Heenan and ors v HFK Trustees Ltd and ors [2007] NZCA 93 (23 March 2007)

Last Updated: 29 March 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA225/06
CA257/06
[2007] NZCA 93

BETWEEN DAVID STANLEY HEENAN & ORS
Appellants

AND HFK TRUSTEES LIMITED
First Respondent

AND EUAN HILSON, NEVILLE FAGERLUND AND MICHAEL KEYES
Second Respondents

AND ROBERTA JANE MARY HEENAN
Third Respondent

AND PUBLIC TRUST
Fourth Respondent

Hearing: 12 March 2007

Court: Hammond, Arnold and Wilson JJ

Counsel: D S Heenan in Person
P R W Chisnall for First and Second Respondents
H G P Stokes for Third and Fourth Respondents

Judgment: 23 March 2007 at 11.30 am

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed, as is the application for an interim injunction.
B HFK Trustees Limited and the Public Trust Office will each have costs of $1,500 and usual disbursements.

REASONS OF THE COURT
(Given by Hammond J)

Table of Contents

Para No
Introduction [1]
The time element [3]
The merits of the appeal
Background [4]
The prior litigation [11]
The existence of the Heenan Family Trust 1960 [16]
Discussion [21]

Introduction

[1]

Mr Heenan seeks leave to appeal, out of time, against a judgment of John Hansen J in the High Court at Invercargill (CIV 2005-425-223 7 September 2006).

[2]

In his papers, Mr Heenan raised numerous issues that were inappropriate, vexatious and indeed outrageous, by way of commentary on the High Court judgment and the position of various other Judges in this Court. This Court would have been well justified in refusing to consider the application, given the way in which it was couched. We have taken the view that it is better to deal with the application on the merits. But Mr Heenan can consider himself fortunate that we did not dismiss his application as an abuse of process.

The time element

[3]

As is often the case, once he decided to conduct this matter himself (as he is absolutely entitled to do) Mr Heenan soon found himself in procedural difficulties. It is unnecessary for present purposes to recite all those difficulties, and the mistakes he made. In summary, he filed in the wrong registry, he did not understand who his application had to be served on, and he got himself out of time. However the delay itself was not, in the end, marked and in this Court would not normally have led to this application being determined against him, if the appeal had any prospect of success. We now turn to that issue.

The merits of the appeal

Background

[4]	The history of Mr Heenan’s litigation is now hugely convoluted, but the immediate background to the matter which was before John Hansen J is that on 18 May 2005 HFK Trustees Limited brought interpleader proceedings in the High Court, pursuant to r 173 of the High Court Rules, in relation to a dispute between Mr Heenan and his former wife, Mrs Roberta Heenan, over a residual fund.
[5]	That is a fund which HFK Trustees Limited holds representing the balance following a mortgagee sale of a property at 11 Brunswick Street, Queenstown. HFK Trustees Limited was the seller of the property.
[6]	The property was registered in the name of Mr and Mrs Heenan, but it was later transferred to them, and Mr Fagerlund, as trustees for the Heenan Family Trust No 2 by transfer dated 11 August 1999. Mr Heenan entirely disputes this. He maintains that the property is in fact owned by the Heenan Family Trust 1960, of which he says he and his two brothers were originally trustees. His basic contention is that both the Heenan Family Trust 1960 and the Heenan Family Trust No 2 had been amended with the replacement of new trustees, Mrs Wadworth and Mr Lee.
[7]	Mr Heenan had retired as a trustee of the Heenan Family Trust No 2 on 14 May 2002. Consequently, there was a transfer registered on the title of the Brunswick Street property on 27 June 2002 to Mrs Heenan and Mr Fagerlund.
[8]	The Public Trustee was also appointed a trustee of the Heenan Family Trust No 2, following an application of Mrs Heenan which was heard in the High Court by Fogarty J.
[9]	Mr Heenan argued strenuously, and in intemperate language, that the property had never been transferred from the Heenan Family Trust 1960. He contended that the Heenan Family Trust 1960 had owned first, a property at Willowbank Farm; then, once that was sold, a property in Bainfield Road near Invercargill. Once this property was subdivided and sold, the revenue, Mr Heenan asserts, was used to purchase the property at Brunswick Street. He contends that neither he nor Mrs Heenan provided money towards the property, thus evidencing the existence of the Heenan Family Trust 1960.
[10]	Mr Heenan alternatively contended that the property was the subject of a pre-nuptial agreement, to the effect that separate property acquired before the date of the marriage would remain separate property and would not be subject to the relevant relationship property legislation.

The prior litigation

[11]

We have already indicated that there was prior litigation, which has a very tortured history, which preceded the hearing before John Hansen J. That history is, for the record, set out by Anderson P in Heenan v Gore & Ors CA201/05 23 February 2006. Essentially the problem goes back to a judgment of the District Court, Alexandra given on 3 April 2000 by Judge Saunders, against Mr Heenan in an action brought by Ms D V J Gore on a dishonoured cheque. Bankruptcy proceedings had been brought by Ms Gore in reliance on an unsatisfied judgment in respect of that cheque. Mr Heenan opposed the bankruptcy petition on the grounds that the cheque in respect of which the judgment had been obtained, had been forged or altered in material respects. Notwithstanding that line of defence, Associate Judge Venning, as he then was, had made an order adjudicating Mr Heenan bankrupt. As Anderson P said, "There is no doubt that Mr Heenan is deeply troubled by a sense of injustice over the course of [that litigation]". Nevertheless for the reasons given by the President, those proceedings were struck out as an abuse of the process of the Court of Appeal.

