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High Court of New Zealand Decisions |
Last Updated: 7 May 2018
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IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
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BETWEEN
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THE OFFICIAL ASSIGNEE
Applicant
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AND
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GABRIELLE PAULETTE MATHIESEN
First Respondent
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AND
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GORDON WALLACE CAMERON McNAB
Second Respondent
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Hearing:
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16 April 2018
And further submissions received on 19 April 2018
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Appearances:
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G Slevin for Applicant
First and Second Respondents in person
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Judgment:
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30 April 2018
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JUDGMENT OF DUNNINGHAM J
[1] On 5 April 2018, the Official Assignee applied, without notice, for orders:
(a) arresting the respondents Gordon Wallace Cameron McNab and Gabrielle Paulette Mathiesen (the respondents) for contempt of Court;
(b) imposing such penalty or penalties as the Court sees fit to impose, if satisfied the respondents have been, or are, in contempt of Court;
THE OFFICIAL ASSIGNEE v MATHIESEN [2018] NZHC 843 [30 April 2018]
(c) authorising and requiring any police officer called upon to execute the above orders, or to assist the bailiff in the execution of the orders sealed in this proceeding 5 January 2018 (together, the orders):
(i) to enter the property at 282 Timaru-Pareora Road, Timaru (the property) to give effect to the orders;
(ii) if necessary, to use force to enter the property or any part of it, whether by breaking open doors or otherwise; and
(iii) to carry out the orders with the use of such reasonable force as it may be reasonably necessary to use in such circumstances as may arise; and
(d) ordering the respondents to:
(i) not return to within 500 metres of the property and stop there; and
(ii) not interfere in the process of its sale by the Court.
[2] When the application was received by the Court, Davidson J concluded that it was not appropriate to make any further order without the respondents having the opportunity to be heard on the application. This was because there could be serious consequences for the respondents, including arrest, imprisonment and penalties, if the orders were made.
[3] Davidson J directed that the application be served on the respondents and that application be called on 16 April 2018.
[4] The minute of Davidson J, which was also served on the respondents, clearly set out the purpose of the hearing he had afforded them. In it he said:
[8] This is not a matter of their having “one last opportunity”, but to explain to the Court why the orders now sought should not be made, so there is nothing of which the Court is unaware, and so it is crystal clear to the respondents what will happen if the orders now sought are made.
Background
[5] There is a considerable history to this matter, much of which is not relevant to the present application. That history is set out succinctly in Official Assignee v Mathiesen,1 and I do not propose to repeat it here. Suffice to say that Ms Mathiesen was adjudged bankrupt on 11 June 2013 on the application of her former husband. One of her assets was a debt owed to her by the Sweet Pea Family Trust (the Trust). The Trust owns the property. Ms Mathiesen and Mr McNab are the current trustees of the Trust.
[6] Late last year the Official Assignee sought orders directing the sale of the property belonging to the Trust. The orders were sought because the trustees had refused to conduct an orderly sale of the property themselves.
[7] The Official Assignee’s application was heard by Gendall J last year. In an iterative process,2 he eventually made orders on 13 December 2017 requiring the trustees to give vacant possession of the property so it could be sold in order for the Official Assignee to distribute the proceeds to Ms Mathiesen’s creditors and to indemnify a former trustee of the Trust, Grant John Calvert, against judgment that was entered against him in his former role as a trustee of the Trust.
[8] The orders were sealed on 5 January 2018 and required the respondents to give vacant possession by 16 February 2018, failing which the Court officer was authorised to evict the occupants. The Sheriff from the Timaru Court attempted this on 4 April 2018, but was unable to evict the respondents (along with another occupant) because the respondents barricaded themselves in the property. As the orders did not expressly authorise the Sheriff to use force to enter the property or to damage it in the course of carrying out the Court’s orders, the present application seeks orders which provide the
1 Official Assignee v Mathiesen and McNab [2017] NZHC 2349 at [16] to [28].
express power to do that in order to enforce the original orders. The orders also seek to keep the respondents away from the property so the Court ordered sale process can proceed.
