Shultz v Attorney-General

[2017] NZHC 2634

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV2017-404-000888 [2017] NZHC 2634

BETWEEN

TNGA MAREE SHULTZ

Plaintiff

AND

ATTORNEY-GENERAL Defendant

Hearing:	25 October 2017
Appearances:	T M Shultz the Plaintiff in person E Mok for the Defendant
Judgment:	27 October 2017

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

27.10.17 at 3:30pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

TNGA MAREE SHULTZ v ATTORNEY-GENERAL [2017] NZHC 2634 [27 October 2017]

Background

[1]      The plaintiff claims that when she was born on 5 November 1968 her birth was incorrectly recorded then as a “child born dead” on the registration of birth documents. She says as a result of this error a deceased estate was created in her name, Tina Maree Kahurangi Moke, a name since twice changed including more recently to that by which the plaintiff brings this proceeding.

[2]      The plaintiff claims that once a person applies for a birth certificate, that person becomes “liable as a debtor” and the birth certificate becomes “the product of bond transfers and redeemables”, and is used “as security for surety to the borrowing of money”.

[3]      She claims that a life insurance policy was (by some government or official process) placed against her name and that, as soon as she was registered as a child born dead, “the life policy is effective”. She claims that bonds were also issued in her name upon her birth.

[4]      She said the creation of that deceased estate in her name was held on statutory trust for her pursuant to s 77 of the Administration Act 1969. The plaintiff claims she is “the beneficiary of all monies” that have been “accumulated, generated and received by commercial use” of her name.

[5]      Her proceeding purports to be brought pursuant to s 79 of the Trustee Act 1956 on the basis that she was a beneficiary of the deceased estate (her own) whereby money or securities have been transferred to the crown.

[6]      Her initial statement of claim filed in April 2017 under s 77(1) of the Trustee Act was against the Hon Simon Bridges MP the former Minister for Economic Development.   By order of this Court on 1 August 2017 the Attorney-General on behalf of the Treasury was substituted as defendant in the proceeding.  Earlier, the

plaintiff filed an interlocutory application for summary judgment.  On 20 September

2017 an application for strike out was filed on behalf of the Attorney-General.

[7]      The plaintiff attached copies of documents to her original statement of claim including one headed ‘Particulars Required for Registration’ [the source document] and a birth certificate.

[8]      The source document was filled in by the plaintiff ’s mother.  Below is a copy of the first three questions asked and the handwritten responses given.

[9]      To be noted above at question 3 is that the handwritten surname of Moke has been crossed out, and below that in brackets are the words (If child born dead then, to be stated here).

[10]     The birth certificate provided by the plaintiff records her present name.   It records as well the names she was given “at birth”.  It records her date of birth and place of birth.

[11]     It is the plaintiff ’s case that when her mother signed the source document it recorded the plaintiff only as Tina Maree Kahurangi “child born dead”.  It appears to the Court those words referenced to by the plaintiff are part of the standard form of the document which the plaintiff’s mother has completed.

[12]     The plaintiff says that the true meaning of the words   birth  and   chil d  mean stillbirth and therefore that term as used in the birth certificate declares the plaintiff to be dead. Birth can only refer, the plaintiff says, to a child stillborn for it is only a child that has been  born  that has lived beyond the birth process.

[13]     The birth certificate provides the documentary source of the plaintiff’s claim of an estate legacy.  At the bottom right hand side of the birth certificate under the heading Registration Number is the number 1968119987.

[14]     By her [second] amended statement of claim filed on 14 July 2017 the plaintiff pleads her understanding of the use of the terms ‘born’ and ‘birth’. That includes:

•The word born means a baby that is in the womb of the mother which is alive as opposed to the word birth.

•         The word birth includes a stillbirth but does not include a miscarriage.

•Another interpretation of birth means the issue from its mother of a stillborn child.

•         A stillborn child also means a dead foetus, or something that weighs

400gms when it is issued from its mother. Or issued after 20 weeks with pregnancy.

•A birth certificate reveals names to that of the child born alive. However the word born does not show but birth… The certificate reveals the number 1968119987 and the seal of the Registrar from the Registrar General, Births, Deaths and Marriages Office.  In legal terms the birth certificate is a warehouse keeper’s receipt…

[15]     The plaintiff’s first amended statement of claim filed on 11 May 2017 provides her assessment about why she says she was registered as a child born dead. She pleads:

[17]      I have obtained copies of my source document and print out.  I have matched the details from the source document to the birth document and there are mistakes.  On the source document; my name Moke had to be scribbled out and not to be entered beside my christian and given names, my names were entered in the column stating (child born dead). The source document that has declared me deceased has been used to create another document namely the birth certificate and the identical details entered on the birth certificate are on commercial paper.   The birth document is then ready to be used as a commercial gain.   The birth certificate represents the corporation person which has my identical names on it, but does not represent me the natural person.

