McVay v Clink

[2017] NZHC 485

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2016-470-168 [2017] NZHC 485

UNDER

The Family Protection Act 1955

IN THE MATTER

of an appeal against a decision of the
Family Court at Tauranga

BETWEEN

GEMA LORRAINE MCVAY Appellant

AND

SANDRA MARIE CLINK First Respondent

ANDREW KENNETH BELLAMY SMITH

Second Respondent

SANDRA MARIE CLINK Third Respondent

Hearing:	16 March 2017
Appearances:	J M Greally for Appellant No appearance for First Respondent G J Denize for Second Respondent S T Scott for Third Respondent
Judgment:	17 March 2017

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 17 March 2017 at 9.30 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Hutt City Law, Petone

Kaimai Law Bethlehem, Tauranga

Chris Rejthar & Associates, Tauranga

Counsel:            S T Scott, Tauranga

MCVAY v CLINK [2017] NZHC 485 [17 March 2017]

[1]      The appellant, Ms McVay, appeals against two decisions of Judge Coyle in the Family Court at Tauranga, the first an oral judgment of 13 May 2016 and the second a reserved decision of 28 September 2016.1     Ms McVay requires leave to appeal the first of these decisions.   There is no objection to leave and I grant it accordingly.   The appeal is brought pursuant to s 15 Family Protection Act 1955 (“FPA”).

Background

[2]      In April 2013, Ms McVay commenced proceedings for orders pursuant to the FPA (“proceedings”), in particular that greater provision be made for her from the estate of her father, Andrew John Clink (“Mr Clink”) who died in February 2012.

[3]      Mrs Clink is the trustee and executor of the estate and was Mr Clink’s wife. She appears as first respondent in her capacity as trustee and executor and as third respondent as trustee of the S M Clink Family Trust, being the residuary beneficiary. Mr Bellamy, the second respondent, is Mr Clink’s son.

13 May 2016

[4]      The matter came before the Judge on 13 May 2016 for a judicial conference, pursuant to Family Court Rules, r 175.

[5]      Only Mr Scott, counsel for Mrs Clink in her capacity as trustee of her family trust,  appeared  before  the  Judge.    In  particular,  there  was  no  appearance  from Mr Sharp, then counsel for Ms McVay.

[6]      The Court had notified Ms McVay’s solicitors of the conference but Mr Sharp overlooked their email to him advising him of the conference.2

[7]      In his oral judgment of 13 May 2016, the Judge recorded that Mr Scott had asked him to strike out the proceedings and that Mr Scott had referred to, and the

Judge had considered, TMH v CPM.3

1      McVay v Clink [2016] NZFC 3988; and McVay v Clink [2016] NZFC 8149.

2      Affidavit of G L McVay sworn 22 June 2016.

3      TMH v CPM and SNZ Ltd Trustee and SI Trust [2012] NZFC 8154.

[8]      The Judge said that there was jurisdiction to strike out under each of rr 55 and

195; that there would be an opportunity for Ms McVay to apply to reinstate the proceedings if Mr Sharp had failed to appear due to a “genuine error ... although that would attract a costs application”;4 that it appeared that Mr Sharp was aware of the conference because Mr Scott had sent his memorandum to Mr Sharp; and that, in any event, the Judge was concerned “at the inactivity that was occurring”.  I come back to these matters below.

[9]      The Judge then dismissed the proceedings:5

[10]      Accordingly, for those reasons I dismiss Ms McVay’s application and accordingly the proceedings are now at an end.  As I have said, if there is a genuine reason why she is not here today or is not represented by counsel and she is able to convince the Court that she has an arguable case, then an application for reinstatement can be made, although that will of course attract a costs award against Ms McVay given what has occurred.

[10]     Shortly after  receipt  of  the  decision,  Ms  McVay made  an  application  to reinstate  her  proceedings.    The  Judge  declined  this  application  in  his  second decision.  The Judge determined that he did not have jurisdiction to reinstate but, if he were wrong in that, said he would have declined to reinstate for other reasons.

[11]     I am satisfied that the Judge did not have jurisdiction to dismiss Ms McVay’s proceeding as he did in May 2016 and I allow the appeal against that decision accordingly.  Given that, it is unnecessary for me to consider the second decision.

Rule 195

[12]     Rule 195(1)(a) makes provision for an application by a respondent to dismiss proceedings for want of prosecution:

195      Dismissal if proceedings or defence not prosecuted

(1)      An opposite party may apply to have dismissed—

(a)       all  or  part  of  an  applicant’s  proceedings,  if  the applicant has failed to prosecute the proceedings or part of them:

4      The Judge took a different view of his power to reinstate in September 2016, holding then that he did not have power to reinstate proceedings.