This hearing
[9] Mr McNab and Ms Mathiesen appeared at the 16 April hearing by AVL from Timaru. In line with Davidson J’s minute, I explained to the respondents that this was not an opportunity for them to rehearse grievances about the history of this matter which led to the making of the orders on 13 December 2017, but rather to focus on the application presently before the Court to ensure that any matter which might be relevant to whether the Court makes the orders sought has been raised, and, if so, on what terms.
The applicant’s submissions
[10] Mr Slevin, appearing for the Official Assignee, relies on the written submissions contained in the memorandum of counsel in support of the without notice application.
[11] The memorandum explains that the application had been made without notice because of a concern that if the application was notified in advance of the orders being made, the respondents would take further steps to frustrate the execution of the orders and/or would damage the property. He notes that the respondents are self-represented and had not, at any stage, “sought to engage with the issues in this proceeding ... but have rather sought to frustrate the judicial process and delay the Official Assignee in the execution of his duties at every opportunity”.
[12] The memorandum goes on to explain how the Sheriff was unable to evict the respondents on 4 April 2018, pursuant to the orders sealed on 5 January 2018, as the respondents had barricaded themselves in the property.
[13] The Official Assignee submits that the Court is empowered by High Court r 17.84 to issue an arrest order where a party has been served with an original court order (not being a judgment for the payment of money) but does not comply, on the application of a party entitled to the benefit of that order.
[14] Before an arrest order can be made, the applicant for an arrest order must establish, beyond reasonable doubt, that:3
(a) the terms of the original Court order were clear and unambiguous;
(b) the parties sought to be arrested were served with the original Court order; and
(c) those parties have not complied with the order, in a manner which shows wilful and inexcusable disregard of the order.
[15] Mr Slevin submits that all three elements are satisfied in this case in that:
(a) the terms of the orders requiring the respondents to vacate the property by 4.00 pm on 16 February 2018 were abundantly clear and not susceptible to any misinterpretation as to what was required;
(b) the evidence before the Court establishes, beyond reasonable doubt, that both respondents were served with the orders and are fully aware of their content; and
(c) it is clear that the respondents have not complied with the order. Furthermore, their actions in barricading themselves into the property demonstrates they are deliberately disobeying it.
[16] In addition to the arrest orders the Official Assignee seeks orders to restrain the respondents from returning to the property and from interfering in the carrying out of the orders, including for the sale of the property. Mr Slevin says these orders are sought as a result of the respondents’ consistent refusal to recognise the validity of any Court orders affecting them. He submits that in those circumstances, such orders may be made by the Court as injunctive relief in the exercise of its inherent jurisdiction to give effect to the original orders for sale and vacant possession. The past conduct of the respondents, including barricading themselves in the property, demonstrates a real risk that they would attempt to return to the property and interfere with the Court’s sale process.
[17] He notes that as the property is located on the main highway from Timaru to Oamaru it would be unreasonable to make an order that would prevent them from using that road for purposes other than to return to the property which is why the order contains a requirement that they not stop at the property.
[18] He concludes by asserting that if it were open to litigants to disregard clear orders of the Court simply because they consider them unenforceable, public confidence in the administration of justice would be undermined and the court’s brought into disrepute. Accordingly, all orders sought should be made.
[19] He also explains that the Official Assignee seeks express powers to use force to enter the property given the events of 4 April 2018, and the uncertainty over whether the current orders allow this.
The respondent’s submissions
[20] Mr McNab on behalf of both respondents raised several matters in oral submissions.
[21] First, he requested that his full name, Gordon Wallace Cameron McNab, be incorporated in the intituling of the papers. That, in my view, is a simple correction which can be made under High Court rr 1.9 or 4.54, without affecting any other aspect of the proceedings. No opposition was raised by Mr Slevin to that course of action and I have done that.
[22] Mr McNab then raised several matters which he said went to the Court’s jurisdiction to make the orders sought. Indeed, as he made clear in subsequent communication with the Court, the respondents were appearing under protest to jurisdiction.
[23] First, he pointed out that the intituling differed between the application for arrest and other orders, and the supporting affidavit, and submitted that the application should not have been accepted for filing because of that error.
[24] The only difference in the intituling between the two documents was that on the application, Ms Mathiesen and Mr McNab were named jointly as the first respondent and Gallaway Cook Allan was named as the second respondent but with the notation that that firm had been “removed” as a party, whereas, on the affidavit, Mr McNab and Ms Mathiesen were named as the first and the second respondent respectively and there was no reference to Gallaway Cook Allan in the intituling.
