Ward v Ward
[2020] NZHC 11
•14 January 2020
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2018-419-374
[2020] NZHC 11
UNDER the Wills Act 2007 and the Trustee Act 1957 BETWEEN
RUSSELL STUART WARD
Plaintiff
AND
CHRISTOPHER ALLAN WARD
First Defendant
DIANE LORRAINE JAMES
Second Defendant
CIV-2019-419-81 BETWEEN
CHRISTOPHER ALLAN WARD and DIANE LORRAINE JAMES
Plaintiffs
AND
RUSSELL STUART WARD
Defendant
Hearing: 4 October 2019 Appearances:
Plaintiff in CIV-2018-419-374 and Defendant in CIV-2019-419-81 in person
Mr K I Bond and A M Kalinowski for the Defendants in CIV-2018-419-374 and Plaintiffs in CIV-2019-410-81
Judgment:
14 January 2020
JUDGMENT OF GAULT J
This judgment was delivered by me on 14 January 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
WARD v WARD AND JAMES [2020] NZHC 11 [14 January 2020]
[1]Russell Stuart Ward seeks summary judgment in a proceeding (CIV-2018-419-
374) against his siblings, Christopher Allan Ward and Diane Lorraine James. For convenience, I will refer to them by their names used in the evidence (Russell, Allan and Diane). In essence, Russell’s claim relates to Allan and Diane’s role in persuading their mother, June Ward, to settle property in a trust, appoint Allan and Diane as trustees, and to change her will removing Russell as a beneficiary. He also claims breach of trust.
[2] In turn, Allan and Diane seek to strike out Russell’s claim or alternatively an order for security for costs.
[3] In a separate proceeding (CIV-2019-419-81), Allan and Diane seek summary judgment in a claim against Russell for an order for possession of, and outgoings relating to, a property at 55 Vardon Road, Hamilton, which they inherited from their mother.
[4]In turn, Russell applies to strike out or stay their claim.
[5] These four applications were heard together. Russell had also filed an application for production of documents in his proceeding, but he accepted this could be deferred and dealt with if summary judgment were not granted and his claim progressed as a standard proceeding.
Factual background
[6] The parties are the three children of Donald Arthur Ward and June Ward. In wills written in 1982, Donald Arthur Ward and June Ward each left their respective estates to the other or, if the other predeceased, then the entire estate was to be divided equally between the three children.
[7]Donald Arthur Ward died in 1996 and accordingly left his estate to June Ward.
[8] After her husband died, June Ward sold the family home at 21 Ann Street, Hamilton, to Allan. In 1997 she built a new house in Vardon Road, Hamilton. That was later found to be a leaky home.
[9] In 1997 June Ward appointed Allan and Diane as co-executors of her estate. Russell was living overseas at the time.
[10] June Ward settled the June Ward Family Trust (the Trust) on 17 March 1997 and appointed Allan and Diane as trustees. The beneficiaries include June Ward, her children and their children. June Ward gifted the family holiday home in Taupo to the Trust.
[11]In 1999 Russell returned to live in New Zealand.
[12] June Ward lent Russell money but the amount is in dispute. Russell says she lent him $114,000 to develop his Mercer property and this money was later offset by his efforts solving her leaky home in Vardon Road. Allan and Diane say the amount was $440,000 in 1999 and increased to $554,000 by 2005. They rely on an affidavit sworn by June Ward in 2006, which Russell disputes.
[13] In December 2009 June Ward executed a new will, leaving her residuary estate to Allan and Diane. The will forgave Russell’s debt in excess of $300,000 provided he repaid that to the executors within 12 months of her death.
[14] On 30 January 2014 Russell was adjudicated bankrupt. He was discharged from bankruptcy on 16 April 2018.
[15] From around September 2015, Russell has occupied the house in Vardon Road, initially with the agreement of Allan and Diane.
[16] June Ward died on 26 February 2016. Allan and Diane were the residuary beneficiaries under her will. Probate was granted on 4 May 2016. Allan and Diane became the registered proprietors of Vardon Road.
