand Foundation of the Blind [2020] NZDC 24802.
[34] Judge McDonald acknowledged that a fundamental issue was whether Henderson Reeves acted improperly by representing the Foundation in the Tenancy Tribunal and taking steps to evict Ms McMahon when it was, at the same time, acting for her. The Judge said the evidence did not establish that Henderson Reeves was acting for Ms McMahon at the commencement of the proceedings in the Tenancy Tribunal, there being no evidence that Ms McMahon was ever liable for, or paid, any fees to the firm. In any event, the Judge found that the firm had not used any personal information that might have come to them while Ms McMahon might have been a client. He held that, by the time the application was made for a possession order, Ms McMahon had ceased to be (if she ever was) a client for some two years. He found also that Ms McMahon had been given an adjournment between January 2020 and March 2020 to allow her time to instruct counsel if she wished to do so. There was evidence before the Tribunal that Ms McMahon had, in fact, consulted with a lawyer and received advice.
[35] The Judge also referred to s 85 of the RTA, which he said made special provision for the way in which the Tribunal’s and, on appeal, the District Court’s jurisdiction should be exercised:7
85 Manner in which jurisdiction is to be exercised
(1)Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies.
(2)The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
[36] The Judge was satisfied that even if a rehearing was granted, Ms McMahon would either be a tenant or a squatter but, in either capacity, one who had no right to be on the property.
[37] The Judge also held that the appeal was one against a discretion and that the District Court should be cautious to allow an appeal where it comes from the
7 See Residential Tenancies Act 1986, s 117(4).
discretionary power. Those observations, however, were misguided. The right of appeal provided by the RTA is a right of general appeal which proceeds by way of rehearing. Accordingly, the approach to be taken is that explained by the Supreme Court in Kacem v Bashir.8 Those exercising general rights of appeal are entitled to judgment in accordance with the appellate court’s opinion, even where that opinion involves an assessment of fact and degree and entails a value judgement. However, the observations about appeals from a discretion were made by Judge McDonald in passing and did not form part of his substantive reasoning. His approach to dismissing the appeal was orthodox and consistent with applicable principles.
The appeal to this Court on questions of law
Ms McMahon’s challenges to the District Court’s decision
[38] Ms McMahon appeals to this Court, under s 119 of the RTA, on the ground that the decision of the District Court was erroneous in point of law.
[39]The questions of law raised in the notice of appeal are:
(a)Whether a tenancy agreement between Ms McMahon and the owner of the property existed.
(b)Questions about the existence of a solicitor/client relationship between Ms McMahon and Henderson Reeves, including questions about:
· the commencement of the relationship;
· the duties of the respective parties to the relationship;
· the compliance by each party with the duties; and
· the termination (if any) of the relationship.
8 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32] per Tipping J, citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
(c)Whether any notice purportedly issued by Henderson Reeves to Ms McMahon was valid.
(d)Questions about the validity of Henderson Reeves acting as applicant against Ms McMahon in the Tenancy Tribunal and in the District Court.
(e)Questions about the priority of the competing interests identified by the parties, being:
· “the integrity of the legal order as expressed in the role of solicitors and their duties, in the context of the Rule of Law”; and
· for the Foundation, as a charity, the importance of removing a tenant from a property.
[40] Explaining these propositions, Mr Thwaite argues that there were two matters that justified a rehearing in the exercise of the Court’s duty to uphold the rule of law:
(a)Ms McMahon’s unfortunate history with judicial proceedings in the Court at Whangarei, which culminated in a judgment of the Court of Appeal vindicating her, notwithstanding that she had served six months of a sentence of imprisonment.9 Mr Thwaite said that the Court should not overlook the impact of that experience on Ms McMahon as she tried to present her own case in the Tenancy Tribunal having previously suffered unnecessary incarceration away from her family and “various indignities which the judicial system imposed upon her.”;
(b)The conduct of Henderson Reeves in accepting instructions from Ms McMahon and then turning on her, after the firm had acted for the Foundation in obtaining letters of administration of Mr Rowles’ will, by playing an active role in evicting Ms McMahon “from her own home” on the basis of a document that she had provided to them. In referring to the power imbalance between the law firm and
9 McMahon v R [2009] NZCA 472.
Ms McMahon, Mr Thwaite argued that she was not in a position to argue the key issues relied upon in the District Court in seeking to obtain a rehearing.
