Toubat v Toubat

[2023] NZHC 1737

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-352

[2023] NZHC 1737

BETWEEN

MOHAMMAD HASAN TOUBAT

Proposed Applicant

AND

HASAN MOHAMMAD HASAN AHMAD TOUBAT and ABLA ALI AL GHOULEL

Proposed Respondents

Hearing:	On the Papers
Appearances:	Applicant self-represented
Judgment:	5 July 2023

JUDGMENT OF CULL J

[1]        The Registrar has referred this matter to me under r 5.35A of the High Court Rules 2016 because he believes that, on its face, it is an abuse of the process of the Court.1

[2]        Mr Mohammad Toubat is self-represented and seeks summary judgment against Mr Hasan Toubat but has declined to file a statement of claim, notice of proceeding or interlocutory application for summary judgment as required by Part 12 of the High Court Rules. The Registrar explained to Mr Toubat the process for filing a statement of claim with a summary judgment application but Mr Toubat declined, requesting the Registry to accept his documents for filing on the basis of a hand written without notice application and two documents in support, with no accompanying affidavit.

1      High Court Rules 2016, r 5.35A.

TOUBAT v TOUBAT and Anor [2023] NZHC 1737 [5 July 2023]

The application

[3]        There is one document of three pages. The first page is marked “G 1”, being an intitulement. The second page is marked “G 32” containing the form of an application without notice and the third page is marked “G 10”, which is the memorandum required at the end of the first document filed by a party under r 5.44. I deal with each of the pages below.

First page

[4]        Despite the intitulement being in the Form G 1 prescribed under the High Court Rules, the defendant is described in the intitulement as being “currently overseas, New Zealand passport LL877503, teacher”. There is no address for service of the proceeding on the defendant. It is unclear whether the proposed defendant is overseas temporarily or residing overseas.

Second page

[5]        The second page, intituled G32 is a reference to the Form G 32 under the High Court Rules, for an interlocutory application under HCR 7.19. This page contains the application and numbers five paragraphs. I detail them as follows:

(1)Mr Toubat, as the applicant, applies for an order in the following terms:

Cancellation of sales agreement for property signed on 10 August 2021 with the defendant.

[6]        Although no affidavit was filed in support of the application, Mr Toubat has provided a copy of an agreement for sale and purchase dated 10 August 2021 recording a sale of a Christchurch property for $500,000 between Mr Mohammad Toubat as vendor and Mr Hasan Toubat as the purchaser.

[7]        Paragraphs [2] and [3], purporting to provide the grounds for relief, are described as follows:

(2)The grounds on which Mr Toubat seeks the order for cancellation is described as follows:

NO Payment as per agreed and signed contract on date of settlement.

(3)The application is made in reliance on facts and truth.

[8]        Paragraph [4] says that the application is made without notice to any other party on the ground “that an enactment expressly permits the application to be made without serving notice of the application.”

[9]        Paragraph [5] contains a certification from Mr Toubat that: “The ground set out in the paragraph above is true and all reasonable enquiry and/or reasonable steps have been taken to ensure that the application contains all relevant information.”

[10]      There are obvious deficiencies in this application. If the application purports to be an application for summary judgment, the pleadings must properly and fairly inform the defendant of the nature of the claim. The factual grounds supporting the relief sought are required to be in affidavit form about what appears to be a failed sale and purchase contract. The pleaded assertions in paras [3] and [4] that the application is made in reliance “on facts and truth” does not suffice. Rule 12.4(4) stipulates that a party making an application for summary judgment must file and serve on the other party the following documents:

(a)an interlocutory application on notice in form G 31:

(b)a supporting affidavit;

(c)if the party is a plaintiff applying at the time the statement of claim is served, –

(i)a notice of proceeding in form G 13; and

(ii)a statement of claim;

[11]      Thus, Mr Toubat’s grounds for applying without notice are non-compliant with the High Court Rules. A summary judgment application must be applied for on notice and served on the defendant, as r 12.4 requires.

Third page

[12]      On the third page, which purports to be in Form G 10, the memorandum states that the document is filed by the plaintiff in person with an address of service being

an email and stating that documents for service are to be left at the email address or emailed to the email address.

[13]      There is no address for service of the plaintiff. Rule 1.3 defines an address for service as “the address of a place in New Zealand at which a document may be left for that party or to which it may be sent by post to that party …” It is clear from r 6.5, which provides that a document “may be served at an address for service by leaving the document at that address at any time between 9 am and 5 pm” that a physical New Zealand address is required. Although the plaintiff has provided an email address, the High Court Rules require a physical address in New Zealand.

Conclusion

[14]      The Registrar has made a file note that despite the advice given to Mr Toubat about the need to file a statement of claim and/or notice of proceeding, he declined that advice, as he believed he did not need to file them. The Registry has registered his without notice application, at his insistence and noted that Mr Toubat refused to file other documents.

[15]      I am satisfied, having considered the three page application and a page entitled “Account transactions from Kiwibank,” together with the agreement of sale and purchase, both of which were filed without attachment to an affidavit, that this proceeding is seriously defective and is non-compliant with the High Court Rules 2016. Under r 5.35B, I find the proceeding should be struck out, as it is plainly an abuse of the process of the Court.

Result

[16]      Accordingly, I make the following order under r 5.35B(2)(a) that the proceeding is struck out. The application and the two documents filed with it are to be returned to Mr Toubat.

[17]      I have not given the applicant an opportunity to be heard. I record that Mr Toubat has a right to appeal my decision.

Cull J