Official Assignee v Heenan HC Christchurch CIV-2011-409-000665 [2011] NZHC 1767 (28 November 2011)

Last Updated: 15 December 2011

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CIV-2011-409-000665}

BETWEEN THE OFFICIAL ASSIGNEE Plaintiff

AND DAVID STANLEY HEENAN Defendant

Hearing: 8 September 2011

Appearances: No appearance for Official Assignee

Defendant in Person and D M Lester as Amicus Curiae

Judgment: 28 November 2011

_{JUDGMENT OF WHATA J}

This judgment was delivered by Justice Whata on

28 November 2011 at 4.45 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Official Assignee, Insolvency & Trustee Service, Private Bag 4714, Christchurch 8140

Copy to:

D M Lester, PO Box 825, Christchurch 8140

D S Heenan, 80 Halswell Junction Road, Halswell, Christchurch 8025 (PO Box 37 315 Halswell Post

Office, Halswell Road, Christchurch 8245) Public Trust Office, Christchurch

THE OFFICIAL ASSIGNEE V HEENAN HC CHCH CIV-2011-409-000665 28 November 2011

Introduction

[1] Mr Heenan is a vexatious litigant.1 Mr Heenan was adjudicated bankrupt in December 2000. He needs money. The Public Trust, he says, sold property belonging to his family trust, but will not release any of the proceeds of sale to him. He strenuously complains that all of this came about because previous judgments against him were wholly erroneous, corrupt, and/or obtained by fraud. He now wants a fresh opportunity to seek redress and to obtain directions that the Public Trust discloses certain information to him about the proceeds of sale. He also wants me to order the Public Trust to pay those proceeds to him. The immediate issue, however, is whether I should let him commence proceedings.

The applications

[2] Mr Heenan now seeks leave to pursue 11 applications. They are in summary: (a) First application – to strike out Judge Saunders’ corrupt judgment.

(b) Second application – to quash and annul Master Venning’s (as he then

was) corrupt bankruptcy adjudication.

(c) Third application – to quash and annul 13 corrupt and mimicked judgments.

(d) Fourth application – for:

(i) Declarations that the Heenan Family Trust 1960 (“the 1960

Trust”) and the amended Heenan Family Trust (No.2) are valid and genuine; and

(ii) The right to sue Her Majesty and the Attorney-General, and the New Zealand Government and Official Assignee and 70

_{odd scurrilous scoundrels for compensation;}

1 Refer Attorney-General v Heenan [2009] NZHC 1070; [2009] NZAR 763 at [140].

(i) Judgment orders that the 1960 Trust owns all vintage/classic cars; and

(ii) Mr Heenan to be given the right to sue Fogarty J and others for committal and held liable for contempt of Court.

(f) Sixth application – for:

(i) Judgment orders that the 1960 Trust did purchase in 1985 a property situated at 11 Brunswick Street, Queenstown; and

(ii) To sue Fogarty J for millions of dollars, committal, or both;

and to be held in contempt of Court. (g) Seventh application – for:

(i) Heenan Family Trust No.2 has been illegal, defunct and dysfunctional since 11.9.2003; and

(ii) Sue Fogarty J and others for a million dollars, committal and held liable for contempt of Court.

(h) Eighth application – to:

(i) Strike out Panckhurst J and Osborne AJ’s corrupt judgments;

and

(ii) Sue some Judges, 25 solicitors and official assignees and 70 odd agents in the sum of $26,903,415.91.

(i) Ninth application – to:

(i) Strike out the corrupt judgments of Hansen, Somerville and Gendall JJ based on, inter alia, conspiracies to obstruct or defeat the course of justice; and

(ii) Sue Fogarty J and others for millions of dollars and for contempt of Court;

(j) Tenth application – to:

(i) Strike off some 25 solicitors based on conspiracies to obstruct, prevent, pervert the course of justice;

(ii) Make them “liable” for contempt of High Court; and

(iii) Sue for millions of dollars of losses. (k) Eleventh application – to:

(i) Sue some Judges, some of the 25 solicitors and official assignees and 70 odd agents;

(ii) Make orders directing the Public Trust to reply to disclosure orders and various complaints; and

(iii) Make orders requiring the Public Trust to pay various funds to the Family Trust.

[3] Amicus, Mr Dale Lester also recommends leave be granted to commence proceedings in respect of the applications for:

(a) Declarations as to the existence of the 1960 Trust;

(b) Declarations that the judgment of Judge Saunders was affected by fraud, and,

[4] I am grateful to Mr Lester for his clear and careful submissions.

