Terry v McLellan [2014] NZHC 1861 (8 August 2014)

Last Updated: 11 August 2014

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV 2014-418-000013 [2014] NZHC 1861

BETWEEN	ROBERT FRANK TERRY Appellant
AND	ROSALIND MEGAN McLELLAN Respondent

Hearing:	6 August 2014 (Heard at Christchurch)
Appearances:	Appellant in person A M Toohey for Respondent
Judgment:	8 August 2014

_{JUDGMENT OF WHATA J}

[1] Mr Terry does not believe he has been well served by the judicial system. He complains that he has been deprived of the opportunity to be heard in the High Court and in the District Court on matters of great importance to him. His attempt to appeal out of time on a judgment concerning one of those matters has been dismissed by the High Court and the Court of Appeal. Undeterred, Mr Terry sought to have the sealed orders of the same judgment set aside. He failed in this also and now appeals to me.

Background

[2] There is a long history to this matter, though I need only essay the last few years. In March 2012, Judge Moran decided that the respondent Rosalind McLellan was entitled to possession and ownership of land at Soldiers Big River Road, subject to payment of about $12,000 to Mr Terry. Later that year Joe Williams J allowed

_{Mr Terry’s appeal against the District Court’s decision, finding that Mr Terry had an}

TERRY v McLELLAN [2014] NZHC 1861 [8 August 2014]

equitable interest in the land.¹ After judgment and at Rosalind’s request (but I’m told without recourse to Mr Terry) the Judge directed that the matter be remitted back to Judge Moran to determine the nature and extent of Mr Terry’s equitable interests in the farm. A further hearing was held and in January 2013 in an interim decision Judge Moran decided that Mr Terry was entitled to about half the property. He then issued a minute inviting submission on how the matters should be finally resolved, and in April decided that Mr Terry may purchase Ms McLellan’s half share for

$31,000 and had until 4 pm, 28 June 2013 to do so. There is then a request from Mr Terry that Judge Moran set aside an order for costs and reconsider the orders just made. That application was rejected. An order is then made on 18 July 2013 for vacant possession of the land subject to payment of $23,925.60. A further application is then made by Mr Terry to review the order as to costs and that application is also rejected. The order made on 18 July 2013 was then sealed on

27 August 2013.

[3] Mr Terry filed an application to the High Court seeking leave to appeal out of time against the decision of Judge Moran of 26 July 2013 (that is, dealing with his refusal to review the costs order). That application was rejected by the High Court as is a subsequent application for leave to appeal to the Court of Appeal.² Mr Terry then filed an application to have the sealed orders of Judge Moran’s judgment set aside by the District Court.

Judge O’Driscoll’s judgment

[4] The Judge recorded:³

[6] Mr Terry appeared before me this morning. Mr Brodie was not present but was at the other end of a phone so that all parties could hear each other. Mr Terry raised with me a number of matters and gave me a number of documents. Those documents include a decision of Tipping J in the Greymouth High Court dated 18 December 1992. The case is Terry against the District Court at Greymouth and Judith Terry as the second defendant. Mr Terry also gave me a decision of Williams J also in the Greymouth High Court dated 29 August 2012, a decision of Terry v McLellan [2012], NZHC

2205. Mr Terry also gave me a decision of the Supreme Court entitled Terry v McLellan [2011], NZSC 99 where an application to appeal was dismissed.

¹ _{Terry v McLellan [2012] NZHC 2205.}

² _{Terry v McLellan [2013] NZHC 3045, Terry v McLellan [2014] NZCA 270.}

³ Terry v McLellan DC Greymouth CIV 2009-018-000154, 6 March 2014 at [6]-[11].

Mr Terry also provided me with a trespass notice that had been served on him which I take relates to the property which had been in dispute in this case.

[5] He then goes on to observe:

[7] Having considered all of the material before me there are effectively two matters that I want to raise. The first is that the application to set aside the sealed order of Judge Moran must be based on the usual principles for a judgment to be set aside.

[8] Mr Terry is not entitled to litigate any of the matters that have been previously decided. If he is not happy with those matters, the correct procedure is to appeal. The application to set aside judgment should not be seen as a back door method of conducting an appeal or re-litigating matters that have been decided.

[9] The second matter is that I agree with the submissions by Mr Brodie. I am of the view that the judgment of Judge Moran was regularly obtained. There is nothing before me that creates circumstances where it would be proper to set aside Judge Moran’s decision or the sealed order of Judge Moran, I am not entitled to do that as a matter of basic legal principles unless there were good grounds for that and I am not satisfied on the basis of the material before me, that such grounds exist.

