Naresh v Public Trust
[2012] NZHC 1484
•28 June 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2012-404-644 [2012] NZHC 1484
UNDER section 51 of the Trustee Act 1956
BETWEEN TULSI RAM NARESH Plaintiff
ANDPUBLIC TRUST Defendant
On papers
Judgment: 28 June 2012
JUDGMENT OF DOBSON J
(Review of Registrar’s decision on rejection of documents)
This judgment was delivered by me on 28 June 2012 at 4.30pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Public Trust, Hamilton ([email protected])
Copy to:
T R Naresh ([email protected])
NARESH v PUBLIC TRUST HC AK CIV 2012-404-644 [28 June 2012]
[1] This file has been referred to me as duty Judge, following numerous exchanges between Mr Naresh and the Registry. Prudently, the Registry has treated Mr Naresh’s latest initiative as an application to review a decision by the Registrar to reject documents presented for filing by Mr Naresh.
Background
[2] Mr Naresh is a beneficiary, and a former trustee, of a family trust established in 2003, known as the Hansa & Gordon Family Trust.
[3] Mr Naresh was removed as trustee, and the Public Trust was appointed, by an order of this Court made on 14 November 2008. That decision was subsequently confirmed by the Court of Appeal.
Commencement of this proceeding
[4] In February this year, Mr Naresh filed in this Court, and served on the Public Trust, an originating application and other documents in which he sought “to retrieve the trusteeship from Public Trust”. He also sought an order for the Public Trust to file in Court a “complete book of account” for examination.
Previous direction
[5] On 17 April 2012, Associate Judge Abbott directed that Mr Naresh bring the proceeding under Part 18 of the High Court Rules, by filing a statement of claim and an application for directions as to service.
[6] If Mr Naresh wished to pursue his claim, that direction required him to make an application for directions as to service, with appropriate supporting evidence to establish all persons with an actual or potential interest in the matter. This obviously would include other beneficiaries of the trust, and perhaps others with interests in a fund (money in the estate of the late Hansa McCluskie) which Mr Naresh apparently claims the Public Trust should have recovered for the Hansa & Gordon Family Trust.
Attempts to file
[7] On 11 May 2012, Mr Naresh attempted to file documents as directed. On
30 May 2012, the Registrar informed him that they were not accepted for filing for the following reasons:
(a) the statement of claim did not comply with rr 5.11(2) and 19.9 of the
High Court Rules;
(b) the application for directions did not comply with rr 7.19(4) and
7.23(1) of the High Court Rules;
(c) there was no affidavit in support of the application for directions, as required by r 7.20 of the High Court Rules;
(d) there was no notice of proceeding as required by r 5.22 of the High
Court Rules; and
(e) the documents had been submitted without payment of the appropriate fee or an application for waiver of that fee (a waiver had been granted in respect of the earlier documents, but Mr Naresh was informed that a further application was required for what would be a new proceeding).
[8] Mr Naresh was told that a new proceeding would be commenced if he filed a statement of claim that was accepted.
[9] The file suggests that Mr Naresh attempted to re-submit his documents on
1 June 2012, and on 5 June 2012 wrote to the Registrar challenging the decision to reject them and asking that the documents be put before a Judge.
[10] Mr Naresh appears to have reconsidered this position before his request could be addressed. On 11 June 2012, he resubmitted the previous documents together with a document described as a notice of proceeding, an affidavit referring to matters
in his statement of claim (rather than providing the information required to support the application for directions as to service), an application for waiver of fees, and a memorandum seeking extension of time.
[11] The Registrar decided that the resubmitted documents still did not comply, and declined to accept them. However, in anticipation that Mr Naresh would not accept that rejection and resubmit fully complying documents, the Registrar treated Mr Naresh’s earlier request for the papers to be put before a Judge (dated 5 June
2012) as an application under r 2.11 for review of his decision in relation to the most recently submitted documents.
[12] I will deal with the various documents in turn.
