Conroy Removals Limited v Sameer [2018] NZHC 698 (17 April 2018)

Last Updated: 30 April 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000535 [2018] NZHC 698

UNDER	the Insolvency Act 2006
IN THE MATTER	of the bankruptcy of MADHU SAMEER
BETWEEN	CONROY REMOVALS LIMITED Judgment Creditor
AND	MADHU SAMEER Judgment Debtor

Hearing:	26 March 2018
Appearances:	S D Munro and C O’Brien for Judgment Creditor M Sameer (Judgment Debtor) in person
Judgment:	17 April 2018

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] On 11 August 2017, Conroy Removals Limited (CRL) issued a bankruptcy notice to Ms Sameer claiming payment of the sum of $18,846.51. This comprised the sum of $9,045.51 owing under an order of the Disputes Tribunal dated 14 December 2016, $9,701 owing under an order of the District Court dated 27 July 2017 for payment of costs on an unsuccessful appeal by Ms Sameer against the order of the Disputes Tribunal, subsequent costs for sealing that order, and a fee for a certificate of judgment.

[2] Ms Sameer has not paid any part of the sum claimed in the bankruptcy notice.

[3] Ms Sameer applies to set the bankruptcy notice aside.

CONROY REMOVALS LTD v SAMEER [2018] NZHC 698 [17 April 2018]

[4] The orders Ms Sameer seeks in her 12 page application include an order to join three other parties to the proceeding, an order that the contract between her and CRL (as found by the Disputes Tribunal) is invalid or cancelled or void, an order directing release of goods held by CRL, damages, punitive damages and such other relief as the Court thinks appropriate. This judgment determines only the application to set aside CRL’s bankruptcy notice.

[5] The grounds on which the orders are sought are far-reaching. In essence, Ms Sameer says she has no contractual relationship with CRL, that the expenses for which they have judgment were incurred as a result of their own actions not hers, that CRL has fabricated facts and evidence in the Disputes Tribunal, and that CRL’s actions amounted to criminal activities as well as breaches of the Fair Trading Act 1986. CRL is said to be liable to her in contributory negligence, and the Disputes Tribunal lacked jurisdiction to hear her claims on the basis of fraud, conspiracy, deception and “criminal matters”. On that basis, the judgment of that Tribunal, and therefore the appeal, are “incomplete/invalid/erroneous/void/voidable” and must be “set aside/voided”. Various other rights are asserted, and reliance is stated to be made on a number of sections of the Crimes Act 1961, the Fair Trading Act, the New Zealand Bill of Rights Act 1990, the Statute of Frauds Amendment Act 1828, the Contracts (Privity) Act 1982, the Carriage of Goods Act 1979, the Insolvency Act 2006, various legal doctrines (including stare decisis) and various equitable principles. These include unjust enrichment, abuse of process, breach of fiduciary duty, negligence, breach of duty of care, intentional infliction of emotional distress, conversion, negligent representation, intentional misrepresentation, civil conspiracy, violation of civil rights of individuals viz freedom of thought, speech, association and justice, quantum meruit and quantum valebat.

[6] This document is backed up by a plethora of papers filed by Ms Sameer. There is an affirmation and a supplementary affirmation each of which occupies an entire booklet, and separate books of exhibits. In addition Ms Sameer filed a further seven volumes of papers. She made reference to some of these during her presentation on this application. It is not clear that these are actually exhibits to either of the affirmations, but Mr Munro did not take the point, understandably in the
circumstances, and given this, nor did I. I therefore proceeded on the basis that this material is before the Court.

[7] An application to set aside a bankruptcy notice is made under s 17 of the Insolvency Act 2006. This provides that a debtor commits an act of bankruptcy if certain circumstances exist. One of these is that a debtor has not, within a specified time, either complied with the requirements of the notice or satisfied the Court that he or she has a cross-claim against the creditor. Only the second of these is relevant in the present case. A cross-claim is defined in subs (7) to mean a counterclaim, set-off or cross-demand that is equal to or greater than the judgment debt or the amount that the debtor has been ordered to pay, and which the debtor could not use as a defence in the action or proceedings in which the judgment or the order, as the case may be, was obtained.