[17] In September 2018, Allan and Diane gave Russell notice to vacate Vardon Road. Further notice to vacate was given in November/December 2018. Russell refuses to do so.
Summary judgment principles
[18] The principles applying on a summary judgment application are well settled. The question is whether the defendant has no defence to the claim;1 that is, that there is no real question to be tried.2 The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated.3 The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents.4
Strike out principles
[19] Rule 15.1 of the High Court Rules 2016 governs applications for strike out. Rule 15.1(1) provides:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; 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.
[20] The approach on strike out applications on the ground of no reasonably arguable cause of action is also well established.5 They proceed on the assumption that the facts pleaded in the statement of claim are true. Before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed. The jurisdiction is to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material.
1 High Court Rules 2016, r 12.2(1).
2 Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3.
3 MacLean v Stewart (1997) 11 PRNZ 66 (CA).
4 Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162 at [26].
5 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267.
[21] The other grounds for strike out are somewhat inter-related. The Court of Appeal has said:6
(a)The “likely to cause prejudice or delay” ground requires an element of impropriety and abuse of the Court’s processes. The categories of pleading that improperly “prejudice or delay” are potentially very wide and defy definition. Pleadings which can cause delay include those that are prolix, scandalous and irrelevant, plead purely evidential matters, or are unintelligible.
(b)A “frivolous” pleading is one which trifles with the Court’s processes. A vexatious one contains an element of impropriety.
(c)The “otherwise an abuse of the process of the Court” ground extends beyond the other grounds and captures all other instances of misuse of the Court’s processes, such as a proceeding that has been brought with improper motive or is an attempt to obtain a collateral benefit.
Procedural history
[22] Before turning to the respective applications, I should briefly mention the procedural history. Russell is self-represented. He filed his statement of claim on 14 November 2018. Although it came to their attention, Allan and Diane say the statement of claim was not properly served in November/December 2018. No statement of defence was filed and their solicitor only accepted service in July 2019.
[23] On 14 May 2019 Russell filed an application for summary judgment without notice. Summary judgment applications are on notice and the application has proceeded accordingly. Allan and Diane filed their strike out application on 19 August 2019, and their notice of opposition to Russell’s application for summary judgment on 28 August 2019.
6 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].
[24] Meanwhile, Allan and Diane commenced their separate proceeding relating to Vardon Road in April 2019, seeking summary judgment. Their application was opposed and met with Russell’s own strike out application.
[25] As a result, there is considerable unnecessary duplication in the evidence, including due to affidavits filed on behalf of Allan and Diane in their proceeding being exhibited to other affidavits in the same proceeding and in the other proceeding. Reliance on r 7.32 should avoid such duplication.
Russell’s application for summary judgment in CIV-2018-419-374
[26] As indicated, Russell’s application for summary judgment was not filed with the statement of claim and there was an issue with service. If leave was required to proceed by way of summary judgment,7 it was not sought but nor was it opposed. In the circumstances, I grant leave and proceed to deal with the substance of the application.
[27] Russell claims that both parents insisted that all three children be treated equally, as reflected in their respective wills, but Allan and Diane convinced June Ward to appoint them as co-executors of her estate and as trustees of the Trust. Russell claims that Allan and Diane took advantage of June Ward’s vulnerability.
[28] Russell says that Diane presented June Ward with fictious documents purporting to be loans to Russell, and convinced her that Russell had received substantial financial assistance with the result that June Ward wrote Russell out of her will, and specified that Russell repay Allan and Diane.
[29] Russell asked June Ward for an advance on his inheritance in July 2011 to make his property at Mercer a viable economic asset. He says Diane produced a fictious list of purported loans and June Ward declined to give him financial assistance. As a result, the ANZ National Bank sold the Mercer property and evicted Russell. As mentioned, Russell was declared bankrupt in January 2014.
7 Rule 12.4(2).
[30] Russell also claims that June Ward’s estate retains an interest in the house in Ann Street. Russell says that Allan only paid 35 per cent of the value.
