McMAHON v THE ROYAL NEW ZEALAND FOUNDATION OF THE BLIND INCORPORATED [2021] NZHC 2052

McMAHON v THE ROYAL NEW ZEALAND FOUNDATION OF THE BLIND INCORPORATED [2021]NZHC 2052 [9 August 2021]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2020-488-112[2021] NZHC 2052UNDER the Senior Courts Act 2016IN THE MATTER OF proceedings brought by Angeline ClarkMcMahon against the Royal New ZealandFoundation of the Blind IncorporatedBETWEEN ANGELINE CLARK McMAHONAppellantAND THE ROYAL NEW ZEALANDFOUNDATION OF THE BLINDINCORPORATEDRespondentHearing: 21 April 2021Further submissions 9, 11 and 21 May 2021Counsel: G J Thwaite for appellantN J Hartwell for respondentJudgment: 9 August 2021RESERVED JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 9 August 2021 at 4.30pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors:Gregory J Thwaite, Auckland for appellantWRMK Lawyers, Whangarei for respondentIntroduction [1]The proceeding in the Tenancy Tribunal [2]The appeal from the District Court [3]The application for an extended order under s 166(1) Senior Courts Act 2016 [4]The background facts [5]The applications to validate the will and for grant of letters of administration [9]The engagement of Henderson Reeves by the Foundation [18]The steps taken to terminate Ms McMahon's tenancy [19]The possession proceeding before the Tenancy Tribunal [25]Ms McMahon's application to the Tenancy Tribunal for a rehearing [28]Ms McMahon's appeal to the District Court [31]The District Court's decision [33]The appeal to this Court on questions of law [38]Ms McMahon's challenges to the District Court's decision [38]The Foundation's response to the appeal [42]Decision on the appeal [45]What is the effect of Henderson Reeves acting for the Foundation? [45]The merits of Ms McMahon's rehearing application [51]Ms McMahon's application for remedies – Residential Tenancies Act [55]Foundation's application for extended order under ss 166 of the Senior Courts Act 2016 [60]The alleged grounds for the section 166 order [61]The Court of Appeal's decision in Mawhinney v Auckland Council [65]The sale of the Tavinor Road property [67]The merits of the two sets of proceedings [71]The rehearing application and subsequent appeals [71]The application for relief in reliance on s 60 RTA [74]Are there two proceedings that were totally without merit? [78]Should an order be made? [79]Orders [90]Costs [92]Introduction[1] This judgment concerns separate but related proceedings arising fromdecisions of the Tenancy Tribunal and District Court about the occupation of aproperty at 145 Tavinor Road, Otaika, near Whangārei (the Tavinor Road property) bythe appellant, Ms Angeline Clark McMahon. The property was part of the estate ofMr Graham Rowles who died on 2 February 2017. It has two dwellings on it, oneoccupied by Mr Rowles at the time of his death and the other occupied byMs McMahon, who had been paying rent up to and including 31 October 2016.The proceeding in the Tenancy Tribunal[2] On 16 March 2020, the Tenancy Tribunal made an order under s 64 of theResidential Tenancies Act 1986 (the RTA) granting possession of the property to a firmof solicitors, Henderson Reeves Connell Rishworth Lawyers Limited (HendersonReeves), as landlord. The law firm was acting as representative of the late Mr Rowles'estate. On 7 September 2020, the Tribunal refused an application by Ms McMahonunder s 105 of the RTA to grant her a rehearing following its 16 March 2020 decision.The appeal from the District Court[3] On 30 November 2020, Judge D J McDonald dismissed Ms McMahon'sappeal against the Tribunal's refusal of a rehearing. Ms McMahon appeals to thisCourt against that decision, under s 115 of the RTA.The application for an extended order under s 166(1) Senior Courts Act 2016[4] The other proceeding before the Court is an interlocutory application made bythe Royal New Zealand Foundation of the Blind Incorporated (the Foundation), thesole beneficiary of Mr Rowles' estate. It had been substituted for Henderson Reevesas a party to the Tenancy Tribunal proceeding and now seeks an extended order unders 166(1) of the Senior Courts Act 2016 restraining Ms McMahon from commencingor continuing civil proceedings on matters related to the Tavinor Road property andMr Rowles' estate. The Foundation asserts that such an order is justified because atleast two proceedings brought by Ms McMahon about the matters before the TenancyTribunal, in the District Court and in this Court, were or are without merit. I set outthe somewhat unusual background facts before addressing the legal issues that ariseon the appeal and the application.The background facts[5] At the time of his death, Mr Rowles owned the Tavinor Road property.Ms McMahon had occupied the smaller of the dwellings for some years and, althoughshe occupied the dwelling at the time of Mr Rowles' death, she had ceased paying rentafter 31 October 2016.[6] Mr Rowles is not survived by family members or any other dependant. He didnot leave a valid will but, not long after his death, Ms McMahon found among hispapers a typewritten but unsigned document purporting to be his last will andtestament. The document reads:THIS IS THE LAST WILL AND TESTAMENT OF GRAHAM CECILROWLES, BORN IN WIMBLEDON, SOUTH LONDON, ENGLAND ONTHE 26TH JULY 1935.1. HAVING NO DEPENDANTS, I LEAVE MY ENTIRE ESTATE TOTHE NEW ZEALAND GUIDE DOGS FOR THE BLINDASSOCIATION, AS SOLE BENEFICIARY.2. ONE OF THE FEW FAULTS I DO NOT HAVE IS THAT OFHYPOCRISY SO AFTER DEATH REQUIRE [SIC] CREMATIONWITHOUT ANY RELIGIOUS INPUT AND DISPOSAL OF MYASHES ON NON-CONSECRATED GROUND, WITHOUTIDENTIFICATION.N.B. Arrange for ashes to be mixed with ground bait and thrown into RiverSevern from the bridge over the river at Bewdley, Worcestershire, England(where I first started fishing at aged 8 years!) ensuring my ex-wife is unawareof the arrangement. XXXXXX FIND DETAILS OF SECRETARY OFLOCAL FISHING CLUB TO REQUEST ASSISTANCE. E-MAIL JOHNGOODRICK FOR HELP[7] Ms McMahon also located a "financial health-check" prepared by financialadviser, Neville Glaser, as at May 2015. It indicated that Mr Rowles' assets thencomprised:• the Tavinor Road property, estimated to have a value in 2015 of$1 million• NZ$520,000 in shares in overseas funds• NZ$1 million in fixed interest bonds in Luxembourg• NZ$1 million in cash held in a Singapore bank account• $500,000 held in a New Zealand bank (Westpac).[8] The total value of the assets was estimated to be $4,020,000.The applications to validate the will and for grant of letters of administration[9] In early May 2017, Ms McMahon took the typewritten document and otherpapers belonging to Mr Rowles, including bank statements, to Henderson Reeves andsought advice. A solicitor employed by the firm, Ms Gabrielle Thompson, took herinstructions. On 3 May 2017, Mr Thomas Biss, a director of the firm, wrote a letteraddressed to:Estate of Graham Cecil RowlesC/- Angeline McMahon145 Tavinor RoadRD 10Whangarei 0170[10] The letter was emailed to Ms McMahon's business address. It was headed"Estate Administration" and began:Thank you for asking us to work with you on this matter. In this letter we willset out the terms on which we will provide our services to you.Services to be providedYou have asked us to act on behalf of you in relation to the administration ofthe late Graham Rowles estate.[11] The letter set out the names and charge-out rates of personnel within the legalpractice and terms for payment of fees. There was provision at the end of the letterfor acceptance of the terms as follows:The above terms are accepted and you are requested to act in this matter.