[12]

The hearing before John Hansen J in June and August 2006 was complicated by Mr Heenan’s endeavours to persuade John Hansen J that the matters to which we have just referred were relevant to the proceedings which were extant before John Hansen J. The Judge endeavoured to explain to Mr Heenan what the difficulty was. Repeating an earlier ruling, John Hansen J stated at [8]:

Essentially his argument is that but for that proceeding he would not have been in financial difficulty. He would not have been made bankrupt and there would have been no mortgagee sale. That has been self-litigated and ventilated at extreme levels in these courts. It is simply not relevant to the proceeding before the court. This Court is dealing with a discrete fund. All that is required is to determine to whom that fund should be paid.

[13]	To complicate matters, Mr Heenan had further alleged that the second mortgage on the Brunswick Street property and the mortgagee’s sale of that property were the result of fraud. He had earlier sought various injunctions to either prevent or reverse the sale of the property to Vasili Enterprises Ltd. These applications were rejected, first by Panckhurst J (CIV 2004-425-671 9 September 2004), and then by Chisolm J (CIV 2005-425-101 28 June 2005).
[14]	It has been necessary to refer, if only in attenuated terms, to these matters to demonstrate the difficulties of the course which Mr Heenan was endeavouring to follow: that is, he was still endeavouring to "roll forward" matters which had previously been litigated (and in which his claims had been rejected) into the short interpleader application which was before John Hansen J, as to how funds held by a trustee were to be distributed. To put all this another way, essentially Mr Heenan was seeking before us to do that which he could not do before John Hansen J: to have the whole matter treated in effect as being "at large" and completely reventilated. Further, he asserts that all the various Judges are simply mimicking each other, are biased against him, and that no judicial officer will listen to him.
[15]	It is entirely regrettable, as Anderson P remarked on the prior occasion to which we have already referred, that a litigant should harbour such a deep-seated sense of dissatisfaction and despair at the legal system. But the hard fact of the matter is that Mr Heenan was listened to, and very patiently, and at the end of the day his complaint really is the sadly all too familiar one that his claims were rejected, on the evidence.

The existence of the Heenan Family Trust 1960

[16]	On this application, Mr Heenan submitted that John Hansen J failed – he goes so far as to say deliberately failed – to take into account certain evidence. He emphasised Mrs Heenan’s "admission" that she did not personally contribute any money to the property at Brunswick Road. From there, Mr Heenan reasons that the Judge "did know" of the existence of the Heenan Family Trust 1960. That is of course an entirely illogical leap. Indeed the Judge felt compelled to come to the view – he said he would have come to this view on the criminal standard of proof – that the Heenan Family Trust 1960 does not in fact exist.
[17]	The Judge raised the gravest matters of concern. A purported trust deed (a copy, no original was ever produced) was produced to the Judge, and the Judge came to the view that it is a forgery. This for the following reasons:
	Versions of the trust deed attempted to oust the jurisdiction of the New Zealand District or High Courts. At the time when the deed was purportedly created, those courts did not in fact exist.
	The attesting solicitor’s signature exhibited irregularities throughout the document (both as to position and appearance).
	The document appeared to be a pastiche of various documents, all in different fonts.
	The deed contained, quite unnecessarily, the seal of the District Land Registrar for Southland which the Judge thought might have come from another document, to give it an appearance of authenticity.
[18]	Quite apart from the dubious authenticity of this document, which deeply troubled the Judge, Mr Heenan was unable to produce banking records from the relevant bank.
[19]	The Judge concluded at [43]:

Regrettably, I have reached the inevitable conclusion that the deed of the Heenan Family Trust 1960 produced to the Court is a forgery. Further, I am satisfied, to even a criminal standard of proof, that it was created by Mr Heenan to further his own ends. If that was not abundantly clear from the first 7 pages of the document it is made clear by the crudely created composite document, which on its face is made up of at least three, but probably four or five different documents. The method, which Mr Heenan has used in another document in this case, appears to be to use parts of various documents to create what he wants and then to photocopy the whole and present that as a purported copy of an original document.

[20]

The judge was so concerned about this that he directed the Registrar of the High Court at Invercargill to refer his judgment to the New Zealand Police. We do not know what, if any, steps the police have taken to date. But in any event they are not relevant to our determination here, save that as an ancillary application to the application for leave to appeal Mr Heenan seeks what amounts to an interlocutory injunction from this Court, to prevent the police from making any investigation into the matters to which we have just referred.

Discussion

[21]	Having got himself into a most unhappy situation both procedurally and substantively, Mr Heenan has sought to do what so many litigants in person seek to do: to go behind the various prior rulings of the courts, in what amounts to a de novo review of all that had occurred to show that he is right, and that he should never have been placed in the position in which he now finds himself.
[22]	Such an exercise was never open to John Hansen J, whose judicial task was restricted to determining who was entitled to the funds which were in court. The attempt to divert the High Court away from what was clearly its plain and only duty – solely to decide the strict interpleader application – was lamentable. The Judge was entitled to proceed on the basis that the titles to the property and the various documents before him meant exactly what they said (save for the forged, purported 1960 Deed of Trust). The August 1999 transfer from Mr and Mrs Heenan to the trustees of the Heenan Family Trust No 2 was signed by both Mr and Mrs Heenan and the explanation which Mr Heenan gave for Mrs Heenan’s name being on the title is inconsistent with the property being held by him as a trustee for the Heenan Family Trust 1960.
[23]	There is no arguable case for the position taken by Mr Heenan. He has managed to get himself procedurally out of time, and now needs the leave of this Court to proceed. There are no merits in the appeal and this application must be dismissed. Likewise his application for an interlocutory injunction to this Court is misconceived. It too must be dismissed.
[24]	HFK Trustees Limited and the Public Trust Office will each have costs of $1,500 and usual disbursements.

Solicitors:
Rhodes & Co, Christchurch for First and Second Respondents
Anderson Lloyd Caudwell, Queenstown for Third Respondent