[31] In addition, Russell claims that Allan and Diane have rejected Russell’s plan to develop the Taupo property at no cost to them. Russell claims the Trust has not been properly administered and is a sham.
[32] In essence, Russell seeks a one-third interest in his mother’s estate (including a one-third share in the house he occupies in Vardon Road), and he seeks to unwind the Trust. He also seeks damages – punitive damages in respect of the handling of the estate, $5 million relating to the loss of the farm at Mercer, and $600,000 for emotional stress.
[33] The defendants’ notice of opposition relies on their strike out application, says that the statement of claim does not comply with the High Court Rules and also that Russell’s claim cannot succeed for the following reasons:
(a)There is no evidence in support of the summary judgment application as the only affidavit dealing with the substance is unsworn.
(b)The claim is largely in respect of June Ward’s estate, for which probate was granted on 4 May 2016. Russell failed to bring a claim against the estate within 12 months of grant of probate and therefore the Court does not have jurisdiction to hear his claim in respect of estate matters – it is time barred.
(c)Even if the claim was brought against the trustees of the Trust, and there was sworn evidence in support, the Trust related allegations are denied.
(d)There are material facts in dispute to both the estate and Trust matters, so that the action cannot be adjudicated summarily.
[34] Unhelpfully, despite timetabling directions, no written submissions were filed in relation to Russell’s summary judgment application.
[35] Russell’s claims are clearly not suitable for summary judgment, for the following reasons.
[36] Russell’s claims face real legal difficulties. First, his claims are largely against June Ward’s estate notwithstanding the allegation that Diane convinced June Ward to change her will in 2009. Such claims against an estate would normally arise under the Family Protection Act 1955 or the Law Reform (Testamentary Promises) Act 1949 and are subject to a 12 month limitation period.8 This limitation period enables estates to be distributed in a timely way, as it appears has already occurred with June Ward’s estate. Even the claim that the Trust is a sham would, if successful, see the trust property revert to June Ward’s estate. Secondly, given probate was granted in 2016 during Russell’s bankruptcy from 2014 to 2018, Mr Bond submits that the claims are no longer Russell’s to make – they vested in the Official Assignee.
[37] Even if Russell can overcome such legal difficulties, there are evidential difficulties at this summary judgment stage. His affidavit in support of the statement of claim dated 13 May 2019 was not sworn. His affidavit in support of the summary judgment application dated 14 May 2019 was not substantive and his reply affidavit dated 4 September 2019 does little to substantiate his summary judgment application. He also filed an affidavit dated 18 October 2019, after the hearing, taking issue with parts of the defendants’ chronology.
[38] In any event, the claim clearly raises questions of fact that are disputed and cannot appropriately be dealt with by way of summary judgment. Russell alleges fraud, theft, breach of trust and negligence, which are inherently causes of action unlikely to be suited to summary judgment. For example, the Court cannot determine on this summary judgment application disputed questions of fact concerning the extent of Russell’s indebtedness to June Ward, its relevance to her decision to change her will, whether the Trust is a sham, and whether Allan and Diane have acted in breach of Trust or unlawfully in relation to June Ward’s will.
8 Administration Act 1969, s 49(3).
[39] Russell’s application for summary judgment must be dismissed. The proceeding needs a case management conference to progress – subject to considering Allan and Diane’s strike out application.
Allan and Diane’s application to strike out in CIV-2018-419-374
[40] Mr Bond submits that Russell’s statement of claim is inadequate and should be struck out or, at least, that a compliant statement of claim should be ordered. Russell has declined the invitation to file an amended statement of claim addressing the concerns raised in correspondence (in particular compliance with rr 5.17 and 5.26).
[41] Notably, the strike out application is brought under r 15.1(1)(b)-(d), rather than the no reasonably arguable cause of action ground. The procedural requirements for statements of claim are spelled out in the High Court Rules 2016. They were summarised by the Court of Appeal in The Commissioner of Inland Revenue v Chesterfields Preschools Ltd:9
For present purposes r 5.17 (distinct matter to be stated separately), r 5.26 (statement of claim to show nature of claim) and r 5.27 (statement of claim to specify relief sought) describe the key principles. In summary they are:
• The pleading must be accurate, clear and intelligible.