Jurisdiction

[5] The jurisdiction to grant leave to a vexatious litigant to commence proceedings is circumscribed by s 88B(2) of the Judicature Act 1908:

(2) Leave may be granted subject to such conditions (if any) as the Court or Judge thinks fit and shall not be granted unless the Court or Judge is satisfied that the proceeding is not an abuse of the process of the Court and that there is prima facie ground for the proceeding.

[6] It is evident that I must be satisfied that:

(a) The proceeding is not an abuse of process; and

(b) There is a prima facie ground for the proceeding.

[7] In this context, a “prima facie” ground means a serious, as opposed to a speculative case – one sufficiently strong to require an answer from the opposing party.2

The 11 primary applications

[8] The majority of the applications for which leave is sought are outrageous.3

Within this class I would include the first, second, third, eighth, ninth and tenth applications and applications 4(ii), 5(ii), 6(ii) and 7(ii) and 11(i).

[9] These applications variously allege corruption, fraud or conspiracy to defeat the course of justice, and seek a right to sue Judges and/or officers of the Court in

2 Refer McGechan on Procedure section 88B(2) (online ed) at J88B.08, citing Re Collier [2008] NZLR 505, Re Collier [2004] NZAR 472, and Black White & Grey Cabs Ltd v Hill HC Wellington CP1013/91, 10 December 1993.

3 Similar observations have been made in other judgments dealing with Mr Heenan’s claims – HFK Trustees Ltd v Heenan HC Invercargill CIV 2005-425-223, 7 September 2006 at [72]-[73]; Heenan v HFK Trustees Ltd [2007] NZCA 93 at [2].

respect of those allegations. Similar claims are made against various officials or

their agents who have dealt with, among other things, Mr Heenan’s bankruptcy.

[10] Mr Heenan’s allegations are simply bald assertions with little of substance cited to support them. I accept that there may be justification for Mr Heenan’s frustration with, for example, the belated production of material that might have assisted him in earlier proceedings. But, for my part, any litigant alleging fraud of the type claimed by Mr Heenan must point to solid probative evidence in support of those allegations. I could find no such material.

[11] I would add that it is not the role of this Court to reframe Mr Heenan’s allegations of judicial corruption, mimicry and fraud to make them more palatable. Moreover, I would not be prepared to grant leave to Mr Heenan to make such spurious and groundless allegations even if they are capable of being dressed up in a more tolerable form.

[12] Accordingly, leave in respect of the applications referred to above at paragraph [8] is refused.

The residual applications

[13] That in essence leaves applications 4(i), 5(i), 6(i), 7(i) and 11(ii) and (iii) and

Mr Lester’s recommendations.

[14] Those applications have a more conventional flavour. In essence, Mr Heenan seeks leave to proceed with applications in respect of the status of the 1960 Trust and the amended Heenan Family Trust (No.2), the property belonging to them, and the duties of the Public Trust.

[15] Finally, Mr Heenan seeks leave, yet again, leave to test Judge Saunders’

judgment on the basis that it was procured by fraud.

[16] These applications culminated at the end of the hearing in requests for leave to pursue:

(a) Directions to the Public Trust that it disclose certain information without further delay; and

(b) Transfer of $260,000 plus interest to the 1960 Trust.

Initial observation: context

[17] Mr Heenan’s claims essentially repeat the matters that were before the full High Court when it declared that Mr Heenan was a vexatious litigant.4 Helpfully, Randerson and Hugh Williams JJ have provided a summary of the background:

[5] Thirteen separate proceedings are identified in the statement of claim, some of which have been instituted by Mr Heenan personally and some by him on behalf of family trusts. The proceedings identified in the statement of claim are by no means all of those Mr Heenan has instituted. While there is a degree of overlap between the proceedings, they fall into three broad categories relating to:

1. The dishonoured cheque, the entry of judgment leading to his bankruptcy and attempts to set aside his bankruptcy.
   
2. The ownership of the Queenstown property, the mortgagee sale and the ownership of the proceeds of sale.
   

c) The vintage cars.

