SLOOTS v SLOOTS AND SPIJKERMAN [2020] NZHC 1217

SLOOTS v SLOOTS AND SPIJKERMAN [2020] NZHC 1217 [4 June 2020]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECIV-2019-442-62[2020] NZHC 1217UNDER the Administration Act 1969IN THE MATTER of the Estate of Cornelia AntoniaMarie SlootsANDIN THE MATTER of an application under section 21 of theAdministration ActBETWEEN JENNIFER MARY ANNE SLOOTSPlaintiffAND JENNIFER MARY ANNE SLOOTS andROSE-MARIE HUBERTHA JOHANNASPIJKERMANDefendantsHearing: 2 June 2020(By way of telephone conference)Counsel: M Hardy-Jones and N J Mckessar for PlaintiffR H J Spijkerman self-represented Defendant not presentJudgment: 4 June 2020JUDGMENT OF ASSOCIATE JUDGE LESTER(in relation to striking out of defence)This judgment was delivered by me on 4 June 2020 at 11.00 ampursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy Registrar4 June 2020[1] This proceeding concerns a dispute between Jennifer Sloots (Ms Sloots) andher sister, Rose-Marie Spijkerman (Ms Spijkerman), concerning the estate of their latemother, Cornelia Sloots, of which they are both trustees and executors.[2] The parties are unable to decide about the future of the primary asset in theirmother's estate, which is a residential property. Ms Sloots brought the presentproceeding seeking orders that she and her sister be removed as trustees and executorsand replaced by an independent solicitor. Since the proceeding was issued, Ms Slootsseeks that Perpetual Guardian Limited (Perpetual) be appointed as trustee in place ofthe parties. Ms Spijkerman was given notice of that in a memorandum filed with theCourt and served on her.[3] Ms Spijkerman, having been served with the proceedings, filed a documentcalled "Statement of defence and counterclaim". The document is 18 pages long - thestatement of claim is four pages long.[4] The statement of defence and counterclaim prompted an application to strikeit out on the grounds the pleading does not comply with the High Court Rules 2016,that it is prolix, contains irrelevancies, contains evidence, does not meet the most basicrequirements of the High Court Rules as to paragraph numbering, and does notdisclose a defence or a reasonably arguable cause of action in respect of thecounterclaim.Non-appearance by Ms Spijkerman[5] The interlocutory application to strike out was filed on 20 March 2020. Witha statement of defence having been filed, the need for a first case managementconference under r 7.3 was triggered. Counsel for Ms Sloots filed a memorandum forthe first case management conference on 15 April 2020. The Registry made requestsof Ms Spijkerman that she file a memorandum, but she did not do so. As a result,on 7 May 2020, I scheduled a telephone conference to be held onWednesday 13 May 2020.[6] Following the allocation of that telephone conference, Ms Spijkermancontacted the Registry advising that she was busy with other litigation relating toearthquake claims and that she was feeling pressured. Given the telephone conferencehad been scheduled at reasonably short notice, I deferred the telephone conferenceuntil 2.30 pm on Wednesday 20 May 2020, an extension of one week. I recorded inthat Minute that I was trying to strike a balance between the parties, and that Ms Slootswas entitled to pursue her case and the strike out application, but that for the sake ofone week, I did not wish Ms Spijkerman to feel unduly pressured.1 I recorded that theCourt was obliged to deal with the application that had been made and would do so.[7] To meet Spark teleconference requirements, the conference on 20 May 2020was moved to 22 May 2020 – that move being independent of the parties.[8] Running alongside the telephone conference scheduled to deal with the firstcase management conference, was the application to strike out which was due for callat 11 am on Thursday 28 May 2020 in Christchurch. As Ms Sloot's counsel is basedin Blenheim, he requested to be able to attend the first call by telephone or AVL.[9] On 20 May 2020, I directed that the first call of the application to strike out bedealt with, not in the 11 am list, but at a telephone conference at 2 pm on Thursday28 May 2020.[10] That left there being a telephone conference scheduled for Friday 22 May 2020(case management) and Friday 28 May 2020 (first call strike out).[11] On the afternoon of Thursday 21 May 2020, Ms Spijkerman's husband fileda request for an adjournment supported by a medical certificate. The email fromMr Spijkerman also referred to him receiving surgery in the following week, that isthe week of 28 May 2020.[12] I vacated the telephone conference on 22 May 2020 and issued a minute on thesame date.2 I recorded that Ms Spijkerman had, through her husband, filed a requestfor an adjournment of the telephone conference on 22 May 2020, supported bya medical certificate. However, the medical certificate did not say that Ms Spijkerman1 Sloots v Sloots HC Nelson CIV-2019-442-62, 8 May 2020.2 Sloots v Sloots HC Nelson CIV-2019-442-62, 22 May 2020.was unable to attend the telephone conference, or otherwise unable to deal with theproceeding, albeit it did refer to her being under stress.