[41] Mr Thwaite also suggests Ms McMahon has an available argument about the “priority” of societal values “in a nation said to be under the Rule of Law”. He questions whether greater priority should be given to the right of a landlord to evict a woman from her home or to maintaining the rule of law for solicitors by penalising solicitors and other persons in league with them in violating ethical obligations. Counsel also suggests that a question not addressed in the Tribunal or the District Court is whether it was appropriate for a charitable organisation to be involved in an eviction process, displacing a woman and her family from their home.
The Foundation’s response to the appeal
[42] In response, the Foundation argues that the District Court correctly dismissed the rehearing application and that the judgment does not give rise to arguable questions of law. On the facts found by the adjudicator, Ms McMahon paid rent up to November 2016 and Mr Rowles then appears to have accepted Ms McMahon’s tenancy on the basis that she provided services in the form of assistance with his cattle, companionship and, as described by Ms McMahon, a buffer for him from “predatory females”. It was open to the Tribunal to hold, as it did, that such services or other consideration came within the definition of rent in s 2 of the RTA. The definition reads:
Rent means any money, goods, services or other valuable consideration in the nature of rent to be paid or supplied under a tenancy agreement by the tenant
…
[43] Moreover, if Ms McMahon was simply a squatter, paying no rent, the Tribunal was entitled to issue the possession notice.
[44] On the issue of Henderson Reeves’ ethical obligations, the Foundation argues that Ms McMahon was never a client of Henderson Reeves. Alternatively, it says that the solicitor/client relationship ended when Ms McMahon failed to respond to repeated requests to engage in the application for validation of the will. It is clear, it
is submitted, that by the time Henderson Reeves had obtained letters of administration of the will in favour of Mr Hurn and approached Ms McMahon concerning her continued occupation of the property, it was no longer in a solicitor/client relationship with her. The Foundation also argues that, if there had been an ethical breach of Henderson Reeves’ obligations by acting against a former client in that way, Ms McMahon’s remedies against Henderson Reeves did not lie in proceedings in the Tenancy Tribunal in which Henderson Reeves personally had no interest. Ms McMahon had made direct personal contact with representatives of the Foundation and had been receiving advice from a lawyer at all relevant times. As well, on 14 July 2017, Ms McMahon had approved the letter from Henderson Reeves to the Foundation discussing the proposed application by the Foundation for the grant of letters of administration.
Decision on the appeal
What is the effect of Henderson Reeves acting for the Foundation?
[45] I have read the judgment of the Court of Appeal in Ms McMahon’s 2009 case and I appreciate that she has a genuine sense of grievance about her treatment by the judicial process. But her grievance that Henderson Reeves acted for the Foundation over the will, notwithstanding that she had found it and given the firm initial instructions, does not provide her with a basis for challenging the grant of letters of administration to the Foundation as the beneficiary named in what this Court declared to be Mr Rowles’ valid will.
[46] I acknowledge that it appears on the face of the exchanges of correspondence between Henderson Reeves and Ms McMahon, and between Henderson Reeves and the Foundation, that Henderson Reeves accepted instructions to act for Ms McMahon as the applicant for an order validating as a will the typewritten document she had located among Mr Rowles’ papers. Ms McMahon accepted the liability of meeting the firm’s costs as set out in the engagement letter. The initial intention was that the firm would then act for the beneficiary in obtaining letters of administration.
[47] A contract of retainer between lawyer and client can come to an end on the lawyer being discharged from the engagement by the client; by agreement between
the lawyer and client; or by the lawyer terminating for just cause and with notice.10 In New South Wales, the termination of a client’s retainer can be express or inferred; it is unnecessary to construe a formal offer and acceptance in order to find a termination.11 In New Zealand, the Client Care Rules applying to the legal profession do not require a particular form of communication to terminate a retainer. I note that a client has a right to terminate a retainer at any time12 and the relationship may also come to an end naturally, once the work is complete, which will be the usual case for most solicitor/client relationships.13 Adopting the Australian approach of inferring a retainer’s termination from “the intention objectively manifested by the parties”,14 it is arguable that the termination of the retainer could be inferred from Ms McMahon’s conduct in failing to respond to Mr Biss’s requests for her to attend on the firm to swear the affidavit for the will validation application. And since Ms McMahon had approached the Foundation directly about the document she had discovered and told its representatives that she wished Mr Rowles’ testamentary wishes to be given effect, the Foundation was entitled to instruct Henderson Reeves to act on the Foundation’s application for validation and, subsequently, the grant of letters of administration. That course of action had been approved by Ms McMahon when she endorsed the letter Henderson Reeves sent to the Foundation on 24 July 2017 seeking confirmation of its instructions.
