Siemer v Official Assignee - [2013] NZHC 513

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-1709 [2013] NZHC 513

BETWEEN V R SIEMER Plaintiff

ANDOFFICIAL ASSIGNEE First Defendant

ANDK FARDELL Second Defendant

Hearing: 18 February 2013

Counsel: Plaintiff in person
D Salmon and I Hikaka for First Defendant
Appearance of Second Defendant excused

Judgment: 18 March 2013

JUDGMENT OF BREWER J

This judgment was delivered by me on 18 March 2013 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS
Lee Salmon Long (Auckland) for First Defendant Gilbert Walker (Auckland) for Second Defendant (Copy to Plaintiff in person)

SIEMER V OFFICIAL ASSIGNEE & ANOR HC AK CIV-2010-404-1709 [18 March 2013]

Introduction

[1] The plaintiff seeks judicial review of a decision of the first defendant not to assign to the plaintiff the right to pursue the proceeding VR & JC Siemer and Paragon Services Ltd (struck off) v Fardell (the Proceeding).1

[2] The plaintiff’s claim is set out in a second amended statement of claim dated

17 December 2012. At a hearing on 18 February 2013, I granted the plaintiff’s

application to add, as a ground of review, the following:2

Unreasonableness

The first defendant’s refusal to assign was unreasonable in the Wednesbury
sense.

Background

[3] The plaintiff was adjudicated bankrupt in November 2008. At that time he was a plaintiff in the Proceeding. He is now the only plaintiff in the Proceeding.3

[4] The claims in the Proceeding are set out in a third amended statement of claim dated 12 February 2007. The defendant is named as Robert Fardell, a lawyer who gave advice to the plaintiff. Mr Fardell died in 2005 so the second defendant as executrix of Mr Fardell’s estate was substituted as the defendant.

[5] The plaintiff’s claim against Mr Fardell’s estate relates to advice given to him in his capacity as the managing director of Paragon Services Ltd. The context as pleaded was action taken by another director of Paragon (appointed by a company holding 55% of the shares in Paragon) which were considered by the plaintiff to be hostile to the interests of Paragon and to the interests of himself and JC Siemer as
shareholders in Paragon.

1      HC Auckland CIV-2003-404-005782.
2      Siemer v Official Assignee HC Auckland CIV-2010-404-1709, 18 February 2013.
3      Paragon Services Ltd was struck off the Companies Register on 22 June 2009. An order striking
out JC Siemer’s claim was sealed on 9 August 2010.

[6] The plaintiff pleads in the Proceeding that in reliance on Mr Fardell’s advice he and JC Siemer instructed Mr Fardell to issue proceedings and obtain an order appointing Michael Stiassny as the receiver of Paragon.4 The plaintiff then pleads that this advice was negligent in a number of respects. The judgment sum sought is
$969,021.10 plus interest.

[7] The third amended statement of claim contains a further cause of action. It is that Mr Fardell owed the plaintiff a fiduciary duty which was breached. The nub of the pleading is conflict of interest arising from Mr Fardell’s professional…

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 Siemer v Official Assignee

Details

AGLC: Siemer v Official Assignee [2013] NZHC 513
Case: [2013] NZHC 513
Decision Date: 18 March 2013

CaseChat Overview and Summary

The plaintiff in this case, Siemer, was adjudicated bankrupt in 2008 and sought judicial review of the Official Assignee's decision not to assign to him the right to pursue a proceeding against Fardell. The proceeding in question related to advice given by Fardell, a lawyer, to Siemer in his capacity as the managing director of Paragon Services Ltd. Siemer claimed that Fardell's advice was negligent and sought a judgment sum of $969,021.10 plus interest. The Official Assignee, as an officer of the Court, was responsible for deciding whether to continue the Proceeding in Siemer's name or to assign it to him. In this case, the Official Assignee decided not to assign the Proceeding to Siemer, citing the weakness of the claim and concerns about Siemer's conduct as a litigant.

Siemer's grounds of review included error in law, breach of natural justice, failure to properly take into account relevant considerations, taking into account irrelevant considerations, procedural impropriety, mistake of fact, bad faith, and, more recently, Wednesbury unreasonableness. The court found that the Official Assignee made an error of law by attaching significance to Siemer's record as a litigant, which was not within the scope of his duties as an officer of the Court. The court also found that none of the other grounds of review were made out.

Ultimately, the court quashed the Official Assignee's decision not to assign the Proceeding to Siemer and directed the Official Assignee to reconsider his decision in light of the judgment. The plaintiff was entitled to costs, although as a self-represented litigant, these would be limited to out-of-pocket expenses.

Orders