[6] None of the proceedings instituted by Mr Heenan from April 2000 until the present has been successful and a number have been struck out. A feature of them is Mr Heenan’s failure to exercise available rights of appeal from the District Court to the High Court or from this Court to the Court of Appeal. Rather, he has generally sought to challenge adverse findings by collateral means including applications for rehearing and review along with repeated applications for annulment of his bankruptcy. Only two appeals appear to have reached the Court of Appeal. Neither was successful, one being struck out as an abuse of process and the other as inarguable.

[7] Some of the legal proceedings have been instituted by Mr Heenan purportedly on behalf of a trust, which Mr Heenan asserts was formed in

1960, called the Heenan Family Trust 1960. Mr Heenan asserts that the

1960 trust is the true owner of the vintage cars and the Queenstown property prior to its sale. He makes that assertion notwithstanding that, by a deed

dated 1 August 1999, a second family trust known as the Heenan Family

Trust (No. 2) was established and despite the fact that he was a party to the transfer of the Queenstown property to the No. 2 trust by transfer dated 11

_{August 1999.}

4 Attorney-General v Heenan [2009] NZHC 1070; [2009] NZAR 763.

[8] The Queenstown property was registered in the name of Mr Heenan, his wife and an accountant (a Mr Fagerlund) who were the trustees appointed under the 1999 deed. Two mortgages were subsequently registered over the property which was sold by the second mortgagee in January 2005. The net sale proceeds amounted to a little over $728,000. Part of the proceeds of sale have been distributed to Mr Heenan’s former wife. The remainder of $281,000 is held by the Public Trust which is now the trustee of the No. 2 trust.

[9] Mr Heenan continues to assert that the funds held by the Public Trust belong to the 1960 trust, claiming that the creation of the No. 2 trust was a sham instigated by Mr Fagerlund for the purpose of avoiding creditors following a disastrous investment Mr Heenan and his former wife made in a scheme promoted by others which was subsequently found to have been fraudulent. Mr Heenan claims he knew the No. 2 trust was a sham from inception but went along with it on Mr Fagerlund’s advice.

Assessment

Status of the 1960 Trust

[18] Mr Lester and Mr Heenan took me to evidence that, they say, demonstrates that the 1960 Trust exists. The significance of this is that the distribution of funds by the Public Trust should be allocated with proper regard to the existence of the 1960

Trust, as the lawful recipient of funds that are now in the hands of the Trust. Mr

Heenan also says the 1960 Trust owned the vintage cars.

[19] The existence or otherwise of the 1960 Trust was comprehensively addressed by John Hansen J in HFK Trustees Ltd v Heenan and Ors.5 John Hansen J held that the 1960 Trust Deed was a forgery at [43]. Mr Heenan’s appeal to the Court of Appeal was unsuccessful.6

[20] Heath J has also examined the background facts in considerable detail.7 On the existence of the Trust, he observed:

[144] On the basis of the additional evidence I have received, I do not make a finding that the 1960 Trust did not exist. Nor do I find that Mr Heenan forged documents to evidence the existence of a trust that had never been formed. The most likely explanation is that documents were drawn up

5 _{HFK Trustees Ltd v Heenan, HC Invercargill CIV-2005-425-223, 13 October 2006.}

6 _{Heenan v HFK Trustees Ltd [2007] NZCA 93.}

7 Heenan v Official Assignee HC Christchurch CIV-2005-425-76, 12 May 2009.

after the event in an endeavour to record what Mr Heenan believed to have been done.

[21] That could be said to be the high point for Mr Heenan’s claim. It falls well short of a declaration that the 1960 Trust was valid. The full High Court has concluded, having reviewed the various proceedings dealing with this issue:8

[124] The findings of John Hansen J and the Court of Appeal bind Mr

Heenan. The attempts by him since 7 September 2006 - or, at the latest,

23 March 2007 – to re-litigate issues concerning the sale of Brunswick Street must be regarded as presumptively vexatious. They include Heenan as

trustee of the Heenan Family Trust 1960 and Lee, Wadsworth and Heenan as trustees of the Amended Heenan Family Trust 1960 and Amended Heenan

Family Trust No.2 v Gore and Others (DC DUN 5 December 2006, Judge

C P Somerville), Heenan Family Trust 1960 and Amended Heenan Family

Trust 1960 and Amended Heenan Family Trust No.2 v Gore and Others HC DUN CIV 2006-412-1023 and 1031, 8 October 2007 and 19 December 2007 (Costs) and 1 April 2008 (Costs) Associate Judge Gendall). We note that in Associate Judge Gendall’s judgment of 8 October 2007 he identified (at [86]-[89]) a number of reasons additional to those discussed by John Hansen J and the Court of Appeal which also showed the Heenan Family Trust 1960, the Amended Heenan Trust 1960 and the Amended Heenan Family Trust No.