[6] The Judge notes finally:

[11] While there may be a dispute as to whether the sealed order has been served on the defendant, the defendant was aware of Judge Moran’s decision and he is now clearly aware of both the decision and the sealed order.

Grounds of appeal

[7] Mr Terry identified six grounds of appeal⁴, but I think the central claims are that the has been a miscarriage of justice because he was never given the proper

⁴ Namely:

1. There has been a serious miscarriage of Justice

2. Mr Robert Frank Terry was the plaintiff, not the defendant in these proceedings refer to paragraph [11] [12] in the district court judgment.

3. Paragraph [6] of the judgment. Honourable Justice Tippings Judgment is Law. Judge Phil Moran can not hear this case in chambers. Mr Robert Frank Terry must be heard in court, as per Hon Justice Tippings ruling against the Greymouth District Court. Janet Terry can not own property,

half owned by Robert Frank Terry.

4. Hon Justice Williams ruled to two points of Law both in favour of Robert

Frank Terry. Paragraph [22] possessory right and life interest.

5. Under the Administration Act. Mr Curruthers in charge still in charge of the Terry brothers estate he would be well advised to attend a settlement conference, returning the trust funds until this dispute is settled.

opportunity to be heard in advance of Joe William J’s decision to remit the proceedings back to Judge Moran and then in advance of Judge Moran’s final orders. He also says he has never been served with the sealed orders of the District Court, so is within time to challenge them.

Assessment

[8] I dismiss the application for leave to appeal. It is in reality a back door attempt to achieve what could not be achieved through the front door. That cannot possibly be allowed by this Court. In Terry v McLelland [2013] NZHC 3045, Gendall J resolved that Mr Terry’s application for leave to appeal Judge Moran’s decision must be dismissed. The Judge found that in his view there was no basis for suggesting that any of the decisions made by Judge Moran, which are the subject of the application for leave, were wrong. Indeed, Gendall J observed it might even be said, that in giving his decisions, the Judge took the option most favourable to Mr Terry throughout. The Court of Appeal agreed.

[9] I also adopt the helpful submission of the respondent to the effect that as the underlying District Court decision has been appealed to the High Court and to the Court of Appeal, the District Court does not have jurisdiction to set aside the underlying judgment as it has been overtaken by processes in a superior Court.⁵

[10] For completeness I have reflected on whether there is in any event a miscarriage of justice. At its highest Mr Terry complains that he was not afforded a proper opportunity to be heard, especially in relation to the final orders made by Judge Moran. But is it clear that Mr Terry was heard (in a literal sense) in relation to the first substantive decision of January 2013, and was given the opportunity to lodge submissions on the content of the final orders. He also had the opportunity to appeal against those orders within time. He did not do so. He was then heard in

_{relation to an application for leave to appeal out of time. He did not succeed in this,}

6. Mr Robert Frank Terry was never ordered by Hon Justice Chisholm to pay Brian Terry’s legal bills of $55.000.00. from the Terry brothers trust Account.

⁵ Citing Hikuwai v Sandford Ltd [1996] 9 PRNZ 587 (HC); and UDC Finance Limited v Madden

[2000] 1 NZLR 504 (HC).

but he cannot claim that he has not been given the opportunity to be heard. Accordingly whatever procedural irregularity may have affected the first or second decision, Mr Terry has had his days in Court to redress it.

[11] Stepping back still further, many years ago Tipping J said that Mr Brian Terry should have been put on proper notice of the ambit of a conference in matrimonial property proceedings.⁶ The judge there also stressed the importance of giving adequate notice to lay litigants to prepare. I agree. But on my reading of the chronology of events, Mr Robert Terry in this case has been given ample opportunity either to participate in the proceedings or to challenge a misstep on appeal.

[12] Mr Terry also sought to have the Solicitor General joined. I saw no merit in this suggestion.

[13] The application for leave is therefore dismissed. There should be costs in favour of the defendant on a 1A basis together with disbursements, with an uplift of

50%. While on another day this appeal could be said to be futile and an abuse, it is so simple in its construction that I think it would be excessive to grant indemnity costs.

Solicitors:

G M Brodie, Christchurch

Raymond Donnelly & Co, Christchurch

⁶ Terry v Terry (1992) 10 FRNZ 135 (HC).