[1] In 2002, William Cathie succeeded in obtaining a judgment in the District Court against a man whom he knew to be dead. When the dead man’s executor found out about this, he applied for a rehearing. Mr Cathie opposed that application – successfully – on the basis that the executor was not a party to the proceeding. The executor appealed and won in the High Court. Mr Cathie now seeks leave under s 67 of the Judicature Act 1908 to appeal to this court on the grounds that the matter raised is of sufficient importance to warrant a second appeal.
[2] Leave to appeal under s 67 is never granted unless there is “some question of law or fact capable of bona fide and serious argument”: Waller v Hider [1998] 1 NZLR 412 at 413 (CA). There are, of course, additional requirements, but it is fundamental that the question sought to be raised should be capable of bona fide and serious argument. The question in this case is whether it is possible to proceed to a hearing and to obtain judgment against a dead man. The proposition is so fundamentally flawed as not to be worthy of serious argument. For that reason, leave will be declined. The burden of this judgment is to show briefly why the argument advanced on Mr Cathie’s behalf is fundamentally flawed.

Procedural history

[3] In order to understand the issue in this case, it is necessary to set out some of the procedural history. The account below does not purport to cover every step that occurred; it covers only steps necessary for an understanding as to how the parties have ended up in this court.
[4] In 1992 Dr Zoltan Shardy started a proceeding in the District Court at Wellington claiming against Mr Cathie a declaration that there had never been a contract between them and damages under the Fair Trading Act 1986. Mr Cathie then counterclaimed for work done under a contract to repile a house owned by Dr Shardy. Mr Cathie contended that that contract had been wrongly repudiated by Dr Shardy.
[5] There was some interlocutory skirmishing but the case had still not proceeded to a substantive hearing by the time, in April 2000, when Dr Shardy died. Dr Shardy’s death prompted Mr Cathie to take a new interest in the proceeding. In September 2000, Mr Cathie unilaterally sought a fixture. The District Court had mislaid the file and it was not until late 2001 that Judge Tuohy required an attendance in chambers by counsel for Mr Cathie. That counsel, Mr Cleary, who also appeared for Mr Cathie before us, duly attended. Judge Tuohy was concerned about Dr Shardy’s death and whether Dr Shardy’s executor should be joined as a party. Mr Cleary argued against that and managed to persuade Judge Tuohy that he should not make an order under r 105 of the District Courts Rules 1992 joining Dr Shardy’s executor, Alphonsus Simes, as a party. It would appear that Mr Cleary did not even seek to have him served. But Judge Tuohy did consider that Mr Simes should be served with a copy of Mr Cathie’s counterclaim. The counterclaim was duly served on Mr Simes, who took no steps.
[6] Mr Cathie then applied unilaterally again for a fixture. A fixture notice was apparently posted to Mr Simes, but he never received it. It was returned to the court, as an undelivered item. Naturally, therefore, Mr Simes did not turn up to the fixture: he did not know about it. Judge Tuohy proceeded to hear Mr Cathie’s counterclaim on a formal proof basis. He delivered an oral judgment that day. Counsel are recorded as being “Plaintiff deceased [and] Mr J Cleary for Defendant”. Judge Tuohy gave judgment for Mr Cathie in the sum of $5,406, plus interest and costs. We shall refer to this judgment as “the formal proof judgment”.
[7] Mr Simes, when he found that judgment had purportedly been given against the late Dr Shardy, applied to have the judgment set aside. Mr Cleary opposed the application, on the basis that Mr Simes was “not a party to the proceeding”. Judge Tuohy accepted Mr Cleary’s submission, but rather than dismissing the application then and there, adjourned it so that Mr Simes could consider whether he wished to be added or substituted as a party. Mr Gibson, for Mr Simes, later filed a memorandum indicating that Mr Simes did not seek to be substituted for the late Dr Shardy. Mr Gibson took the point that the formal proof judgment was fundamentally flawed, having been entered against a person who had died before the date of judgment. Judge Tuohy refused to accept that submission. He appeared to accept that it was within a party’s rights to choose not to seek substitution of an executor “to avoid having a live party to contend with”. His Honour ruled that Mr Simes’s application to set aside the judgment must be dismissed on the basis that Mr Simes had no standing to make it. We shall refer to this judgment as “the no standing judgment”.
[8] Mr Simes then sought leave to appeal the no standing judgment. Leave was required under the then law, the no standing judgment having been given on an interlocutory application. On 8 April 2003 Judge Ongley granted leave. He also, against the wishes of both parties, joined Mr Simes as a plaintiff and counterclaim defendant under r 105(2) of the District Courts Rules.
[9] Durie J heard the appeal on 27 November last year. He delivered a judgment the following day: HC WN CIV-2003-485-948. His Honour described “the question at heart [as] quite simple”: at [1]. Durie J expressed the question as “whether it is open to a court to enter judgment against a person who is known to be deceased or whether it is necessary to transpose the proceeding to an action against a legal representative of the deceased”. We agree that that is the simple question at the heart of the matter. Durie J thought the answer to that question to be plain: a court cannot enter judgment against a person who is known to be deceased; the plaintiff, following death of a defendant, must have the deceased’s legal representative substituted as defendant if he or she wishes to proceed to judgment.
[10] Durie J allowed the appeal against the no standing judgment. He set aside the formal proof judgment.
[11] Mr Cathie then sought leave to appeal against Durie J’s decision. Goddard J heard that application. She declined it. She thought the question involved was of no real importance: HC WN CIV-2003-485-948 27 February 2004 at [12]-[14]. Mr Cathie then sought to have Goddard J recall her judgment, on the basis that she had allegedly misunderstood Mr Cathie’s case. Goddard J declined to recall her judgment, by reserved judgment dated 4 June 2004.
[12] Following that rejection, Mr Cathie sought leave from this court.
[13] It will be apparent from the above chronology that much time and money have been wasted on procedural manoeuvrings. The whole procedural imbroglio arises from a misguided attempt to obtain a judgment against a dead man and to avoid having to deal with live opposition in the form of the dead man’s executor.