[16]     At paragraph 21 of her second amended statement of claim the  plaintiff explains her entitlement to the claim advanced.

[21]     The source document was not only the instrument that created the birth certificate it has indeed created a deceased estate trust which is held in a statutory trust.  The birth certificate numbers are recognised in the United States Treasury Department’s Treasury Direct.  The numbers 1968119987 is the bond serial number and the month and year of my born day are the issue dates for that bond.  The bond was issued in 1969 as stated and matured in

1998.   How I got the calculation was by entering the birth certificate registration numbers.  The same numbers are also recognised in the Fidelity

Dotcom Investment Scheme.  I refer to the calculated bond printed abstract,

Reserve Bank Act 1968 s 5 and also to the email reply provided to me by the Reserve Bank of New Zealand.  My point is:  That the registration numbers are issued and is recognised outside New Zealand and that a transaction did take place.

[17]     The plaintiff calculates that the amount of money held by Treasury on her behalf as a beneficiary of a deceased estate, amounts to “$23 million, together with compound interest in the sum of three hundred and thirty five thousand, four hundred and fifty one and thirty four fifteen”.  She seeks an order for payment of those sums to her.

[18]     The plaintiff also seeks orders:

(a)      That she be issued a certificate of title in respect of property in which she has a beneficial interest pursuant to s 12 of the Land Transfer Act

1952; and

(b)She be granted a “unique identifier” from the Registrar-General of Births, Deaths and Marriages by which, inter alia, she can access estate investments.

Strike out application

[19]     The defendant applies to strike out the plaintiff’s claim.  Earlier the plaintiff had filed an application for summary judgment.   This judgment deals with both applications but will consider the strike out application first.

[20]     Rule 15.1 of the High Court Rules enables the court to strike out all or part of a pleading if it considers that pleading to be frivolous or vexatious or is otherwise an abuse of the process of the Court.

[21]     The Court should assume the facts pleaded in the statement of claim are true but may strike out causes of action which are clearly untenable or could not possibly succeed.

[22]     As Cull J noted in Rabson v Judicial Conduct Commissioner1:

[29]      A frivolous proceeding is one that trifles with the court’s processes and lacks seriousness. A vexatious proceeding is one that vexes the defendant beyond what is usual in most proceedings.  There must be some element of impropriety in the claim.  In Reekie v Attorney-General the Supreme Court noted:

“Vexatious might be manifested, for instance, by the unreasonable and tendentious conduct of litigation, extreme claims made against other people involved in the case or perhaps a history of unsuccessful proceedings and unmet costs orders.”

[30]      An abuse of process can take various forms. Lord Diplock in Hunter v Chief Constrable of the West Midlands Police, referred to the power to strike out as:

“… the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.”

[31]     An abuse of process includes a proceeding brought for an improper purpose, a proceeding that attempts to relitigate matters that are already determined, and a proceeding brought where it is inevitable that a remedy will be refused even if one or more grounds of review are made out.

Considerations

Claim under Trustee Act

[23]     The Court accepts submissions on behalf of the defendant that the plaintiffs claim under s 79 of the Trustee Act discloses no reasonably arguable cause of action. Section 79 enables a court to make any order it considers appropriate in respect of money or securities for the time being held by the Crown under s 77 and for the payment and transfer of same.  Section 77 enables trustees of a trust to pay money or securities held by the trust to the Crown, through the treasury, when they no longer wish to be trustees, which may occur if trust beneficiaries are unable to be located, or where trustees are seeking to wind up the trust.

[24]     When doing this, trustees file an affidavit describing the instrument creating the trust and the particulars of persons beneficially entitled under the trust.  Trustees are required to provide sufficient evidence to justify claims of having taken reasonable steps to locate beneficiaries and to pay out the funds. As defendant counsel notes the s 77 mechanism is rarely used by the trustees of private trusts.

[25]     The Treasury’s role is to administer monies or securities received for a period of six years beyond which that property is then transferred to the Crown to be held in a Crown bank account.2

[26]     Section 77 enables a person making a claim of an interest in monies or securities to file an ex parte application to recover those.  Counsel for the defendant comments that in essence the plaintiff appears to be claiming that she is a beneficiary under her own deceased estate because of an alleged error on her birth certificate which records her as a child born dead.