[48] I do not accept that, in providing Henderson Reeves with the document she had found in Mr Rowles’ house, Ms McMahon was conveying confidential information to the law firm. Taking the document to a firm of solicitors to obtain advice about what should be done with what appeared to be an expression of Mr Rowles’ wishes concerning the disposition of his estate, Ms McMahon was acting properly as a friend of the deceased man whom she knew had no family or other dependents. Finding the document gave her no proprietary interest in it and the Foundation was entitled to instruct Henderson Reeves to act upon it. In any event, Ms McMahon waived any
10 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rr 4.2 and 4.3.
11 Tecnicas Reuindas SA v Andrew [2018] NSWCA 192 at [47].
12 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rr 4.3, 4.4 and
4.5. See also Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at [49].
13 Matthew Palmer (ed) Professional Responsibility in New Zealand (online ed, LexisNexis) at [16.4.1].
14 Tecnicas Reuindas SA v Andrew, above n 11, at [47].
legal professional privilege about finding the document when she raised the matter with the Foundation. Since the Foundation’s instructions to obtain validation of the will and probate did not conflict with any interest of Ms McMahon, I am not persuaded that Henderson Reeves acted improperly in acting for the Foundation in this Court in the proceeding that resulted in Mr Rowles’ estate being vested in the Foundation.
[49] I acknowledge, however, that there is a tenable argument that Henderson Reeves acted in breach of its obligations to Ms McMahon as either an existing or former client when it represented the Foundation as its as solicitors and agent in obtaining the possession order from the Tenancy Tribunal, contrary to Ms McMahon’s interests. But whether there is any justification for Ms McMahon’s complaints is a matter for determination by the New Zealand Law Society in its disciplinary capacity, or by a court in a proceeding for alleged breaches of professional duties of care. Ms McMahon’s remedies for any breach of ethical obligations by the firm does not lie in pursuing the Foundation under the RTA for a remedy which has never been articulated, let alone placed before any court or tribunal with jurisdiction to grant it. When these matters were argued by Mr Thwaite in this proceeding, counsel was able to say only that they were issues that had yet to be addressed.
[50] Mr Thwaite’s vague philosophical question about whether the Court should give priority to protecting Ms McMahon’s rights under the rule of law over the Foundation’s rights as landlord needs no response. Similarly, the proposition that a registered charity owes different obligations to tenants than those of any other landlord does not deserve further consideration. Unsurprisingly, Mr Thwaite cited no authority or any basis in law for either proposition.
The merits of Ms McMahon’s rehearing application
[51] The Tribunal’s power under s 105 of the RTA to order a rehearing is confined to grounds establishing that a substantial wrong or miscarriage of justice has, or may have, occurred or is likely to occur.
[52] I agree with the conclusions reached by Judge McDonald that the issues raised in the rehearing application amounted to a challenge to the substantive findings of the Tribunal which would have been susceptible to appeal if Ms McMahon had taken that
step. But her dissatisfaction with the Tribunal’s decision on the issues does not give rise to a substantial wrong or a miscarriage of justice. There is nothing in the matters of a more general nature raised by Mr Thwaite to bring Ms McMahon’s case within the category of one in which there are circumstances justifying a rehearing.
[53] I am satisfied, therefore, that the decision of the District Court to dismiss the appeal against the refusal of a rehearing by the Tenancy Tribunal was correct and I will dismiss the appeal accordingly.
[54] Following the District Court’s decision on 30 November 2020 dismissing Ms McMahon’s appeal against the refusal of a rehearing, the Foundation took further steps to exercise its rights pursuant to the Tenancy Tribunal’s possession order. Ms McMahon was evicted from the Tavinor Road property on 14 December 2020.
