Sloots v Sloots
[2020] NZHC 1217
•4 June 2020
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2019-442-62
[2020] NZHC 1217
UNDER the Administration Act 1969 IN THE MATTER
of the Estate of Cornelia Antonia Marie Sloots
AND
IN THE MATTER
of an application under section 21 of the Administration Act
BETWEEN
JENNIFER MARY ANNE SLOOTS
Plaintiff
AND
JENNIFER MARY ANNE SLOOTS and ROSE-MARIE HUBERTHA JOHANNA SPIJKERMAN
Defendants
Hearing: 2 June 2020
(By way of telephone conference)
Counsel:
M Hardy-Jones and N J Mckessar for Plaintiff
R H J Spijkerman self-represented Defendant not present
Judgment:
4 June 2020
JUDGMENT OF ASSOCIATE JUDGE LESTER
(in relation to striking out of defence)
This judgment was delivered by me on 4 June 2020 at 11.00 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar 4 June 2020
SLOOTS v SLOOTS AND SPIJKERMAN [2020] NZHC 1217 [4 June 2020]
[1] This proceeding concerns a dispute between Jennifer Sloots (Ms Sloots) and her sister, Rose-Marie Spijkerman (Ms Spijkerman), concerning the estate of their late mother, Cornelia Sloots, of which they are both trustees and executors.
[2] The parties are unable to decide about the future of the primary asset in their mother’s estate, which is a residential property. Ms Sloots brought the present proceeding seeking orders that she and her sister be removed as trustees and executors and replaced by an independent solicitor. Since the proceeding was issued, Ms Sloots seeks that Perpetual Guardian Limited (Perpetual) be appointed as trustee in place of the parties. Ms Spijkerman was given notice of that in a memorandum filed with the Court and served on her.
[3] Ms Spijkerman, having been served with the proceedings, filed a document called “Statement of defence and counterclaim”. The document is 18 pages long - the statement of claim is four pages long.
[4] The statement of defence and counterclaim prompted an application to strike it out on the grounds the pleading does not comply with the High Court Rules 2016, that it is prolix, contains irrelevancies, contains evidence, does not meet the most basic requirements of the High Court Rules as to paragraph numbering, and does not disclose a defence or a reasonably arguable cause of action in respect of the counterclaim.
Non-appearance by Ms Spijkerman
[5] The interlocutory application to strike out was filed on 20 March 2020. With a statement of defence having been filed, the need for a first case management conference under r 7.3 was triggered. Counsel for Ms Sloots filed a memorandum for the first case management conference on 15 April 2020. The Registry made requests of Ms Spijkerman that she file a memorandum, but she did not do so. As a result, on 7 May 2020, I scheduled a telephone conference to be held on Wednesday 13 May 2020.
[6] Following the allocation of that telephone conference, Ms Spijkerman contacted the Registry advising that she was busy with other litigation relating to
earthquake claims and that she was feeling pressured. Given the telephone conference had been scheduled at reasonably short notice, I deferred the telephone conference until 2.30 pm on Wednesday 20 May 2020, an extension of one week. I recorded in that Minute that I was trying to strike a balance between the parties, and that Ms Sloots was entitled to pursue her case and the strike out application, but that for the sake of one week, I did not wish Ms Spijkerman to feel unduly pressured.1 I recorded that the Court was obliged to deal with the application that had been made and would do so.
[7] To meet Spark teleconference requirements, the conference on 20 May 2020 was moved to 22 May 2020 – that move being independent of the parties.
[8] Running alongside the telephone conference scheduled to deal with the first case management conference, was the application to strike out which was due for call at 11 am on Thursday 28 May 2020 in Christchurch. As Ms Sloot’s counsel is based in Blenheim, he requested to be able to attend the first call by telephone or AVL.
[9] On 20 May 2020, I directed that the first call of the application to strike out be dealt with, not in the 11 am list, but at a telephone conference at 2 pm on Thursday 28 May 2020.
[10] That left there being a telephone conference scheduled for Friday 22 May 2020 (case management) and Friday 28 May 2020 (first call strike out).
[11] On the afternoon of Thursday 21 May 2020, Ms Spijkerman’s husband filed a request for an adjournment supported by a medical certificate. The email from Mr Spijkerman also referred to him receiving surgery in the following week, that is the week of 28 May 2020.
[12] I vacated the telephone conference on 22 May 2020 and issued a minute on the same date.2 I recorded that Ms Spijkerman had, through her husband, filed a request for an adjournment of the telephone conference on 22 May 2020, supported by a medical certificate. However, the medical certificate did not say that Ms Spijkerman
1 Sloots v Sloots HC Nelson CIV-2019-442-62, 8 May 2020.
2 Sloots v Sloots HC Nelson CIV-2019-442-62, 22 May 2020.
was unable to attend the telephone conference, or otherwise unable to deal with the proceeding, albeit it did refer to her being under stress.
