Mathiesen v Hodges [2014] NZHC 2448 (6 October 2014)

GORDON WALLACE CAMERON MCNAB, as one of the Trustees of the Sweet Pea Family Trust (the other Trustee being TREVOR DAVID HAY)

GORDON WALLACE CAMERON McNAB, as one of the Trustees of the Greenpark Family Trust (the other Trustees appointed being TREVOR DAVID HAY and RONALD DUNCAN HERRON)

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ROBYN ANN COX, Official Assignee (South Island) and DEBORAH COLES Fifth Defendant

Hearing:	15 September 2014
Counsel:	G P Mathiesen, G W C McNab and T D Hay in person M A J Elliott for First and Third to Eighth Defendants A R McRae for Second Defendant
_Judgment:	_{6 October 2014}

[1] This proceeding purports to be “contempt proceedings”. In it, the plaintiffs allege that all of the defendants are in contempt of court for their actions in relation to the issue of a bankruptcy notice against Mrs Mathiesen, and in the subsequent proceedings in which an order was made adjudicating Mrs Mathiesen bankrupt.

[2] Contempt of court may be classified as either criminal contempt, or civil contempt. Criminal contempt consists of words or acts which impede or interfere with the administration of justice, or which create a substantial risk that the course of justice will be seriously impeded or prejudiced. Civil contempt consists of disobedience to the judgment, orders or other processes of the court, involving a private injury. The plaintiffs characterise the present claim as a civil contempt.

[3] The purpose of the law of contempt is to preserve an efficient and impartial system of justice and public confidence in it, by dealing with fundamental challenges to the supremacy of the law. In Solicitor-General v Radio Avon Ltd & Anor, Richmond P said:¹

No one can question the extreme public importance of preserving an efficient and impartial system of justice in today's society which appears to be subject to growing dangers of direct action in its various forms. It is to that end, and to that end alone, that the law of contempt exists.

[4] The process used by the courts to deal with criminal contempt is a summary one, often initiated by the Judge. That form of process reflects the need for the courts to act quickly and effectively when their authority is challenged.²The Solicitor-General may also institute proceedings for criminal contempt. The power of the Solicitor-General, representing the public interest, to take such proceedings is a recognition of the extreme public importance of the justice system. The purpose of

the law of criminal contempt is not consistent with the existence of a private law remedy, exercisable at the suit of a private litigant.

[5] Civil contempt, involving breach of court orders, does give rise to private law remedies. There are specific provisions to deal with stubborn non-compliance with orders made in proceedings between private parties. Disobedience of such orders may be dealt with on an application for arrest or sequestration orders under pt 17 sub-pt 7 of the High Court Rules. That is not what is sought by the plaintiffs in this proceeding. In essence, they seek to challenge the validity of Mrs Mathiesen’s bankruptcy, by a collateral challenge to form and process in making of the order of

[6] Court orders, once made, must be observed and complied with, unless and until they are set aside by proper process. There are processes, by way of review and appeal, by which persons affected by a court order may challenge the terms of any order, or the process which was followed in making the order. Those processes are the proper means by which orders may be challenged, and, if necessary, the actions of those persons involved in the proceedings in which the order was made can be examined. The law of contempt does not provide an additional or alternative means of challenging the validity of an order, or the process by which it was made.

[7] The proceeding is misconceived, and it is dismissed. The matters which are raised by the plaintiffs do not come remotely near being within the ambit of the law of contempt. I shall explain why that is so in the reasons which follow. I make it clear, at the outset, that the claim is misconceived, lest my following comments might otherwise seem to give some legitimacy or credence to the proposition that contempt of court is relevant here. These proceedings are not proceedings for contempt, whether civil or criminal. Calling them such does not make them so.

