Siemer v Fardell

[2013] NZHC 1776

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2003-404-5782 [2013] NZHC 1776

BETWEEN  VINCENT ROSS SIEMER First Plaintiff

JANE CHAPMAN SIEMER (struck out) First Plaintiff

PARAGON SERVICES LIMITED (struck out)

Second Plaintiff

ANDKATHLEEN MARY FARDELL as executrix of the estate of John Robert Fortesque Fardell

Defendant

Hearing:                   (on the papers) Appearances:      V R Siemer in person

M C Harris for the Defendant

ITF Hikaka for the Official Assignee

Judgment:                15 July 2013

JUDGMENT OF WOODHOUSE J (Application for stay)

This judgment was delivered by me on 15 July 2013 at 4:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Parties: Mr V R Siemer

Mr M C Harris, Gilbert Walker, Solicitors, Auckland

Mr ITF Hikaka, LeeSalmonLong, Solicitors, Auckland

SIEMER v FARDELL [2013] NZHC 1776 [15 July 2013]

[1]      The Official Assignee has had conduct of the proceeding for Mr Siemer, as first plaintiff, following Mr Siemer’s adjudication in bankruptcy in November 2008. The Official Assignee filed a notice of discontinuance on 12 June 2013.  Mr Siemer has applied for an order for stay of the discontinuance of the proceeding by the Official Assignee.

[2]      In  the  usual  way  the  notice  of  discontinuance  simply  records  that  the proceeding is  discontinued.    It  is  also  noted that  there is  no  question  of costs. Attached to an affidavit of Mr Siemer filed in support of his application is a letter from  the  Official  Assignee  to  Mr  Siemer  of  7  June  2013.    This  records  that settlement had been reached between the Official Assignee, on behalf of Mr Siemer’s estate, and the defendant.   It is clear that the notice of discontinuance was filed following this settlement.

[3]      The application for stay cannot proceed and in consequence is dismissed. The reasons are as follows:

(a)       There is nothing to stay. The discontinuance is in force.

(b)Mr Siemer has no standing.  His own application acknowledges that any rights of Mr Siemer were vested in the Official Assignee.   The fact  that  Mr  Siemer  may  challenge  steps  taken  by  the  Official Assignee has no bearing on what has occurred in this proceeding.

(c)      Mr Siemer refers to other litigation including an appeal against a decision of the Official Assignee.   If other proceedings give rise to questions relating to the discontinuance of this proceeding then those matters can be addressed in an appropriate way at a later date.

(d)Fundamentally, there is no jurisdiction for the step sought to be taken at this stage and in this way by Mr Siemer.

Woodhouse J