CUSACK v SERRANT [2021] NZHC 1380

CUSACK v SERRANT [2021] NZHC 1380

The High Court struck out the proceeding because it amounted to a collateral attack on a final District Court judgment and therefore was plainly an abuse of the court's process; accordingly the proceeding is struck out and recorded as totally without merit under s 167 Senior Courts Act 2016.

Citation
[2021] NZHC 1380
Parties
Plaintiff: Craig Ronald Cusack; First Defendant: Kelly Serrant; Second Defendant: Abby Jane Carruthers; Third Defendant: David Miller Livingstone Dingwall
Court
High Court
Jurisdiction
New Zealand
Judgment Date
10 June 2021
Procedural Posture
Civil Proceeding (challenging Enforcement of District Court Possession Order) / Strike‑out Application Determined on the Papers (duty Judge Referral)
Outcome
Proceeding struck out as an abuse of process and recorded as totally without merit
Legal Topics
Abuse of Process, Strike Out Under Court Rules, Collateral Challenge / Res Judicata, Possession and Recovery of Property, Receivership, Damages Claims for Alleged Criminal Conduct
Civil Procedure Insolvency and Bankruptcy Property Law Enforcement of Judgments Abuse of Process Strike Out Under Court Rules Collateral Challenge / Res Judicata Possession and Recovery of Property +2 more

Case Brief

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Parties

Craig Ronald Cusack

Plaintiff

Kelly Serrant

First Defendant

Abby Jane Carruthers

Second Defendant

David Miller Livingstone Dingwall

Third Defendant

Procedural Posture

Civil Proceeding (challenging Enforcement of District Court Possession Order) / Strike‑out Application Determined on the Papers (duty Judge Referral)

Legal Issues

  1. 1 Whether the High Court proceeding is an abuse of process by collateral challenge to a final District Court judgment
  2. 2 Whether the plaintiff has pleaded a tenable cause of action against officers of the Assignee or third parties for actions taken under the District Court order
  3. 3 Whether the plaintiff's claims (including alleged kidnapping and statutory invalidity) have any merit

Ratio Decidendi

The High Court struck out the proceeding because it amounted to a collateral attack on a final District Court judgment and therefore was plainly an abuse of the court's process; accordingly the proceeding is struck out and recorded as totally without merit under s 167 Senior Courts Act 2016.

Court Disposition

Proceeding struck out as an abuse of process and recorded as totally without merit

Orders

  • Applicant has right to appeal