SIEMER v FARDELL [2013] NZHC 1776

SIEMER v FARDELL [2013] NZHC 1776 [15 July 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2003-404-5782[2013] NZHC 1776BETWEEN VINCENT ROSS SIEMERFirst PlaintiffJANE CHAPMAN SIEMER (struck out)First PlaintiffPARAGON SERVICES LIMITED (struckout)Second PlaintiffAND KATHLEEN MARY FARDELL asexecutrix of the estate of John RobertFortesque FardellDefendantHearing: (on the papers)Appearances: V R Siemer in personM C Harris for the DefendantITF Hikaka for the Official AssigneeJudgment: 15 July 2013JUDGMENT OF WOODHOUSE J (Application for stay)This judgment was delivered by me on 15 July 2013 at 4:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.Registrar/Deputy RegistrarSolicitors / Parties: Mr V R Siemer Mr M C Harris, Gilbert Walker, Solicitors, Auckland Mr ITF Hikaka, LeeSalmonLong, Solicitors, Auckland[1] The Official Assignee has had conduct of the proceeding for Mr Siemer, asfirst plaintiff, following Mr Siemer's adjudication in bankruptcy in November 2008.The Official Assignee filed a notice of discontinuance on 12 June 2013. Mr Siemer has applied for an order for stay of the discontinuance of the proceeding by the Official Assignee.[2] In the usual way the notice of discontinuance simply records that the proceeding is discontinued. It is also noted that there is no question of costs. Attached to an affidavit of Mr Siemer filed in support of his application is a letter from the Official Assignee to Mr Siemer of 7 June 2013. This records that settlement had been reached between the Official Assignee, on behalf of Mr Siemer'sestate, and the defendant. It is clear that the notice of discontinuance was filedfollowing this settlement.[3] The application for stay cannot proceed and in consequence is dismissed. The reasons are as follows:(a) There is nothing to stay. The discontinuance is in force.(b) Mr Siemer has no standing. His own application acknowledges that any rights of Mr Siemer were vested in the Official Assignee. The fact that Mr Siemer may challenge steps taken by the Official Assignee has no bearing on what has occurred in this proceeding.(c) Mr Siemer refers to other litigation including an appeal against a decision of the Official Assignee. If other proceedings give rise to questions relating to the discontinuance of this proceeding then those matters can be addressed in an appropriate way at a later date.(d) Fundamentally, there is no jurisdiction for the step sought to be taken at this stage and in this way by Mr Siemer.___________________________________Woodhouse J