MOHANNAD HASAN TOUBAT v HASAN MOHAMMED HASAN TOUBAT [2023] NZCA 298

MOHANNAD HASAN TOUBAT v HASAN MOHAMMED HASAN TOUBAT [2023] NZCA 298 [13 July2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA372/2023[2023] NZCA 298BETWEEN MOHANNAD HASAN TOUBATAppellantAND HASAN MOHAMMED HASAN TOUBATRespondentCourt: Miller and Collins JJCounsel: Appellant in personJudgment:(On the papers)13 July 2023 at 11.00 amJUDGMENT OF THE COURTThe appeal is struck out.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Toubat sought to file a proceeding in the High Court against two proposedrespondents. Cull J struck it out under r 5.35B(2)(a) of the High Court Rules 2016 onthe ground that it was on its face an abuse of process.1[2] Mr Toubat has exercised his right to appeal to this Court.2 Miller J decidedthat the Court would consider of its own volition whether to strike out the appeal underr 44A of the Court of Appeal (Civil) Rules 2005 and directed that Mr Toubat be given1 Toubat v Toubat [2023] NZHC 1737.2 Senior Courts Act 2016, s 56(4)(a).an opportunity to make written submissions, following which the matter would bedecided on the papers.[3] The proceeding was struck out in the High Court for several reasons. First,Mr Toubat sought summary judgment but he had declined to file a statement of claim,notice of proceeding, application for summary judgment or affidavit.3 He simplyprovided the Court with some pages of documents. It was evident that he sought tocancel an agreement for sale and purchase for non-payment, but that was all the Courtknew. Second, he had not served the respondents, who appeared to be overseas.4Third, he insisted on proceeding without notice to them.5 Fourth, he had not himselfgiven an address for service.6 Finally, he refused to remedy these failings despite theRegistrar's attempts to explain what he must do.7[4] In this Court, Mr Toubat responded to the invitation to file submissions byfiling a document stating that "my appeal has merit because it is based on truth ofevidence that uphold justice".[5] It remains the case that no attempt has been made to file a compliantproceeding in which the High Court might possibly entertain summary judgment. Theproceeding was a misuse of that Court's resources. The same is true of the appeal tothis Court, which could not possibly succeed.[6] For these reasons the appeal is struck out.Result[7] The appeal is struck out.3 Toubat v Toubat, above n 1, at [2] and [10]–[11].4 At [4] and [8].5 At [8].6 At [12]–[13].7 At [14].