Smith v Smith - [2022] NZHC 272

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2021-441-058

[2022] NZHC 272

BETWEEN
BRUCE WINSTON ANDERSON SMITH

Plaintiff

AND

KEVIN EDWARD SMITH

First Defendant

CLINTON ANDREW MAHAKI HEMANA

Second Defendant

HELEN MAREE NATHAN

Third Defendant

TE TUMU PAEROA

Fourth Defendant

GREIG MCKINNON/MCKINNON FAMILY TRUST/PUHORO LIMITED

Fifth Defendant

WARWICK MARTIN BRUCE

Sixth Defendant

BRUCE FARMING LIMITED/BRUCE BROTHERS LIMITED

Seventh Defendant

AON NEW ZEALAND

Eighth Defendant

Hearing: 14 February 2022

Appearances:

Plaintiff in person

O M de Pont for the Eighth Defendant

Judgment:

24 February 2022

JUDGMENT OF COOKE J

SMITH v SMITH [2022] NZHC 272 [24 February 2022]

[1] The plaintiff seeks judgment by way of formal proof on its statement of claim in these proceedings. The hearing by way of formal proof was set down before me.

[2] Prior to the hearing counsel for the eighth defendant filed a memorandum dated 10 February 2022 indicating that the eighth defendant had not been properly served. Subsequently by application dated 11 February, supported by an affidavit dated 8 February, the eighth defendant has applied for summary judgment.

[3] At the hearing itself I raised with Mr Smith, and his daughter who sought to speak on his behalf, an issue concerning the validity of the service of the proceedings on all of the defendants. Consequently Mr Smith made an application to adjourn the formal proof hearing to enable the plaintiff to take further service steps. Following the hearing Mr Smith then filed a memorandum dated 15 February including additional material that he asked the Court to take into account on that application.

[4]This judgment deals with that application, and with the proceedings generally.

Background

[5] This proceeding involves a continuation of a long-running dispute between the plaintiff and other members of his family in relation to entitlements to certain properties belonging to the family members, and entities related to the family.

[6] I will not seek to summarise what has been a very long-running dispute involving proceedings in both the Maori Land Court and the High Court. The High Court proceedings alone have involved at least six judgments.1

[7] The present proceeding was commenced in the District Court under CIV-2021- 041-201. By minute dated 13 July 2021 Judge Hinton reviewed the claims advanced by the plaintiff finding that none of them were within the jurisdiction of the District Court and transferring the proceedings to the High Court under s 90 of the District Court Act.

1 Commencing with Maori Trustee v Smith [2018] NZHC 2898 and running through to Maori Trustee v Smith [2019] NZHC 1701.

[8] When the proceedings were progressed in this Court the plaintiff sought to proceed on a without notice basis. In particular the plaintiff sought a without notice injunction and other orders. By minute dated 15 October 2021 Grice J dismissed those applications on the basis that the procedure for seeking orders on a without notice set by r 7.23 of the High Court Rules 2016 had not…

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 Smith v Smith

Details

AGLC: Smith v Smith [2022] NZHC 272
Case: [2022] NZHC 272
Decision Date: 24 February 2022

CaseChat Overview and Summary

The High Court of New Zealand heard an application for judgment by way of formal proof from Bruce Winston Anderson Smith against several defendants, including his family members and entities related to his family. The proceedings were dismissed as the service of the proceedings was inadequate and the claim was deemed an abuse of process. The plaintiff argued that the proceedings were commenced in the wrong court and that the defendants had not been properly served. The Court found that the service of the proceedings was inadequate as it was not carried out in accordance with the rules. The Court also found that the claim was an abuse of process as the plaintiff was attempting to reopen matters that had already been determined against him and make allegations of criminal conduct against the lawyers and judges that had dealt with his case.

The Court held that it was inappropriate to grant an adjournment to allow the service to be effected as the plaintiff had failed to properly attend to service and had not followed the formal requirements of the Court. The Court also found that the plaintiff's claim was an abuse of process as it was dependent on establishing that the earlier decisions of the Court were wrong. The Court held that such a proceeding would be an abuse of process as a decision of a Court finally determines the issues between the parties subject only to rights of appeal. The Court also found that the terms of the new proceeding involved allegations that were in themselves an abuse of process as the plaintiff was making allegations of criminal conduct against the lawyers and judges that had dealt with his case.

The Court dismissed the proceedings and declined the application for judgment by way of formal proof. The Court noted that any further filing of proceedings relating to the same matters may need to be considered under r 5.35A. The Court acknowledged that the plaintiff and his daughter were respectful at the hearing and commended them for the respectful way in which they conducted themselves at the hearing.

Orders