2 were invalid.

[22] Nothing in the material presented to me compels me to revisit these findings. I consider that further proceedings on this issue would constitute an abuse of process.

New evidence and vintage cars

[23] Mr Heenan nevertheless took me to additional material that he considers further shows the existence of the 1960 Trust and its ownership of the vintage cars. This material comes from information that, he says, was belatedly released by the Official Assignee. In particular he referred me to various exhibits, including:

(a) Bank statements as early as May/June 1998 with the account name:

HEENAN DAVID STANLEY TRADING AS

VINTAGE CAR ACCOUNT 1960

(b) Other bank statements as early as 16 January 2001, addressed to:

_{HEENAN FAMILY TRUST}

8 Attorney-General v Heenan [2009] NZHC 1070; [2009] NZAR 763.

C/- D S HEENAN PO BOX 868

QUEENSTOWN

(c) Certificates of Registration for a Studebaker, Year of Manufacture

1924, with the following notation:

19/02/1979 DAVID STANLEY HEENAN T/A HEENAN FAMILY TRUST

(d) Certificate of Registration for Buick, with the following notations:

HEENAN FAMILY TRUST C/- PO BOX 868

QUEENSTOWN 9197

24/11/1981 DAVID STANLEY HEENAN T/A HEENAN FAMILY TRUST

(e) Certificate of Registration for Buick convertible, with the following notations:

HEENAN FAMILY TRUST C/- PO BOX 868

QUEENSTOWN 9197

25/08/1992 DAVID STANLEY HEENAN T/A HEENAN FAMILY TRUST

[24] Other materials produced by Mr Heenan may have been before the Courts previously, but, he says, further corroborates his contention, including:

(a) Private motor vehicle insurance proposal, dated on or about 24 August

1992, with handwritten notations stating:

David Stanley Heenan as agent for the Heenan Family Trust

1960 (new owners)

(b) Certificate of Registration for a Body T Convertible with the following notation:

HEENAN FAMILY TRUST C/- PO BOX 868

QUEENSTOWN 9197

25/08/1992 DAVID STANLEY HEENAN T/A HEENAN FAMILY TUST

[25] Mr Heenan also refers to the judgment of Judge Smith in Family Court proceedings to the effect that it was conceded by Mrs Heenan that the vintage cars belonged to the 1960 Trust.

[26] He then refers to a Deed of Lease of 11 Brunswick Street dated 4 January

2002 referring to the owner as the 1960 Trust. The probative value of this is somewhat circumspect, given that the only signatory in all respects was Mr Heenan. Be that as it may, he says that it was further material that was not before the other judges when they concluded that the Trust did not exist.

My findings on the new evidence

[27] It is not clear to me that the information provided is new evidence. Certainly, similar evidence was produced in earlier proceedings.9

[28] Nevertheless, I am prepared to proceed on the basis that the information tabled before me establishes a prima facie case that the vintage cars were held by Mr Heenan in a family trust of some description. I am also prepared to proceed on the basis that this information was not available to Mr Heenan previously.

[29] While that might satisfy one of the criteria for leave under s 88B(2), this material falls well short of providing a proper basis to revisit the several decisions of this Court that the 1960 Trust, as framed by Mr Heenan, was invalid or that Mr Heenan owned the cars. Indeed, it is not a sufficient basis for revisiting the following observation by the full High Court:

[135] Whatever may be the true position concerning the motor vehicles, for the purposes of the present application, the fact remains that Panckhurst J’s judgment of 20 December 2006 (and the other judgments reviewed) holding Mr Heenan was the owner of the two Buicks at the date of adjudication, coupled with John Hansen J’s finding that the Heenan Family Trust 1960 does not exist, determines the issue of the motor vehicles definitively against Mr Heenan.