[8] The original debt claimed by CRL was for storage of goods brought to New Zealand from the United States on behalf of Ms Sameer. The firm which shipped the goods for Ms Sameer was, I understand, called Right Move 4 U. That firm, as I understand it, engaged a firm called Ex O Moving Systems Ltd to pack the goods. Ms Sameer told me that during the course of the packing process she intervened and packed some of the goods herself. Insurance cover was taken out on the goods and an inventory of goods was prepared. When the goods arrived the containers were opened for fumigation and it was discovered that a number of items had been damaged.

[9] Right Move 4 U evidently appointed CRL as its New Zealand agent to take possession of the goods on arrival in this country and clear them through Customs, arrange for any necessary fumigation, and arrange for them to be delivered to the consignee, Ms Sameer. It is not necessary to go into the detail of what occurred when it was found that the goods were damaged. Suffice it to say that the Disputes Tribunal found the evidence established that Ms Sameer “advised [CRL] she was not moving to the address she previously supplied to CRL and was unable to take delivery” of the goods. She was informed that as a result she would incur storage charges, and CRL requested an alternative delivery address. This was not provided initially, though a delivery date was then established. Because this delivery date was some three weeks away CRL requested payment of three weeks’ storage in the sum of $1,021.16. The
delivery date was extended and in the end Ms Sameer refused delivery if she had to pay storage charges. At one point, she refused delivery unless CRL paid her $15,000.

[10] Ms Sameer commenced the proceeding before the Disputes Tribunal. Ms Sameer’s claim was for part of the monies she had paid to CRL, costs she said she had incurred as a consequence of her goods not being delivered, and an order that they be delivered.¹ CRL counterclaimed for storage fees. The Disputes Tribunal heard evidence on all these matters and found that there was a valid contract, that her claim was unsuccessful, and that she was liable to pay CRL on its counterclaim $9,045.51 for unpaid storage fees.

[11] Ms Sameer appealed to the District Court. As noted that appeal was unsuccessful.²

[12] This dispute has escalated from that relatively simple disagreement, as can readily be seen from the summary I have given of the present notice of application.

[13] It is also apparent from proceedings Ms Sameer has issued in the United States District Court for the Eastern District of California. The defendants in that case are the Right Move 4 U, CRL, Ex O Moving Systems Ltd, Fiona Conroy of CRL, three other individuals and a firm called Talbot Insurance Agency. In a document headed “First Amended Complaint”, which runs to some 30 pages, Ms Sameer also alleges that there will be another 50 defendants whose “names, capacities and status” are not known to her and to whom she therefore refers in the meantime as “Does 1 through 50, inclusive”.

[14] Claims are made against the defendants of fraud or fraudulent representation, breach of contract, breach of fiduciary duty, breach of duty of care, conspiracy, conversion and fraudulent conversion, breaches of the “Racketeer and Corrupt Organisations Act”, unjust enrichment, negligent representation/misrepresentation, intentional misrepresentation, unfair competition, deceit, failure to honour a covenant of good faith and fair dealing, perjury, blackmail, extortion, witness and evidence

1. See Order of Disputes Tribunal, Sameer v Conroy Removals Ltd CIV-2015-009-001566, 17 November 2015.

² Sameer v Conroy Removals Ltd [2017] NZDC 26138.

tampering, intentional/negligent infliction of emotional damage and insurance-based bad faith. Compensatory damages of $400,000 are sought together with $500,000 for pain and suffering, and exemplary damages “of no less than $1,000,000”. Orders are sought declaring the order of the New Zealand Disputes Tribunal null and void, an order requiring delivery of Ms Sameer’s goods and a further remedy in relation to the insurance contract.

[15] In addition, and for the sake of completeness, I record that Ms Sameer has also laid charges in the District Court at Christchurch against Fiona Conroy, CRL, Right Move 4 U, and a number of other named parties “and their employees”. The charges are set out, with factual narrative, over some 56 pages. I need not summarise them in this judgment.

