Ward v ANZ National Bank Ltd [2012] NZHC 2347 (12 September 2012)

Last Updated: 18 September 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-005430 [2012] NZHC 2347

BETWEEN RUSSELL STUART WARD First Plaintiff

AND RUSSELL STUART WARD AS TRUSTEE OF THE RUSSELL WARD FAMILY TRUST

Second Plaintiff

AND ANZ NATIONAL BANK LTD First Defendant

AND BARFOOT & THOMPSON Second Defendant

Hearing: (on the papers) Judgment: 12 September 2012

_{DECISION OF VENNING J}

This judgment was delivered by me on 13 September 2012 at 4.00 pm, pursuant to Rule 11.5 of the

_{High Court Rules.}

Registrar/Deputy Registrar

Date...............

_{Copy to: Plaintiff}

WARD V ANZ NATIONAL BANK LTD HC AK CIV-2012-404-005430 [12 September 2012]

[1] The plaintiffs presented a statement of claim and accompanying papers to this Court for filing. The papers were referred to the Registrar who declined to accept them. The Registrar considered the document entitled statement of claim could not be accepted as a statement of claim because of its failure to comply with r 5.26(b).

[2] Mr Ward has written a letter to the Registrar requesting a review of the

Registrar’s decision. The Registrar has referred that request to me as Duty Judge.

[3] Pursuant to r 2.11 a Judge of this Court may review a Registrar’s decision, including a refusal to file a document tendered for filing. The Rule provides for the review to be brought by interlocutory application but in the circumstances I am prepared to accept the plaintiff’s letter as an application and waive the need for a formal interlocutory application. A file has been prepared solely to provide a public record of this review decision.

Registrar’s decision

[4] Rule 5.2(1) provides:

(1) A document that does not comply with rules 5.3 to 5.16 may be received for filing only by leave of a Judge or the Registrar.

[5] None of the provisions of 5.3 to 5.16 are directly applicable in the present case. The document presented by the plaintiff complies with the requirements of form to the extent that it carries headings, has margins, is described as a statement of claim and is set out in paragraphs. The Registrar did not rely on his jurisdiction under r 5.2 to refuse to accept the documents. Rather the Registrar formed the view that, because of the substantive defects in the document itself, it was not a statement of claim for the purpose of the Rules and could not be accepted as such.

[6] The first issue is whether the Registrar had jurisdiction to refuse to accept the document for filing because of its substantive defects rather than defects of the type contemplated by rr 5.3 – 5.16.

[7] In Te Toki v Pratt[1] the Court was faced with an unintelligible and defective proceeding. Elias CJ observed that:

[181] The deficiencies in form of the documents in this case meant that in my view no adequate notice of the claims would have been conveyed by their service. I consider this an extreme case where the Registrar would have been justified in refusing to accept the documents for filing.

As the defective documents had been accepted for filing Elias CJ set aside the proceeding as a whole under r 5 (now r 1.5).

[8] However it is apparent from the judgment that while the content was unintelligible, in the above passage the Chief Justice was referring to deficiencies in form as identified by failure to comply with rr 24 – 40 (now rr 5.3 – 5.16).

[9] As noted, the statement of claim in the present case strictly complies with the form requirements. The issue with it lies in its failure to comply with r 5.26 in particular.

[10] I note that in Te Toki the Chief Justice went on to hold that the documents also failed to comply with r 108 (the equivalent of r 5.26, which is the rule relied on by the Registrar in this case) and concluded that that rule would support the striking out of the proceedings in any event.

[11] However, there may be an issue whether the Registrar, as opposed to a Judge, had jurisdiction to refuse to accept the documents on the basis of failure to comply with r 5.26(b) where they otherwise comply with the “form” requirements. I accept that there may be cases where documents that may contain proper headings and

_{otherwise strictly comply with the form are so plainly defective in substance that}

they cannot properly be said to be what they purport to be so that, in the words of the Chief Justice in Te Toki v Pratt, they are a parody of proceedings and can properly be rejected by the Registrar. That will however be an extreme case.

[12] In cases of doubt, the Registrar should refer the proposed proceedings to a Judge of this Court. A Judge has jurisdiction both under the Rules and the inherent jurisdiction to direct that a document should not be accepted for filing. The inherent jurisdiction of the Court to control its processes in the interests of justice by, if necessary, refusing to accept documents for filing is not constrained by r 5.2.

[13] In the absence of detailed argument I propose to say no more on that point on this review. It does not affect the outcome of this review. Even if the Registrar did not have jurisdiction to reject the documents for failure to comply with r 5.26(b), this Court does have jurisdiction to do so. I approach the matter afresh and consider whether the documents should be accepted for filing.

[14] The statement of claim is apparently filed to support an application for interim injunction to prevent the first defendant Bank from pursuing a mortgagee sale of the second defendant’s property. The statement of claim runs to some 14 pages and 103 paragraphs. It does not start in a promising way by describing the plaintiff Russell Stuart Ward as::

The First Plaintiff, properly, without permutation, typographical mutation, and without intent of dishonour is a living-breathing-soul within his good self known as: Russell Stuart Ward (“Russell”) ...