Ms McMahon’s application for remedies – Residential Tenancies Act
[55] On 22 December 2020, Ms McMahon applied to the Tenancy Tribunal for remedies in reliance on s 60(2) of the RTA. The subsection provides:
60 Tenant remaining in possession after termination of tenancy
…
(2)If the landlord permits the tenant to remain in the premises for more than 90 days after the tenancy has terminated or has been terminated, without obtaining a possession order, or for more than 90 days after obtaining a possession order, the landlord shall be deemed to have granted, and the tenant shall be deemed to have accepted, as from the date on which that period of 90 days expired, a periodic tenancy of the premises on the same terms and conditions as pertained to the original tenancy immediately before its termination.
[56] Ms McMahon alleged that the Foundation and its agents had entered the Tavinor Road property in an unlawful eviction of her adult children and her. She alleged that the time for her to occupy the property, after the eviction notice was issued following the Tribunal’s possession order, had been extended beyond the 90-day limitation referred to in s 60(2). She said that she wished to claim compensation of
$50,000 and exemplary damages as a result of unlawful acts performed under the RTA, including obtaining the lapsed possession order by false representations and the misuse of privileged client information by Mr Biss. Ms McMahon said that she
wanted an order returning possession of the property to her and a determination of the validity of any grounds the Foundation had to act as landlord.
[57] On 24 February 2021, the Tribunal issued a decision declining to make a declaration that Ms McMahon was entitled to occupation of the premises. Mr Thwaite had argued, first, that the possession order made by the Tribunal on 16 March 2020 was outside the 90-day period from the date of the termination of Ms McMahon’s tenancy of the Tavinor Road property. He submitted that the possession order was accordingly in breach of the requirements of s 64(2) of the RTA which provides that no possession order may be made more than 90 days after the date of the termination of the tenancy. The second point was that the Foundation had permitted Ms McMahon to remain in possession of the property for more than 90 days following the termination of the tenancy. Mr Thwaite had argued that s 60(2) operated to create a periodic tenancy with the result that the possession order made on 16 March 2020 could no longer apply.
[58] The Tribunal ruled, however, that the ground advanced under s 64(2) was a substantive challenge to the Tribunal’s possession order of 16 March 2020 and, as the point had not been taken by Ms McMahon at that time nor raised in the rehearing application before the Tribunal or the appeal before the District Court, the Tribunal had no jurisdiction to address it in the renewed proceeding. As to the second ground, the Tribunal held that it was clear, on the facts, that the Foundation had not permitted Ms McMahon to remain in the property but had, at all times, taken what steps were available to it to have her evicted. While the Foundation had allowed some leeway to the bailiff to allow a modest period of time for Ms McMahon to move out of the property on her own accord, that was in the context of an application under which the Foundation was actively working to have Ms McMahon vacate the premises.
[59] On 9 March 2021, Ms McMahon appealed the Tribunal’s determination asserting that there had been procedural unfairness in its process and that the Foundation had never provided any formal notice of its status as Ms McMahon’s landlord, or maintained the property during her occupancy.
Foundation’s application for extended order under ss 166 of the Senior Courts Act 2016
[60] Prior to a telephone conference with the Tribunal scheduled for 28 January 2021, the Foundation made an interlocutory application in the appeal proceedings in this Court for an extended order under s 166 of the Senior Courts Act 2016. It seeks to restrict Ms McMahon from commencing, or continuing, civil proceedings relating to the Tavinor Road property and Mr Rowles’ estate.
The alleged grounds for the section 166 order
[61]A section 166 order may take one of three forms that vary in their scope:15
(a)a limited order applying to a particular matter;16
(b)an extended order applying to a particular matter or a related matter in a senior court, another court or a tribunal;17 and
(c)a general order which applies to any civil proceeding.18
[62] The grounds for making an extended order, on the application of a party to a proceeding,19 are set out in s 167 which, so far as is relevant, provides:
167 Grounds for making section 166 order
…
(2)A Judge may make an extended order under section 166 if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
…
(4)In determining whether proceedings are or were totally without merit, the Judge may take into account the nature of any interlocutory applications, appeals, or criminal prosecutions involving the party to be restrained, but is not limited to those considerations.
15 Senior Courts Act 2016, s 166(2).
16 Section 166(2)(a) and (3).
17 Section 166(2)(b) and (4).
18 Section 166(2)(c) and (5).
19 Section 169(1).
(5)The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons.
(6)For the purpose of this section and sections 168 and 169, an appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding.
