United Brick & Block Limited (in liquidation) v Cusack
[2016] NZHC 3139
•19 December 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2016-409-001074 [2016] NZHC 3139
UNDER the Companies Act 1993 IN THE MATTER
of the liquidation of UNITED BRICK & BLOCK LIMITED (IN LIQUIDATION)
BETWEEN
UNITED BRICK & BLOCK LIMITED (IN LIQUIDATION)
First Plaintiff
ANDREW HAWKES AND VIVIAN FATUPAITO, as liquidators of United Brick & Block Ltd (In Liquidation) Second Plaintiffs
AND
CRAIG RONALD CUSACK AND DEBORAH MARY STUART (ALSO KNOWN AS DEBRA MARY STUART) Defendants
Hearing: 15 December 2016 Appearances:
C R Vinnell for Plaintiffs
Mr Cusack, in personJudgment:
19 December 2016
JUDGMENT OF ASSOCIATE JUDGE MATTHEWS
[1] United Brick & Block Limited (In Liquidation) together with its liquidators (United) sue Mr Cusack and Ms Stuart for judgment to recover their overdrawn current accounts. There are four further causes of action against Mr Cusack and Ms Stuart which are not the subject of this judgment. A direction has been made that if any or all of these causes of action are to be defended a statement of defence is to
be filed and served by the defendants by 31 January 2017.
UNITED BRICK & BLOCK LTD (IN LIQUIDATION) v CUSACK AND STUART [2016] NZHC 3139 [19 December 2016]
[2] United applies for summary judgment on its claim to recover current accounts, contending that Mr Cusack and Ms Stuart do not have a defence. Mr Cusack and Ms Stuart filed a document titled “Notice of Opposition by craig- ronald: of the family cusack sui juris”.
[3] When the case was called in a List before me in court on 15 December, Mr Cusack was seated at the rear of the court. He did not respond to the call. I recognised him from a previous appearance before me. I invited him to come forward so that he could represent himself and his wife on the application.
[4] In response to a number of invitations to that effect, and inquiries from me on whether he wished to be heard, I did not receive an answer from which I could discern any meaning. On each occasion, he asked the Court a question in relation to providing what he described as “full disclosure”, though I was unable to discern what he wished to have disclosed.
[5] Despite being invited to come forward into counsel’s area of the court, Mr Cusack remained seated where he was and did not make any contribution to the hearing.
Principles relating to summary judgment
[6] Under r 12.2(1) of the High Court Rules the Court may give judgment against a defendant on a summary basis if a plaintiff satisfies the Court that the defendant does not have a defence to a cause of action in the statement of claim on which a plaintiff relies. The onus of establishing this position rests on the plaintiff. The classic exposition of this principle is in Auckett v Falvey:1
On a summary judgment application, the onus is on the plaintiff to show that there is no defence. On the present facts, the plaintiffs are able to pass an evidential onus to the defendants by exhibiting the contract which on its face, entitles them to the remedy they now seek. The defendants are then in a position of having to demonstrate a tenable defence. However, the overall position concerning onus on the application is that at the end of the day the question is whether the plaintiffs have satisfied the Court as to the absence of a defence.
1 Auckett v Falvey HC Wellington CP296/86, 20 August 1986 at 2.
[7] Evidence on applications for summary judgment is given by way of affidavit. It is necessary, therefore, to keep in mind the approach the Court is to take to evidence given in this way, summarised in Pemberton v Chappell:2
Where the defence raises questions of fact upon which the outcome of the case may turn it will not often be right to enter summary judgment. There may however be cases in which the Court can be confident – that is to say, satisfied – that the defendant’s statements as to matters of fact are baseless. The need to scrutinise affidavits, to see that they pass the threshold of credibility, is referred to in Eng Mee Yong v Letchumanan [1980] AC 331,
341 and in the judgment of Greig J in Attorney-General v Rakiura Holdings
Ltd (Wellington CP23/86, 8 April 1986).
[8] In Attorney-General v Rakiura Holdings Ltd the Court said:3
In a matter such as this it would not be normal for a Judge to attempt to resolve any conflicts in evidence contained in affidavits or to assess the credibility or plausibility of averments in them. On the other hand, in the words of Lord Diplock in Eng Mee Yong v Letchumanan [1980] AC 331, at
341 E, the Judge is not bound:
“to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.”