• Sufficient particulars must be given to enable the defendant to be fairly informed of the case to be met.
• While adequate particulars are required, the statement of claim must not stray into setting out the evidence relied upon.
• Separate causes of action must be separately stated.
• The pleading should set out all the elements of the cause of action (in this case misfeasance).
• The relief sought must be clearly pleaded in respect of each cause of action and, where there is more than one plaintiff and multiple defendants, the relief sought by each plaintiff against each defendant must be clearly stated.
This Court in Hopper Group Ltd v Parker put it as follows:10
9 The Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [84]-[85].
10 Hopper Group Ltd v Parker (1987) 1 PRNZ 363 (CA) at 366.
One essential part of pleadings is to state precisely the basic facts on which the plaintiff relies so as to clearly define the issues which the defendant has to meet. If that is not done, it is difficult for a defendant to prepare for trial and questions such as payment into Court or offers of settlement can hardly be considered. Furthermore, if the case goes to trial without precise pleadings, much time can be wasted and a defendant might be taken by surprise when the real issue not previously stated clearly suddenly emerges.
[42] Russell’s statement of claim clearly does not comply with the High Court Rules. It fails to provide sufficient particulars of the serious allegation of fraud (presumably as part of a cause of action in deceit as theft by a person in a special relationship is not a civil cause of action). Likewise, it fails to provide sufficient particulars of the claim that the Trust is a sham and of the (alternative) allegations of breach of trust. The first “General” cause of action is not recognisable. The statement of claim fails to show the nature of the claim that appears to be against June Ward’s estate, and the basis of the claim relating to the loss of the Mercer property, and Russell’s bankruptcy. More generally, it fails to separate the causes of action, to set out all the elements of each cause of action, and to relate the factual allegations to the different causes of action. At the very least, an amended statement of claim is required.
[43] Although Russell was put on notice that an amended statement of claim is required, I consider it would be premature to strike out this claim. It may be capable of amendment in part. Applying Chesterfields and acknowledging that Russell is self- represented (albeit with previous experience as a lay litigant and not a good track record with pleadings in other proceedings in this Court), the inadequacies in his statement of claim do not give rise to the kind of impropriety or abuse of the Court’s process that warrants strike out now rather than an order that an amended statement of claim be filed and served. Russell should be given an opportunity to file and serve an amended statement of claim that complies with the High Court Rules.
[44] Allan and Diane’s strike out application is therefore dismissed, but I direct that Russell file and serve an amended statement of claim that complies with the High Court Rules by Friday 14 February 2020.
Allan and Diane’s application for security for costs
[45] In the alternative, Allan and Diane seek an order for security for costs pursuant to r 5.45 of the High Court Rules. If the Court is satisfied there is reason to believe a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in its proceeding, the Court may order the giving of security if it is just in all the circumstances.
[46] Russell’s affidavit dated 23 September 2019 in opposition to costs misunderstood the nature of the application for security. He has not responded about his ability to pay costs if his claim is unsuccessful.
[47] Mr Bond did not oppose deferring this application to give Russell an opportunity to respond properly in relation to his ability to pay costs if his claim is unsuccessful and circumstances relevant to the Court’s discretion to order security.
[48] I direct that Russell file and serve a notice of opposition to the application for security, and an affidavit in support of his opposition, by Friday 14 February 2020. Those documents should indicate whether or not Russell accepts he will be unable to pay the costs of the defendants if he is unsuccessful in his proceeding, and the factors he relies on in opposition to an order for security. I will make further timetable directions for this application at the end of this judgment.
[49] Mr Bond seeks wasted costs in relation to the hearing. I consider any issue of wasted costs should be considered when the application for security is determined.