[8] I first address some preliminary and collateral matters raised by the plaintiffs. The proceeding was filed on 11 July 2014. It came before Heath J on 23 July 2014, as a first call. The plaintiffs applied to Heath J to recuse himself. That application was refused in an oral judgment delivered that day.³He set the application for contempt down for hearing at 10 am on 15 September 2014. He also gave timetable directions towards that hearing. I later deferred the start of the hearing to 11 am on

15 September 2014. The hearing was then further deferred to 12 noon, to allow time for the plaintiffs to apply for a waiver of the hearing fee, which was granted by the

[9] Before the hearing, the plaintiffs filed papers challenging the ability of Heath J to make the timetable directions and set a hearing date. The plaintiffs asserted that Heath J had not been properly appointed as a judge. I dismissed that challenge at the start of the hearing and advised that I would give my reasons in this judgment. This I now do.

[10] Heath J was appointed a temporary judge of this Court under s 11 of the Judicature Act 1908 on 18 March 2002, for a term of one year. He was appointed a permanent judge of this Court under s 4 of that Act on 7 June 2002, during the term of the temporary appointment. The essence of the plaintiffs’ challenge to the validity of that permanent appointment is that it could not be made, as to do so would breach the limit on the term of a temporary appointment in s 11(2).

[11] That proposition is plainly wrong. It is not a bar to the making of an appointment under s 4 that the person appointed then holds appointment as a temporary judge. The permanent appointment under s 4 supersedes the temporary appointment under s 11, and the question of reappointment under s 11(2) does not arise. Mr McNab asserts that Heath J is in the same position as Leicester J and Woodhouse J, whose appointments were the subject of ss 3 and 4 of the Judicature Amendment Act 1961. The effect of those sections was to deem the appointment of those judges to be permanent from the earlier date on which they had been temporarily appointed. What is now s 11(2) was first enacted at the same time. Mr McNab did not make clear to me why he asserts those provisions are relevant to Heath J’s appointment. They are not. On the plain words of ss 4 and 11, his argument is untenable.

[12] That conclusion disposes of a related point, which was that Heath J’s setting of the hearing for 15 September 2014, and the timetable directions he gave, were not valid. Those directions were properly made. I made it clear to the plaintiffs that the hearing would proceed, and it did.

[13] At the end of the hearing, I gave Mr McNab an opportunity to file further written submissions on whether the acts of the defendants in processing the proceedings in this case might constitute a contempt of court, and on the effect of s 6(5) of the Crown Proceedings Act 1950 and the doctrine of judicial immunity. Mr McNab did not avail himself of this opportunity, and I therefore proceed to issue judgment on the basis of the submissions presented at the hearing.

[14] Mrs Mathiesen separated from her husband of 22 years in January 2004. Mr Mathiesen worked offshore while Mrs Mathiesen remained in occupation of the family home, a house on a 6.8 hectare property operated as a horse stud. The property had been purchased sometime after 1994, and registered in Mrs Mathiesen’s sole name for GST purposes. She formed a trust, which Mr McNab and Mrs Mathiesen assert is correctly called “The Sweet Pea Family Trust” (the Trust), of which her accountant, Mr G J Calvert, and Cooney Vosper Trustees Limited, were the trustees. About 17 months after the separation Mrs Mathiesen transferred the family home to the Trust for $675,000. Some six weeks after the transfer to the Trust, the trustees sold the property to a third party purchaser for $1,015,000.

22 April 2009. The judgment of Judge J J Moran was delivered on 5 August 2009.⁴

The Judge held that the sale price of the family home to the Trust of $675,000 was “demonstrably inadequate” as being a sale for $340,000 less than its value. By way of remedy the judgment records:

[35] The trust shall pay the sum of $340,000 being the difference between the value of the consideration ($675,000) and the actual value of the property ($1,015,000).

[16] The Judge went on to consider other issues between the parties, to determine the extent of their respective relationship property entitlements. She made orders in these terms:

(1) Mr and Mrs Mathieson each have a relationship property entitlement of $373,895.53 pursuant to the annexed schedule.

(2) The balance payable to Mr Mathieson is $326,152.97 comprising: (i) $170,000 from the Sweetpea Family Trust;

(4) Leave is reserved to counsel to seek directions to give further or better effect to these orders.

