Sandilands v Signal [2018] NZHC 2932 (13 November 2018)

Last Updated: 16 November 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-434 [2018] NZHC 2932

BETWEEN	DUNCAN SANDILANDS Plaintiff
AND	JANE SIGNAL Defendant

Hearing:	12 November 2018
Appearances:	No appearance by or for plaintiff Mr Alistair Darroch for defendant
Judgment:	13 November 2018

_{JUDGMENT OF ASSOCIATE JUDGE JOHNSTON}

[1] The plaintiff, Duncan Sandilands, commenced this proceeding against the defendant, Jane Signal, earlier this year.

[2] He did so against the background of the administration of his late father’s estate. Ms Signal is a solicitor practising in Feilding and she was the solicitor acting for the executors of the estate who were Mr Sandilands and one of his cousins.

[3] Mr Sandilands objected to certain steps taken by Ms Signal in her capacity as the estate solicitor. He complained to the Law Society. A Standards Committee of the Manawatu branch of the Law Society resolved not to take any further action on

17 December 2013. Apparently, it did so without giving Mr Sandilands an opportunity

_{to respond to Ms Signal’s submissions. As a result, and by consent, Churchman J}

DUNCAN SANDILANDS v JANE SIGNAL [2018] NZHC 2932 [13 November 2018]

overturned the Standard Committee’s decision in a judgment dated 28 September

2017.¹

[4] I am informed by Mr Darroch that, at Mr Sandilands’ request, the Law Society has since agreed to defer further consideration of his complaint pending the outcome of this proceeding.

[5] Whilst it is not my place to say so, I wonder about the wisdom of this. The Law Society’s Standards Committees bring to the consideration of complaints the collective wisdom of a group with considerable experience in the day to day responsibilities of lawyers. This is the natural venue for the consideration of a complaint. I would have thought that it might be of considerable assistance to the parties to this proceeding to see the complaint process through to a conclusion before becoming embroiled in protracted and costly litigation in this Court. Nevertheless, if that is the course that Mr Sandilands wishes to take, that is his entitlement.

[6] Before me are two interlocutories applications by Ms Signal:

(a) an application pursuant to r 5.21 of the High Court Rules 2016, for an order for further and better particulars of the claim; and

(b) an application pursuant to r 5.45 for an order for security for costs.

[7] Mr Sandilands has filed a document entitled “Notice of Opposition” dated

30 August 2018 but this does not comply with the High Court Rules. He has also filed an affidavit sworn on the same date.

[8] These applications were made on 10 August 2018 and subsequently set down for hearing on 12 November 2018. Mr Sandilands made an informal application for an adjournment. Subsequently he gave reasons for this. I declined this application essentially on the basis that the applicant should not have to await his convenience in terms of disposing of these two applications.

¹ Sandilands v New Zealand Law Society [2017] NZHC 2369.

Pleadings

[9] I have reviewed Mr Sandilands’ statement of claim filed on 31 May 2018.

[10] It does not come remotely close to compliance with r 5.26 of the High Court

Rules. I agree with the criticisms contained in Ms Signal’s application.

[11] Mr Sandilands is a lay litigant acting for himself and the Court is generally prepared to allow such persons a degree of latitude.

[12] As against that, Mr Sandilands is making serious accusations against

Ms Signal, and she is entitled to know with precision what the allegations are, the basis for them and the remedies sought.

[13] In my view Ms Signal is entitled to the order she seeks. Mr Sandilands needs to re-plead his claim in an amended statement of claim in a way that at very least:

(a) identifies the capacity in which he sues Ms Signal in accordance with r 5.35 of the High Court Rules – as matters stand he appears to be suing both in his capacity as an executor and in his personal capacity;

(b) states with precision the factual circumstances that he relies on and that he says give rise to a cause of action or causes of action against

Ms Signal; and

(c) separately identifies the cause of action or causes of action upon which he relies and states clearly the remedies that he seeks in relation to each.

[14] Although Mr Sandilands is of course entitled to act for himself, it seems to me that if he is to pursue this claim he would be well advised to get some assistance from a solicitor as to how to articulate these matters in a way that complies with the High Court Rules.

[15] In the exercise of the Court’s inherent jurisdiction I propose to stay this proceeding until such time as Mr Sandilands files and serves a compliant statement of

claim as it seems to me that to allow the proceeding to continue on in the absence of an adequately pleaded claim would be a simple injustice to Ms Signal.

Security for costs

[16] In Mr Sandilands’ absence, I am not prepared to make an order for security for costs against him. I accept Mr Darroch’s submission that, prima facie, Ms Signal is entitled to the protection of such an order. Rule 5.45 provides that a litigant who is resident outside New Zealand may be ordered to pay security for costs. Security for costs is always a matter for the exercise of the Court’s discretion. Much will turn on Mr Sandilands’ financial position and ability to meet a costs award. Mr Sandilands has provided no evidence as to this.

[17] Nevertheless, I do not think it would be appropriate to make an order for security for costs in his absence, especially having regard to the terms of the orders I propose to make in relation to the first application, which should mean that Ms Signal will not have to incur any further costs for the time being.

Costs

[18] In the circumstances, costs on this application will be reserved and become costs in the cause.

Conclusion

[19] I make the following orders:

(a) An order requiring the plaintiff to file a further (amended) statement of claim that is compliant with the Rules;

(b) An order staying this proceeding pending the filing and service by the plaintiff of a compliant amended statement of claim;

(c) I adjourn the defendant’s application for an order for security for costs;

_{(d) The costs of this application are reserved and will be costs in the cause.}

Solicitors:

Darroch Forrest, Wellington for first defendant

Associate Judge Johnston