[25] In my view, this difference cannot affect the jurisdiction of the Court to hear the application. Any other approach would run counter to the objective of the High Court Rules which is to “secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application”.4 The inconsistency in the intituling between the two documents makes no material difference to any affected party. Both Mr McNab and Ms Mathiesen are named as respondents in the documents and they are the only parties affected by the orders. As no prejudice is occasioned by them being listed jointly as respondents on one document and separately as respondents in the other, this can not affect this Court’s jurisdiction to hear and consider the application. Similarly, the omission of Gallaway Cook Allan as a party is of no consequence as that firm is not the subject of the present application and has already been removed as a party.
[26] The next matter raised was an objection to Mr Slevin acting for the Official Assignee and making and certifying the application in accordance with High Court r 7.23 and form G 32, with Mr McNab repeatedly asserting that Mr Slevin is “nobody’s barrister”.
4 High Court Rules 2016, r 1.2.
[27] This submission was obtuse. Mr McNab referred to s 399 Insolvency Act 2006 as supporting this submission. However, s 399 relates to the appointment of the Official Assignee for New Zealand, the Deputy Official Assignee for New Zealand, Official Assignees and, as required, Deputy Assignees. It also specifies the hierarchy of control and direction within these appointments. Mr Slevin’s appointment as counsel for the Official Assignee is not governed by that section at all and nothing raised by Mr McNab provided any basis for asserting that Mr Slevin was not authorised to seek the current orders on behalf of the Official Assignee.
[28] Mr McNab then briefly raised an argument which he has raised a number of other times in this and earlier litigation, which is that Ms Mathiesen’s bankruptcy was invalid because one spouse cannot bankrupt the other spouse. As Gendall J noted in his decision of 26 September 2017, this is an argument that had been “considered by the Court and rejected on no less than three occasions in the past” and it has no validity.5
[29] At this point I reminded Mr McNab that submissions on the history of the matter would not assist. The purpose of the hearing was to focus on whether the orders currently sought should be made and, if so, on what terms, noting that I had before me final orders which had been sealed on 5 January 2018 which authorised the sale of the property.
[30] His response to that was that the orders were flawed and therefore unenforceable. He then referred me to s 37 of the Senior Courts Act 2016 which provides “no Sheriff may be in any way concerned in any action in any court in New Zealand either as a lawyer or as an agent”. That submission was not developed enough to be understood. However, if, it is intended to suggest that the Sheriff has no authority to act in the way directed by these Court orders, it is an entirely misguided submission. In enforcing these orders, the Sheriff is not acting in any way described in s 37.
5 Official Assignee v Mathiesen and McNabb, above n 1 at [23].
[31] At Mr McNab’s request, I then afforded the respondents a further opportunity to file submissions in writing within three days. I said that they were to focus on the orders currently being sought and not the history which led to the orders which were made last year and sealed on 5 January 2018.
The respondents’ subsequent submissions
[32] A brief email was received by the Court from Mr McNab within the timeframe directed headed “REITERATION OF APPEARANCE OF PROTEST TO JURISDICTION UNRECORDED IN THE MINUTE OF HON JUSTICE RACHEL DUNNINGHAM 17 APRIL 2018”.
[33] The first submission made in the email was that “High Court proceeding CIV-2016-476-000049 ended on 5th January 2015 [sic] with Registrar Sharon Graham sealing of certain final orders, ... including a costs order”. He went on to say that apart from a Registrar’s power to correct errors and omissions, nothing further can be done on these proceedings as the two judgments are “res judicata”, and anything new must be sought in new proceeding or by way of an appeal.
[34] This submission is misguided. The Official Assignee is not seeking to challenge any aspect of the judgment, but is seeking additional relief and further orders as a consequence of the respondents’ failure to comply with the judgment in those proceedings. In any event, the Court reserved leave for any party to seek, among other things, “additional directions” and I consider this proceeding comes within the scope of the leave reserved.
[35] Mr McNab again reiterated his objection to the High Court accepting the applicant’s “grossly defective papers” and Mr Slevin had no instructions enabling him to claim he was any party’s barrister in the proceeding.