[12] Ms McMahon signed the acceptance on 4 May 2017. That day, Ms Thompsonwrote to Westpac Bank, which held accounts in Mr Rowles' name, saying:LATE GRAHAM CECIL ROWLESWe confirm we are acting in respect of the Estate of Graham Cecil Rowles.We have been instructed by Ms Mahon [sic] who is applying for Letters ofAdministration for the above named.The application will be made in due course.[13] Ms Thompson took detailed instructions from Ms McMahon on 17 May 2017in connection with a proposed application under s 14 of the Wills Act 2007 to haveMr Rowles' typewritten document declared to be his valid will. That was on the basisthat Ms McMahon had given instructions that she simply wished Mr Rowles'testamentary wishes to be given effect. The Foundation had been identified byHenderson Reeves as the likely intended beneficiary referred to in Mr Rowles'document as "the New Zealand Guide Dogs for the Blind Association". After beingadvised that the Administration Act 1969 required a beneficiary to apply for probate,Ms McMahon had approved Mr Biss's proposal that, once the will was declared valid,a representative of the Foundation would make the application. On 14 July 2017, heobtained Ms McMahon's express approval to the firm's acting for the Foundation inapplying for letters of administration on the basis of the fee arrangements which hadpreviously been agreed by Ms McMahon.[14] A draft affidavit was sent to Ms McMahon on 19 September 2017. Sherequested some changes and the amended draft was sent to her on 29 September 2017.According to an affidavit sworn and filed by Mr Biss in support of the will validationapplication, he tried to contact Ms McMahon "on multiple occasions over manymonths to ask her to finalise the draft affidavit". He said that, for reasons he did notunderstand, Ms McMahon had not attended Henderson Reeves' offices. Up to thatpoint the firm had done no more than take instructions from Ms McMahon on twooccasions and prepare the draft papers for the will validation application.Ms McMahon had never claimed any interest in Mr Rowles' estate and had said onlythat she wished Mr Rowles' wishes should be respected.[15] Although it had been intended initially that Ms McMahon would apply for thevalidation of the will and that the Foundation would then apply for letters ofadministration, the failure of Ms McMahon to respond to Henderson Reeves' requestsfor instructions regarding the will validation application led to the Foundation, throughMr Gregory Hurn as its nominee, taking over the role of applicant in both proceedings.[16] On 23 October 2018, an order was made by the High Court declaring thetypewritten document to be the valid will of Mr Rowles.[17] On 24 January 2019, letters of administration were granted to Mr Hurn, as thenominee of the Foundation, to administer Mr Rowles' estate for the Foundation'sbenefit.The engagement of Henderson Reeves by the Foundation[18] The Foundation paid Henderson Reeves' fees for the firm's services from thetime it was first given the draft will by Ms McMahon until the grant of the letters ofadministration. The correspondence and affidavits make it clear that HendersonReeves considered that any relationship that it had had with Ms McMahon as hersolicitors regarding Mr Rowles' affairs had terminated through her failure to respondto Mr Biss's requests for her to complete the affidavit in the will validation proceeding.The steps taken to terminate Ms McMahon's tenancy[19] Conflict between Henderson Reeves and Ms McMahon became apparent on18 February 2019 when Henderson Reeves wrote to Ms McMahon advising her thatletters of administration in relation to the will had been granted. Ms McMahon wasasked:(a) what the arrangement was between Mr Rowles and her in terms of thepayment of rent;(b) what she understood were the terms of her tenancy of the dwelling onthe Tavinor Road property which she occupied; and(c) whether she held the keys to the Tavinor Road property and, if not,whether she knew who did.[20] The letter also said that, subject to Ms McMahon's responses to thosequestions, the estate would shortly be giving her formal notice to terminate heroccupation of the property.[21] Ms McMahon responded by email that day without answering the questionsraised. Instead, she alleged that Henderson Reeves' engagement as the Foundation'ssolicitors was in conflict with her instructions to the firm and that Henderson Reeveshad failed to keep her informed. Henderson Reeves replied saying that whatevercomplaint she might have against the firm, she was living on estate property and againsought her response to the questions.[22] On 30 March 2019, Ms McMahon emailed Mr Hurn, referring to a meetingthey had had on 28 February 2019. She alleged that Henderson Reeves had obtainedinformation from her "by false pretence and had acted contrary to and outside thescope of her instructions to the firm". She said that she did not expect HendersonReeves should have any further involvement in matters pertaining to her or theadministration of Mr Rowles' estate. She proposed that she and her children shouldbe recognised as beneficiaries of the real properties and other chattels at Tavinor Roadand that she should be considered as the person who should be acting in the capacityas administrator of the estate. Mr Hurn instructed Henderson Reeves to respond to theemail.[23] On 5 July 2019, Mr Biss emailed Ms McMahon saying Henderson Reeves hadalways understood that she had no interest in, or claim on, the estate. Mr Biss toldMs McMahon that, as administrator of the estate, Mr Hurn's duty was to collect in theestate's assets and distribute them. He said part of that would involve selling theTavinor Road property and that formal notice would be given to her.[24] On 23 July 2019, a letter from Mr Biss was hand-delivered to Ms McMahon'sletterbox by a process server. It informed Ms McMahon that the firm was acting forMr Rowles' estate and that the letter served as notice to terminate her tenancy at theTavinor Road property. The last day of the tenancy was to be 31 October 2019.Ms McMahon did not leave the property.The possession proceeding before the Tenancy Tribunal[25] On 14 November 2019, Henderson Reeves filed in the Tenancy Tribunal anapplication for a possession order under the RTA. Henderson Reeves was the namedapplicant in the proceeding. After a hearing on 13 March 2020 attended byMs McMahon, the order was made on 16 March 2020. The reasons for the orderaffirmed Henderson Reeves' right to make the application as the agent of the executorof the estate. The Tribunal held that:1(a) the sale of the property pursuant to Mr Hurn's duty to distribute theestate gave him the power to terminate Ms McMahon's right to occupythe property;(b) the tenancy was lawfully terminated on 31 October 2019; and(c) Henderson Reeves, as agent, was entitled to the order for possessionunder s 64 of the RTA.[26] Ms McMahon had until 30 March 2020 to file a notice of appeal against theTribunal's decision.2 She did not appeal and, despite the Tribunal's order, she did notleave the property.