[63] A section 166 order may restrain a party from commencing or continuing any proceeding (whether generally or against any particular person or persons) of any type specified in the order without first obtaining the leave of the High Court.20 The order has effect for a period of up to three years as specified by the judge but may be for a longer period, not exceeding five years, if the judge is satisfied that there are exceptional circumstances justifying the longer period.21
[64] Although the Foundation’s application did not identify the two proceedings relied upon under s 166(2), the application was pursued in argument on the basis that the proceedings said to be “totally without merit” are:
(a)Ms McMahon’s application for a rehearing of the Foundation’s application for a possession order that was granted on 16 March 2020 and her appeal to the District Court against the Tribunal’s refusal of a rehearing; and
(b)Ms McMahon’s second application to the Tribunal, seeking remedies related to her arguments under s 60 of the RTA.
The Court of Appeal’s decision in Mawhinney v Auckland Council
[65] Following the hearing of the appeal and the Foundation’s application for a section 166 order, the Court of Appeal delivered its judgment in Mawhinney v Auckland Council.22 The judgment addressed a question central to the consideration of the Foundation’s application of the meaning and application of the “totally without merit” test in s 167 of the Senior Courts Act. After reviewing the law on the restraint of the activities of vexatious litigants under the Judicature Act 1908; the law reform
20 Section 168(1).
21 Section 168(2).
22 Mawhinney v Auckland Council [2021] NZCA 144.
considerations in the context of the Judicature Modernisation Bill 2013, of which the Senior Courts Act 2016 was the eventual outcome; the legislative history and relevant English jurisprudence, the Court concluded that a proceeding is totally without merit if it is bound to fail.23 Further, the Court observed that the word “totally” conveys both a qualitative and quantitative dimension:24
… a proceeding may combine multiple causes of action. Even if only one cause of action has merit, it cannot be said that the proceeding is totally without merit. Hence in order for a proceeding to satisfy the s 167 threshold, it will be necessary that all of the causes of action pleaded should have been bound to fail.
[66]After drawing counsel’s attention to the Court of Appeal’s judgment in
Mawhinney, I received helpful submissions which I have taken into account.
The sale of the Tavinor Road property
[67] Before turning to the application of the “totally without merit” test to this case, I record that, in the course of the hearing of the oral argument, Ms Hartwell informed the Court that the Foundation had sold the Tavinor Road property. Mr Thwaite had been informed of that event only shortly before the hearing and had not had time to take instructions from Ms McMahon, who was then in the United States. I allowed Mr Thwaite time, following the hearing, to take instructions. In a memorandum dated 9 May 2021, Mr Thwaite noted that Ms Hartwell had produced a copy of Record of Title 681017 related to the Tavinor Road property, being Lot 1 on Deposited Plan 483116, which showed that the property was no longer registered in the name of the Foundation. Mr Thwaite’s further research indicated that a transfer of the title to the property had been lodged by the Foundation’s solicitors on 9 April 2021.
[68] Mr Thwaite said that, despite the sale of the Tavinor Road property, Ms McMahon wished to continue with her appeal. Although she accepted that the remedy of orders enabling her to return to the property “might be moot”, she invited the Court to deliver a judgment “on the liability issues”. Counsel argued that the appeal had merit up until (at a minimum) the time when the record of title was produced to the Court during the hearing on 21 April 2021.
23 Mawhinney v Auckland Council, above n 22, at [58].
24 At [60].
[69] I agree with Mr Thwaite that it would be unfair to Ms McMahon to take into account, in deciding whether her two applications to the Tribunal were totally without merit, a change of circumstance that occurred after the delivery of the Tribunal’s decisions and the District Court’s judgment. But Ms McMahon’s determination to continue the appeal despite the sale of the property is relevant to whether this Court should exercise its discretion to make a section 166 order.
[70] I turn now to consider whether the two sets of proceedings identified by the Foundation were totally without merit in the sense that they were bound to fail.
The merits of the two sets of proceedings
The rehearing application and subsequent appeals
[71] I am satisfied that the application by Ms McMahon for a rehearing of the Foundation’s application for vacant possession and her appeal against the refusal of the rehearing and the subsequent appeal on questions of law were totally without merit in the sense described by the Court of Appeal in Mawhinney.
