Slavich v Slavich

[2012] NZHC 1174

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2010-419-1406 [2012] NZHC 1174

UNDER  the Trustee Act 1956 and the

Administration Act 1969

IN THE MATTER OF     an application under s 51 of the Trustee Act

1956 and s 21 of the Administration Act

1969 to remove John Kenneth Slavich as trustee and administrator of the estate of Steven Frank Slavich

BETWEEN  ALLISON SLAVICH Plaintiff

ANDJOHN KENNETH SLAVICH Defendant

Hearing:         (on papers)

Appearances: K I Bond and T M Braun for the Plaintiff

Defendant in person

Judgment:      29 May 2012

JUDGMENT OF WOODHOUSE J (Application to recall or set aside judgment)

This judgment was delivered by me on 29 May 2012 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Parties:

Mr K I Bond and Mr T M Braun, Harkness Henry, Solicitors, Hamilton

Mr J Slavich, Hamilton

SLAVICH V SLAVICH HC HAM CIV-2010-419-1406 [29 May 2012]

[1]      On 18 August 2011 I delivered a judgment on an application for costs by the plaintiff against the defendant.  On 25 May 2012 the defendant filed an application for an order to recall or set aside the judgment.

[2]      The  judgment  followed  settlement  of  the  plaintiff’s  claim  against  the defendant except as to costs.   The settlement memorandum recorded that “costs remain in issue and the parties have agreed should remain at the discretion of the Court”.  Having received two memoranda for the plaintiff and two for the defendant on the question of costs I determined the application on the papers.

[3]      The order for costs has been sealed by the plaintiff.  Accordingly it is not open to the defendant to seek an order for recall of the judgment: r 11.9.

[4]      I am also satisfied that the defendant is not entitled on his application to have the judgment set aside. The defendant alleges that there was fraud by the plaintiff in obtaining the costs award and further fraud by claiming costs in a sum higher than costs incurred.   These are bare allegations to that essential effect.   They do not provide grounds for setting aside the judgment.   If the judgment was obtained by fraud, the defendant must bring an action to that effect and support his allegations with cogent evidence.  There is no action.  At this stage there is also nothing beyond the broadest assertion that there was fraud, with this assertion contained in an unsworn document.

[5]      The defendant says that, before the costs judgment was delivered, he “was about to identify further, serious and material false statements to the Court made via the Plaintiff’s  Counsel”.   The  defendant,  in  a  memorandum  dated 3  June 2011 relating to the costs application, alleged that a memorandum for the plaintiff was “knowingly false and therefore in contempt of Court”.   I issued a minute dated 9

June 2011 directing the defendant to make clear what statements he contended were false, the grounds on which he contended they were knowingly false, and why such matters required a hearing on questions of costs.  Nothing was filed by the defendant following that memorandum and before delivery of the judgment on 20 September

2011.

[6]     The defendant also contends that there was procedural unfairness in determination of the costs.  If the defendant considered there were material errors, his remedy was to appeal.  He did not appeal.  He did file an application for leave to appeal the decision on costs.  In response to that application I issued a minute dated

20 September 2011 indicating that there did not appear to be need to apply for leave because there was a general right of appeal.   I am not aware of any further steps having been taken by the defendant following issue of that minute.  The defendant says in his present application that he did not appeal, and did not pursue matters following the minute of 20 September 2011, for various reasons but none of these provide any justification for setting aside the costs judgment.

[7]      Accordingly, the application is dismissed.

Woodhouse J