The statement of claim dated 6 June 2012
[13] The Registrar rejected the statement of claim because it was not headed correctly (r 5.11). Arguably, Mr Naresh has complied sufficiently in relation to the heading. He has identified that his application is brought under the Trustee Act
1957, and has identified himself as the claimant and the Public Trust as the respondent. Whilst the status of the parties ought to be “plaintiff” and “defendant”, and the content within the band on the cover page of the Statement of Claim is excessive, those irregularities alone would not justify rejection.
[14] However, the statement of claim clearly fails to plead the causes of action, and does not state sufficiently and distinctly the facts on which Mr Naresh relies. The High Court Rules require causes of action founded on separate and distinct facts to be stated separately and clearly, so far as possible.[1] A plaintiff also has to set out clearly all relief being sought, and state the facts in respect of which that relief is sought in sufficient detail to inform both the Court and the other party of the cause or causes of action being advanced. The statement of claim does not comply
[1] High Court Rules, r 5.17.
sufficiently with the following rules:
5.26 Statement of claim to show nature of claim
The statement of claim—
(a) must show the general nature of the plaintiff’s claim to the relief
sought; and
(b) must give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff’s cause of action....
5.27 Statement of claim to specify relief sought
....
(2) If the statement of claim includes 2 or more causes of action, it must specify separately the relief or remedy sought on each cause of action immediately after the pleading of that cause of action....
5.31 Specifying relief sought
(1) The relief claimed must be stated specifically, either by itself or in the alternative.
(2) Despite subclause (1), it is not necessary to ask for general or other relief but the court may, if it thinks just, grant any other relief to which the plaintiff is entitled, even though that relief has not been specifically claimed and there is no claim for general or other relief.
[15] Mr Naresh’s primary claim appears to be an application under s 51 of the Trustee Act 1956 to appoint himself as trustee in substitution for the Public Trust, yet he also seeks an order that the Public Trust file accounts. This appears to be a contradictory claim, and is not expressed to be an alternative.
[16] The statement of claim and other documents filed by Mr Naresh contain reference to a number of other matters, which appear to be either purely historical or extraneous to the relief sought. On the latter point, there appears to be an allegation that Mr Naresh received inadequate legal advice in relation to the establishment of the trust. That contention is not substantiated with appropriate detail, but it has no apparent bearing on administration of the trust by the Public Trustee.
[17] The overall effect of all of these matters is that it would be oppressively difficult for the Public Trust to plead to the claim or claims as now presented. Any defendant is entitled to have a plaintiff ’s claim spelt out with sufficient clarity to consider its position, whether it be contemplating an application to strike out, or to
respond in a statement of defence. Neither the Court nor the Public Trust should have to address such questions until the claim is clearly pleaded.
Notice of proceeding
[18] Mr Naresh has presented a document described as a notice of proceeding, but that document is little more than that heading, and does not contain the information required by forms G2 and G3 of Schedule 1 of the High Court Rules. The Registrar was right to reject it.
Application for directions
[19] The documents that Mr Naresh submitted on 11 May 2012 included what was described as an interlocutory application for directions. It did not set out the directions sought. Mr Naresh has amended that document, but the application submitted with the most recent set of documents is merely a repeat of the originating application filed in February. It does not address the persons who Mr Naresh considers should be served (or say why he considers that no one else should be served). Again, the Registrar has correctly rejected it.
Affidavit in support
[20] The affidavit provided with the most recent set of documents addresses substantive matters only (and in a very general way). The only aspect relevant to an application for directions is that Mr Naresh contends that no non-family member can be a trustee. He has given no support for that. Mr Naresh has not identified the present or potential beneficiaries of the trust (he refers to his children without naming them or giving any detail about them). He does not address whether there are any other persons with potential interests in the trust assets. This affidavit does not provide the necessary support for an application for direction.
Decision
[21] The Registrar correctly rejected the documents presented for filing on
11 May 2012 and most recently re-presented on 11 June 2012.
[22] Mr Naresh should know that he would be likely to face a direction under r 5.21(4) of the High Court Rules to file a more explicit pleading if he attempted to file a statement of claim that does not adequately address the deficiencies I have identified above.
[23] The Registrar’s decision to reject the documents that Mr Naresh has presented for filing to date is upheld.
Dobson J
0
0
1