[13] Given there was a telephone conference scheduled for 2 pm on Thursday28 May 2020, I was prepared to vacate the 22 May 2020 conference given that anymatter to be discussed on 22 May 2020, could be dealt with on 28 May 2020 with noreal prejudice.[14] The minute made it clear that if Ms Spijkerman's health issues meant she wasincapable of dealing with the litigation then she was to provide a medical certificateto that effect. However, in the absence of such medical evidence, I advisedMs Spijkerman that she was expected to deal with the proceedings.[15] On the morning of Thursday 28 May 2020, Ms Spijkerman provided an emailwhich she said provided additional evidence that she was medically unfit to deal withthe current Court matters and that she was at the hospital for her husband's surgery.[16] What was provided was what appeared to be a photograph of an individual,who I assumed to be Mr Spijkerman at the hospital. No further medical certificatefrom Ms Spijkerman was provided.[17] Given it appeared Ms Spijkerman was supporting her husband in his surgery,I adjourned the 28 May 2020 telephone conference to 2 pm on Tuesday 2 June 2020.3I recorded that as Ms Spijkerman did not provide the type of medical evidence referredto in my minute of 22 May 2020, the conference would go ahead. I confirmed toMs Spijkerman that if she has not responded to the application to strike out prior to the2 June 2020 telephone conference, then the application would be considered on itsmerits.[18] At the commencement of the telephone conference on 2 June 2020, theoperator advised me that she had spoken to Ms Spijkerman who advised the operatorthat she could not attend the telephone conference as she had a medical appointment.3 Sloots v Sloots HC Nelson CIV-2019-442-62, 28 May 2020.[19] Given there had been no contact with the Court in respect of any claimedmedical appointment, and certainly no medical certificate or the like, the telephoneconference proceeded in the absence of Ms Spijkerman and I considered theapplication. Ms Spijkerman had not filed a notice of opposition to the strike outapplication.The merits of the strike out application[20] Counsel filed a memorandum in support of the strike out applicationrecognising the high threshold to be met before a strike out will be ordered.[21] Counsel submitted the document was prolix and contained irrelevant mattersand relied on the following passage from Commissioner of InlandRevenue v Chesterfields Preschools Ltd:4The narrative of facts presented by the statement is not straightforward butdefuse: there are large tracts of factual material and much of the material factsrelating to an individual claim are disbursed throughout different parts of thedocument. This makes it difficult, if not impossible, to understand. It wouldbe impossible for the defendants to give a targeted response ...[22] Here, the statement of defence and counterclaim does not engage ona paragraph by paragraph basis with the claims in the relatively brief statement ofclaim. The defence is a mixture of narrative, submission and evidence. I accept thesubmission made by Mr Hardy-Jones that the statement of defence and counterclaimfails to meet even the most basic requirements of the High Court Rules relating toparagraph numbering and structure.[23] However, as recognised by counsel, the threshold for strike out is high. Wherea pleading can be repaired, that is, it is not a right off, then it should not be struck out.A statement of defence complying with the High Court Rules may be achievable.[24] Accordingly, while the application to strike out is granted, there is leave to theMs Spijkerman to file a pleading that complies with the High Court Rules 2016, thatto be filed and served within 10 working days (that is by Thursday 18 June 2020).4 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR679 at [90].[25] Unless a pleading that complies with the High Court Rules is received byThursday 18 June 2020, Ms Sloots' claim will be dealt with on a formal proof basis.Observation[26] It is clear that the parties cannot agree on the future of the Estate and theproperty that it owns. The Estate is dysfunctional. That is not to cast responsibilityfor that state of affairs on one party or the other - it is a statement of fact. The factthat the property is not generating any income but still has a mortgage, has led, on theadvice of Mr Hardy-Jones, to a real risk of a mortgagee sale. That could cause a lossto both parties.[27] Ms Spijkerman has, in the papers she has filed, referred to being stressed bythe situation and has other calls on her time. She also lacks the ability to prop up theEstate financially. All factors point to the need for the property to be dealt with bysomeone independent. Both parties claim to have put their own funds into the Estateand those respective claims can be dealt with by the independent trustee. The biggerpicture here is that this property has to be dealt with in a manner that safeguards theinterests of both Ms Sloots and Ms Spijkerman, and they are presently unable to dothat given their falling out.[28] It would make real practical sense for Ms Spijkerman to co-operate in theappointment of an independent trustee such as Perpetual.________________________________________Associate Judge LesterSolicitors:Hardy-Jones Clark, BlenheimMs R H J Spijkerman, Christchurch – self represented