SMITH v SMITH [2022] NZHC 272

SMITH v SMITH [2022] NZHC 272

The proceedings were dismissed because service had not been properly effected in accordance with the High Court Rules and the claim amounted to an abuse of process by seeking to relitigate matters already finally determined; given the procedural deficiencies, lack of proper affidavit evidence and no prospect of...

Source-derived case information.

Citation
[2022] NZHC 272
Parties
Plaintiff: Bruce Winston Anderson Smith; First Defendant: Kevin Edward Smith; Second Defendant: Clinton Andrew Mahaki Hemana; Third Defendant: Helen Maree Nathan; Fourth Defendant: Te Tumu Paeroa; Fifth Defendant: Greig McKinnon/McKinnon Family Trust/Puhoro Limited; Sixth Defendant: Warwick Martin Bruce; Seventh Defendant: Bruce Farming Limited/Bruce Brothers Limited; Eighth Defendant: Aon New Zealand
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 February 2022
Procedural Posture
Civil (property/family Land Dispute) / Hearing on Application for Judgment by Way of Formal Proof and Application to Adjourn; Dismissal
Outcome
Proceedings dismissed
Legal Topics
Service of Process, Formal Proof, Adjournment, Summary Judgment, Res Judicata and Finality of Judgment, Recusal
Civil Procedure Property Law Abuse of Process Service of Process Formal Proof Adjournment Summary Judgment Res Judicata and Finality of Judgment +1 more

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Parties

Bruce Winston Anderson Smith

Plaintiff

Kevin Edward Smith

First Defendant

Clinton Andrew Mahaki Hemana

Second Defendant

Helen Maree Nathan

Third Defendant

Te Tumu Paeroa

Fourth Defendant

Greig McKinnon/McKinnon Family Trust/Puhoro Limited

Fifth Defendant

Warwick Martin Bruce

Sixth Defendant

Bruce Farming Limited/Bruce Brothers Limited

Seventh Defendant

Aon New Zealand

Eighth Defendant

Procedural Posture

Civil (property/family Land Dispute) / Hearing on Application for Judgment by Way of Formal Proof and Application to Adjourn; Dismissal

Legal Issues

  1. 1 Whether the proceedings were properly served in accordance with the High Court Rules
  2. 2 Whether the plaintiff's claim amounted to an abuse of process by seeking to relitigate matters finally determined by prior judgments
  3. 3 Whether an adjournment should be granted to enable proper service and progression of the claim

Ratio Decidendi

The proceedings were dismissed because service had not been properly effected in accordance with the High Court Rules and the claim amounted to an abuse of process by seeking to relitigate matters already finally determined; given the procedural deficiencies, lack of proper affidavit evidence and no prospect of formal proof success, an adjournment was refused and dismissal ordered.

Court Disposition

Proceedings dismissed

Orders

  • Proceedings dismissed
  • Application for judgment by way of formal proof declined