[72] First, it is apparent from the facts described above that the Foundation’s application for a possession order was entirely conventional, based on its wish as owner of the property to obtain vacant possession in order to sell it. By her own admission, Ms McMahon was a tenant paying rent up to and including the payment on 31 October 2016. It may be that she continued to provide consideration for her continued occupation of the property after she ceased paying rent by the provision of services to Mr Rowles but, in any event, the tenancy did not terminate once the rental payments ceased; it continued with Ms McMahon in default. Mr Thwaite posited that Ms McMahon may have been a mere licence holder after that time, depriving the Tenancy Tribunal of jurisdiction, but he laid no evidential or other foundation for that proposition.
[73] Second, the grounds relied upon by Ms McMahon in her rehearing application to the Tribunal were wholly inadequate to justify allowing her to argue her case a second time. Given the nature of the argument proposed in support of the application, it is clear that the rehearing application was simply an attempt to circumvent the strict
time limits for the exercise of a right of appeal against the Tribunal’s possession order and to overcome the difficulty of Ms McMahon’s failure to lodge an appeal within time. The arguments advanced to the Tribunal, the District Court and to this Court were either a re-hash of the original points made to the adjudicator in opposition to the application by Henderson Reeves or were an irrelevant consideration which, although arguably identifying Ms McMahon’s reasons for wanting to continue to litigate the issues, did not afford arguable grounds for doing so.
The application for relief in reliance on s 60 RTA
[74] I am satisfied, also, that Ms McMahon’s application to the Tribunal for a declaration that she was entitled to occupation of the premises was bound to fail at the time it was filed. Mr Thwaite explained that, although the application based on s 60 of the RTA was founded on the proposition, previously denied by Ms McMahon, that she was a tenant, she was entitled to rely upon the Tribunal’s finding to the contrary when making her application on 22 December 2020. I accept that that was an available approach. But, although Ms McMahon claimed compensation of $50,000 and exemplary damages as her remedies in the second application to the Tribunal, she advanced no basis for those claims independently of the arguments raised in the Foundation’s possession and enforcement proceedings and no supporting evidence.
[75] As I have already observed, the approach of the Foundation to obtaining a possession order was entirely conventional and one which, as the owner of the property and landlord, it was entitled to take.
[76] The findings by the Tribunal and by Judge McDonald that there was no merit in the reliance by Ms McMahon on the statutory requirements to enforce the possession order, and the argument about the creation of a periodic tenancy by operation of s 60(2), were predictable and undoubtedly correct. Ms McMahon’s attempts to overturn them had no prospects of success on the facts. It was clear that, throughout, the Foundation had never agreed to Ms McMahon remaining in occupation of the property in circumstances where she had ceased paying rent at the end of 2016. The only occasions on which the Foundation refrained from pursuing its rights were those where it was impeded by stays ordered by the Tribunal or District
Court, or by other procedural requirements, and the brief period of grace allowed to Ms McMahon to leave the property other than under a bailiff’s coercion.
[77] I am satisfied, therefore, that the proceedings instituted by Ms McMahon in reliance on s 60(2) were bound to fail and were, accordingly, totally without merit.
Are there two proceedings that were totally without merit?
[78] Bearing in mind the purpose of a section 166 order, it is an important consideration whether the proceedings said to be totally without merit were distinct or merely proceedings which may be of an interlocutory nature but forming part of one qualifying proceeding. Section 167(6) emphasises the importance of the issue by clarifying that an appeal in a civil proceeding is part of the proceeding and not a distinct proceeding. Mr Thwaite accepts on behalf of Ms McMahon that the application for relief in reliance on s 60(2) (and the appeal that followed it) is a separate proceeding from Henderson Reeves’ application for a possession order, Ms McMahon’s application for a rehearing and the subsequent appeals against the refusal. As the Court of Appeal said in Brogden v Attorney-General:25
A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person,
Should an order be made?
[79] Having reached those conclusions, the threshold has been reached for deciding whether an extended order under s 166(1) and (2)(b) should be made and I am required to make a discretionary assessment about whether an extended order is appropriate.26 In that regard, I may consider how those proceedings were conducted and any wider circumstances that weigh for, or against, an order being made. I also need to consider the scope of any extended order which, in my view, must be one that meets the legitimate interest of the Foundation in not having to face continued litigation that has
25 Brogden v Attorney-General (2001) 15 PRNZ 389 (CA) at [21], referred to with approval in Heenan v Attorney-General [2011] NZCA 9 at [22].
