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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Official Assignee v Mathiesen

Details

AGLC: Official Assignee v Mathiesen [2018] NZHC 1441
Case: [2018] NZHC 1441
Decision Date: 15 June 2018

CaseChat Overview and Summary

The Official Assignee sought an order for the imprisonment of Gordon Wallace Cameron McNab and Gabrielle Paulette Mathiesen for contempt of court. The Official Assignee had previously obtained orders for the sale of trust property, and Mathiesen and McNab had been ordered to vacate the property and remove all livestock and chattels. However, Mathiesen and McNab had defied these orders due to grievances about the litigation history. The court found them in contempt of court, and arrest warrants were issued. McNab was subsequently imprisoned, but on 15 June 2018, he appeared in court via audio-visual link from Christchurch Prison. Possession of the property had been taken by the Official Assignee, and all chattels and livestock had been removed.

The court had to determine whether McNab's imprisonment was still necessary to ensure the sale process could begin. The court noted that the property was now unoccupied and empty, and the sale process was underway. The court considered whether McNab's imprisonment was still necessary to ensure the sale process could proceed without interference. The court concluded that McNab's imprisonment was no longer necessary, and he was ordered to be released. The court also reminded McNab that he was still subject to the orders made on 30 April 2018, which prohibited him from returning to within 500 metres of the property or interfering in the sale process. The court suggested that the registrar and the Official Assignee consider serving a notice under the Trespass Act on McNab warning him to stay away from the property.

The court ordered McNab's release and noted that arrangements had been made for him to travel by bus to Timaru. The court also noted that if McNab breached the orders made on 30 April 2018 or interfered in the sale process, he would be at risk of a further term of imprisonment. The court's judgment was that McNab's imprisonment was no longer necessary, and he was ordered to be released. The court also noted that the registrar and the Official Assignee should consider serving a notice under the Trespass Act on McNab warning him to stay away from the property.

Orders