[17] A formal order was sealed on 10 August 2009, in which the orders were recorded in the terms made by Judge Moran as set out above. The order was sealed with the seal of the Family Court division of the District Court at Timaru and signed by the first defendant, as deputy registrar. The order described the applicant as Mr Mathiesen and the respondent as Mrs Mathiesen. The second respondent, the trustees, were not named in the heading of the formal order sealed.

[18] Mr Mathiesen appealed to this Court against the Family Court judgment. His appeal was heard by Fogarty J on 1 March 2010. There was no cross-appeal by Mrs Mathiesen. The hearing took a rather unusual course. The main ground of Mr Mathiesen’s appeal, as described by Fogarty J, was that the Family Court judgment did not award interest to Mr McNab on account of his entitlement being locked into the family home post separation. Before the hearing, Mrs Mathiesen filed an affidavit in support of leave to adduce evidence. No formal application for leave was made, but Fogarty J addressed the issue. The essence of the evidence was to question whether, in his affidavit of assets and liabilities in the Family Court, Mr Mathiesen had failed to disclose an item of relationship property, namely an interest in a Norwegian pension scheme. In an oral judgment delivered on

issue.⁵He declined to defer the hearing of the appeal, as he regarded the pension question as a discrete issue. He reserved the question of any remedy should the appeal be successful pending the resolution of the pension issue. Fogarty J then heard Mr Mathiesen’s appeal. He delivered a reserved judgment on 5 March 2010, dismissing the appeal.⁶

[19] The appeal came back before Fogarty J on 19 July 2010, on the pension question. Mrs Mathiesen had by this time raised a further issue, the possible existence of an overseas bank account. In an oral judgment, Fogarty J referred the pension question, and the bank account question, back to the Family Court.⁷The Family Court judgment remained in force after Mr Mathiesen’s unsuccessful appeal. Fogarty J adopted a proposal offered by Mr Mathiesen’s counsel, that $20,000 be retained in a solicitor’s trust account pending the further hearing in the Family Court. Fogarty J recorded that the Family Court judgment could now be enforced, subject to

[20] Mr Mathiesen, as judgment creditor, then sought the removal of the Family Court judgment into the High Court. He applied, through his solicitors, for a certificate under s 66 of the District Courts Act 1947, which was issued. Ms Hodges, who is the deputy registrar of both the District Court and the High Court at Timaru, signed the certificate of judgment on 19 July 2010. On 23 November 2010, she sealed the certificate of judgment with the seal of the High Court and recorded the date of sealing on that certificate.

[21] On 13 June 2011, Mr Mathiesen, through his solicitors, requested the issue of a bankruptcy notice. The request was signed by the solicitor for the judgment creditor on 8 June 2011 and filed on 13 June 2011. The certificate of judgment was attached to the request. On 15 June 2011 Ms Hodges as deputy registrar of the High Court signed the bankruptcy notice which had been submitted with the request. That notice also had annexed to it the certificate of judgment. The bankruptcy notice required Mrs Mathiesen to pay to the judgment creditor $156,152.97. That was

_{expressed to be the amount which the judgment creditor claimed as due or
unpaid on}

final judgment order obtained against Mrs Mathiesen in the Family Court at Timaru on 10 August 2009.

[22] No payment was made by Mrs Mathiesen. Mr Mathiesen’s solicitors applied to the High Court for an order for adjudication under the Insolvency Act 2006. That application was signed by the solicitor for the judgment creditor on

2 September 2011 and filed in the High Court at Timaru on 8 September 2011. It was given a hearing date of 23 November 2011.

