AB v CD

[2023] NZHC 610

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2022-485-171

[2023] NZHC 610

IN THE MATTER OF

an application under section 166 of the Senior Courts Act 2016

BETWEEN

AB

Applicant

AND

CD

Respondent

Hearing:	23 February 2023 (further memorandum received 16 March 2023)
Counsel:	M S Smith and D Qiu for Applicant C M Kenworthy for Respondent
Judgment:	24 March 2023

JUDGMENT OF MALLON J

Introduction

[1]    AB and CD were in a de facto relationship. Following their separation, CD brought several Disputes Tribunal claims and court proceedings against AB and made multiple complaints to various bodies about her. AB now applies for an order restricting CD from commencing or continuing civil proceedings on matters relating to their relationship without leave of the Court.1 CD opposes the application. She says the grounds, requiring at least two or more proceedings that were totally without

1      Senior Courts Act 2016, s 166.

AB v CD [2023] NZHC 610 [24 March 2023]

merit,2 are not met and, in any event, the Court should not exercise its discretion to make the order.

Background

The relationship

[2]    CD and AB were in a relationship and lived together from 8 January 2016 until 18 March 2017. On 8 December 2015 the parties incorporated a company (MGL) to own the property in which they would live and operate a farm. They purchased that property on 8 January 2016. The purchase price was $758,500. CD paid more towards that purchase. She also advanced a loan to AB to form part of her contribution to the purchase price pending a loan AB obtained from Westpac. The Westpac loan was secured by a mortgage against the property that was guaranteed by CD. Reflecting her greater contribution to the purchase price, CD owned 57 per cent of the MGL shares and AB owned 43 per cent. They were both directors of MGL.

[3]    On 21 December 2016 the parties entered into a contracting out agreement under s 21 of the Property (Relationships) Act 1976 (the PRA). The agreement recorded that:

E.… the property already owned by either of them separately prior to the date of [the] agreement whether acquired during the period of their relationship or otherwise or which they may at any time acquire from third parties by gift, succession or survivorship or as a beneficiary under any trust is not and will not be produced by them jointly and is not to be treated as joint relationship property.

F.They intend that any other property that is classified as relationship property shall be divided equally between them.

G.[They] wish to resolve all questions outstanding between them as to their respective rights and property and they intend that this agreement will constitute a full and binding settlement of all matters at issue between them affecting their relationship and separate property and by so doing, they confirm they wish:

(a)to   contract   out   of   the   provisions   of   the   Property (Relationships) Act 1976 (“the Act”); and

(b)to achieve certainty as to the status, ownership and division of their separate property and relationship property.

2      Section 167.

[4]    The agreement provided that the property in schedule A would be CD’s, the property in schedule B would be AB’s and the property in Schedule C would be “relationship property and subject to equal sharing under the provisions of the Act”. Schedule C listed a 8 x 5 Twin Axle Stock Trailer valued at approximately $4,500. The agreement also provided that CD and AB’s respective shares in MGL would remain their separate property. CD and AB also agreed that, in the event of separation:

(a)one party would move from the property as soon as practically possible and the needs of CD’s daughter would be put first;

(b)the parties would equally contribute to an additional residential property for up to a year or until sale or disposal of the MGL property was resolved and both would contribute equally to the property and shared property during this time;

(c)each party would have the option to purchase the other’s shareholding within 12 months of separation; and

(d)if MGL’s property was sold, the proceeds of sale (minus real estate fees, commission and legal fees) would be divided according to the parties’ percentage shares in MGL.

[5]    Following their separation on 18 March 2017, CD continued to reside at the MGL property with her daughter. On 26 January 2018 the Family Court granted an occupation order in CD’s favour until such time as the property was sold or otherwise disposed of. In the meantime, CD and AB had been unable to resolve the ownership or sale of the property. On 7 July 2017 AB applied to the High Court for an order that MGL be placed into liquidation. This order was made by consent on 10 April 2018.

[6]    The property sold for $910,735.70 on 13 August 2018. The liquidator issued his final report on 11 October 2018. He reported that the only assets of MGL were the property and a small amount of grazing income (amounting to $735.70) received during the liquidation period. Creditors were paid and distributions were made in

accordance with his report, and MGL was removed from the Companies Register on the date of his report.

The claims brought by CD

[7]    In support of her application, AB provided details of eight claims that CD had brought, three of which were relied on as being totally without merit for the purposes of AB’s application to restrict CD from bringing further claims.

