Official Assignee v Mathiesen

[2018] NZHC 1441

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-Ō-MARU ROHE

CIV-2016-476-000049 [2018] NZHC 1441

BETWEEN

THE OFFICIAL ASSIGNEE

Applicant

AND

GABRIELLE PAULETTE MATHIESEN

First Respondent

AND

GORDON WALLACE CAMERON MCNAB

Second Respondent

Hearing:	15 June 2018
Appearances:	G Slevin for the Applicant Second Respondent in person
Judgment:	15 June 2018

ORAL JUDGMENT OF NATION J

[1]                 In a judgment of 13 December 2017, Gendall J made orders for the sale of the trust property near Timaru that has been the subject of these proceedings.1 He made specific orders for the sale to be conducted by the register/sheriff of the High Court. He made an order requiring the respondents, Mrs Mathiesen and Mr McNab, to provide vacant possession of the property and to remove all livestock and chattels no later than 4.00 pm on 16 February 2018.

[2]                 On 30 April 2018, Dunningham J found that Mrs Mathiesen and Mr McNab had defied the orders made by the Court and that they would continue to defy the order

1      Official Assignee v Mathiesen [2017] NZHC 3108.

THE OFFICIAL ASSIGNEE v MATHIESEN & MCNAB [2018] NZHC 1441 [15 June 2018]

because of grievances about the litigation history.2 Her Honour was satisfied the respondents were in contempt of Court. She held it was appropriate for arrest warrants to issue for both Mr McNab and Mrs Mathiesen, requiring them to be brought before the High Court where the consequences of their contempt could be determined.

[3]                 Mr McNab appeared in the High Court at Timaru on 13 June 2018. There was then a hearing before me where I considered what the consequences of his contempt would be. This was the subject of an oral judgment.3 As recorded in that judgment, I found it necessary to sentence Mr McNab to imprisonment for his contempt. The sentence imposed required him to be held in prison until Monday 18 June 2018, when he was to be brought before the Court again. I indicated in my judgment that the sentence should be for the shortest possible period to enable steps to be taken by the sheriff to ensure the sale process could begin.

[4]                 On 14 June 2018, I issued a minute requiring the Official Assignee, through counsel, to inform the Court of the progress that had been made in this regard.

[5]                 On the morning of 15 June 2018, I received a memorandum from Mr Slevin, counsel for the Official Assignee. He advised that possession of the property was taken on 14 June 2018. The majority of chattels were removed into storage elsewhere on that day. All livestock and animals had previously been removed. It appeared Mr McNab was the sole occupant of the property. Additional property in sheds and out- buildings is being removed into storage today by a removal company. It is anticipated the property will be unoccupied and empty from the end of today, 15 June 2018.

[6]                 In these circumstances, I arranged for Mr McNab to appear in Court before me, which he has done by way of an AVL appearance from Christchurch Prison.

[7]                 At the commencement of this hearing, I briefly indicated to Mr McNab why the hearing was taking place. Mr McNab protested at the hearing occurring and what I was going to do, saying that he wished to make an application for a writ of habeas corpus and that should proceed by way as priority. I had previously indicated in a

2      The Official Assignee v Mathiesen [2018] NZHC 843.

3      The Official Assignee v Mathiesen & McNab [2018] NZHC 1418.

minute, after I had been told that, at the end of the earlier Court hearing on 13 June 2018, Mr McNab said he wanted to make an oral application for habeas corpus, that if he was going to pursue that application, he needed to do so in the manner required by the rules for filing of an originating application, supported by affidavit. No such document has in fact been received.

[8]                 At the commencement of this hearing, Mr McNab also asked or, should I say, required me to tell him what the personal name was of the Court clerk who had appeared in Court on 13 June 2018 by way of appearing as the registrar. I refused to provide him with that name and indicated that this official has simply been in Court as the registrar.

[9]                 I do not need to deal with the issue that Mr McNab has raised over habeas corpus, given the decision that I am making about his imprisonment with this judgment.

[10]              I am satisfied that it is no longer necessary for Mr McNab to be in prison for the contempt of Court orders which Dunningham J held had been established. I accordingly make an order for his release.

[11]              I remind Mr McNab that, in a judgment of 30 April 2018, the High Court made orders that, following Mr McNab and Mrs Mathiesen’s vacation or removal from the property at 282 Timaru-Pareora Highway, Timaru, neither of them, that includes you Mr McNab, were to return to within 500 metres of the property and stop there, and neither of you were to interfere in the process of the property’s sale by the Court. Should you be in breach of those orders, you will again be in contempt of Court and liable to a sentence of imprisonment. If you do breach those orders and if you do anything to interfere in the process of sale by the Court, you Mr McNab will be at risk of a further term of imprisonment which could be for such a period is as necessary to ensure the process of sale can proceed without interference.

[12]              The registrar and the Official Assignee, now effectively having occupation of the property, should also consider whether or not it would be appropriate to serve a notice under the Trespass Act on Mr McNab warning him to stay away from the

property. With the service of such a notice, and it will be for them to decide if that is appropriate, if there was a breach of it, there would be the potential to deal with that breach through the Police without having to involve the Court in all the processes connected with a contempt. That is however a matter for the registrar and the Official Assignee to consider.

[13]That is my judgment.

[14]              An order is made for Mr McNab’s release. I understand that some arrangements have been made by the Prison which would enable Mr McNab to travel by bus to Timaru and the Prison have confirmed that they will be able to drop Mr McNab off at the bus stop.

Solicitors:

Mr G Slevin

Copy to: The Respondents.