[23] Before the application for adjudication was filed, Mrs Mathiesen had filed an application in the High Court at Timaru seeking judicial review of Judge Moran’s decision dated 5 August 2009. Mr Mathiesen applied to strike out that pleading. That matter was called in the High Court at Timaru on 19 September 2011. Mrs Mathiesen (who had at earlier hearings been represented by counsel) was not represented by counsel. She was assisted by Mr R J Payne, as a McKenzie friend. The second defendant, Mr O’Connor, a partner in the Timaru law firm Gresson Dorman & Co, appeared for Mr Mathiesen. Mrs Mathiesen advised the Court that she wished to discontinue the judicial review proceedings, and seek leave to appeal against the Family Court judgment. Counsel for Mr Mathiesen applied for costs on the judicial review proceedings. French J, who presided at the hearing on

19 September 2011, awarded costs against Mrs Mathiesen in the sum of $940, in a judgment dated 30 September 2011.⁸

[24] Mrs Mathiesen then filed an application for leave to appeal out of time against the Family Court judgment. That application was heard by Chisholm J on

19 July 2012. In an oral judgment he refused leave to appeal out of time.⁹He noted

that Mr Mathiesen had appealed to the High Court against the Family Court judgment of 5 August 2009,¹⁰and Mrs Mathiesen did not cross-appeal. He also noted the outcome, as I have described at [18], and that there had been no appeal against Fogarty J’s decision. Chisholm J described the current state of the

⁸_{Mathieson v Timaru District Court, HC Timaru
CIV-2011-476-304, 30 September 2011.}

[6] At the moment it seems to be in limbo within the Family Court. As I understand it, neither party has pressed that aspect because they have been distracted by the matter currently before this Court. Mr Mathiesen does not dispute the jurisdiction of the Family Court to hear the two matters that have been referred back to it.

[16] As already mentioned, there is a bankruptcy petition currently before the Court: CIV-2011-476-000295. Mr Mathiesen has issued the petition on the basis that he has been out of the money ordered by the Family Court for a long time. On the other hand, Mrs Mathiesen’s position seems to be that until the matter has been finally determined it is not possible to say how much (if anything) is owed, and under those circumstances there should be no order.

[17] The bankruptcy issue is to come before Associate Judge Matthews on 31 July at 11 a.m. (as part of his list). It will, of course, be for the Judge to decide what should happen at that time. However, I would have thought that the parties should give serious consideration to the possibility of the whole or part of the amount ordered by the Family Court being paid into a trust account where it can be earning interest.

[26] When the application for bankruptcy came before Associate Judge Matthews on 31 July 2012, he issued directions which he recorded in a minute in these terms:¹²

[1] When this application for adjudication in bankruptcy of Mrs Mathiesen was called before me this morning, Mr O’Connor indicated that he had instructions to proceed. Mr Wood sought a stay of the bankruptcy application until the Family Court has concluded its further consideration of the relationship property issues between these parties which were referred back to the Family Court by Fogarty J (issues relating, only, to superannuation and overseas bank accounts).

[2] There is no clear information on the High Court bankruptcy file on the present position in the Family Court on those issues. The last reference to them predates the February 2011 earthquake. It is possible that further consideration of these issues was deferred as a result of that event and has not yet been reinstated.

[3] I have granted an adjournment of this application for adjudication in bankruptcy to 18 September 2012, at 11 am. This Minute records the statement I made to counsel in court, namely that unless by that date there is before this Court a clear report on exactly the position the Family Court has reached in considering the two issues referred back to it by Fogarty J, it is highly unlikely that there will be a further adjournment.

_{18 September 2012. He gave directions, recorded in a minute dated 19
September.}¹³

Mrs Mathiesen was again assisted by Mr Payne, whom the Judge granted leave to represent her for that hearing only. Mr Payne advised that an appeal had been lodged against the judgment of Chisholm J refusing leave to appeal against the Family Court decision. The Judge recorded a discussion which took place and then said:

[7] At the close of this debate I adjourned the application to the next List in Timaru which is on Tuesday, 13 November 2012. I informed both parties that if there is a valid justiciable issue in relation to the existing judgment on which the bankruptcy application is founded, the application will need to be withdrawn. If there is no valid justiciable issue in relation to that judgment, the present adjournment will be a final one. I informed the parties that I will need clear detailed reasons if a further adjournment of the application is sought. It will not be sufficient to inform the Court in a general way that there is an appeal pending in the Court of Appeal without full analysis of exactly what is appealed against, and the grounds for appeal, as well as a very clear explanation of how this has the potential to affect the existing judgment on which this application is based.