[27] On 12 June 2020, Henderson Reeves filed an application with the TenancyTribunal to enforce the possession order; Ms McMahon was told she had until 29 June2020 to leave the property voluntarily. A settlement offer involving the payment of asubstantial sum of money was made but Ms McMahon neither accepted the offer norvacated the property. In a letter dated 10 July 2020 addressed to counsel then actingfor Ms McMahon, Ms McMahon was informed that a bailiff would be instructed toproceed with her eviction.1 Henderson Reeves Connell Rishworth Lawyers Ltd v McMahon [2020] NZTT Whangarei 4215700(16 March 2020).2 Residential Tenancies Act 1986, s 117(6).Ms McMahon's application to the Tenancy Tribunal for a rehearing[28] On 13 July 2020, Ms McMahon applied for rehearing of the Tribunal'spossession order and sought a stay of proceedings. The application for a rehearingwas made under s 105(1) of the RTA on the grounds that:• Henderson Reeves was not entitled to represent the owner of the propertybecause it was acting for Ms McMahon at relevant times;• the application should not have been brought in the name of HendersonReeves as agent;• the Tribunal did not have jurisdiction in the matter because it had not beenestablished that there was a tenancy agreement between Ms McMahon andMr Rowles and Ms McMahon had not been paying rent since October2016; and• Ms McMahon had a continuing right to occupy the premises because theeviction notice was invalid.[29] The Tribunal granted a stay on 15 July 2020. Although the Tribunal's decisiondoes not say so expressly, it is clear that the stay was intended to preserveMs McMahon's position pending the disposition of her application for a rehearing.[30] The rehearing application was dismissed by order of the Tribunal on7 September 2020,3 principally for the reasons that the grounds for the applicationwere a challenge to the substantive reasons for the Tribunal's original decision and didnot afford grounds for a rehearing. The Tribunal held that, as properly appointed agentof the Foundation, which owned the property, Henderson Reeves was the landlordwithin the definition of "landlord" in the RTA4 and was entitled both to bring theproceeding in the Tribunal in its own name and also to issue a 90-day terminationnotice.3 Henderson Reeves Connell Rishworth Lawyers Limited v McMahon [2020] NZTT Whangarei4215700 (7 September 2020).4 Residential Tenancies Act 1986, s 2.Ms McMahon's appeal to the District Court[31] The notice of eviction was re-activated and, on 21 September 2020, a bailiffattended at the Tavinor Road property. On becoming aware of the bailiff's presence,Ms McMahon filed a notice of appeal in the District Court that day and applied for astay of proceedings, which was granted. The grounds of appeal were:(a) the Tribunal had failed to take into account the ethical obligations ofHenderson Reeves because the firm had acted for Ms McMahon at theoutset and should not have acted against her on behalf of the Foundationwhen it came to applying for an order for possession of the property;(b) Henderson Reeves should not have issued the eviction notice;(c) the Tribunal had failed to establish that a tenancy existed;(d) the adjudicator had failed to address substantial grounds advanced insupport of the rehearing application; and(e) Ms McMahon had been denied access to a lawyer to represent her.[32] The Foundation was substituted as respondent in place of Henderson Reevesin an oral decision delivered by Judge McDonald during the hearing ofMs McMahon's appeal on 14 October 2020.5The District Court's decision[33] On 30 November 2020, Judge McDonald dismissed Ms McMahon's appeal.6After traversing the background, including the procedural history of the proceeding inthe Tribunal, the Judge agreed with the adjudicator's view that Ms McMahon'schallenges to the substance of the original decision were not grounds upon which arehearing could be granted. The Judge held that the proper procedure for challengingthe Tribunal's order for possession on the basis she asserted was an appeal.5 McMahon v Royal New Zealand Foundation of the Blind [2020] NZDC 21308.6 McMahon v Royal New Zealand Foundation of the Blind [2020] NZDC 24802.[34] Judge McDonald acknowledged that a fundamental issue was whetherHenderson Reeves acted improperly by representing the Foundation in the TenancyTribunal and taking steps to evict Ms McMahon when it was, at the same time, actingfor her. The Judge said the evidence did not establish that Henderson Reeves wasacting for Ms McMahon at the commencement of the proceedings in the TenancyTribunal, there being no evidence that Ms McMahon was ever liable for, or paid, anyfees to the firm. In any event, the Judge found that the firm had not used any personalinformation that might have come to them while Ms McMahon might have been aclient. He held that, by the time the application was made for a possession order,Ms McMahon had ceased to be (if she ever was) a client for some two years. He foundalso that Ms McMahon had been given an adjournment between January 2020 andMarch 2020 to allow her time to instruct counsel if she wished to do so. There wasevidence before the Tribunal that Ms McMahon had, in fact, consulted with a lawyerand received advice.[35] The Judge also referred to s 85 of the RTA, which he said made specialprovision for the way in which the Tribunal's and, on appeal, the District Court'sjurisdiction should be exercised:785 Manner in which jurisdiction is to be exercised(1) Subject to the provisions of this Act and of any regulations madeunder this Act, the Tribunal shall exercise its jurisdiction in a mannerthat is most likely to ensure the fair and expeditious resolution ofdisputes between landlords and tenants of residential premises towhich this Act applies.(2) The Tribunal shall determine each dispute according to the generalprinciples of the law relating to the matter and the substantial meritsand justice of the case, but shall not be bound to give effect to strictlegal rights or obligations or to legal forms or technicalities.[36] The Judge was satisfied that even if a rehearing was granted, Ms McMahonwould either be a tenant or a squatter but, in either capacity, one who had no right tobe on the property.[37] The Judge also held that the appeal was one against a discretion and that theDistrict Court should be cautious to allow an appeal where it comes from the7 See Residential Tenancies Act 1986, s 117(4).discretionary power. Those observations, however, were misguided. The right ofappeal provided by the RTA is a right of general appeal which proceeds by way ofrehearing. Accordingly, the approach to be taken is that explained by the SupremeCourt in Kacem v Bashir.8 Those exercising general rights of appeal are entitled tojudgment in accordance with the appellate court's opinion, even where that opinioninvolves an assessment of fact and degree and entails a value judgement. However,the observations about appeals from a discretion were made by Judge McDonald inpassing and did not form part of his substantive reasoning. His approach to dismissingthe appeal was orthodox and consistent with applicable principles.The appeal to this Court on questions of lawMs McMahon's challenges to the District Court's decision[38] Ms McMahon appeals to this Court, under s 119 of the RTA, on the ground thatthe decision of the District Court was erroneous in point of law.[39] The questions of law raised in the notice of appeal are:(a) Whether a tenancy agreement between Ms McMahon and the owner ofthe property existed.(b) Questions about the existence of a solicitor/client relationship betweenMs McMahon and Henderson Reeves, including questions about:• the commencement of the relationship;• the duties of the respective parties to the relationship;• the compliance by each party with the duties; and• the termination (if any) of the relationship.8 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32] per Tipping J, citing Austin, Nichols& Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].