[30] I note for completeness, Fogarty J set aside Panckhurst J’s judgment of 20

_{December 2006 on the basis that Mr Heenan was not present at the hearing.}

9 Refer Attorney-General v Heenan [2009] NZHC 1070; [2009] NZAR 763 at [129]- [134].

Nevertheless, in his ruling of 1 December 2009 circumscribing leave to Mr Heenan to adduce further evidence about the 1960 Trust and the cars , Fogarty J stated: 10

[8] As to the argument that the 1939 Buick Convertible and the dismantled Buick are owned by the Heenan Family Trust 1960 that is a positive argument in response to the Official Assignee’s claim. That argument was raised in the statement of defence, which has been struck out. I am satisfied that there are two bases why that argument cannot be pursued today. The first is by way of issue estoppel. There was a judgment by Associate Judge Gendall in the Heenan Family Trust 1960 and Ors v Gore and Ors HC DUN CIV 2006-412-1023 8 October 2007. This judgment falls into two parts for these purposes, part of it recognises earlier judgments whereby both the District Court and the High Court have found that the Heenan Family Trust 1960 was not valid but secondly, Associate Judge Gendall analysed the subject in this own judgment from paragraphs [83] – [89] and concluded that the trust did not exist.

[9] The parties to that judgment included the officers and former officers of the office of the Official Assignee as the 15th, 16th and 17th defendants and I am satisfied, for all practical purposes, the office of the Official Assignee was a privy to that judgment so an issue estoppel arises.

[10] Secondly, for the reasons deriving from the famous case of Henderson v Henderson [1843] EngR 917; 67 ER 313 and numerous other authorities following, including the Supreme Court in Lai v Chamberlains, the litigation has now reached the point where it is an abuse of process for Mr Heenan to pursue an argument that the Buick Convertible and the dismantled Buick are property of the Heenan Family Trust 1960 because of the findings that that trust does not exist.

[11] It is not open to me by law to even entertain an argument as to whether those judgments are wrong.

[31] Fogarty J reversed his finding on the issue estoppel in a recall judgment of

2 December 2009 on the basis that the issue was relitigated before Heath J without apparent objection from the Official Assignee.11 It is not necessary for me to express a view on that because, in any event, I respectfully agree with Fogarty J’s second reason, namely that it is now too late for Mr Heenan to relitigate either the status of the 1960 Trust or his ownership of the vintage cars.

[32] It may be that proceedings that are not based on the existence of the 1960

Trust, but rather on a differently framed interest in the cars might be permissible. But

_{Mr Heenan’s continued insistence on the 1960 Trust as promoted by him is not.}

10 _{Official Assignee v Heenan HC Invercargill CIV 2002-425-000015, 1 December 2009.}

11 Official Assignee v Heenan HC Invercargill CIV 2002-425-000015, 2 December 2009.

The 1960 Trust: Brunswick Street property – proceeds of sale

[33] In my view the applications by Mr Heenan under this heading also trespass into matters already resolved by John Hansen J and thoroughly reviewed by Heath J and the full High Court. Nothing in the new material suggests that I should be minded to depart from Heath J’s conclusions, as follows:

[148] Mr Heenan’s actions, after the Queenstown property was acquired,

are consistent with a decision on his part to transfer that property into the No

2 Trust. In my view, an inference that that was done is irresistible. I rely on the following primary facts to draw that inference:

a) Mr Heenan’s original decision to register the Queenstown property in the joint names of himself and his wife. That disconnected the proceeds of sale of Southland properties from the 1960 Trust.

b) Mr Heenan’s decision to form the No 2 Trust and to sign the

Trust Deed in his capacity as a trustee.

c) Mr Heenan’s decision to transfer the Queenstown property into the joint names of himself, Mrs Heenan and Mr Fagerlund, on creation of the No 2 Trust.

d) Mr Heenan’s preparation of an Amended No 2 Trust Deed in which he purported to appoint Mrs Wadsworth and Mr Lee as trustees in substitution for other trustees.

[34] I also have no reason to depart from Heath J’s observation at [151]:

[151] Nevertheless, there is no evidence of fraud on the part of HFK Trustees Ltd, Mr Hilson, Mr Keyes, Mr Fagerlund or Mr McGarry. One would expect some evidence that they were motivated by personal gain if fraud were to exist. I find none and dismiss the application to join those parties as defendants.

[35] Given this background, I am not prepared to allow leave to pursue this aspect. Indeed, to do so would in itself constitute an abuse of process given that the basis of Mr Heenan’s complaint has been ventilated and decided against him at least three times, including before John Hansen J, Heath J, and the full High Court.