[27]     The Court agrees with counsel’s submission that there are a number of issues with the plaintiff’s claim, including, inter alia:

(a)      Neither the pleadings nor the documents provided by the plaintiff clearly identify the existence of a trust of which the plaintiff is a beneficiary – in particular because no trust deed has been provided and nor has there been any reference to the trust listed in the Treasury’s Annual Gazette Notice identifying monies and securities transferred to the Crown under s 77;

(b)It is not legally possible for the plaintiff to be a beneficiary under her own deceased estate, when she is still alive, and also the source document does not record that she is a child born dead and her birth certificate does not record her as stillborn or deceased;

(c)      Section 77 only applies when a person with interests in real or personal property dies intestate leaving behind “issue but no husband, wife, civil union partner, or surviving de facto partner”;3

(d)There is an inherent unreliability regarding the plaintiff’s claim of the existence of money or securities having been transferred by any trustees to the Crown in accordance with s 77(1) of the Trustee Act by reference to her birth certificate registration number which she says corresponds with the serial number of the bond issued on her date of birth; the plaintiff having acknowledged contacting various government agencies to confirm the existence of a trust under which she is beneficially entitled, but that these efforts have not been successful as indeed a letter on behalf of the Public Trust dated 9 May 2017 illustrates by its reference to an absence of records administering any estate in the plaintiff’s name.

[28]     The Court agrees with the submission that nothing is provided by the pleadings nor by evidence in support to establish a tenable claim under s 79.  Further the Court accepts the submission that the pleadings are beyond repair and could not be remedied by the filing of an amended pleading.

Land Transfer Act 1952 application

[30]     By this pleading the plaintiff seeks to be issued with a Certificate of Title “by way of Crown grant” in respect of property in which she claims she has a beneficial interest pursuant to s 12 of the Land Transfer Act.

[31]     Section 12 provides:

12       Issue of certificate of title in lieu of Crown grant

(1)       A Crown grant may not be issued for any land subject to the provisions of this Act; but in lieu of a grant the Governor-General may by warrant direct the Registrar to—

(a)      issue a certificate of title for the land in form 1 of Schedule 1;

or

(b)       create a computer register for the land and, if the land is not electronic transactions land, issue a certificate of title accordingly.

(2)       The—

(a)       issue of a certificate of title under subsection (1)(a), when signed and registered; or

(b)      recording  of  information  in  the  register  under  subsection

(1)(b), when effected,—

has the force and effect of a Crown grant.

(3)       This section and sections 14, 17, and 18 are subject to section 116 of the Land Act 1948, and—

(a)      the form of a certificate of title; or

(b)      the form in which information is recorded in the register, may be varied as required by the operation of that section.

[32]     It is clear that only the Governor-General can provide direction for the order the plaintiff seeks and the Court has no jurisdiction to do so. In the circumstances this claim will also be struck out.

[33]     The plaintiff says the birth certificate incorrectly records her as a child born dead.  She seeks to be granted a “unique identifier” number, by the Registrar-General of Births, Deaths and Marriages.  However the Registrar-General is not named as a party to this proceeding.  Nor should any other opportunity be provided to amend the pleading to include the Registrar-General as a party.  The plaintiff is incorrect by her claim that the registration documents record her as a child born dead.  That they do not do so is plainly evidenced.

[34]     This claim too shall be struck out.

Summary judgment application by the plaintiff

[35]     This application is dismissed. The plaintiff has not provided sufficient facts to raise a prima face case for her summary judgment application to succeed.  There is insufficient proof of the existence of a trust of which she says she is a beneficiary or to which any money or securities have been transferred by the trustees of any such trust to the Crown in accordance with s 77(1) of the Trustee Act.

[36]     Furthermore, the issues with the statement of claim that have been identified cannot, the Court considers, be remedied by amendment. Fundamental to her claim is that she is a beneficiary of her own deceased estate.  As defendant counsel submits this is clearly not legally possible.

[37]     Issues with the plaintiff’s statements of claim are neither minor nor are they curable.

Judgment

[38]     All of the plaintiff’s claims are struck out.

[39]     The plaintiff’s application for summary judgment is dismissed.

[40]     These are awarded to the defendant on a 2B basis and will be fixed upon

application.

Associate Judge Christiansen