Ostermann v Ebert - [2022] NZHC 365

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000778

[2022] NZHC 365

UNDER the Wills Act 2007 and the Administration Act 1969

IN THE MATTER

of an application for unless orders

BY

CRAIG STEVEN EBERT

Applicant

CIV-2019-409-000545

UNDER

the Property (Relationships) Act 1976

BETWEEN

SCOTT MALCOLM OSTERMANN

Plaintiff

AND

CRAIG STEVEN EBERT

Defendant

Hearing: On the papers

Counsel:

S M Bevin for the Applicant

S M Ostermann (self-represented)

Judgment:

8 March 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 8 March 2022 pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Ostermann v Ebert [2022] NZHC 365 [8 March 2022]

[1] This judgment concerns an application by the above-named applicant, Craig Ebert, for unless orders. The application relates to two proceedings which are being progressed together. Specifically, Mr Ebert applies for orders that unless Scott Malcolm Ostermann complies with certain discovery orders that have been made against him:

(a)his notice of opposition in proceeding CIV-2017-409-778 be struck out;

(b)his statement of claim in CIV-2019-409-545 be struck out; and

(c)that he is liable to pay Mr Ebert’s costs in respect of the proceedings on an indemnity basis.

[2] In addition, Mr Ebert seeks costs on an indemnity basis in relation to this application.

Procedural context

[3] In the proceeding CIV-2017-409-778, Mr Ebert applies for an order that a particular document is a valid will of the late Andrea Ebert (Mr Ebert’s late sister). The application is opposed by Mr Ostermann.

[4] In the proceeding CIV-2019-409-545, Mr Ostermann seeks orders under the Property (Relationships) Act 1976. This claim is defended by Mr Ebert (as temporary administrator of Ms Ebert’s estate). Mr Ebert has filed a counterclaim for orders under the Property (Relationships) Act.

[5] Mr Ostermann was originally represented by solicitors. He has been self- represented since June 2021.

[6] This application was filed on 28 January 2022 and was considered at a telephone conference on 14 February 2022 before Osborne J. At that conference Mr Ostermann advised he would be providing further bank statements by 17 February 2022 and he was directed to do so.

[7]In relation to this application, Osborne J made directions as follows:

(a)by 18 February 2022, Mr Ebert’s solicitors were to file and serve any supplementary evidence in support of the application together with a memorandum of submissions;

(b)by 25 February 2022, Mr Ostermann was to file and serve his notice of opposition together with all evidence in support of his opposition and a memorandum of submissions; and

(c)the file was to be referred to Associate Judge Lester for determination on the papers.

[8] In addition to those directions, Osborne J noted Mr Ostermann’s agreement that should the Court make an unless order, the period in which he would have to comply with the order would be set as expiring at 5.00 pm on 14 April 2022.

[9] In compliance with the directions made by Osborne J, Mr Ebert filed…

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 Ostermann v Ebert

Details

AGLC: Ostermann v Ebert [2022] NZHC 365
Case: [2022] NZHC 365
Decision Date: 8 March 2022

CaseChat Overview and Summary

In Ostermann v Ebert, the applicant, Craig Steven Ebert, applied for unless orders in two related proceedings. The first proceeding, CIV-2017-409-778, involves an application for an order that a particular document is a valid will of the late Andrea Ebert. The second proceeding, CIV-2019-409-545, involves an application for orders under the Property (Relationships) Act 1976. Ebert sought unless orders that unless Scott Malcolm Ostermann complied with certain discovery orders, his notice of opposition and statement of claim be struck out, and he pay Ebert's costs on an indemnity basis.

The court had to determine whether an unless order was appropriate given the repeated breaches of disclosure orders by Ostermann. The court noted that unless orders are an order of last resort and should be clear, proportionate, and specify the sanction for non-compliance. Justice may require relief from the unless order if the breach resulted from something for which the party should not be held responsible. However, deliberate breaches are unlikely to warrant relief.

The court found that Ostermann had repeatedly failed to comply with disclosure orders despite many opportunities to do so. His breaches were serious, preventing the cases from progressing, adding to costs, and imposing a disproportionate burden on the court. The point had clearly been reached where an unless order should be made. Ostermann had not raised anything in his opposition which would lead the court to believe an unless order was inappropriate. Therefore, the application for unless orders was granted.

The court ordered that unless Ostermann complied with certain disclosure requirements by a specified date, his notice of opposition and statement of claim would be struck out. Ebert was awarded indemnity costs on the application along with reasonable disbursements. The case was listed for a teleconference after the compliance date to monitor compliance.

Orders