26 Mawhinney v Auckland Council, above n 22, at [67].
no merit, balanced against Ms McMahon’s rights to reasonable access to justice in appropriate circumstances.
[80] An extended section 166 order would restrain Ms McMahon from commencing or continuing civil proceedings on a particular or related matter in a senior court, another court, or a tribunal. The Foundation asks for an order preventing Ms McMahon from taking or continuing any proceeding related to Mr Rowles’ estate or the tenancy of the Tavinor Road property.
[81] Specifically, Ms McMahon could be prevented from taking any step to overturn this Court’s decision to validate the will; overturn the grant of letters of administration to Mr Hurn; or overturn the Tenancy Tribunal’s decisions in relation to her occupation of Tavinor Road.
[82] In exercising my discretion to make an extended order I take into account the fact that Ms McMahon has pursued this litigation relentlessly, despite the decisions of the two Tribunal members being founded on principled and conventional grounds, and a decision of the District Court that was also unexceptional in its approach. At no stage in the proceedings has Ms McMahon identified any credible basis on which she could advance a case establishing a right to have remained in occupation of the Tavinor Road property or to return to it lawfully. Moreover, she has never articulated any credible basis for claiming a compensatory remedy from the Foundation.
[83] Ms McMahon elected to pursue the appeal in this Court after the sale of the property was drawn to her attention, even though her initial aim in making the applications to the Tribunal was to remain in residence at the property. That demonstrates, in my view, her unreasonable determination to argue irrelevant matters based on counsel’s ingenuity in raising (but not developing) possible claims and on vague propositions of law for which no authority was cited. Ms McMahon had many months to prepare a case for compensation or other relief in the event that it was held, contrary to her submissions before the Tribunal, that she was a tenant. None was advanced. Her only hope, prior to the sale of the property, was that a rehearing might result in the possession order being set aside. After the sale, that remedy disappeared.
In any event, a claim for compensation or other relief would have been set off against Ms McMahon’s rent-free, four-year occupation of the property.
[84] The Foundation also relies on conduct by Ms McMahon, and counsel presumably acting on her instructions, throughout the proceedings as evidence that she cannot be relied upon to refrain from continuing to litigate issues under the RTA or to refrain from bringing further proceedings against the Foundation in relation to Mr Rowles’ estate without orders from the Court restricting her ability to do so. Referring to evidence provided by Ms McMahon’s affidavits filed in the Tribunal proceedings and in this Court; evidence given before the Tribunal; evidence appearing in affidavits sworn on behalf of the Foundation, including evidence of Mr Rowles’ neighbours at the Tavinor Road property; and the submissions of counsel, the Foundation refers to:
· inconsistent assertions about the instructions Ms McMahon gave to Henderson Reeves, her status as a tenant of Mr Rowles and the nature of Mr Rowles’ alleged “testamentary promises”;
· an assertion that Mr Rowles “had fallen in with women of low quality who had previously and were still operating on the wrong side of the law”, without providing any evidential foundation;
· Ms McMahon claiming falsely that she lacked representation at various times in the course of the proceeding;
· the failure by Ms McMahon to respond to reasonable questions put to her by the Foundation about estate property;
· unfounded allegations of fraud against the Foundation, its lawyers and real estate agents;
· continuing allegations against Henderson Reeves of breaches of the firm’s ethical duties without taking the obvious step of raising those matters
through appropriate channels such as by a complaint to the New Zealand Law Society;
· Ms McMahon’s failure to comply with timetable directions of the Tribunal and this Court;
· Ms McMahon’s failure to comply with the eviction notice and trespass notice, repeatedly gaining illegal entry to the Tavinor Road property and requiring numerous calls to the Police;
· Ms McMahon verbally abusing staff engaged to secure the Tavinor Road property;
· Ms McMahon unlawfully benefiting from grazing at Tavinor Road, causing damage to the property and leaving it in disrepair;
· Ms McMahon obtaining unauthorised rental income from Tavinor Road and having the benefit of rent-free occupation of the property.
[85] Those allegations were identified by Ms Hartwell in submissions on behalf of the Foundation, with references to the source of her assertions. None of them was denied by Ms McMahon nor refuted by Mr Thwaite in his submissions. In the circumstances, I regard those allegations as established on a balance of probabilities and I take that conduct into account in determining whether a section 166 order is appropriate.