(c) Whether any notice purportedly issued by Henderson Reeves toMs McMahon was valid.(d) Questions about the validity of Henderson Reeves acting as applicantagainst Ms McMahon in the Tenancy Tribunal and in the District Court.(e) Questions about the priority of the competing interests identified by theparties, being:• "the integrity of the legal order as expressed in the role of solicitorsand their duties, in the context of the Rule of Law"; and• for the Foundation, as a charity, the importance of removing atenant from a property.[40] Explaining these propositions, Mr Thwaite argues that there were two mattersthat justified a rehearing in the exercise of the Court's duty to uphold the rule of law:(a) Ms McMahon's unfortunate history with judicial proceedings in theCourt at Whangarei, which culminated in a judgment of the Court ofAppeal vindicating her, notwithstanding that she had served six monthsof a sentence of imprisonment.9 Mr Thwaite said that the Court shouldnot overlook the impact of that experience on Ms McMahon as she triedto present her own case in the Tenancy Tribunal having previouslysuffered unnecessary incarceration away from her family and "variousindignities which the judicial system imposed upon her.";(b) The conduct of Henderson Reeves in accepting instructions fromMs McMahon and then turning on her, after the firm had acted for theFoundation in obtaining letters of administration of Mr Rowles' will,by playing an active role in evicting Ms McMahon "from her ownhome" on the basis of a document that she had provided to them. Inreferring to the power imbalance between the law firm and9 McMahon v R [2009] NZCA 472.Ms McMahon, Mr Thwaite argued that she was not in a position toargue the key issues relied upon in the District Court in seeking toobtain a rehearing.[41] Mr Thwaite also suggests Ms McMahon has an available argument about the"priority" of societal values "in a nation said to be under the Rule of Law". Hequestions whether greater priority should be given to the right of a landlord to evict awoman from her home or to maintaining the rule of law for solicitors by penalisingsolicitors and other persons in league with them in violating ethical obligations.Counsel also suggests that a question not addressed in the Tribunal or the DistrictCourt is whether it was appropriate for a charitable organisation to be involved in aneviction process, displacing a woman and her family from their home.The Foundation's response to the appeal[42] In response, the Foundation argues that the District Court correctly dismissedthe rehearing application and that the judgment does not give rise to arguable questionsof law. On the facts found by the adjudicator, Ms McMahon paid rent up to November2016 and Mr Rowles then appears to have accepted Ms McMahon's tenancy on thebasis that she provided services in the form of assistance with his cattle,companionship and, as described by Ms McMahon, a buffer for him from "predatoryfemales". It was open to the Tribunal to hold, as it did, that such services or otherconsideration came within the definition of rent in s 2 of the RTA. The definitionreads:Rent means any money, goods, services or other valuable consideration in thenature of rent to be paid or supplied under a tenancy agreement by the tenant[43] Moreover, if Ms McMahon was simply a squatter, paying no rent, the Tribunalwas entitled to issue the possession notice.[44] On the issue of Henderson Reeves' ethical obligations, the Foundation arguesthat Ms McMahon was never a client of Henderson Reeves. Alternatively, it says thatthe solicitor/client relationship ended when Ms McMahon failed to respond torepeated requests to engage in the application for validation of the will. It is clear, itis submitted, that by the time Henderson Reeves had obtained letters of administrationof the will in favour of Mr Hurn and approached Ms McMahon concerning hercontinued occupation of the property, it was no longer in a solicitor/client relationshipwith her. The Foundation also argues that, if there had been an ethical breach ofHenderson Reeves' obligations by acting against a former client in that way,Ms McMahon's remedies against Henderson Reeves did not lie in proceedings in theTenancy Tribunal in which Henderson Reeves personally had no interest.Ms McMahon had made direct personal contact with representatives of the Foundationand had been receiving advice from a lawyer at all relevant times. As well, on 14 July2017, Ms McMahon had approved the letter from Henderson Reeves to theFoundation discussing the proposed application by the Foundation for the grant ofletters of administration.Decision on the appealWhat is the effect of Henderson Reeves acting for the Foundation?[45] I have read the judgment of the Court of Appeal in Ms McMahon's 2009 caseand I appreciate that she has a genuine sense of grievance about her treatment by thejudicial process. But her grievance that Henderson Reeves acted for the Foundationover the will, notwithstanding that she had found it and given the firm initialinstructions, does not provide her with a basis for challenging the grant of letters ofadministration to the Foundation as the beneficiary named in what this Court declaredto be Mr Rowles' valid will.[46] I acknowledge that it appears on the face of the exchanges of correspondencebetween Henderson Reeves and Ms McMahon, and between Henderson Reeves andthe Foundation, that Henderson Reeves accepted instructions to act for Ms McMahonas the applicant for an order validating as a will the typewritten document she hadlocated among Mr Rowles' papers. Ms McMahon accepted the liability of meetingthe firm's costs as set out in the engagement letter. The initial intention was that thefirm would then act for the beneficiary in obtaining letters of administration.[47] A contract of retainer between lawyer and client can come to an end on thelawyer being discharged from the engagement by the client; by agreement betweenthe lawyer and client; or by the lawyer terminating for just cause and with notice.10 InNew South Wales, the termination of a client's retainer can be express or inferred; itis unnecessary to construe a formal offer and acceptance in order to find atermination.11 In New Zealand, the Client Care Rules applying to the legal professiondo not require a particular form of communication to terminate a retainer. I note thata client has a right to terminate a retainer at any time12 and the relationship may alsocome to an end naturally, once the work is complete, which will be the usual case formost solicitor/client relationships.13 Adopting the Australian approach of inferring aretainer's termination from "the intention objectively manifested by the parties",14 itis arguable that the termination of the retainer could be inferred from Ms McMahon'sconduct in failing to respond to Mr Biss's requests for her to attend on the firm toswear the affidavit for the will validation application. And since Ms McMahon hadapproached the Foundation directly about the document she had discovered and toldits representatives that she wished Mr Rowles' testamentary wishes to be given effect,the Foundation was entitled to instruct Henderson Reeves to act on the Foundation'sapplication for validation and, subsequently, the grant of letters of administration.That course of action had been approved by Ms McMahon when she endorsed theletter Henderson Reeves sent to the Foundation on 24 July 2017 seeking confirmationof its instructions.