Allan and Diane’s application for summary judgment in CIV-2019-419-81
[50] As mentioned, Russell occupies the house in Vardon Road. Allan and Diane are now the registered proprietors. They say the arrangement was that Russell could live there rent free but would pay outgoings and maintain the property in a tidy condition, and that he began defaulting on those obligations in May 2017. They say the arrangement was initially reflected in a licence agreement for six month periods from September 2015 to March 2016, with further agreements covering March 2016 to September 2016 and November 2016 to May 2017. Russell stayed in the property
when that last agreement expired. A fourth agreement was prepared in 2018 but not signed.
[51] After Allan and Diane gave Russell notices to vacate in late 2018 and he refused to do so, they commenced proceedings (CIV-2019-419-81) in April 2019 seeking possession and payment of outgoings and applied for summary judgment.
[52] Russell does not dispute the terms of the arrangement to occupy. His ground of opposition is based on his claim in CIV-2018-419-374. He says their application cannot be addressed until his claim is resolved. In this regard, Allan and Diane rely on their separate application to strike out Russell’s claim (in CIV-2018-419-374) but, as I have declined to do so, that does not advance their position.
[53] Although the summary judgment application was brought under Part 12 of the High Court Rules, at the hearing Mr Bond relied on Part 13. He submits that, in the absence of a lease, tenancy agreement or licence, Russell is an unlawful occupier and Allan and Diane are entitled to an order for recovery of land under Part 13.11
[54] Part 13 provides for summary proceedings for recovery of land. However, it applies only to “unlawful occupiers”, which means a person who:12
(a)occupies or continues to occupy land of the plaintiff without the licence or consent of the plaintiff or the plaintiff's predecessor in title; and
(b)is not a tenant or subtenant holding over after the termination of a tenancy or subtenancy.
[55] Part 13 does not apply to the holding over by a tenant after termination of a tenancy. It is, however, applicable in the case of holding over by a licensee after termination of a licence.13 Therefore, it is necessary to consider the distinction and the nature of the arrangement under which Russell has occupied Vardon Road.
11 CIT Holdings Ltd (in liq) v Auckland West Legal Services Ltd [2018] NZHC 232 at [40].
12 Rule 13.1.
13 McLaughlin v McGarry (2000) 15 PRNZ 178 (HC) at [20], citing Greater London Council v Jenkins [1975] 1 WLR 155 (CA).
[56] As Master Venning (as he then was) said in McLaughlin v McGarry in a case concerning the former rule 134A:14
[21] The essential distinction between a lease and a licence is that a lease confers on the tenant either a legal or an equitable estate in the land, whereas the licence is a mere personal permission to enter the land and use it for some stated purpose which does not confer any estate in the land on the licensee: Street v Mountford [1985] AC 809 at pp 814 and 816 per Lord Templeman.
[22]The essential elements of a valid lease are:
· The tenant must be given a legal right of exclusive possession of a premises; and
· The term of the lease must be for a definite period in the sense that it must have a certain time for commencement and a certain time for ending; and
· The lease must be created in the appropriate form: see Butterworths Land Law in New Zealand para 5.004.15
[23] On the other hand, the essential characteristic of a licence is as stated by Vaughan CJ that: “a dispensation or licence properly passeth no interest nor alters nor transfers property in any thing but only makes an action lawful which without it had been unlawful”: Thomas v Sorrell (1673) 124 ER 1098, 1109. A licence does not create an interest in the land. It merely creates personal rights against the licensor. The licence may be either a bare licence or a contractual licence supported by consideration.
[57] Diane says that she and Allan created the first agreement and it was signed by Russell in September 2015. A copy of that agreement cannot be located but copies of the agreements applying for the six month periods from March 2016 to September 2016 and from November 2016 to May 2017 indicate that the key terms of the agreement were that Russell as occupier:
may reside in the property rent free in exchange for payment of all outgoings
… keeping the property in a tidy condition, inside and out, for a period of six(6) months from … until … after which this arrangement will be terminated.
The property may not be sublet, or rented out to any other person, contents removed, or rearranged in any way without reference to or agreement with the legal owners.