5      McVay v Clink, above n 1.

(b)       all   or   part   of   a   respondent’s   defence,   if   the respondent  has  failed  to prosecute the defence  or part of it.

(2)       On an application under subclause (1), the Court may make any order it considers just.

[13]     Such  an  application  is  an  “interlocutory  application”  as  defined  in  r  8. Rule 218 requires an interlocutory application to be made on notice unless there is provision to the contrary in r 220, which there is not for an application under r 195. Given that, the Judge did not have jurisdiction to entertain an application under r 195(1) without notice to Ms McVay.

Rule 55

[14]     Nor did the Judge have power to dismiss the proceeding under r 55 which provides:

55       Procedure if some or all parties do not appear

(1)      If no party appears, the Court may dismiss the application.

(2)       If  the  applicant  appears  but  no  other  party  appears,  the applicant may proceed to establish the grounds on which he or  she  claims  to  be  entitled  to  the  order  or  declaration sought.

(3)       If the applicant does not appear but another party appears and opposes the application, the Court may—

(a)       adjourn the hearing; or

(b)      dismiss the application.

(4)       Subclause (3) does not apply to a person to whom rule 42 applies.

[15]     I accept the submission of counsel for Ms McVay that this rule did not apply in the circumstances that prevailed on 13 May 2016.  Rule 55 is in a part of the rules which provides  for the hearing of an  “application” as defined in  r 8,  being an “application (other than an interlocutory application) under a family law Act”.   In this case the “application” for the purposes of r 55 was Ms McVay’s application for relief under the FPA.   That application was not for hearing on 13 May 2016, and counsel for Mrs Clink was not appearing to oppose that application.

[16]     Counsel  for  Ms  McVay  also  referred  me  to  the  provisions  in  the  rules regarding the conduct of judicial conferences.   I do not propose to address these rules, given that the Judge did not purport to rely on them.

Other matters

[17]     I said above that I would revert to the comments of the Judge, as set out in [8]

above, which I now do.

[18]     First,  although  receipt  of  Mr  Scott’s  memorandum  would  have  alerted Mr Sharp to the fact that a conference was imminent, I accept the submission of counsel  for  Ms McVay  that  nothing  in  that  memorandum  would  have  informed Mr Sharp that the conference was on 13 May 2016.  I also accept her submission that to strike out proceedings is a very severe punishment for a failure to appear at a conference, without at least having made enquiry as to the reason for the failure to appear.

[19]     Secondly, the inactivity that the Judge said had been occurring related to the fact  that  apparently  Ms McVay  had  previously  advised  the  Court  that  she  was considering making an application to remove Mrs Clink as executrix and trustee of the estate on the ground that she was not independent and impartial.  The Judge was critical of Ms McVay’s failure to make that application, and indeed remained critical in his September judgment.

[20]     At the time of the May judgment, however, the Judge did not know that in each of January and February 2016 Mr Sharp had written to each of counsel for Mrs Clink (other counsel was acting for her as first respondent) asking if Mrs Clink would agree to resign as executrix and trustee of the estate and providing a recent decision of Courtney J said to be on point.   Mr Sharp said that resignation would avoid the legal expense of an application.

[21]     In response, on 3 February 2016, Mr Scott asked Mr Sharp if he could have eight weeks to take instructions, not only on whether Mrs Clink would resign but whether it would be possible to achieve a resolution of the entire dispute, and he agreed that it would be best to avoid legal costs in the meantime.  Mr Sharp agreed

to this the same day.  However, it was not until 10 May 2016, so three months later and  three  days  before  the  conference,  that  Mr Scott  wrote  again  to  Mr  Sharp. Mr Scott  started  his  letter  by  apologising  for  his  delay;  said  as  matters  stood Mrs Clink did not agree to resign; and asked Mr Sharp whether there would be benefit in counsel meeting to see whether they could “bring an end to this litigation”.

[22]     Mr Scott told me at the hearing that he had not informed the Judge of these discussions at the conference on 13 May 2016.   It is regrettable that he did not. Whatever the Judge said later, he may well have taken a different view of the proper course on the application had he been informed.

Result/costs

[23]     I allow the appeal and set aside the Judge’s order dismissing Ms McVay’s

proceedings. This has the effect of reinstating the proceedings.

[24]     Ms McVay having succeeded, she should have costs and disbursements on the appeal from Mrs Clink as third respondent.  I make no order for or against the second respondent.

..................................................................

Peters J