Re McNab

[2018] NZHC 1817

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

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

CIV-2018-476-0000035

[2018] NZHC 1817

IN THE MATTER

of s 66 of the Trustee Act 1956

AND

IN THE MATTER

of the High Court Rules

AND

IN THE MATTER

an application between GORDON WALLACE CAMERON MCNAB and GABRIELLE PAULETTE MATHIESEN

Applicants

Hearing:	(On the papers)
Judgment:	20 July 2018

JUDGMENT OF VENNING J

This judgment was delivered by me on 20 July 2018 at 3.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Copy to:            Applicants

Re McNab and Mathiesen [2018] NZHC 1817 [20 July 2018]

[1]The Registrar has referred these proceedings to me as duty Judge.

[2]        They have been referred under r 5.35A. The documents filed generally meet the formal requirements of rr 5.3 to 5.16, however, on their face they are plainly an abuse of process of the Court.

[3]The documents are:

(a)application for directions under the Trustee Act 1956;

(b)Memorandum of Applicant Trustee; and

(c)Memorandum of Respondent.

[4]        The documents are defective in form and objectionable in substance. As to form the application purports to be an application for directions under s 66 of the Trustee Act 1956, and Part 17 of the High Court Rules. Applications under s 66 of the Trustee Act are brought under Part 18 of the Rules, not Part 17.1 Next the application should be accompanied by a statement of claim which it is not. Finally, it also refers to Mr McNab as the applicant and Ms Mathiesen as the respondent when they are apparently both trustees of the relevant trust. If those issues of form were the only issues they could be addressed.

[5]        However, of more relevance and significance is the substantive nature of the purported application and the material in the accompanying memoranda. While paras 1(a) to (d) of the application are purportedly directions, in substance they seek to challenge actions of the Registrar/Sheriff of the High Court in relation to the sale of the property at 282 Timaru to Pareora Highway and also to challenge the actions of the Official Assignee.

[6]        The application raises matters which have been substantively dealt with by decisions of this Court in numerous judgments. All of this goes back to the adjudication and bankruptcy of Ms Mathiesen on 11 June 2013 and the attempts by

1      High Court Rules 18.1(b)(xiii).

Ms Mathiesen (and Mr McNab) to challenge that bankruptcy and its consequences. The background is set out in the judgments of Gendall J.2 In a later judgment Gendall J set out directions for sale of the property in issue.3 Reference can be made to the most recent example of Mr McNabb’s breach of Court orders as discussed in the judgment of Nation J of 15 June 2018.4

[7]The remaining direction sought refers to:

(e)..Directions are also sought as to the trust’s ownership of Harlau House at 253 Beaconsfield Road, Timaru since September 2005, or thereabouts, and the implications of certain GST and Gift Duty matters requiring to be urgently addressed and former Trustees accounts from 1^st April 2010 to 22^nd May 2014, required and in proper form – a matter upon which these parties differ.

(f)..Evidence of these contentions and of the matters stated below appear on the face of the High Court record of High Court proceeding CIV-2016-476- 000049.

[8]        It is impossible to make any sense or to give any particular effect to that direction in the form it is before the Court.

[9]        No matter how it is dressed up the proposed proceeding is plainly an abuse of process as it seeks to collaterally challenge and raise issues that were dealt with in previous judgments of the Court.

[10]      The grounds cited in support and the memoranda filed by Mr McNab and Ms Mathiesen confirm the vexatious nature of the proposed applications. It is clear the applicants seek to challenge the actions of the Official Assignee and former trustees. Those matters have been dealt with in the former numerous proceedings involving Ms Mathiesen and Mr McNabb.

[11]As the application is plainly an abuse of process it is struck out.

[12]The applicant has the right to appeal this decision.5

2      Official Assignee v Mathiesen [2017] NZHC 2349; and Official Assignee v Mathiesen [2017] NZHC 3108.

3 [2017] NZHC 3108.

4      Official Assignee v Mathiesen [2018] NZHC 1441.

5      HCR 5.35B(3).

[13]      For the purposes of s 167, Senior Courts Act 2018 I record that this proceeding is totally without merit.

Venning J