That is plainly nonsense.

[15] The document then proceeds in a discursive way to extensively detail correspondence and communications between Mr Ward and the Bank. The content is not restricted to the identification of facts but purports to include pleadings of law and submission. That of itself would not necessarily justify its rejection.

[16] The more significant issue arises with the claim, as I apprehend it to be. The claim the plaintiffs seek to advance appears to rely on the plaintiff’s communications with the Bank as in some way extinguishing the Bank’s right and authority to rely on

the mortgage document granted by the second plaintiff in favour of the Bank. The basis of such claim is, however, unintelligible. For example, it pleads:

[44] On or about 8 May, 2012 First Plaintiff received a letter from Dave Morton, National Bank, dated 2 May, 2012, demanding First Plaintiff pay a sum of $131,714.83 and demanding that this demand be remedied by 16

May, 2012.

[45] On or about 15 May, 2012, First Plaintiff responded to this aforementioned letter with a private Constructive Notice of Conditional Acceptance and an Affidavit of Specific Negative Averment, which is a counteroffer. This private Constructive Notice noticed First Defendant that failure to respond would be deemed as acceptance of the contents contained and as a courtesy gesture, additional copies were mailed by a third party witness to Paul Massey, Ray Jackson and CEO David Hisco. The original notice and affidavit was entrusted in the care of NZ Post, by registered mail to Dave Morton.

Then later:

[64] On or about 17 July, First Plaintiff received a letter dated 10 July,

2012, from Dave Morton advising that legal costs had been added to

Second Plaintiff’s account.

[65] First Plaintiff responded with a conditional acceptance of this above

10 July letter, conditionally accepting the contents of Dave

Morton’s letter on proof of claim that the balance of Second Plaintiff’s account was not zero and the matter was not settled and closed. A further condition was enclosed, that being if there was any additional communication from Dave Morton without proof that this matter was not settled and closed, this may be deemed as harassment and a fee of fifty five thousand dollars of functional New Zealand currency would apply.

And later:

[80] The First Plaintiff issued the Notice of Correction for Fraud as Settler of the Trust created by the loan guarantee document [reference]. Unbeknownst to First Plaintiff and undisclosed by First Defendant, this aforementioned Trust appointed First Defendant as trustee, beneficiary and lender of that Trust.

[81] As First Defendant has provided no evidence that First Defendant was lender on that trust, and that:

a) First Defendant has provided no evidence that the credit extended to create the loan guarantee document [reference] was not funded by First Plaintiff’s own signature, and that:

b) On the Notice of Correction for Fraud, First Plaintiff, as Settlor and Appointer has replaced First Defendant as trustee, and that:

c) First Plaintiff, as Settlor and Appointer has replaced First

Defendant as beneficiary and that:

d) First Plaintiff, as Settlor and Appointer has replaced First

Defendant as lender.

[17] The relief claimed is said to arise from a promissory estoppel based on the above statements (and more to the same effect). It is said that it is somehow an abuse of a “prevailing equitable statutory process” for the first defendant to proceed with the sale.

[18] Read as a whole the document is confusing and unintelligible. It clearly fails to comply with r 5.26(b). Unintelligibility of a claim is itself a ground for striking out: Phillips v Phillips[2] and Te Toki v Pratt.[3]

[19] The only suggestion in the document of a possibly intelligible ground of claim is the allegation that, in breach of s 103A of the Property Law Act 1952 (now s 176, Property Law Act 2007), the defendants failed to take reasonable care to obtain the best market price. Particulars are in relation to marketing the property:

via a 3 week mortgagee sale process knowing or recklessly indifferent to the fact that in this current economic market there is insufficient time to property [sic] market and that has reduced the price and value of the said properties.

[20] However, the two or three brief passages in relation to that issue are not sufficient to save what is otherwise an entirely defective and meaningless document. Overall the document is properly categorised as unintelligible. It would be impossible for a defendant to respond to it or plead to it in any meaningful way. It is frivolous and vexatious.

[21] The document clearly fails to comply with the Rules, including r 5.26(b). If the document had been accepted for filing but then, as in Te Toki had been referred to a Judge, then the Judge could have set it aside in its entirety. It is in the interests of justice that the defendants not be required to respond to an unintelligible pleading.

_{The interests of justice and other genuine litigants before the Court also require that}

the limited resources of this Court not be applied to deal with such unintelligible and meaningless documents.

[22] I am satisfied that, if the Registrar had referred the document to a Judge, then the Judge would undoubtedly have directed the Registrar not to accept the document for filing.

[23] For those reasons I decline the application for review. I confirm the Registrar’s decision to refuse to accept the documents for filing. It remains open for the plaintiff to reformulate the claim in a sensible and meaningful way if he wishes

_{to pursue the matter further.}

Venning J

---

[1] Te Toki v Pratt (2002) 16 PRNZ 160.

[2] _{Phillips v Phillips (1878) 4 QBD 127 at 142 per Bramwell LJ.}

[3] Te Toki v Pratt at [24].