MATHIESEN v FILDES [2017] NZHC 2258

MATHIESEN v FILDES [2017] NZHC 2258

The originating document was plainly an abuse of process because it was lengthy, rambling, contained scandalous and irrelevant allegations, lacked a proper statement of material facts or relief, and breached High Court Rules; therefore under r 5.35B(2)(a) the proceeding must be struck out and the applicants must be required to file a proper compliant document if they have tenable claims.

Citation
(2017) 24 PRNZ 405
Parties
Applicant (trustee): G P Mathiesen; Applicant (trustee): G W C McNab; First Respondent: R D Fildes; Second Respondent: The Law Commission
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 September 2017
Procedural Posture
Originating Application (strike Out Under R 5.35 B) / Determined on the Papers
Outcome
Proceeding struck out under r 5.35B High Court Rules
Legal Topics
Abuse of Process, Strike Out, High Court Rules Compliance, Manifest Unfairness, Procedural Defects
Insolvency Bankruptcy Civil Procedure Contempt of Court Judicial Review/process Control Abuse of Process Strike Out High Court Rules Compliance +2 more

Case Brief

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Parties

G P Mathiesen

Applicant (trustee)

G W C McNab

Applicant (trustee)

R D Fildes

First Respondent

The Law Commission

Second Respondent

Procedural Posture

Originating Application (strike Out Under R 5.35 B) / Determined on the Papers

Legal Issues

  1. 1 Whether the originating document was plainly an abuse of process
  2. 2 Whether to strike out the proceeding under r 5.35B High Court Rules
  3. 3 Whether the document complied with High Court Rules and was reasonably salvageable

Ratio Decidendi

The originating document was plainly an abuse of process because it was lengthy, rambling, contained scandalous and irrelevant allegations, lacked a proper statement of material facts or relief, and breached High Court Rules; therefore under r 5.35B(2)(a) the proceeding must be struck out and the applicants must be required to file a proper compliant document if they have tenable claims.

Court Disposition

Proceeding struck out under r 5.35B High Court Rules

Orders

  • Proceeding struck out pursuant to r 5.35B(2)(a) High Court Rules
  • Applicants must serve a copy of the decision on the respondents as soon as practicable pursuant to r 5.35B(4)