Reid v Rose City Funeral Home Ltd

[2012] NZHC 3588

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2012-454-547 [2012] NZHC 3588

UNDER  the Judicature Act 1908, the Judicature Amendment Act 1972, the Declaratory Judgments Act 1908, the District Courts Rules 1992 and the New Zealand Bill of Rights Act 1990

IN THE MATTER OF     an application for review

AND

IN THE MATTER OF     an application for a declaration invalidating a distress warrant issued by the Palmerston North District Court, a declaration determining liability under probate and for orders for the return of property

BETWEEN  JAMES ROBERT REID Applicant

ANDROSE CITY FUNERAL HOME LTD First Respondent

ANDPALMERSTON NORTH DISTRICT COURT

Second Respondent

Hearing:         18 December 2012

Counsel:         Mr Reid in Person

Mr Hale in Person
C Burt in person for First Respondent
R W Groot for Second Respondent

Judgment:      18 December 2012

ORAL JUDGMENT OF MACKENZIE J

REID V ROSE CITY FUNERAL HOME LTD HC PMN CIV-2012-454-547 [18 December 2012]

[1]      Mr Reid has commenced these proceedings in his capacity as a trustee of the Frederick  Frank  Family  Trust.     The  trustees  of  that  Trust  are  Mr Reid  and Mr Graham Hale.    The  proceeding  seeks  to  challenge  a  judgment  which  was obtained, and proceedings which have been taken to enforce that judgment, by the first respondent, Rose City Funeral Home Ltd, against Mr Hale personally in respect of a funeral account for services provided by the company in respect of the death of Mr Hale’s mother in 2008.

[2]      There are several causes of action pleaded.  I need not describe them.  The second respondent, against which allegations are made relating to the way in which the judgment was obtained and the enforcement procedures taken, has applied for an order to strike out the proceedings on a number of grounds.  The first of those is that the applicant has no standing since the decision he challenges was not against him nor was he party to the relevant proceeding.  I consider that that ground of challenge should be determined first, and I have heard argument on it.

[3]      I consider that it is absolutely clear beyond argument that the Family Trust and Mr Reid in his capacity as a trustee of that Trust, have no standing to bring these proceedings. Any issue over the judgment between the first respondent and Mr Hale is a matter between those parties.   The arrangements with the company were not made by the Family Trust and were not made on behalf of the Family Trust.

[4]      Mr Reid submits, and there is an allegation in the statement of claim, that a motor vehicle which was seized by the bailiff to satisfy the judgment debt was the property of the Trust.  There is no factual basis for that allegation.  Mr Burt, for the company, has produced details from the Register of Motor Vehicles which show the car to be owned by Mr Hale personally.   If the vehicle were owned by the Trust, there would have to be evidence to give rise to an arguable case to that effect.  But I need not get into that, and I need not make any factual finding about the ownership of the car, because it is irrelevant to these proceedings.  They seek to challenge not the enforcement under the warrant but the warrant itself.

[5]      Any  challenge  would  be  to  the  execution  under  the  warrant,  not  to  the warrant itself.  That could not found a claim to give the Trust standing to bring these

proceedings.   In the present proceedings, the Trust has no standing to bring them. The proceedings must be dismissed.

[6]      The proceedings are accordingly dismissed against both respondents.

“A D MacKenzie J”

Solicitors:           Crown Law Office, Wellington for Second Respondent

Copies to:           Mr Reid and Mr Hale

Mr Burt, Rose City Funeral Home Ltd.