13 November 2012. Mrs Mathiesen’s evidence was that she had filed an appeal with the Court of Appeal and had received directions in a minute dated 18 October 2012. The Judge adjourned the case to 5 February 2013 and directed that full information about the appeal was to be provided to the Court at that hearing.¹⁴On 5 February, he further adjourned the bankruptcy application to 11 June 2013, by which time it was hoped that the Court of Appeal proceedings would be concluded.

[29] On 22 May 2013, the Court of Appeal dismissed Mrs Mathiesen appeal against Chisholm J’s decision not to grant leave to appeal against the Family Court decision.¹⁵

11 June. Associate Judge Matthews made an order adjudicating her bankrupt. Mrs Mathiesen then filed a document challenging the making of the order. In a minute issued on 24 June 2013, Associate Judge Matthews recorded that Mrs Mathiesen had, in a supporting affidavit, stated that her appeal was still before the Court of Appeal, as on 24 May she had applied for a recall of the Court of Appeal

_{decision of 22 May 2013. He therefore adjourned Mrs Mathiesen’s
application to}

16 July 2013. Mrs Mathiesen’s application to the Court of Appeal for recall of the judgment was dismissed on 28 June 2013.¹⁶On 9 July 2013 Mrs Mathiesen filed an application for leave to appeal to the Supreme Court. That application was dismissed on 27 August 2013.¹⁷

[31] At that adjourned hearing on 16 July 2013, the matter came before Associate Judge Osborne. The Judge noted that there had not been an appeal against the adjudication order. He adjourned the hearing to a telephone conference on Friday

Mrs Mathiesen filed an application for suspension of her adjudication. On 17 July she sent to the Court of Appeal a form of notice of appeal against the adjudication order.

16 and 19 July, Associate Judge Osborne dismissed what he described as Mrs Mathiesen’s “application for injunction/stay” dated 14 June 2014.¹⁹He allowed one further opportunity for her to pursue the application for suspension of adjudication, which he adjourned to 10 September 2013 and indicated that the Court was likely then to determine the application finally. In the course of his judgment the Judge observed:

[28] Ms Mathiesen continues to focus, as she has throughout, upon the substance and merits of the underlying Family Court judgment (or more correctly as she views it, the lack of merit). This bankruptcy proceeding was greatly extended in time as Ms Mathiesen pursued leave to appeal the underlying judgment to the Court of Appeal. Ultimately, the application for a new adjudication order was able to be brought to a conclusion when the Court of Appeal gave judgment dismissing Ms Mathiesen’s leave application.

[33] When the matter then came before Associate Judge Matthews, Mrs Mathiesen advised that she had filed in the Supreme Court an application for recall of the refusal of leave on 27 August. That had not been determined by the date of the hearing on 10 September. The Judge dismissed the application for suspension of the

_{order of adjudication, but directed that the order was to lie
in Court until the}

Supreme Court’s decision regarding the recall application was released. If that was declined, the order of adjudication was to be released and become effective. If the recall application was granted the order of adjudication was to continue to lie in Court and the proceedings be relisted for further call.

[34] The application for recall was dismissed on 12 September 2013.²⁰The order for adjudication therefore became effective on that date.

[35] I describe, very briefly and as best I can understand them from the very garbled terms of the application, the essence of the plaintiffs’ assertions in this purported contempt proceeding. The principal allegation is that the documentation relied upon in making the order for adjudication, and the order itself, were fatally flawed in several respects:

(a) The use of a certificate of judgment to support the application for insolvency was a use of the certificate otherwise than for the purposes of s 66 of the District Courts Act 1947, contrary to the stipulation in s 66(1) that such a certificate shall not be available for any purpose other than the purposes of that section.