[36] His brief submission concluded with the statement that he and Ms Mathiesen attended the “judicial event” by video “out of courtesy only” and this was “in protest to jurisdiction in respect of the [application], and in respect of the state of Slevin’s papers accepted for filing, and the fact that he was nobody’s barrister”. These are all matters I have already addressed above.
Discussion
[37] Regrettably, as has been the case in the past, Mr McNab and Ms Mathiesen simply did not take the opportunity to engage meaningfully in the hearing on the application. While I explained to them that if they continued to run unmeritorious technical arguments rather than engage with the issues facing them, they were likely to be arrested and imprisoned, I saw no evidence that they wanted to avoid that outcome.
[38] I am satisfied that Mr McNab and Ms Mathiesen are resolute in their decision to defy the Court and they have raised nothing that would impeach the orders that are sought to be enforced. I consider that they have a fixed view about the merits of their position that is not, on any objective assessment, rational.
[39] Turning first to the application for arrest orders, I am satisfied that the terms of the Court order requiring the respondents to give vacant possession of the property are clear and unambiguous. The respondents were clearly served with the order and know that the order required the property to be vacated. I also consider that they have, and will continue to, defy the order because of grievances about the litigation history which has led to this point. Their defiance of the order is clearly wilful and inexcusable.
[40] Given these circumstances, this Court is empowered by the High Court Rules to issue an arrest order and to commit the party brought before the Court on such an arrest order to prison unless that party complies with the original Court order.
[41] In the circumstances, I am satisfied the respondents are in contempt of Court and it is appropriate for arrest warrants to issue in respect of both Mr McNab and Ms Mathiesen.
[42] The arrest orders are to issue in the form of the draft orders accompanying the applications, but with additional terms requiring each respondent to be brought before this Court at Timaru, within one working day of the date of their arrest, where the consequences of their contempt may be determined. Their appearance can be organised to be conducted via AVL before me or another High Court Judge in Christchurch.
[43] In the circumstances, I am also satisfied that the Sheriff at Timaru or the Sheriff’s duly authorised agent, along with any serving police officer, should be authorised to:
(a) enter the property at 282 Timaru-Pareora Road, Timaru, (the property), to give effect to the attached orders of the Court;
(b) if necessary, use force to enter the property or any part of it, whether by breaking open doors or otherwise; and
(c) carry out these orders and the attached orders with the use of such reasonable force as it may be reasonably necessary to use in such circumstances as may arise.
I make those orders accordingly.
[44] Finally, given the history of this matter, and the entrenched views of the respondents, I am satisfied that it is necessary to make orders prohibiting the respondents from returning to the property, or otherwise interfering in the process of its sale by the Court.
[45] The orders I make in respect of both respondents are as follows:
(a) following your vacation of, or removal from, the property at 282 Timaru-Pareora Road, Timaru, you are not to return to within 500 metres of the property and stop there; and
(b) you are not to interfere in the process of its sale by the Court.
[46] I note that, on occasions, the Court has considered the option of providing a final opportunity for a defendant to obey the order of the Court by directing that the writ of arrest lie in the office of the Court for a defined number of days, to be issued
on further breach by the defendant.6 However, I do not consider that is appropriate in this case because:
(a) The respondents are well aware of these applications and the consequences that could follow, but have shown no inclination to desist from their behaviour;
(b) I am satisfied that there is no realistic prospect that the respondents would comply within any period in which the orders were to lie in Court; and
(c) The process has been protracted at every stage through to the making of these orders. I consider it is now time to bring finality to the matter.
Conclusion
[47] The orders sought by the Official Assignee are granted on the terms set out in the preceding paragraphs.
[48] Leave is reserved to the parties to revert to the Court should any further, or amended, orders or directions be required to give effect to the orders made on 13 December 2017, or to these orders.
Post script
[49] On Friday 27 April 2018, shortly before this decision was to be released, further emailed correspondence from the respondents headed:
REQUEST THE HON JUSTICE RACHEL DUNNINGHAM RECUSE HERSELF OR THAT HER OBLIGATION TO SIT IN THIS MATTER BE RENEWED.
I have now read that correspondence but see nothing in it which would warrant me recusing myself and I decline to do so.
Copy to:
The Official Assignee The Respondents
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