14 McLaughlin v McGarry (2000) 15 PRNZ 178 (HC) at 181, citing Street v Mountford [1985] AC 809 (HL) at 814 and 816.
15 Now see DW McMorland and others Hinde McMorland & Sim Land Law in New Zealand (Online ed, Lexis Nexis) at 11.004. See also AH Properties Ltd & Anor v Tabley Estates Ltd HC Hamilton CP142-92, 3 September 1993 at 29 per Hammond J.
[58] I have some doubt as to whether Part 13 of the High Court Rules applies as the agreements may satisfy the requirements of a tenancy (albeit not a residential tenancy16) rather than a licence. The fundamental distinction between a tenant and a licensee is that the former alone has the right to exclusive possession.17 Here, except for the prohibition on subletting or renting out, the agreements are silent and are not identified as a tenancy or a licence, and the evidence did not disprove that Russell had exclusive possession. The agreements satisfy the other requirements of a tenancy – they were for a definite period and in writing and signed so were sufficiently formal.
[59] In any event, summary judgment may still be available under Part 12. As Mr Bond submits, even if the arrangement were a lease, it could have been terminated on 20 working days’ written notice.18 This is so even if Russell disputes that he was in default. After the last signed agreement expired in May 2017, Russell’s right to occupy under the agreement could be terminated irrespective of default on the requisite notice. Notice has been given.
[60] The real question is whether Russell’s claim to a one-third share in the Vardon Road house gives rise to a possible defence.
[61] Just as Russell’s claim is not suitable for summary judgment, the Court could not determine on summary judgment in CIV-2019-419-81 that Russell is not entitled to a one-third share of Vardon Road. However, that is not Allan and Diane’s claim. Their claim is that as registered proprietors, they are entitled to possession of their land under s 51 of the Land Transfer Act 2017 and that Russell’s claim, even if successful, does not entitle him to occupy the property.
[62] Mr Bond submits that the decision of the District Court in Chou v Chou is instructive.19 In that case, the appellant and his wife were joint tenants of a property. When his wife died, her interest in the property transmitted by survivorship to the appellant. The wife’s son was living in the property. He said that his mother assured him that he could live in the property for the rest of his life, and indeed that she
16 Leases to family members are excluded from the Residential Tenancies Act 1986: see s 5(n).
17 Fatac Ltd (In Liquidation) v Commissioner of Inland Revenue [2002] 3 NZLR 648 (CA) at [66].
18 Property Law Act 2007, s 210 (2).
19 Chou v Chou [2016] NZDC 15768.
intended to transfer the property to him before she died. Judge B A Gibson found that the appellant stepfather was entitled to an order for possession against the wife’s son notwithstanding a foreshadowed claim against the mother’s estate. The Court overturned the Tenancy Tribunal’s decision that exclusive possession should await determination of the foreshadowed claim.
[63] The District Court’s finding is consistent with Mr Bond’s submission that a registered proprietor’s claim for possession is not defeated by a (foreshadowed) claim by an occupier against the estate of a prior owner. However, the District Court’s decision on appeal reflects differences from this case. First, the Court concluded that the occupier was not a tenant and therefore the Tribunal was wrong to apply s 85(2) of the Residential Tenancies Act 1986 (substantial merits and justice rather than strict legal rights). Secondly, the potential claim against the estate was said to be no more than speculative, and even if the transmission by survivorship were set aside the stepfather’s interest in the property would still remain as he would be a tenant in common and no claim against his interest could be made by the occupier. Therefore, as the licence to occupy had been revoked, the stepfather was entitled to an order for possession. The Chou decision is instructive but does not explicitly address whether the claim against the estate gave rise to any proprietary interest. It is necessary to resort to first principles.
[64] I consider that Russell’s claim to a one-third share, assuming it is successful, is not a proprietary claim giving rise to an interest in the Vardon Road property. Whether it is a statutory claim against the estate or somehow characterised as a claim in deceit, it is a money claim which provides no basis for a right to occupy or possession of the property. Russell’s remedy is for damages if his claim is successful. This is the case irrespective of the monetary value of his claim. I therefore accept Mr Bond’s submission that Russell’s claim to a one-third share does not entitle him to occupy the property.