[8]    First, CD lodged a claim in the Disputes Tribunal on 22 May 2017 (CIV-2017- 035-91). CD alleged that AB had used insecticide and moved beehives causing the loss of bees and/or the contamination of beekeeping equipment; and that AB had taken personal property from her without authority. AB counterclaimed that CD was required to pay her rent pursuant to their contracting out agreement for the period that CD had lived at the MGL property after the end of their relationship. In a decision given on 26 January 2018, the Disputes Tribunal dismissed CD’s claim and struck out AB’s claim for rent pending resolution of AB’s liquidation application in the High Court.3 AB appealed this decision. Amongst other things, she alleged that the hearing was dealt with in an unfair manner and that the Referee wrongly assumed that the High Court liquidation proceedings would address her claim for additional rent. On 16 July 2018 (CIV-2018-035-26) the appeal was dismissed.4

[9]    Second, also in May 2017 (FAM-2017-035-73), CD applied for a protection order on a without notice basis against AB and an interim order was granted. In late 2017 AB was charged with breaching the interim protection order but she was subsequently discharged without conviction. On 26 January 2018 the parties agreed to the making of mutual protection orders.5 Under the orders AB was required to attend a non-violence programme. The special conditions of the orders provided that neither party was to speak negatively to or of the other or to discuss their court or Disputes Tribunal matters with anyone except those directly involved. They also permitted each party to continue to attend the same church and set out conditions about

3      [CD] v [AB] CIV-2017-035-91, 26 January 2018 [First Disputes Tribunal order] at [12], [28] and [31].

4      [AB] v [CD] [2018] NZDC 14323 [Appeal of Disputes Tribunal decision] at [14].

5      [CD] v [AB] FAM-2017-035-73, 26 January 2018 [Minute of Judge C M Doyle making mutual protection orders] at [12].

that. They also restricted AB from attending pool facilities between 3.30 pm and 6 pm on Monday to Friday (a time that CD’s daughter used the facilities). Otherwise AB and CD could use the facilities and they were not to talk to each other if they attended at the same time.

[10]   Third (and the first of the proceedings relied on by AB as being totally without merit), on 23 March 2018 CD filed proceedings under the Companies Act 1993 in the High Court against AB (CIV-2018-435-8). The statement of claim alleged a shareholders agreement that was made in or about October 2015 under which AB and CD agreed that:

In account of the benefits otherwise afforded to the Defendant, the Plaintiff and Defendant would each contribute a one half share (50%) towards all costs, expenses and outgoings incurred by [MGL], notwithstanding their disparate shareholdings in it.

[11]The statement of claim further alleged that:

(a)once MGL was incorporated, in accordance with their agreement, they contributed equally to costs, expenses and outgoings for the property including to fencing expenses of $15,744.85 and expenses for drilling a new bore hole of $22,000;

(b)in late 2015/January 2016, the Constitution for MGL was prepared which provided that AB and CD would contribute equally to the costs of the property;

(c)AB has possession of the relevant documents; and

(d)following AB and CD’s separation, AB purported to repudiate her obligations under the shareholders agreement to contribute equally to the costs and asserted that her obligation was to contribute to costs in proportion to her shareholding in MGL.

[12]   The statement of claim pleaded a breach of the agreement to share costs equally and that AB was estopped from avoiding her obligation to share equally. When this

proceeding was commenced, AB had already applied for a liquidator of MGL to be appointed.  CD originally opposed the application.  A liquidator was appointed on  10 April 2018. Costs were awarded against CD on that application on 11 May 2018. On 18 December 2018 CD discontinued her claim under the Companies Act.

[13]   Fourth and fifth, on 14 November 2018 (CIV-2018-091-569 and 570) CD brought a claim against AB in the Disputes Tribunal. The 569 claim revisited matters in the first Disputes Tribunal claim. It included a claim of $4,865 for beekeeping gear,

$4,575 for the loss of bees, $2,848 for replacing equipment in the lockup, and $700 for unspecified “stolen personal property”. A claim in relation to loans was abandoned. The 570 claim alleged an unpaid car loan, a share in a trailer, a share in a licence fee, “rental” for a brush cutter allegedly taken by AB, and a share in AB’s dog. On 4 March 2019 the claims were transferred to the Family Court.6 This was because the Referee considered that the claims arose from a de facto relationship of short duration to which s 14A of the PRA might apply and it was for the Family Court to make that assessment. CD also claimed against third parties. The Tribunal ordered that those claims be withdrawn.

[14]   Sixth, on 19 February 2019 (FAM-2017-035-73) CD made a without notice application to the Family Court for a variation to the special condition in her protection order concerning AB attending the pool facilities. The application for variation was made at a time when CD and her daughter were living in a different town. It was made in anticipation of the daughter returning to the area in the following and subsequent years. This was because CD had secured a scholarship to attend a school in the area and anticipated the daughter would then return to competitive swimming at the pool facilities. The application for the variation was dismissed and the special condition was deleted altogether.7 This is the second proceeding relied on by AB as being totally without merit.

[15]   Seventh, as referred to in the fourth and fifth claims above, CD’s claim from the Disputes Tribunal was transferred to the Family Court (FAM-2020-091-84). By

6      [CD] v [AB] CIV-2018-091-570, 4 March 2019; and [CD] v [AB] CIV-2018-091-569, 4 March

2019 [Second Disputes Tribunal claim orders].