(b) The Family Court judgment should not have been sealed by that Court, because there were matters not finally resolved, in that leave had been reserved to seek further directions, and costs had not been fixed.

(c) The intituling of the Family Court judgment, as sealed, did not include the second respondent, and the name of that trust was wrongly recorded as “the Sweetpea Family Trust” not “the Sweet Pea Family

(d) The s 66 certificate contained errors in that it did not distinguish between the amounts awarded against Mrs Mathiesen personally and the trust; it was not in the correct form; and it was sealed incorrectly.

(e) The request for issue of a bankruptcy notice, the notice itself, and the subsequent application for adjudication improperly relied upon the allegedly defective Family Court judgment and certificate of removal, and contained other errors.

(f) The application for adjudication was an application by a husband to have his wife bankrupted, which the plaintiffs assert is unlawful, apparently on the grounds that was previously the law and the plaintiffs assert it remains so.

[36] Based on these alleged deficiencies, it is asserted that the defendants were in contempt of court, as follows:

(a) Against the first defendant, it is asserted that she acted improperly in dealing with the various judgments and certificates.

(b) Against the second defendant it is asserted that he sought the making of the adjudication order on the basis of papers which were deficient because of non-compliance with s 66 of the District Courts Act 1947.

(c) Against the third and fourth defendants, it is asserted that they are in contempt of court for not having dismissed the application for adjudication in bankruptcy.

(d) Against the fifth, sixth and seventh defendants, it is asserted that they have disregarded the requirements of s 66 of the District Courts Act

(e) Against the eighth defendant it is asserted that he has acted on a charging order and a sales order which are alleged to be invalid

[37] As I have already said, none of the matters alleged come remotely close to the type of conduct which may constitute contumacious disobedience of a Court order such as to render the person concerned liable to a sanction for contempt of court. Further, several defendants are entitled to judicial immunity. I do not intend to address the extent to which that might apply in respect of the actions of any defendant. That is unnecessary in the light of my conclusion that none of the claims are actionable in the way asserted in this proceeding.

[38] I do not intend to address any of the issues raised concerning the form of the papers filed in any of the relevant proceedings, or of the effect of s 66 of the District Courts Act 1947. This is not a proper proceeding for the consideration of any of these matters. The Court has power to address any legitimate concerns about the adjudication of Mrs Mathiesen as bankrupt, including any errors of process. There is a specific power in s 309(1)(a) of the Insolvency Act 2006 to annul such an adjudication if the Court considers that the bankrupt should not have been adjudicated bankrupt. That is a wide power. Heath J drew the plaintiffs’ attention to that at the hearing on 23 July 2014. His judgment records that:

[7] I canvassed with Mr McNab and Mrs Mathiesen the possibility of an application for an annulment being made under s 309(1)(a) of the Insolvency Act 2006 so that the central issue concerning the validity of the adjudication order could be addressed directly. Subject to whatever another Judge may say, I would not see that as arising directly in the contempt proceeding; but I stand to be corrected if another Judge takes a different view. Mr McNab has indicated that that will not go far enough for Mrs Mathiesen’s purposes as his concern is that the bankruptcy proceeding be quashed in full, rather than the adjudication order itself.

[39] I observe that Mrs Mathiesen’s purposes cannot have the effect of extending the category of remedies for which she may apply. The relevant issue, so far as it affects her legal status, is the adjudication order. The law provides appropriate remedies for any deficiencies in the making of that order. There is a right of appeal against the making of the order, and there is the right to apply for annulment. Those are the appropriate processes. The present proceedings are not an appropriate process to address any issues which Mrs Mathiesen may have about her status, and

in any event would not lead to the relief which is Mrs Mathiesen's asserted objective. The present proceedings are, in short, an abuse of process.

