Strange aka Petryszick v Casey Farms Limited

[2023] NZHC 3054

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-0179

[2023] NZHC 3054

BETWEEN

PETER MORRISON STRANGE aka PETER MORRISON PETRYSZICK
Plaintiff

AND

CASEY FARMS LIMITED

First Defendant

BROSNA FARMS LIMITED
Second Defendant

JOTAC LIMITED
Third Defendant

W G BROADBENT & CO TRUSTEES LIMITED
Fourth Defendant

RYAN LAW
Fifth Defendant

PB AND BL CASEY PARTNERSHIP

Sixth Defendant

Hearing:

30 October 2023

Appearances:

Plaintiff in person

D Quinn for the First and Second, Defendants G Bradford for the Third Defendant

B R Webster for the Fourth Defendant

Date of Judgment:

31 October 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

Solicitors/Counsel: Purnell Law, Thames

Morgan Coakle, Auckland Coombe & Associates, Paeroa

STRANGE v CASEY FARMS LIMITED [2023] NZHC 3054 [31 October 2023]

Introduction

[1]    The plaintiff’s father, Hugh Strange, was formerly the registered owner of farmland at 7666 State Highway 26, Komata (the property).

[2]    In 2016, Hugh Strange sold the property to the sixth defendants, Phillip Casey and Beverley Casey, in partnership as the PP and BL Casey Partnership (the transaction). Hugh Strange died in July 2021.

[3]    The plaintiff, Hugh Strange’s son Peter Strange, takes issue with the transaction. In this proceeding, Mr Strange alleges that the transaction was unconscionable, naming four defendants:

(a)the PP and BL Casey Partnership (the partnership);

(b)Brosna Farms Ltd (Brosna Farms), a company controlled by the Casey family;

(c)JOTAC Ltd (JOTAC), a company that owned premises at one point leased to Mr Strange;

(d)W G Broadbent & Co Trustees Ltd, and/or the firm of barristers and solicitors W G Broadbent & Co, who Mr Strange believes to be the solicitors that acted for Hugh Strange in respect of the transaction.

[4]    Mr Strange’s main contention appears to that the property was sold at an undervalue.

[5]    All defendants have applied to strike out the claim on the basis that the proceeding is an abuse of process and discloses no reasonably arguable cause of action.

[6]    The second and sixth defendants apply for summary judgment in the alternative. During the hearing, counsel for the second and sixth defendants accepted

that if an order is made striking out the claim in its entirety, then it is not necessary to determine the application for summary judgment.

[7]Mr Strange is self-represented. He opposes the defendants’ applications.

Discovery

[8]    In his notice of opposition, Mr Strange invited the Court to exercise its discretionary power under r 7.43(2)(b) of the High Court Rules 2016 (HCR), and order that the defendants produce documents to evidence the purchase price paid by the partnership for the property. Mr Strange orally renewed his request for disclosure of documents of that nature during a chambers list call and a case management conference. Mr Strange has not filed an application for a discovery order.

[9]    This is not an appropriate case for the Court to order discovery of documents relevant to the transaction before disposal of the applications for strike out. The purchase price that the partnership paid for the property is irrelevant to the primary issue raised by the applications to strike out, which is whether Mr Strange has standing to bring the proceeding.

Strike out principles

[10]   Pursuant to r 15.1(1) of the HCR, the Court may strike out all or part of a pleading if it:

(a)discloses no reasonably arguable cause of action; or

(b)is likely to cause prejudice or delay; or

(c)is frivolous or vexatious; or

(d)is otherwise an abuse of the process of the Court.

[11]   The principles governing strike-out applications are summarised in the Court of Appeal decision in Attorney-General v Prince:1

(a)A strike-out application is to proceed on the assumption that the facts pleaded in the statement of claim are true unless those pleaded facts are entirely speculative and lack any foundation.

(b)It is only where, on the facts alleged in the statement of claim, however broadly they are stated, no private law claim of the kind or kinds advanced can succeed that it is appropriate to strike out the proceedings at a preliminary stage.

(c)The threshold for strike out is high. Before a proceeding may be struck out the causes of action must be so clearly untenable that they cannot possibly succeed.

(d)The jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material.

(e)The fact that an application to strike out raises difficult questions of law, and requires extensive argument, does not exclude the jurisdiction.

The pleadings

[12]   Mr Strange’s claims are set out in his amended statement of claim dated 28 July 2023 (the amended claim).

[13]   Mr Strange’s first statement of claim named Casey Farms Ltd (Casey Farms) as first defendant and Ryan Law as fifth defendant. Casey Farms was struck off the Register of Companies on 2 May  2022,  and  the  amended  claim  confirms  that  Mr Strange is not pursuing a claim against Casey Farms or Ryan Law.

1      Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.