[48] I do not accept that, in providing Henderson Reeves with the document she hadfound in Mr Rowles' house, Ms McMahon was conveying confidential information tothe law firm. Taking the document to a firm of solicitors to obtain advice about whatshould be done with what appeared to be an expression of Mr Rowles' wishesconcerning the disposition of his estate, Ms McMahon was acting properly as a friendof the deceased man whom she knew had no family or other dependents. Finding thedocument gave her no proprietary interest in it and the Foundation was entitled toinstruct Henderson Reeves to act upon it. In any event, Ms McMahon waived any10 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rr 4.2 and 4.3.11 Tecnicas Reuindas SA v Andrew [2018] NSWCA 192 at [47].12 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rr 4.3, 4.4 and4.5. See also Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400at [49].13 Matthew Palmer (ed) Professional Responsibility in New Zealand (online ed, LexisNexis) at[16.4.1].14 Tecnicas Reuindas SA v Andrew, above n 11, at [47].legal professional privilege about finding the document when she raised the matterwith the Foundation. Since the Foundation's instructions to obtain validation of thewill and probate did not conflict with any interest of Ms McMahon, I am not persuadedthat Henderson Reeves acted improperly in acting for the Foundation in this Court inthe proceeding that resulted in Mr Rowles' estate being vested in the Foundation.[49] I acknowledge, however, that there is a tenable argument that HendersonReeves acted in breach of its obligations to Ms McMahon as either an existing orformer client when it represented the Foundation as its as solicitors and agent inobtaining the possession order from the Tenancy Tribunal, contrary to Ms McMahon'sinterests. But whether there is any justification for Ms McMahon's complaints is amatter for determination by the New Zealand Law Society in its disciplinary capacity,or by a court in a proceeding for alleged breaches of professional duties of care.Ms McMahon's remedies for any breach of ethical obligations by the firm does not liein pursuing the Foundation under the RTA for a remedy which has never beenarticulated, let alone placed before any court or tribunal with jurisdiction to grant it.When these matters were argued by Mr Thwaite in this proceeding, counsel was ableto say only that they were issues that had yet to be addressed.[50] Mr Thwaite's vague philosophical question about whether the Court shouldgive priority to protecting Ms McMahon's rights under the rule of law over theFoundation's rights as landlord needs no response. Similarly, the proposition that aregistered charity owes different obligations to tenants than those of any other landlorddoes not deserve further consideration. Unsurprisingly, Mr Thwaite cited no authorityor any basis in law for either proposition.The merits of Ms McMahon's rehearing application[51] The Tribunal's power under s 105 of the RTA to order a rehearing is confinedto grounds establishing that a substantial wrong or miscarriage of justice has, or mayhave, occurred or is likely to occur.[52] I agree with the conclusions reached by Judge McDonald that the issues raisedin the rehearing application amounted to a challenge to the substantive findings of theTribunal which would have been susceptible to appeal if Ms McMahon had taken thatstep. But her dissatisfaction with the Tribunal's decision on the issues does not giverise to a substantial wrong or a miscarriage of justice. There is nothing in the mattersof a more general nature raised by Mr Thwaite to bring Ms McMahon's case withinthe category of one in which there are circumstances justifying a rehearing.[53] I am satisfied, therefore, that the decision of the District Court to dismiss theappeal against the refusal of a rehearing by the Tenancy Tribunal was correct and Iwill dismiss the appeal accordingly.[54] Following the District Court's decision on 30 November 2020 dismissingMs McMahon's appeal against the refusal of a rehearing, the Foundation took furthersteps to exercise its rights pursuant to the Tenancy Tribunal's possession order.Ms McMahon was evicted from the Tavinor Road property on 14 December 2020.Ms McMahon's application for remedies – Residential Tenancies Act[55] On 22 December 2020, Ms McMahon applied to the Tenancy Tribunal forremedies in reliance on s 60(2) of the RTA. The subsection provides:60 Tenant remaining in possession after termination of tenancy(2) If the landlord permits the tenant to remain in the premises for morethan 90 days after the tenancy has terminated or has been terminated,without obtaining a possession order, or for more than 90 days afterobtaining a possession order, the landlord shall be deemed to havegranted, and the tenant shall be deemed to have accepted, as from thedate on which that period of 90 days expired, a periodic tenancy of thepremises on the same terms and conditions as pertained to the originaltenancy immediately before its termination.[56] Ms McMahon alleged that the Foundation and its agents had entered theTavinor Road property in an unlawful eviction of her adult children and her. Shealleged that the time for her to occupy the property, after the eviction notice was issuedfollowing the Tribunal's possession order, had been extended beyond the 90-daylimitation referred to in s 60(2). She said that she wished to claim compensation of$50,000 and exemplary damages as a result of unlawful acts performed under the RTA,including obtaining the lapsed possession order by false representations and themisuse of privileged client information by Mr Biss. Ms McMahon said that shewanted an order returning possession of the property to her and a determination of thevalidity of any grounds the Foundation had to act as landlord.[57] On 24 February 2021, the Tribunal issued a decision declining to make adeclaration that Ms McMahon was entitled to occupation of the premises. Mr Thwaitehad argued, first, that the possession order made by the Tribunal on 16 March 2020was outside the 90-day period from the date of the termination of Ms McMahon'stenancy of the Tavinor Road property. He submitted that the possession order wasaccordingly in breach of the requirements of s 64(2) of the RTA which provides thatno possession order may be made more than 90 days after the date of the terminationof the tenancy. The second point was that the Foundation had permitted Ms McMahonto remain in possession of the property for more than 90 days following thetermination of the tenancy. Mr Thwaite had argued that s 60(2) operated to create aperiodic tenancy with the result that the possession order made on 16 March 2020could no longer apply.[58] The Tribunal ruled, however, that the ground advanced under s 64(2) was asubstantive challenge to the Tribunal's possession order of 16 March 2020 and, as thepoint had not been taken by Ms McMahon at that time nor raised in the rehearingapplication before the Tribunal or the appeal before the District Court, the Tribunalhad no jurisdiction to address it in the renewed proceeding. As to the second ground,the Tribunal held that it was clear, on the facts, that the Foundation had not permittedMs McMahon to remain in the property but had, at all times, taken what steps wereavailable to it to have her evicted. While the Foundation had allowed some leeway tothe bailiff to allow a modest period of time for Ms McMahon to move out of theproperty on her own accord, that was in the context of an application under which theFoundation was actively working to have Ms McMahon vacate the premises.