[65] Nor is this a case where the relief sought is discretionary such that determination on summary judgment is inappropriate.
[66] Allan and Diane are therefore entitled to an order that Russell vacate the property and deliver up vacant possession to Allan and Diane within a reasonable period.
[67] Turning to the claim for outgoings of $5,517.05, I consider that summary judgment should not be granted in relation to this claim. Russell disputes the claim and it was not the focus at the hearing. Even if there is no defence to it, Russell has filed a counterclaim referring to his proceeding and I consider the appropriate course is to dismiss the application for summary judgment in relation to the claim for outgoings and give directions as to the future conduct of the proceeding.20
Russell’s application to strike out in CIV-2019-419-81
[68] Russell filed an application to strike out the statement of claim or stay the proceeding on the grounds:
(a)The statement of claim discloses no reasonably arguable cause of action as there is a previous case before the Court (CIV-2018-419-374) which has so far been unanswered.
(b)The claim is frivolous in that it makes extravagant and speculative claims and ignores CIV-2018-419-374.
(c)The quantum claimed in CIV-2018-419-374 far outweighs the quantum claimed in this proceeding.
(d)CIV-2018-419-374 should be addressed first.
[69] Again, no written submissions were filed in relation to Russell’s strike out application.
[70] The application is misconceived for the reasons given in relation to Allan and Diane’s summary judgment application. Insofar as Russell seeks to defer their claim
20 Rule 12.12(2).
pending determination of his claim, I have already accepted that summary judgment should not be granted in relation to the claim for outgoings.
[71]Russell’s strike out application is therefore dismissed.
Result
[72] In CIV-2018-419-374:
(a)Russell’s application for summary judgment is dismissed.
(b)Allan and Diane’s strike out application is dismissed.
(c)I make the following orders and timetable directions:
(i)Russell is to file and serve an amended statement of claim that complies with the High Court Rules by Friday 14 February 2020.
(ii)Russell is to file and serve a notice of opposition to the application for security, and an affidavit in support of his opposition, by Friday 14 February 2020, indicating whether he accepts he will be unable to pay the costs of the defendants if he is unsuccessful in his proceeding, and the factors he relies on in opposition to an order for security.
(iii)Any affidavit in reply by Allan or Diane is to be filed and served within 14 days thereafter.
(iv)The application for security for costs is adjourned to the first available date after 31 March 2020.
(v)Allan and Diane are to file and serve any updated synopsis of argument 10 working days before the hearing date.
(vi)Russell is to file and serve his synopsis of argument five working days before the hearing date.
(vii)Otherwise, r 7.39 is to apply in relation to the application for security.
(viii)A case management conference is to be allocated on the first available date after the application for security is determined.
(ix)The application for production of documents is adjourned for consideration and timetabling at the case management conference.
[73] In CIV-2019-419-81:
(a)I make an order that Russell vacate the property and deliver up vacant possession to Allan and Diane by Friday 14 February 2020.
(b)The application for summary judgment in relation to the claim for outgoings is dismissed.
(c)Russell’s strike out application is dismissed.
(d)A case management conference is to be allocated on the same date as the case management conference in CIV-2018-419-374.
Costs
[74] Costs should follow the result. Allan and Diane have succeeded in relation to Russell’s summary judgment application and substantially on their summary judgment application, and they are entitled to costs on those two applications. Mr Bond indicated that if successful, Allan and Diane wish to be heard on costs. Unless costs can be agreed, they are to file a memorandum not exceeding three pages within 15 working days. Russell is to file a memorandum not exceeding three pages within 10 working days thereafter.
[75] No costs are awarded in relation to the strike out applications. Allan and Diane’s strike out application was dismissed but was successful in part as Russell has been directed to file and serve a compliant amended statement of claim. Russell’s strike out application was dismissed but the award of costs in relation to the summary judgment applications is sufficient. Costs on the security for costs application are reserved.
Gault J
Solicitors / Parties:
Mr R S Ward
Ms A Kalinowski, Smith and Partners, Henderson, Auckland
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