[14]   Mr Strange’s first statement of claim named W G Broadbent & Co Trustees Ltd as the fourth defendant. The amended claim names W G Broadbent & Co as the fourth defendant. No application has been made to substitute a party.

[15]   Counsel for the fourth defendant has confirmed that the correct name of the entity that operates the law practice is the firm, W G Broadbent & Co. The application for strike out is advanced on behalf of both entities.

[16]   The amended claim is prolix, including a significant narration of events in the life of Mr Strange that have no relevance to his central allegation — that his father was a party to an unconscionable transaction.

[17]   The amended claim does not contain any discernible pleading of a distinct cause of action against any of the defendants. It contains significant speculation about events that Mr Strange has no knowledge of, and pejorative allegations.

[18]   The form of the amended claim is so defective as to justify an order striking the pleading out on that basis alone. However, more fundamentally, Mr Strange does not have standing to bring a proceeding challenging the transaction.

Unconscionable bargain against the partnership and Brosna Farms

[19]   The first and fundamental requirement of a claim of an unconscionable transaction is that the claimant is a party to the transaction that is impugned in equity.

[20]   Mrs Casey  has  provided  uncontested  affidavit  evidence  that  neither Casey Farms nor Brosna Farms have ever been party to a transaction with Hugh Strange or Mr Strange.

[21]   Mrs Casey also confirms in her evidence that the transaction was the only transaction between the partnership and Hugh Strange. Mrs Casey says that the partnership has never been party to a transaction with Mr Strange.

[22]   Mr Strange does not plead, or give evidence, that he had any involvement in the transaction. During submissions, Mr Strange said that he had left his trailer on the

property at the time of the transaction, which has never been returned to him. Even if that was the case, that might at most give rise to a cause of action in conversion or detinue. Such a claim is not pleaded, and would now likely be out of time.

[23]   Mr Strange does not plead, or give evidence, that he had a beneficial interest in the property at the time of the transaction. I find that Mr Strange was not a party to the transaction.

[24]   Mr Strange does not plead, or give evidence, that he is an administrator of his father’s estate. He does not purport to bring the proceeding in that capacity. During submissions, Mr Strange said that he understood that his uncle, John Strange, is the executor of his father’s estate, but he has not been able to confirm that.

[25]   Mr Strange does not plead, or give evidence, that he is a beneficiary of his father’s estate. In one of his affidavits dated 28 August 2023, Mr Strange refers to the “theft of my inheritance”. In a separate affidavit of the same date, Mr Strange refers to W G Broadbent & Co’s involvement in his father’s will, stating:

… the Will they prepared writing me out of my father’s Will…

[26]   During submissions, Mr Strange said that his mother, who is still alive, is the sole beneficiary of the estate. There is no basis for Mr Strange to bring a derivative claim as a beneficiary of the estate of Hugh Strange.

[27]   There is no basis for a claim in equity by Mr Strange against the partnership or Brosna Farms.

W G Broadbent & Co

[28]   The statement of claim contains speculation that W G Broadbent & Co (or W G Broadbent & Co Trustees Ltd) acted for Hugh Strange and/or the partnership in respect of the transaction.

[29]   Even if the law firm did act for one or both parties to the transaction, there is no basis for a claim in tort or equity by Mr Strange against the law firm because    Mr Strange was not a party to the transaction and had no interest in the transaction.

JOTAC

[30]   After a careful review of the amended claim, I cannot discern any claim of any nature by Mr Strange against JOTAC relating to the transaction.

[31]   Mr Strange does not plead any breach of the lease between JOTAC as lessor and Mr Strange as lessee. Mr Strange’s affidavit evidence is that the lease terminated at the end of 2015. This proceeding was filed in July 2022. Any claim for breach of the lease would be out of time.

Defamation

[32]   The amended claim mentions defamation, but there is no discrete pleading of a cause of action in defamation. The amended claim does not allege any particular defamatory statements on the part of any of the defendants. The reference to defamation appears to be misconceived. The pleading does not disclose a reasonably arguable cause of action in defamation.

Conclusion and result

[33]   The amended claim does not disclose a reasonably arguable cause of action against any of the defendants.

[34]The amended claim and this proceeding are struck out.

Costs

[35]   The defendants are entitled to costs. The second and sixth defendants seek one joint award of costs, on a 2B basis. The third defendant seeks an award of costs on a 2B basis. The fourth defendant wishes to be heard on costs.

[36]   My preliminary view is that an award of costs on a 2B basis together with actual disbursements is appropriate for all defendants (the second and sixth defendants jointly). If the fourth defendant wishes to be heard on costs it shall file a memorandum of no more than five pages by 10 November 2023.

[37]   Mr Strange may file a memorandum on costs of no more than five pages by 17 November 2023. I will then decide costs on the papers.

Associate Judge Brittain