[59] On 9 March 2021, Ms McMahon appealed the Tribunal's determinationasserting that there had been procedural unfairness in its process and that theFoundation had never provided any formal notice of its status as Ms McMahon'slandlord, or maintained the property during her occupancy.Foundation's application for extended order under ss 166 of the Senior CourtsAct 2016[60] Prior to a telephone conference with the Tribunal scheduled for 28 January2021, the Foundation made an interlocutory application in the appeal proceedings inthis Court for an extended order under s 166 of the Senior Courts Act 2016. It seeksto restrict Ms McMahon from commencing, or continuing, civil proceedings relatingto the Tavinor Road property and Mr Rowles' estate.The alleged grounds for the section 166 order[61] A section 166 order may take one of three forms that vary in their scope:15(a) a limited order applying to a particular matter;16(b) an extended order applying to a particular matter or a related matter ina senior court, another court or a tribunal;17 and(c) a general order which applies to any civil proceeding.18[62] The grounds for making an extended order, on the application of a party to aproceeding,19 are set out in s 167 which, so far as is relevant, provides:167 Grounds for making section 166 order(2) A Judge may make an extended order under section 166 if, in at least2 proceedings about any matter in any court or tribunal, the Judgeconsiders that the proceedings are or were totally without merit.(4) In determining whether proceedings are or were totally without merit,the Judge may take into account the nature of any interlocutoryapplications, appeals, or criminal prosecutions involving the party tobe restrained, but is not limited to those considerations.15 Senior Courts Act 2016, s 166(2).16 Section 166(2)(a) and (3).17 Section 166(2)(b) and (4).18 Section 166(2)(c) and (5).19 Section 169(1).(5) The proceedings concerned must be proceedings commenced orcontinued by the party to be restrained, whether against the sameperson or different persons.(6) For the purpose of this section and sections 168 and 169, an appeal ina civil proceeding must be treated as part of that proceeding and notas a distinct proceeding.[63] A section 166 order may restrain a party from commencing or continuing anyproceeding (whether generally or against any particular person or persons) of any typespecified in the order without first obtaining the leave of the High Court.20 The orderhas effect for a period of up to three years as specified by the judge but may be for alonger period, not exceeding five years, if the judge is satisfied that there areexceptional circumstances justifying the longer period.21[64] Although the Foundation's application did not identify the two proceedingsrelied upon under s 166(2), the application was pursued in argument on the basis thatthe proceedings said to be "totally without merit" are:(a) Ms McMahon's application for a rehearing of the Foundation'sapplication for a possession order that was granted on 16 March 2020and her appeal to the District Court against the Tribunal's refusal of arehearing; and(b) Ms McMahon's second application to the Tribunal, seeking remediesrelated to her arguments under s 60 of the RTA.The Court of Appeal's decision in Mawhinney v Auckland Council[65] Following the hearing of the appeal and the Foundation's application for asection 166 order, the Court of Appeal delivered its judgment in Mawhinney vAuckland Council.22 The judgment addressed a question central to the considerationof the Foundation's application of the meaning and application of the "totally withoutmerit" test in s 167 of the Senior Courts Act. After reviewing the law on the restraintof the activities of vexatious litigants under the Judicature Act 1908; the law reform20 Section 168(1).21 Section 168(2).22 Mawhinney v Auckland Council [2021] NZCA 144.considerations in the context of the Judicature Modernisation Bill 2013, of which theSenior Courts Act 2016 was the eventual outcome; the legislative history and relevantEnglish jurisprudence, the Court concluded that a proceeding is totally without meritif it is bound to fail.23 Further, the Court observed that the word "totally" conveysboth a qualitative and quantitative dimension:24 a proceeding may combine multiple causes of action. Even if only onecause of action has merit, it cannot be said that the proceeding is totallywithout merit. Hence in order for a proceeding to satisfy the s 167 threshold,it will be necessary that all of the causes of action pleaded should have beenbound to fail.[66] After drawing counsel's attention to the Court of Appeal's judgment inMawhinney, I received helpful submissions which I have taken into account.The sale of the Tavinor Road property[67] Before turning to the application of the "totally without merit" test to this case,I record that, in the course of the hearing of the oral argument, Ms Hartwell informedthe Court that the Foundation had sold the Tavinor Road property. Mr Thwaite hadbeen informed of that event only shortly before the hearing and had not had time totake instructions from Ms McMahon, who was then in the United States. I allowedMr Thwaite time, following the hearing, to take instructions. In a memorandum dated9 May 2021, Mr Thwaite noted that Ms Hartwell had produced a copy of Record ofTitle 681017 related to the Tavinor Road property, being Lot 1 on Deposited Plan483116, which showed that the property was no longer registered in the name of theFoundation. Mr Thwaite's further research indicated that a transfer of the title to theproperty had been lodged by the Foundation's solicitors on 9 April 2021.[68] Mr Thwaite said that, despite the sale of the Tavinor Road property,Ms McMahon wished to continue with her appeal. Although she accepted that theremedy of orders enabling her to return to the property "might be moot", she invitedthe Court to deliver a judgment "on the liability issues". Counsel argued that theappeal had merit up until (at a minimum) the time when the record of title wasproduced to the Court during the hearing on 21 April 2021.23 Mawhinney v Auckland Council, above n 22, at [58].24 At [60].[69] I agree with Mr Thwaite that it would be unfair to Ms McMahon to take intoaccount, in deciding whether her two applications to the Tribunal were totally withoutmerit, a change of circumstance that occurred after the delivery of the Tribunal'sdecisions and the District Court's judgment. But Ms McMahon's determination tocontinue the appeal despite the sale of the property is relevant to whether this Courtshould exercise its discretion to make a section 166 order.[70] I turn now to consider whether the two sets of proceedings identified by theFoundation were totally without merit in the sense that they were bound to fail.The merits of the two sets of proceedingsThe rehearing application and subsequent appeals[71] I am satisfied that the application by Ms McMahon for a rehearing of theFoundation's application for vacant possession and her appeal against the refusal ofthe rehearing and the subsequent appeal on questions of law were totally without meritin the sense described by the Court of Appeal in Mawhinney.