The fraud claim: Judge Saunders’ judgment

[36] Mr Heenan wishes to relitigate his claim that the judgment of Judge Saunders was flawed, because it was premised on forged documentation. This is simply a rehash of a long-running complaint by Mr Heenan. Fogarty J has summarised the position in his ruling of 1 December 2009 in the following terms:

[7] Furthermore, this Court takes note that Mr Heenan has applied unsuccessfully in the past to raise this fraud argument: Gore v Heenan DC ALEX NP125/99 3 August 2000, Saunders DCJ; Heenan v Gore HC INV CP6/00 1 December 2000, Young J; Heenan v Gore HC INV B55/00 11

December 2000, Master Venning; Heenan v Gore HC INV B55/00 29

January 2001, Master Venning (see particularly paragraph [19]); and

Heenan v Gore HC INV M18/01 12 June 2001, John Hansen J. But, there have been a number of attempts to raise this argument, without success. The

matter has also been canvassed in the recent judgment of the full Court:

Attorney-General v Heenan HC CHCH CIV 2007-412-001061 19 August

2009, Randerson and Hugh Williams JJ. In that judgment the Court considered that the allegations of fraud and forgery in respect of the cheque

were misguided and did not affect his liability which underpinned his bankruptcy.

[37] On that basis, Judge Saunders’ judgment is not amenable to challenge on the

basis of the allegation of fraud raised by Mr Heenan.

Public Trust directions: information and funds

[38] John Hansen J observed in HFK Trustees Ltd v RJM Heenan and Ors:12

[117] I direct that the current trustees of that Trust are the Public Trust and Mrs Roberta Jane Mary Heenan. I also direct that the proceeds of sale should be paid to the Public Trust and lodged in an interest-bearing account on behalf of the Heenan Family Trust No.2. There will be a further order that the costs of the Public Trust be paid from the proceeds of sale.

[118] I further order that the said funds should be held by the Public Trust pending further order of the Family Court in respect of the Property (Relationships) Act proceedings between Mr & Mrs Heenan.

[39] Notwithstanding my misgivings about Mr Heenan’s allegations, I am concerned that no or little apparent progress has been made in distributing the funds

_{held by the Public Trust, except for the funds distributed to Mrs Heenan. On its face,}

12 HFK Trustees Ltd v RJM Heenan and Ors HC Invercargill CIV 2005-425-223, 7 September 2006.

there seems to be disparate treatment between Mr and Mrs Heenan. I am advised by Mr Lester that Mrs Heenan’s share has been settled, but no such progress has been made in relation to Mr Heenan’s interests. I accept Mr Lester’s basic submission that there is a difference between litigation seeking to revisit the past, and litigation relating to an unresolved claim. It seems to me that Mr Heenan’s entitlement to the funds held by the Public Trust has not been resolved with finality, even though the claims based on allegations of fraud and the existence of the 1960 Trust cannot now be raised. Whatever the status of the 1960 Trust, the property now held by the Public Trust appears to have its genesis in joint property or property that Mr Heenan held an interest in at one time.

[40] As the Public Trust was not represented at this application, rather than making any order granting leave to Mr Heenan to pursue an action against the Trust, I am going to direct that the Public Trust report to me on the distribution of the funds and any proposal to distribute the balance of those funds (if any). I had sought some assistance from Mr Heenan on the precise directions I should make, but he referred me to various disclosure demands that had more to do with complaints about the conduct of the Public Trust rather than a request for information.

[41] Mr Heenan has expressed considerable concern that he is being locked out of funds that he says are rightfully his. He has also indicated that he is in urgent need of funds, especially as a consequence of the damage caused by recent earthquakes. These are not unreasonable concerns and they warrant attention.

[42] On that basis, I direct that the Public Trust to report to the Court on the following matters within 10 days of service of this judgment on them:

(a) The quantum of the funds held on behalf of the Heenan Family Trust

No 2;

(b) The quantum of funds already distributed, including to Mrs Heenan;

and

(c) Any proposal to distribute the remainder of the funds, including if any to Mr Heenan.

[43] The report need only be a summary without detailed referencing to source materials. Once I have had a response to those matters I will consider whether and if so, I will grant leave to Mr Heenan to issue further proceedings.

Orders

[44] Given the foregoing:

(a) I dismiss the application for leave in relation to all 11 applications as currently framed.

(b) I direct that the Public Trust be served with a copy of this judgment.

(c) I direct that the Public Trust provide the information specified at [42]

within 10 days.

(d) I reserve my position on whether leave will be granted to Mr Heenan to commence proceedings pending review of the information supplied by the Public Trust.

(e) I grant leave to the Public Trust to seek clarification of my directions if necessary.

Whata J