[86] Ms Hartwell also refers to indications that Ms McMahon has given notice, either by herself or through counsel, that she intends bringing further proceedings against the estate but, despite requests to identify the nature or basis for any such claims, has failed to do so. I agree with Ms Hartwell that what is suggested are possible claims under the Law Reform (Testamentary Promises) Act 1949 (the TPA) and a challenge to Mr Hurn’s appointment as administrator. As to that, I accept Ms Hartwell’s proposition that apart from Ms McMahon’s own testimony, there is no other evidence to indicate that Mr Rowles made any promise to Ms McMahon coming
within the provisions of the TPA. Nor is there any credible evidence to indicate that Ms McMahon rendered any services or undertook any work for Mr Rowles during his lifetime which might justify a claim against the estate. On the contrary, evidence from Mr Rowles’ neighbours indicates that:
· Mr Rowles often complained about Ms McMahon as a tenant and requested her to leave Tavinor Road without success;
· Ms McMahon did not maintain the dwelling in good condition, either inside or out;
· Ms McMahon and Mr Rowles often argued; and
· Ms McMahon’s claim of looking after Mr Rowles’ cattle is not true.
[87] In any event, as Ms Hartwell points out, Ms McMahon faces the considerable obstacle that any claim under the TPA would be well outside the 12-month limitation period in which to bring an action based on an alleged testamentary promise.27 There is no basis to think that exceptional circumstances would entitle her to do so.28
[88] I am satisfied that there is no tenable basis on which Ms McMahon could challenge the decisions of this Court to validate Mr Rowles’ will and to grant letters of administration to Mr Hurn. I am satisfied also that, in addition to preventing Ms McMahon from continuing or commencing any proceeding related to her former tenancy of the Tavinor Road property, she should be prevented from commencing any proceeding related to the validation of the will and the grant of letters of administration.
[89] I am hesitant to make an order preventing Ms McMahon from making any claim against Mr Rowles’ estate, however, because it is difficult to assess as being
27 Law Reform (Testamentary Promises) Act 1949, s 6.
28 Bearman v Hardie Boys [1973] 2 NZLR 204 (CA) at 206: “If a prospective claimant under this Act wishes to have time extended we believe that he should not only show reason why in the circumstances of this case the delay should not count against him, but also should be required to persuade the Court he has a claim which, if it be allowed to be prosecuted, will have some reasonable chance of success.”
“totally without merit” a claim which has not been formulated or articulated in any coherent manner. If Ms McMahon elects to pursue some claim, whether in reliance upon an alleged testamentary promise or on any other basis, the Court has powers to strike out such a claim if no arguable cause of action is demonstrated or if the proceeding is otherwise considered to be an abuse of the Court’s process. As I have already observed, the delay of more than two years since the grant of letters of administration to Mr Hurn provides a considerable obstacle to any testamentary promises claim.
Orders
[90] I dismiss Ms McMahon’s appeal against the decision of the District Court on 30 November 2020.29
[91] I order under s 166(4) of the Senior Courts Act 2016 that Angeline Clark McMahon is restrained from commencing or continuing civil proceedings in a senior court, another court or any tribunal that relates to:
(a)her former tenancy at 145 Tavinor Raod, Otaika, Whangārei;
(b)the decision of this Court on 23 October 2018 under CIV-2018-485-749 declaring the typewritten document located by Ms McMahon amongst Mr Rowles’ personal belongings to be the valid will of Mr Rowles; and
(c)the order of this Court on 24 January 2019 under CIV-2019-485-834 granting letters of administration to Gregory Hurn in respect of Mr Rowles’ estate.
Costs
[92] As the successful party, the Foundation is entitled to costs. Costs shall be determined on a category 2B basis.
29 McMahon v Royal New Zealand Foundation of the Blind, above n 6.
[93] If costs cannot be agreed, the Foundation shall have until 3 September 2021 to file and serve a memorandum of no more than three pages seeking costs. Ms McMahon shall have 15 working days from service of the Foundation’s memorandum to file and serve a memorandum of no more than three pages in response. The Foundation may file a brief reply memorandum only by leave of the Court. Costs shall be determined on the papers unless the Court directs otherwise.
Toogood J
0
5
1