[72] First, it is apparent from the facts described above that the Foundation'sapplication for a possession order was entirely conventional, based on its wish asowner of the property to obtain vacant possession in order to sell it. By her ownadmission, Ms McMahon was a tenant paying rent up to and including the paymenton 31 October 2016. It may be that she continued to provide consideration for hercontinued occupation of the property after she ceased paying rent by the provision ofservices to Mr Rowles but, in any event, the tenancy did not terminate once the rentalpayments ceased; it continued with Ms McMahon in default. Mr Thwaite posited thatMs McMahon may have been a mere licence holder after that time, depriving theTenancy Tribunal of jurisdiction, but he laid no evidential or other foundation for thatproposition.[73] Second, the grounds relied upon by Ms McMahon in her rehearing applicationto the Tribunal were wholly inadequate to justify allowing her to argue her case asecond time. Given the nature of the argument proposed in support of the application,it is clear that the rehearing application was simply an attempt to circumvent the stricttime limits for the exercise of a right of appeal against the Tribunal's possession orderand to overcome the difficulty of Ms McMahon's failure to lodge an appeal withintime. The arguments advanced to the Tribunal, the District Court and to this Courtwere either a re-hash of the original points made to the adjudicator in opposition to theapplication by Henderson Reeves or were an irrelevant consideration which, althougharguably identifying Ms McMahon's reasons for wanting to continue to litigate theissues, did not afford arguable grounds for doing so.The application for relief in reliance on s 60 RTA[74] I am satisfied, also, that Ms McMahon's application to the Tribunal for adeclaration that she was entitled to occupation of the premises was bound to fail at thetime it was filed. Mr Thwaite explained that, although the application based on s 60of the RTA was founded on the proposition, previously denied by Ms McMahon, thatshe was a tenant, she was entitled to rely upon the Tribunal's finding to the contrarywhen making her application on 22 December 2020. I accept that that was an availableapproach. But, although Ms McMahon claimed compensation of $50,000 andexemplary damages as her remedies in the second application to the Tribunal, sheadvanced no basis for those claims independently of the arguments raised in theFoundation's possession and enforcement proceedings and no supporting evidence.[75] As I have already observed, the approach of the Foundation to obtaining apossession order was entirely conventional and one which, as the owner of theproperty and landlord, it was entitled to take.[76] The findings by the Tribunal and by Judge McDonald that there was no meritin the reliance by Ms McMahon on the statutory requirements to enforce thepossession order, and the argument about the creation of a periodic tenancy byoperation of s 60(2), were predictable and undoubtedly correct. Ms McMahon'sattempts to overturn them had no prospects of success on the facts. It was clear that,throughout, the Foundation had never agreed to Ms McMahon remaining inoccupation of the property in circumstances where she had ceased paying rent at theend of 2016. The only occasions on which the Foundation refrained from pursuing itsrights were those where it was impeded by stays ordered by the Tribunal or DistrictCourt, or by other procedural requirements, and the brief period of grace allowed toMs McMahon to leave the property other than under a bailiff's coercion.[77] I am satisfied, therefore, that the proceedings instituted by Ms McMahon inreliance on s 60(2) were bound to fail and were, accordingly, totally without merit.Are there two proceedings that were totally without merit?[78] Bearing in mind the purpose of a section 166 order, it is an importantconsideration whether the proceedings said to be totally without merit were distinct ormerely proceedings which may be of an interlocutory nature but forming part of onequalifying proceeding. Section 167(6) emphasises the importance of the issue byclarifying that an appeal in a civil proceeding is part of the proceeding and not adistinct proceeding. Mr Thwaite accepts on behalf of Ms McMahon that theapplication for relief in reliance on s 60(2) (and the appeal that followed it) is aseparate proceeding from Henderson Reeves' application for a possession order,Ms McMahon's application for a rehearing and the subsequent appeals against therefusal. As the Court of Appeal said in Brogden v Attorney-General:25A litigant may be said to be persisting in litigating though the number ofseparate proceedings he or she brings is quite small if those proceedingsclearly represent an attempt to re-litigate an issue already conclusivelydetermined against that person,Should an order be made?[79] Having reached those conclusions, the threshold has been reached for decidingwhether an extended order under s 166(1) and (2)(b) should be made and I am requiredto make a discretionary assessment about whether an extended order is appropriate.26In that regard, I may consider how those proceedings were conducted and any widercircumstances that weigh for, or against, an order being made. I also need to considerthe scope of any extended order which, in my view, must be one that meets thelegitimate interest of the Foundation in not having to face continued litigation that has25 Brogden v Attorney-General (2001) 15 PRNZ 389 (CA) at [21], referred to with approval in Heenan vAttorney-General [2011] NZCA 9 at [22].26 Mawhinney v Auckland Council, above n 22, at [67].no merit, balanced against Ms McMahon's rights to reasonable access to justice inappropriate circumstances.[80] An extended section 166 order would restrain Ms McMahon fromcommencing or continuing civil proceedings on a particular or related matter in asenior court, another court, or a tribunal. The Foundation asks for an order preventingMs McMahon from taking or continuing any proceeding related to Mr Rowles' estateor the tenancy of the Tavinor Road property.[81] Specifically, Ms McMahon could be prevented from taking any step tooverturn this Court's decision to validate the will; overturn the grant of letters ofadministration to Mr Hurn; or overturn the Tenancy Tribunal's decisions in relation toher occupation of Tavinor Road.[82] In exercising my discretion to make an extended order I take into account thefact that Ms McMahon has pursued this litigation relentlessly, despite the decisions ofthe two Tribunal members being founded on principled and conventional grounds, anda decision of the District Court that was also unexceptional in its approach. At nostage in the proceedings has Ms McMahon identified any credible basis on which shecould advance a case establishing a right to have remained in occupation of the TavinorRoad property or to return to it lawfully. Moreover, she has never articulated anycredible basis for claiming a compensatory remedy from the Foundation.[83] Ms McMahon elected to pursue the appeal in this Court after the sale of theproperty was drawn to her attention, even though her initial aim in making theapplications to the Tribunal was to remain in residence at the property. Thatdemonstrates, in my view, her unreasonable determination to argue irrelevant mattersbased on counsel's ingenuity in raising (but not developing) possible claims and onvague propositions of law for which no authority was cited. Ms McMahon had manymonths to prepare a case for compensation or other relief in the event that it was held,contrary to her submissions before the Tribunal, that she was a tenant. None wasadvanced. Her only hope, prior to the sale of the property, was that a rehearing mightresult in the possession order being set aside. After the sale, that remedy disappeared.In any event, a claim for compensation or other relief would have been set off againstMs McMahon's rent-free, four-year occupation of the property.