[41] Both Mr Elliott and Mr McRae seek costs, on a 2B basis, against Mrs Mathiesen and Mr McNab jointly and severally. I am satisified that a costs order should be made against both Mrs Mathieson and Mr McNab. Mr McNab is a party in his capacity as a trustee of the Sweet Pea Family Trust.²¹He is also joined as a plaintiff in respect of his position as a trustee of two other trusts, the third and fourth plaintiff. Neither of those trusts has any relevant status in relation to this litigation and I leave their position out of consideration. The only trust involved is the Sweet Pea Family Trust, the purchaser of the family home from Mrs Mathiesen.

She and Mr McNab are apparently the present trustees of that Trust. Mr McNab’s involvement in this litigation is said to be in his capacity as a trustee of that Trust. I am satisfied that in all the circumstances their liability should not be limited to the assets of the Trust but should be a personal liability.

[42] I award costs, calculated on a 2B basis, plus disbursements to be fixed by the registrar to each of the second defendant, and the first and third to eighth defendants collectively, against both Mrs Mathiesen and Mr McNab, in their personal capacities. Their liability for those costs awards is joint and several.

[43] I consider that it is necessary to draw the attention of Mrs Mathiesen and Mr McNab to r 14.6 of the High Court Rules. Under that rule, the Court may order a party to pay indemnity costs, if party has acted vexatiously, frivolously, improperly or unnecessarily in commencing or continuing a proceeding. The plaintiffs’ commencement and conduct of this proceeding is of a nature where I might well have given serious consideration to making an indemnity costs order, if that had been

_{sought. I make that observation because Mrs Mathiesen and Mr McNab need
to be}

²¹The second plaintiff is called in the application the Sweet Pea Trust. Mr McNab informed me that this is an error. He asserts that this is the Trust named in the Family Court judgment, and is distinct from the third plaintiff, also cited as the Sweet Pea Trust.

aware of the risk that they run, of an indemnity costs order, if they seek to continue this misguided litigation, or some other similarly misguided attempt to avoid the outcome of the Family Court litigation which has been finally determined, subject only to the possible reconsideration of the two quite discrete issues referred back to the Family Court.

2006 remains open to Mrs Mathiesen. In saying that, I am not to be taken as encouraging such an application. In considering whether to annul the adjudication, the Court will be concerned with substance, not form. Apart from the assertion that a husband may not obtain an order against his wife, which is untenable, all of the matters raised by the applicants are matters of form, peripheral to the merits. Without in any way suggesting that there has been any deficiency in form, I note that there are wide powers in the Court to ensure that errors of form do not remove focus from the substance.

[45] It is clear that Mrs Mathiesen, and Mr McNab on her behalf, feel a sense of outrage at the outcome of the Family Court proceedings. They must however face the brutal reality: that judgment is effective, and all avenues of challenge to that judgment have been exhausted.²²It must be complied with. Any deficiencies (if there were any) in the attempts which have been made to enforce that judgment must be seen against that grim reality. Even if Mrs Mathiesen were to have any success in

any other proceedings to challenge the enforcement steps, including her adjudication as bankrupt, and even if the adjudication was set aside, that cannot escape the fact that the monies ordered to be paid by her, by the Family Court, must be paid. Any victory would necessarily be pyrrhic, and very expensive to Mrs Mathiesen. I urge upon her that she take legal advice before any further steps are considered.

[46] The Family Court proceedings to which I have referred are subject to the restrictions on reporting in ss 11B to 11D of the Family Courts Act 1980, by s 35A of

the Property (Relationships) Act 1976. Any publication or report of this judgment must ensure these restrictions are observed.

[47] Mr McNab has, in an email sent to the Registrar today, which has been referred to me, signalled an intention to file two further “contempt proceedings” against various persons arising from their actions in these or related matters. Under the inherent jurisdiction of the Court I direct the Registrar that no further “contempt proceedings” in relation to this matter are to be accepted for filing from

High Court of New Zealand Decisions

Mathiesen v Hodges [2014] NZHC 2448 (6 October 2014)