VERVOORT V FORREST HC AK CIV 2010-404-003022

VERVOORT V FORREST HC AK CIV 2010-404-003022 13 August 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2010-404-003022IN THE MATTER OF a claim for imposition of a constructive trust BETWEEN EMILIE PETRONELLA CORADINA VERVOORT Plaintiff AND RUSSELL FORREST AND WILLIAM DUFFY AS TRUSTEES OF THE WILLIAM DUFFY FAMILY TRUST Defendant Hearing: 13 August 2010 Counsel: PT Finnigan for plaintiff WK Willoughby for defendants Judgment: 13 August 2010 at 9:21am(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application to set aside protest to jurisdiction]Solicitors: Romaniuk & Associates Law Offices, PO Box 105 763, Auckland for plaintiff Hesketh Henry, Private Bag 92 093, Auckland 1142 for defendants[1] There is filed an appearance objecting to the jurisdiction of the court by the defendants. [2] There has been filed an application purportedly on the plaintiff's behalf seeking an order setting aside the protest. That application relies on r 5.49(5). [3] At a case management conference on 13 July 2010 I ordered as follows:Application to set aside the appearance of the defendant objecting to the court's jurisdiction – court document 12I adjourn this application for a telephone conference with counsel at 9am on 13 August 2010. The plaintiff shall file and serve any additional affidavit in support by 23 July 2010. The defendants shall file and serve notice of opposition and affidavits in opposition by 6 August 2010. Assuming the documents referred to above are filed, I invite counsel to confer with a view to agreeing on directions: a. for reply affidavits; b. if there is to be cross-examination of deponents; and c. the estimate of time for the disposal of this application. If counsel reach agreement on these matters a joint memorandum should be filed covering the above matters and if appropriate I will deal with it on the papers and excuse attendances on 13 August 2010. If there is no agreement counsel should file and serve memoranda two days before 13 August 2010 covering the above matters from their respective clients' perspective.[4] The plaintiff has not complied with that minute. That non-compliance raises the possibility of my making orders pursuant to r 7.48 of the High Court Rules. [5] Counsel for the plaintiff has filed a memorandum which sets out the position as he sees it. I set out paragraphs 2 to 7 of that memorandum.2. The affidavit was sent to the plaintiff's solicitor in Fiji for the plaintiff to consider and swear. The affidavit was not sworn; rather, came a letter signed by the plaintiff (16 July 2010), seemingly typed by the plaintiff and faxed from the solicitor, instructing Mr Romaniuk to discontinue both the Family Court and High Court proceedings.. That was followed up by a letter from the solicitor (23 July 2010): refer to the letters attached.3. As set out in the affidavits of Mr Romaniuk: first, in support of service; and, then, in support of the application to set aside the protest – refer document "C" to that affidavit sworn 8 July 2010 – the plaintiff has advised us not to follow email instructions indicating she was discontinuing the proceedings: refer to the emails. Mr Romaniuk could enlarge on that based on telephone calls with Ms Vervoort. 4. Ms Romaniuk concluded that Ms Vervoort had been placed under stress and was not acting independently. Independent of Duffy she has nothing financially; and is reacting due to that. 5. Both Mr Romaniuk and counsel believe that the plaintiff's instructions to discontinue all NZ proceedings are imprudent in the extreme: because her rights under Fiji law as a de facto partner are greatly minimised – see affidavit of Farrans – compared to those under NZ law; and, because the overriding reasons why discontinuance has been advanced (way back prior to 8 April 2010; and earlier based on affidavit evidence) are because Duffy has promised property settlement and marriage, none of which has eventuated. 6. The plaintiff has very recently been granted legal aid for the High Court proceedings. 7. Mr Romaniuk and counsel are not prepared to take steps to discontinue the proceedings. Essentially, Mr Romaniuk remains of the view that the instruction to discontinue are under pressure and regards he is without instructions. Obviously, if Duffy has the will to make a fair settlement it can include a term settling all NZ proceedings.[6] Mr Finnigan sought an adjournment of the application to set aside the protest and suggested a period of six months. That understandably is opposed by Mr Willoughby. Rule 5.49(6) sets out what the court must do on hearing an application under that rule. The rule provides:5.49 Appearance and objection to jurisdiction (6) The court hearing that application must,— (a) if it is satisfied that it has jurisdiction to hear and determine the proceeding, set aside the appearance; but (b) if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss both the application and the proceeding.[7] I do not have evidence from the plaintiff herself supporting this application. Nor do I have a notice of opposition and evidence from the defendants which issufficient for me to rule on whether this court has jurisdiction in respect of this proceeding. Accordingly, I cannot determine the application in terms of r 5.45(6). [8] However, the circumstances of this case indicate to me that the application to set aside the protest, in view of the position that has been outlined in Mr Finnigan's memorandum, should be brought to conclusion now. It is for that reason that I intend making an order pursuant to r 7.48 dismissing the application to set aside the protest to jurisdiction. [9] I order accordingly. [10] Mr Willoughby advised me that no application for costs would be made on the defendant's behalf. For that reason no order is made. _____________________ JA Faire Associate Judge