[84] The Foundation also relies on conduct by Ms McMahon, and counselpresumably acting on her instructions, throughout the proceedings as evidence that shecannot be relied upon to refrain from continuing to litigate issues under the RTA or torefrain from bringing further proceedings against the Foundation in relation toMr Rowles' estate without orders from the Court restricting her ability to do so.Referring to evidence provided by Ms McMahon's affidavits filed in the Tribunalproceedings and in this Court; evidence given before the Tribunal; evidence appearingin affidavits sworn on behalf of the Foundation, including evidence of Mr Rowles'neighbours at the Tavinor Road property; and the submissions of counsel, theFoundation refers to:• inconsistent assertions about the instructions Ms McMahon gave toHenderson Reeves, her status as a tenant of Mr Rowles and the nature ofMr Rowles' alleged "testamentary promises";• an assertion that Mr Rowles "had fallen in with women of low quality whohad previously and were still operating on the wrong side of the law",without providing any evidential foundation;• Ms McMahon claiming falsely that she lacked representation at varioustimes in the course of the proceeding;• the failure by Ms McMahon to respond to reasonable questions put to herby the Foundation about estate property;• unfounded allegations of fraud against the Foundation, its lawyers and realestate agents;• continuing allegations against Henderson Reeves of breaches of the firm'sethical duties without taking the obvious step of raising those mattersthrough appropriate channels such as by a complaint to the New ZealandLaw Society;• Ms McMahon's failure to comply with timetable directions of the Tribunaland this Court;• Ms McMahon's failure to comply with the eviction notice and trespassnotice, repeatedly gaining illegal entry to the Tavinor Road property andrequiring numerous calls to the Police;• Ms McMahon verbally abusing staff engaged to secure the Tavinor Roadproperty;• Ms McMahon unlawfully benefiting from grazing at Tavinor Road,causing damage to the property and leaving it in disrepair;• Ms McMahon obtaining unauthorised rental income from Tavinor Roadand having the benefit of rent-free occupation of the property.[85] Those allegations were identified by Ms Hartwell in submissions on behalf ofthe Foundation, with references to the source of her assertions. None of them wasdenied by Ms McMahon nor refuted by Mr Thwaite in his submissions. In thecircumstances, I regard those allegations as established on a balance of probabilitiesand I take that conduct into account in determining whether a section 166 order isappropriate.[86] Ms Hartwell also refers to indications that Ms McMahon has given notice,either by herself or through counsel, that she intends bringing further proceedingsagainst the estate but, despite requests to identify the nature or basis for any suchclaims, has failed to do so. I agree with Ms Hartwell that what is suggested arepossible claims under the Law Reform (Testamentary Promises) Act 1949 (the TPA)and a challenge to Mr Hurn's appointment as administrator. As to that, I acceptMs Hartwell's proposition that apart from Ms McMahon's own testimony, there is noother evidence to indicate that Mr Rowles made any promise to Ms McMahon comingwithin the provisions of the TPA. Nor is there any credible evidence to indicate thatMs McMahon rendered any services or undertook any work for Mr Rowles during hislifetime which might justify a claim against the estate. On the contrary, evidence fromMr Rowles' neighbours indicates that:• Mr Rowles often complained about Ms McMahon as a tenant andrequested her to leave Tavinor Road without success;• Ms McMahon did not maintain the dwelling in good condition, eitherinside or out;• Ms McMahon and Mr Rowles often argued; and• Ms McMahon's claim of looking after Mr Rowles' cattle is not true.[87] In any event, as Ms Hartwell points out, Ms McMahon faces the considerableobstacle that any claim under the TPA would be well outside the 12-month limitationperiod in which to bring an action based on an alleged testamentary promise.27 Thereis no basis to think that exceptional circumstances would entitle her to do so.28[88] I am satisfied that there is no tenable basis on which Ms McMahon couldchallenge the decisions of this Court to validate Mr Rowles' will and to grant lettersof administration to Mr Hurn. I am satisfied also that, in addition to preventingMs McMahon from continuing or commencing any proceeding related to her formertenancy of the Tavinor Road property, she should be prevented from commencing anyproceeding related to the validation of the will and the grant of letters ofadministration.[89] I am hesitant to make an order preventing Ms McMahon from making anyclaim against Mr Rowles' estate, however, because it is difficult to assess as being27 Law Reform (Testamentary Promises) Act 1949, s 6.28 Bearman v Hardie Boys [1973] 2 NZLR 204 (CA) at 206: "If a prospective claimant under thisAct wishes to have time extended we believe that he should not only show reason why in thecircumstances of this case the delay should not count against him, but also should be required topersuade the Court he has a claim which, if it be allowed to be prosecuted, will have somereasonable chance of success.""totally without merit" a claim which has not been formulated or articulated in anycoherent manner. If Ms McMahon elects to pursue some claim, whether in relianceupon an alleged testamentary promise or on any other basis, the Court has powers tostrike out such a claim if no arguable cause of action is demonstrated or if theproceeding is otherwise considered to be an abuse of the Court's process. As I havealready observed, the delay of more than two years since the grant of letters ofadministration to Mr Hurn provides a considerable obstacle to any testamentarypromises claim.Orders[90] I dismiss Ms McMahon's appeal against the decision of the District Court on30 November 2020.29[91] I order under s 166(4) of the Senior Courts Act 2016 that Angeline ClarkMcMahon is restrained from commencing or continuing civil proceedings in a seniorcourt, another court or any tribunal that relates to:(a) her former tenancy at 145 Tavinor Raod, Otaika, Whangārei;(b) the decision of this Court on 23 October 2018 under CIV-2018-485-749declaring the typewritten document located by Ms McMahon amongstMr Rowles' personal belongings to be the valid will of Mr Rowles; and(c) the order of this Court on 24 January 2019 under CIV-2019-485-834granting letters of administration to Gregory Hurn in respect ofMr Rowles' estate.Costs[92] As the successful party, the Foundation is entitled to costs. Costs shall bedetermined on a category 2B basis.29 McMahon v Royal New Zealand Foundation of the Blind, above n 6.[93] If costs cannot be agreed, the Foundation shall have until 3 September 2021 tofile and serve a memorandum of no more than three pages seeking costs.Ms McMahon shall have 15 working days from service of the Foundation'smemorandum to file and serve a memorandum of no more than three pages inresponse. The Foundation may file a brief reply memorandum only by leave of theCourt. Costs shall be determined on the papers unless the Court directs otherwise.Toogood J