[16] The issue before this Court on the present application is confined. The Court is to decide whether Ms Sameer has a cross-claim against CRL that she could not use as a defence in the action in which the judgment relied on by the creditor was obtained. In this case, the “action” is CRL’s counterclaim in the Disputes Tribunal and then, later, the application for costs on Ms Sameer’s appeal to the District Court.

[17] All the facts which have given rise to Ms Sameer’s concerns occurred between the period when she engaged shippers and insurers to transport her goods to New Zealand, and effect insurance, and the time when CRL declined to release those goods unless she paid storage.³

[18] Ms Sameer’s goods arrived in New Zealand in August 2015 and the Disputes
Tribunal adjudicated on the dispute on 14 December 2016.⁴

[19] Ms Sameer argues that her allegations, now, are of fraud, which is outside the jurisdiction of the Disputes Tribunal. That statement is correct in so far as it relates to that jurisdiction, but equally the allegations are of breach of contract by CRL, and that

3. There are divergent views between Ms Sameer and CRL on how disagreement on delivery came about, but the issue was finally resolved by the judgments in question.
4. There had been an earlier hearing in the Disputes Tribunal in November 2015 at which the referee had referred the matter to the District Court. The case came before Judge Keller, and he referred it back to the Disputes Tribunal.

is the way the Disputes Tribunal approached it. This followed from the finding by Judge Keller on 5 July 2016, when considering the reference to the District Court by the Disputes Tribunal:

Ms Sameer’s position, it seems all along, is that the matter should go to the Disputes Tribunal where the contractual part of the claim can be determined. With respect, Ms Sameer, I agree with that course. At the very core of the dispute between the parties is a contractual claim, the particulars of which are largely set out in paragraph 14 of Mr Nicholls’ memorandum dated 1 July 2016.

Ms Sameer has a number of grievances, that without over-simplifying the matter, essentially amount to her saying that Conroy Removals Limited has applied pressure on her in respect of this matter. That dispute, clearly, does not fall within the jurisdiction of the Disputes Tribunal, nor does it fall within the jurisdiction of the District Court. Hence, those allegations will form no part of the dispute before the Disputes Tribunal. Otherwise the matter is referred to the Disputes Tribunal.

[20] The Disputes Tribunal then approached the case on the basis of it being a contractual dispute. It defined the issues as being the terms of the contract between CRL and Ms Sameer, whether that contract was an illegal contract, whether CRL had fulfilled its contractual obligations, and if not what reasonably foreseeable loss could Ms Sameer be compensated for, and whether she had taken reasonable steps to mitigate the loss she had incurred.

[21] Converse issues were spelled out by the Tribunal in relation to CRL’s
counterclaim for payment.

[22] Thus the Disputes Tribunal proceeded to hear the dispute including all the evidence that Ms Sameer presented, the facts giving rise to the dispute having all occurred well before the Tribunal hearing. The Tribunal found that the contract was not an illegal contract as Ms Sameer said, and that Ms Sameer had failed to prove that CRL had breached it.

[23] It follows therefore that Ms Sameer presented her own claim and mounted a full defence to CRL’s counterclaim based on the allegations she made about the events which had occurred, and lost her case. The proceeding now before the Court is not one where Ms Sameer has come into possession of further facts which were not
available to her at the time of the original case. She had a claim against CRL, which she also presented as her defence to its counterclaim.

[24] The ambit of the claim that Ms Sameer had formulated against CRL at the time that she filed in the Disputes Tribunal is clear from her application, which is 66 pages long. It includes a brief summary of the facts, followed by a detailed statement of the facts, then the “legal arguments” that she had prepared, based on those facts. These are headed breach of contract, breach of fiduciary duty, misrepresentation, fraud, deceit, unconscionable conduct, violation of the Privacy Act 1993, blackmail, extortion, unfair enrichment and claims under the Contractual Remedies Act 1979 and the Fair Trading Act.