Why leave is declined

[14] We decline leave because we consider Durie J’s reasoning unimpeachable.
[15] Mr Cleary’s argument is based on the proposition that r 105 is discretionary and is quite different in its purport from the equivalent rule in the High Court Rules, r 99. Both submissions are, with respect, clearly wrong. There is no difference in substance between r 105 of the District Courts Rules and r 99 of the High Court Rules. The difference in wording merely reflects different drafting styles. Mr Cleary suggested that, while under r 99 of the High Court Rules, it would be mandatory to make the dead person’s personal representative a party, it was discretionary so to do under r 105 of the District Courts Rules. He did not suggest any reason as to why the framers of the rules should think it desirable for that step to be mandatory in the one case but discretionary in the other. There is no such distinction. Both rules are in truth discretionary for good reason. The cause of action may not survive death. Alternatively, a party may not wish to continue the proceeding against the deceased person’s estate. But, if a plaintiff is entitled to and does wish to continue a proceeding against the estate of a deceased defendant, then that plaintiff must apply to have the deceased defendant’s personal representative joined as a party in substitution for the deceased defendant. If the plaintiff fails to do that, then the court must take that step, under r 99 (in the case of the High Court) and r 105(2) (in the case of the District Court). That is exactly what Judge Ongley correctly did when he became seized of the file and realised the inappropriateness of what had gone before.
[16] The argument against Durie J’s decision is untenable. It is a complete breach of the rules of natural justice to allow a party to proceed to a hearing against a deceased opponent. The absurdity to which the opposing argument leads is amply demonstrated in this case when Mr Simes attempted to appeal, but was told he could not because he was not a party!

Result

[17] We dismiss Mr Cathie’s application for leave to appeal.
[18] We order Mr Cathie to pay costs to Mr Simes on this application in the sum of $3,000, together with disbursements. In the absence of agreement, we direct the Registrar to fix disbursements.
[19] To remove all doubt, we record that the consequence of Judge Ongley’s decision and Durie J’s decision on appeal is that the parties to the District Court proceeding are Mr Simes, as executor of the estate of the late Dr Shardy, now plaintiff and counterclaim defendant, and Mr Cathie, as defendant and counterclaim plaintiff. Mr Simes will need promptly to file and serve a statement of defence to Mr Cathie’s counterclaim. Clearly it would be desirable for the District Court to arrange a case management conference as soon as possible so that any further interlocutory matters can be dealt with and a hearing date fixed so that this long drawn out proceeding can finally come to a proper conclusion.

Solicitors:
Surridge & Co, Wellington, for the Applicant
I D Hay, Wellington, for the Respondent

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