[13] Given there was a telephone conference scheduled for 2 pm on Thursday 28 May 2020, I was prepared to vacate the 22 May 2020 conference given that any matter to be discussed on 22 May 2020, could be dealt with on 28 May 2020 with no real prejudice.
[14] The minute made it clear that if Ms Spijkerman’s health issues meant she was incapable of dealing with the litigation then she was to provide a medical certificate to that effect. However, in the absence of such medical evidence, I advised Ms Spijkerman that she was expected to deal with the proceedings.
[15] On the morning of Thursday 28 May 2020, Ms Spijkerman provided an email which she said provided additional evidence that she was medically unfit to deal with the current Court matters and that she was at the hospital for her husband’s surgery.
[16] What was provided was what appeared to be a photograph of an individual, who I assumed to be Mr Spijkerman at the hospital. No further medical certificate from Ms Spijkerman was provided.
[17] Given it appeared Ms Spijkerman was supporting her husband in his surgery, I adjourned the 28 May 2020 telephone conference to 2 pm on Tuesday 2 June 2020.3 I recorded that as Ms Spijkerman did not provide the type of medical evidence referred to in my minute of 22 May 2020, the conference would go ahead. I confirmed to Ms Spijkerman that if she has not responded to the application to strike out prior to the 2 June 2020 telephone conference, then the application would be considered on its merits.
[18] At the commencement of the telephone conference on 2 June 2020, the operator advised me that she had spoken to Ms Spijkerman who advised the operator that she could not attend the telephone conference as she had a medical appointment.
3 Sloots v Sloots HC Nelson CIV-2019-442-62, 28 May 2020.
[19] Given there had been no contact with the Court in respect of any claimed medical appointment, and certainly no medical certificate or the like, the telephone conference proceeded in the absence of Ms Spijkerman and I considered the application. Ms Spijkerman had not filed a notice of opposition to the strike out application.
The merits of the strike out application
[20] Counsel filed a memorandum in support of the strike out application recognising the high threshold to be met before a strike out will be ordered.
[21] Counsel submitted the document was prolix and contained irrelevant matters and relied on the following passage from Commissioner of Inland Revenue v Chesterfields Preschools Ltd:4
The narrative of facts presented by the statement is not straightforward but defuse: there are large tracts of factual material and much of the material facts relating to an individual claim are disbursed throughout different parts of the document. This makes it difficult, if not impossible, to understand. It would be impossible for the defendants to give a targeted response ...
[22] Here, the statement of defence and counterclaim does not engage on a paragraph by paragraph basis with the claims in the relatively brief statement of claim. The defence is a mixture of narrative, submission and evidence. I accept the submission made by Mr Hardy-Jones that the statement of defence and counterclaim fails to meet even the most basic requirements of the High Court Rules relating to paragraph numbering and structure.
[23] However, as recognised by counsel, the threshold for strike out is high. Where a pleading can be repaired, that is, it is not a right off, then it should not be struck out. A statement of defence complying with the High Court Rules may be achievable.
[24] Accordingly, while the application to strike out is granted, there is leave to the Ms Spijkerman to file a pleading that complies with the High Court Rules 2016, that to be filed and served within 10 working days (that is by Thursday 18 June 2020).
4 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [90].
[25] Unless a pleading that complies with the High Court Rules is received by Thursday 18 June 2020, Ms Sloots’ claim will be dealt with on a formal proof basis.
Observation
[26] It is clear that the parties cannot agree on the future of the Estate and the property that it owns. The Estate is dysfunctional. That is not to cast responsibility for that state of affairs on one party or the other - it is a statement of fact. The fact that the property is not generating any income but still has a mortgage, has led, on the advice of Mr Hardy-Jones, to a real risk of a mortgagee sale. That could cause a loss to both parties.
[27] Ms Spijkerman has, in the papers she has filed, referred to being stressed by the situation and has other calls on her time. She also lacks the ability to prop up the Estate financially. All factors point to the need for the property to be dealt with by someone independent. Both parties claim to have put their own funds into the Estate and those respective claims can be dealt with by the independent trustee. The bigger picture here is that this property has to be dealt with in a manner that safeguards the interests of both Ms Sloots and Ms Spijkerman, and they are presently unable to do that given their falling out.
[28] It would make real practical sense for Ms Spijkerman to co-operate in the appointment of an independent trustee such as Perpetual.
Associate Judge Lester
Solicitors:
Hardy-Jones Clark, Blenheim
Ms R H J Spijkerman, Christchurch – self represented
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