[25] Ms Sameer says that she is now entitled to present a claim against CRL which is based on fraud. At the heart of the allegation there seems to be a claim that all the parties named in the American case, together with 50 others who are not named, entered a conspiracy to defraud her. During the hearing before me she variously described their actions as racketeering, extortion and blackmail, as well as fraud. She said that she could not have presented this cross-claim to the Disputes Tribunal or for that matter the District Court. On that point she is partially correct: many of the claims would have been outside the jurisdiction of the Disputes Tribunal, and claims against overseas defendants (e.g. Right Move 4 U) beyond the jurisdiction of the District Court. The rest of the claims were within the jurisdiction of the District Court. Indeed, she expressly raised fraud in that Court. However, whilst that means that she could not make out all her claims, what she was able to do was exactly what she did, namely present her own claim and defend the CRL claim on the basis of the contract between them and the facts, all of which related to events which had occurred and which were within her knowledge. The fact that she now, over two years later, seeks to expand her claim (based on the same facts) in the ways I have described does not mean that she did not have a cross-claim arising from the same set of facts, and based on contract. She did have such a claim, presented it and failed to establish it.

[26] It was open to Ms Sameer to formulate her claim against CRL in such terms as she thought appropriate, before she elected to file her case in the Disputes Tribunal. It was she who instigated that proceeding. She raised issues which are in essence the
issues she now raises as a claim against CRL. She could have filed the claim in the High Court then, making the allegations which she now airs, but did not. Had she done so, the counterclaim for payment of sums said to be due, by CRL, would also have been filed in this court. It was Ms Sameer who elected to choose the jurisdiction of the Disputes Tribunal and unsurprisingly the response of CRL was to counterclaim there for its alleged debt. Even then, on receipt of that counterclaim, Ms Sameer could have applied to transfer her claim to the District Court because the Disputes Tribunal would not have had jurisdiction to hear her allegations. Any such application would seem to have been irresistible. Such a course was open to the Tribunal under s 36 of the Disputes Tribunals Act 1988. No such request was made.⁵ In fact, as Judge Keller recorded, Ms Sameer wanted to have the contractual claims decided in the Disputes Tribunal.

[27] I find that Ms Sameer has not established that she has a cross-claim she could not have used in the proceeding before the Disputes Tribunal, and the subsequent appeal before the District Court.

[28] I turn now to consider whether, should I be wrong in my conclusion in relation to Ms Sameer being able to raise her claim in the earlier proceedings, the claim is one to which s 17(7)(b) might apply. It is not any claim which will qualify: the claim must be a genuine triable claim. In Sharma v ANZ Banking Group, Cooke P delivering the judgment of the Court of Appeal said:⁶

The Judge held that, as to the appellant’s claim based on the execution, it did not satisfy s 19(1)(d) [of the Insolvency Act 1967] in that it was not in his view a genuine triable cross-demand. That is the criterion laid down or applied in a line of authorities: Re a Debtor [1963] 1 All ER 58, 87 per Lord Denning MR; Thomasen v Nigro unreported, 19 July 1978, CA124/76; and Clark v UDC Finance Ltd [1985] 2 NZLR 636 per Casey J. We accept that this is the proper criterion and that the words “genuine” and “triable” require the debtor to demonstrate that he has a claim of true substance which he genuinely proposes to pursue.

5. When the case was first called before the Disputes Tribunal, it seems to have been clear to the Tribunal that her case involved also her contract with Right Move 4 U. The Tribunal formed the view that the company should be joined as a party, but it is an overseas company and could not be joined to Disputes Tribunal proceedings. Ms Sameer requested that the case be referred to the District Court and that occurred. It was later referred back to the Disputes Tribunal by Judge Keller on the basis that I have summarised.

⁶ Sharma v ANZ Banking Group (1992) 6 PRNZ 386 (CA) at 389.

[29] Despite the substantial amount of material placed before the Court, Ms Sameer did not present a document clearly enunciating the claim that she intends to bring, such as a draft statement of claim. It seems that the clearest and most recent enunciation of her prospective claim is the “first amended complaint” filed by her in the United States District Court. Although that claim is directed at numerous parties, the claim in relation to CRL can be distilled with a measure of clarity. Largely, it mirrors the grounds in the present application. In the statement of facts Ms Sameer outlines the facts which gave rise to the claim for breach of contract, all of which relate to the initial shipping and arrival of her goods in New Zealand, and subsequent issues in relation to delivery. Then, however, she says:

In mid to end Sept 2015 I became aware of a larger conspiracy involving defendant Conroy Removals Ltd and its employees. In Dec 2015 when I attempted to contact defendant Albot Insurance Agency to claim insurance cover I became aware that defendant Talbot Insurance Agency had aided and abetted defendant Right Move 4 U and defendant Conroy Removals Ltd to commit fraud.

