Clements v Clements [2017] NZFC 7791

Published 11 July 2018

Application to strike out proceedings for want of prosecution — delay — Family Court Rules 2002, r 195 — Roulston v Roulston HC Auckland CIV-2004-404-7120 — LHL Leasing Solutions Limited v Pinto Limited [2017] NZHC 1050. An application to have proceedings struck out for want of prosecution was dismissed by the court. The application related to proceedings under the Family Protection Act regarding the distribution of a Will and sought a strike out as no action had been taken since the proceedings were filed and that notice had not been served on parties as directed. The court found that, in order for proceedings to be dismissed, the defendant must be prejudiced in some way by the delay, and that the overriding consideration was whether justice could be done despite the delay. The court found that the defendant was not prejudiced in any way by the delay, and that he himself had defaulted by failing to engage in a judicial conference and by not filing an affidavit in accordance with directions that were made. The application to strike out proceedings was accordingly dismissed. Judgment Date: 29 September 2017. * * * Note: Names have been changed to comply with legal requirements * * *