[9] In this case, the onus remains on United to satisfy the Court under r 12.2 of the High Court Rules that Mr Cusack and Ms Stuart do not have a defence to its claim. The test is whether there is a real question to be tried. The Court must be left without any real doubt or uncertainty.4
The positions of United, Mr Cusack and Ms Stuart
[10] The evidence presented for United and the liquidators satisfies me that the claim in respect of overdrawn current accounts is made out on the balance of probabilities. I therefore assess whether I can be satisfied that Mr Cusack and Ms Stuart do not have a defence, bearing in mind that the onus of demonstrating this
position lies on United.
2 Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 4.
3 Attorney-General v Rakiura Holdings Ltd (1986) 1 PRNZ 12 (HC) at 14.
4 Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162 at [26] citing
Pemberton v Chappell, above n 2.
[11] The notice of opposition filed by Mr Cusack, on behalf of himself and
Ms Stuart, makes the following points:
(a) Their names as appearing on the proceedings are fictitious.
To quote:
Statements sent by Crispin Vinnell [the solicitor for the plaintiffs] have all addressed ALL CAPS NAMEs in the use of ALL CAPS NAME to misleading with the intent to deceive.
The affidavit is misleading and intended to deceive as counterfeit names have been linked with; and addressed to; our place of residence
… through the postal service or independent courier. …
I request full disclosure of the use of Capitis Diminutio Maxima (eg, maximum loss of status via the All CAPS name) on the affidavit.
(b)Mr Cusack says that “the use of Capitis Diminutio Maxima is the highest or most comprehensive loss of status. When a man’s condition is changed from one of freedom to one of bondage, when he is treated as a slave, missing or dead. It removes all rights and all right of family”.
(c) Mr Cusack then requests “full disclosure of each of the roles being
played by each of the parties addressing this case in court”.
(d)He goes on to say that “The Registrar is the trustee (of the Cestui Que Vie Trust owned by the state) the trustee (registrar) appoints the acting judge to administrator the trust being the constructive trust case CIV 2016-409-1074”.
(e) Further details follow about beneficiaries, but add nothing to the sense of the document.
(f) Mr Cusack refers to supplying the Court with an Affidavit of Life, with a certain reference number and informs the Court that all documents submitted to the court will be submitted to the Universal Postal service. He refers to also supplying a copy of the Cestui Que Vie Act 1666 [IV]. He says a copy of this information has been sent to the Universal Postal Union Switzerland.
(g)Mr Cusack then refers to annexing a copy of his birth certificate, and concludes his notice of opposition with lengthy reference to what he describes as “Construction of Uniform Commercial Code to Promote its Purposes and Policies: Applicability of Supplemental Principles of Law”.
[12] This document was accompanied with a “Notice of Dismissal with Conditions” and a copy of a letter addressed to the Universal Postal Union at an address in Berne, Switzerland.
[13] Mr Cusack filed an affidavit in support which is titled “Affidavit of Life”. Although parts of the affidavit are meaningless it seems to be a document in which he affirms the date of his birth, and the fact that he is still alive. A copy of a document headed “Cestui Que Vie Act 1666” is attached. I observe that it states in its opening sentence “An Act for Redresse of Inconveniencies by want of Proofe of the Deceases of Persons beyond the Seas or absenting themselves, upon whose Lives Estates doe depend”.
Discussion
[14] Nothing in the documentation presented to the Court by Mr Cusack is relevant in any way at all to the claim. It does not even suggest the basis on which he or Ms Stuart might defend the claim of United and its liquidators. I find it to be of no probative value whatever.
[15] Despite several invitations from the Court to address the Court in relation to the claim, Mr Cusack did not do so, nor even move from the seat he occupied at the rear of the public gallery.
[16] There is no indication of any defence to the claim by United.
Outcome
[17] As stated in court, judgment is entered for the plaintiffs against each defendant in the sum of $239,465 plus interest at 5 per cent per annum from
28 September 2016 to 15 December 2016.
[18] Mr Cusack and Ms Stuart will pay to the plaintiffs costs on a 2B basis plus disbursements fixed by the Registrar on the issue of the proceeding and on the application for summary judgment, but on the express basis that when the remaining causes of action are pursued there will be no additional award of costs in relation to
the issue of the proceeding.
J G Matthews
Associate Judge
Solicitors:
Anthony Harper, Christchurch
Defendants, in person
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