[30] Ms Sameer goes on to say that in 2017 she became aware of a pattern of organised racketeering activity as a modus operande [sic] and that each of the defendants threatened, harassed and defrauded not just her, but several victims who came forward with similar tales to hers. Each of the defendants is said to have routinely put up false reviews on their websites to secure business, engaged in bait and switch advertising tactics to ensnare innocent victims, and engaged in fraud, blackmail and extortion related activities with “their other gullible customers”.

[31] Various other allegations are then made followed by a statement that “together, the three agencies have conspired with each other to defraud me of my goods worth over $400,000”. Ms Sameer says she was also threatened, harassed and blackmailed by persons from CRL who unlawfully insisted that the only way they would release her goods was if she waived any future claims against them, paid them over $15,000 more and removed all negative reviews of them that she had evidently written on a review website. Ms Sameer goes on to criticise the procedure of the Disputes Tribunal alleging denial of a fair hearing and due process or a trial in New Zealand.

[32] The claims which I have listed in paragraph [14] are then set out.
[33] To assess this claim, the starting point is how these issues all arose. Quite simply, Ms Sameer engaged companies in the United States to pack, insure and ship goods she owned to New Zealand. She evidently paid for that to occur. The shipping contract included delivery of the goods to an address to be supplied in New Zealand. When the goods arrived and were checked it was found they needed to be fumigated. The cost of that was not covered under the contract with the United States moving company, Right Move 4 U. That company had engaged CRL as its agent in New Zealand to handle the goods from arrival to delivery. Necessarily that included dealing with the issue of inspection and the requirement of fumigation at the border. CRL charged for that. Ms Sameer paid. There were then additional charges which were not covered in the original contract, for storage and other matters because the goods were not delivered, at Ms Sameer’s request. She has not paid these charges, and they were not paid by Right Move 4 U.

[34] There is no reason to suppose, in all of this, that CRL had any role in this matter other than the usual role of a company like CRL in receiving goods shipped to this country, processing them through the various importation steps at this end and then delivering them. All of these are matters of contract, all of them have been adjudicated upon by the Disputes Tribunal and on appeal by the District Court.

[35] Now Ms Sameer, having been unsuccessful in both her claim for breach of contract and in her defence of CRL’s claim for its charges, repeats and expands on the allegations of dishonest conduct not only by CRL but by everyone else involved including numerous unnamed people, but there is an inherent improbability in the basic allegation that underpins all the claims Ms Sameer now makes. It is inherently improbable that there has at any point been any conspiracy between any parties in this matter. The nature of the arrangements made are, on their face, standard arrangements for insuring and shipping from one country to another, and handling goods within the destination country on arrival. CRL had defined responsibilities for which it had been prepaid in part by Right Move 4 U and for which it sought extra recompense when its duties expanded beyond those which were envisaged. I assess the prospect of Ms Sameer establishing any conspiracy, dishonest or otherwise, with any of the other parties as negligible. I make the same assessment in respect of the broad swathe of claims in the present application and the claim in California. Whilst there can be no
doubt that Ms Sameer passionately believes in her position, and genuinely proposes to pursue claims if she is able to do so, I find that the claims made cannot be described as genuine or triable and they do not have a reasonable probability of success.

[36] Accordingly I find that Ms Sameer does not have a cross-claim against CRL in terms of s 17(7) of the Insolvency Act.

Outcome

[37] The application to set aside the bankruptcy notice is dismissed.

[38] Ms Sameer will pay costs to CRL on a 2B basis together with costs and disbursements fixed by the Registrar.






J G Matthews Associate Judge

Solicitors:

Anderson Lloyd, Christchurch Ms Sameer (self-represented)