Public Trust v White

[2013] NZHC 1103

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2012-463-000833 [2013] NZHC 1103

UNDER  Insolvency Act

IN THE MATTER OF     The Bankruptcy of Graeme Lyndon White

BETWEEN  PUBLIC TRUST

Judgment Creditor/Respondent

ANDGRAEME LYNDON WHITE Judgment Debtor/Applicant

Hearing:         15 May 2013

Appearances: A Gilchrist for the Judgment Creditor/Respondent

G L White in person the Judgment Debtor/Applicant

Judgment:      15 May 2013

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

Solicitors/Counsel:

A Gilchrist, Barrister, Auckland –  [email protected]

G White, Rotorua –  [email protected]

PUBLIC TRUST V GRAEME LYNDON WHITE HC ROT CIV 2012-463-000833 [15 May 2013]

[1]      The judgment debtor (Mr White) has applied to set aside the bankruptcy notice that has been served on him.  His opposition highlights his concern with the trial process and trial outcome of issues heard before Justice Woodhouse on 20 – 22

February 2012 wherein the Public Trust had applied for probate of the estate of Mr White’s sister (the Estate proceeding).  Mr White and his mother lodged a caveat on the administration of the estate. Their opposition was unsuccessful.  In that outcome Mr White was ordered to pay costs in sums that are the subject of the bankruptcy notice in this case.

[2]      There were two issues in the proceedings:

(a)       Whether the sister had capacity at the time she executed her last will. (b)      Whether one witness exercised undue influence on the sister.

[3]      There was no appeal of the judgment of Woodhouse J which issued on 8 June

2012.

The setting aside application

[4]      Mr White’s application raises two grounds to set aside the bankruptcy notice:

(a)      That the Public Trust witnesses may have committed perjury, which may result in a claim for the total value of the estate of $100,000.

(b)Mr White will be pursuing a direct claim of costs against the Public Trust for failure in their duty of care in the taking of a Will from a person under the influence of drugs, contrary to their policies as a crown entity, to the sum of $115,000 plus costs.

[5]      As to the last ground, Mr Gilchrist points out that Mr White has already made a claim for costs in the Estate proceeding.  That was dealt with in the costs judgment of Woodhouse J of 27 August 2012.  In rejecting that claim the Learned Judge said:

[4]       ... There is no principle basis to award costs to the defendants.  The claim relating to testamentary capacity was weak.  The contention of undue influence is unfounded.  Mr White has now made allegations that witnesses for the plaintiff committed perjury, or made false statements.  There is no information before me indicating that there is any basis for those allegations. Such  allegations  should  not  be  made,  unless  there  is  solid  evidence  to support the allegations.

[6]      Mr  White’s  application  also  makes  very  critical  comments  of  his  trial counsel.

[7]      Mr  Gilchrist  has  supplied  evidence  of  Mr White’s  complaint  against  his counsel and has provided a copy of the Waikato Bay of Plenty Standards Committee determination wherein Mr White’s complaint was dismissed.

[8]      In support of this application Mr White has provided copies of affidavits sworn in connection with the probate proceeding. In his documents provided for this hearing Mr White has conducted his own analysis of those to explain why he has been  justified  in  filing  complaints  of  perjury  with  the  Police,  in  lodging  a professional conduct complain against his counsel, and addressing issues of alleged lack of duty of care with the Public Trust Office.

[9]      It is not required or indeed even necessary for this Court to review that analysis for present purposes.

The Law

[10]     On an application to set aside a bankruptcy notice an applicant must show he/she has a cross-claim, counterclaim, set off or cross demand that he/she was unable to use as a defence in the action in which the relevant judgment was given.

Considerations

[11]     Mr  White  strongly  believes  that  the  Public  Trust’s  witnesses  committed perjury, and that his own counsel was incompetent. These, and his belief in a lack of care undertaken by the Public Trust is at the forefront of claims justifying Police prosecution and for damages.

[12]     But, there are principles of use and the weight of Court authority which prevents the threat of claims being used as a form of collateral attack upon a decision which clearly does not support those claims.  Much less, is there scope for this kind of attack when the unfavourable judgment has not been appealed and there is no application to set it aside.

[13]     As Mr Gilchrist noted Mr White remains dissatisfied with the judgment and anyone who had anything to do with it.

[14]     It appears from Woodhouse J’s judgment that the claims of the sister’s mental incapacity were not strong and there was no evidence of perjury.   There is no evidence that the Public Trust did not comply with its internal procedures but even if they had it is not clear how that would give rise to claims of loss.  It appears that Woodhouse J accepted the overwhelming evidence of all witnesses who deposed to the sister’s mental capacity.

[15]     That evidence was supported by two doctors whom the sister had consulted at about the time she executed her Will.

[16]     Mr White blames his lawyer for failing to or not sufficiently challenging the evidence which Woodhouse J said he accepted.  Mr White has prepared an affidavit formalising his challenges to the affidavits of the witnesses whom Woodhouse J accepted.

[17]     The Public Trust is a target also because it should not have prepared a Will for execution at a time when the sister’s capacity to sign the Will should have been the subject of medical enquiry.

[18]    Mr White informs the Court that he has sought review from the Justice Department’s Legal Complaints Review Officer over the Standards Committee’s dismissal of his claim against the lawyer who represented him in the Estate proceeding.   He believes there is an undisclosed business connection between the Chairman of the Standards Committee and the lawyer who referred him to the legal firm that represented him.

[19]     Mr White intends to file a complaint with the Ombudsman because Mr White says  the  Public  Trust  is  “stone-walling”  him  upon  his  requests  for  further information.

[20]     In response to questions from the Court upon his setting aside application it is clear that Mr White challenges the claims of friends and associates of the sister because, as he puts it, they did not know his sister as well as they claimed and because he did know his sister better than those others.   He says his view of his sister’s incapacity is to be preferred.  It follows it seems that therefore those other persons have been untruthful and they have committed perjury.

[21]     It appears Mr White had the opportunity of raising his issues and indeed did so in the course of the probate proceeding.  He cannot now raise those same issues again.

[22]     Mr Gilchrist is correct when he says that any claim in respect of perjury of witnesses would not be a claim against the Public Trust. Such would not amount to a counterclaim, set off or cross demand against a creditor who is seeking to enforce his judgment.

[23]     All  matters  relevant  to  Mr  White’s  complaints  have  effectively  been determined before Woodhouse J.  Accordingly Mr White’s application is a collateral attack on the judgment for which the only remedy available was an appeal or a setting aside. This Court concludes there is no separate genuine dispute of substance raised upon this application and that there is no genuine triable claim against the Public Trust.  For there to be such Mr White would have to show that there was a case that had a fair chance of success. That is not the case here.

Conclusion

[24]     The application to set aside the bankruptcy notice is dismissed.

[25]     The date for compliance with the bankruptcy notice is extended to 30 May

2013.

Costs

[26]     Mr White is earnest in his perceptions of injustice. The Public Trust seeks an award of costs on a solicitor/client basis. Mr White was informed this would be the case if he pursued his application.

[27]     Certainly Mr White’s application lacks any merit at all.   These comments

notwithstanding the Court consider it is appropriate to award costs on a category 2B

basis.

Associate Judge Christiansen