7      [CD] v [AB] [2019] NZFC 8724 [Protection order variation decision] at [20]–[21].

this stage, CD’s claim was an application for “Enforcement of Agreement and Orders under the [PRA]”. AB applied to strike out the claim and CD opposed the strike out application. In a decision dated 2 February 2021, the Family Court struck out CD’s application on the ground that it disclosed no reasonable basis for it.8 This is the third proceeding relied on by AB as being totally without merit.

[16]   Eighth, CD lodged a further claim in the Disputes Tribunal on 13 August 2021 (CIV-2021-091-403). The claim was for $30,000. The nature of the claim was described as follows:

I had a contract with the other party. The contract stated I would receive a large sum of money, and I received approximately $23k less than the contract specified.

The party took my personal property, which I had received as a gift.

The other party undertook fraud via our jointly owned company. The other party used company funds to pay for her private petrol for her legal practice to travel around NZ, which had nothing to do with our company.

The company was set up to ‘raise sheep and beef’ yet the subsequent contract cut me out of any of the sheep and beef income let alone the ownership of the sheep and beef.

The other party submitted fraudulent GST returns in order to get refunds of GST which I later corrected at my own expense.

The list goes on and on. There are about 21 different heads of claim from memory.

[17]   This claim is stayed pending the outcome of the application for a restraint order.

Other complaints

[18]   AB says that CD also made over 100 complaints against her to regulators, including the New Zealand Law Society, Inland Revenue, the Arbitrators and Mediators Institute of New Zealand (AIMNZ), the SPCA and police. AB says they provide context and explain her financial and emotional exhaustion. CD does not deny

8      [CD] v [AB] [2020] NZFC 980 [Personal property claims decision] at [41].

having made these complaints. Indeed, she says she has “relentlessly pursued her through complaints to various bodies”.9

Law

[19]Section 166 of the Senior Courts Act 2016 provides:

(1)A Judge of the High Court may make an order restricting a person from commencing or continuing a civil proceeding.

(2)The order may have—

(a)a limited effect (a limited order); or

(b)an extended effect (an extended order); or

(c)a general effect (a general order).

(3)A limited order restrains a party from commencing or continuing civil proceedings on a particular matter in a senior court, another court, or a tribunal.

(4)An extended order restrains a party from commencing or continuing civil proceedings on a particular or related matter in a senior court, another court, or a tribunal.

(5)A general order restrains a party from commencing or continuing civil proceedings in a senior court, another court, or a tribunal.

(6)Nothing in this section limits the court’s inherent power to control its own proceedings.

[20]   Section 167 specifies the grounds for making an order. Whether a limited, extended or general order, the Judge may make the order when he or she considers that there are “at least two or more proceedings” that “are or were totally without merit”. In determining whether the proceedings are or were totally without merit, the Judge “may take into account the nature of any interlocutory applications, appeals, or criminal prosecutions” involving the party seeking to be restrained but “is not limited to those considerations”.10 The proceedings concerned are those commenced or continued by the party to be restrained.11

9 Affidavit of CD opposing application for restraint order (21 June 2022) at [76].

10     Section 167(4).

11     Section 167(5).

[21]   Section 168 provides that an order made under s 166 “may restrain a party from commencing or continuing any proceeding (whether generally or against any particular persons) of any type specified in the order” without first obtaining leave of the High Court.12 An order made under s 166 lasts for up to three years unless the Judge making the order specifies a longer period, not exceeding five years, if he or she is satisfied that there are “exceptional circumstances justifying the longer period”.13

[22]Only the Attorney-General can apply for a general order.14

The application

[23]AB seeks an extended s 166(2)(b) order in the following terms:

[CD] is prohibited:

(1)From commencing, without leave, any civil proceeding in any Court or Tribunal, concerning or relating to her relationship with [AB], for three years; and

(2)From continuing, without leave, Disputes Tribunal proceeding CIV- 2021-091-403.

[24]Whether to grant an application for a s 166 order involves a three-step process:

(a)first, determining whether there are at least two proceedings commenced by CD that were “totally without merit”;

(b)second, if that threshold is met, determining whether to exercise the discretion to make an order; and

(c)third, determining the terms of the proposed order.

12     Section 168(1).

13     Section 168(2).

14     Section 169(2).

Threshold test

Submissions

[25]   AB submits there are three proceedings commenced by CD that were bound to fail and therefore totally without merit: the discontinued High Court proceeding under the Companies Act (CIV-2018-453-8); the application to vary the protection order in the Family Court (FAM-2017-035-73); and the claim in the Family Court transferred from the Disputes Tribunal (FAM-2020-091-84). CD says the proceedings were not totally without merit when considered in their proper context.

Meaning of “totally without merit”

[26]   As discussed by the Court of Appeal in Mawhinney v Auckland Council, the regime for a civil restriction order in ss 166 to 169 of the Senior Courts Act replaced s 88B of the Judicature Act 1908.15 Under s 88B the High Court had to be satisfied that a person had persistently instituted “vexatious” legal proceedings without reasonable grounds.16 Vexatiousness was often used interchangeably with the term “abuse of process of the court”. Section 166 of the Senior Courts Act replaced “vexatiousness” with “totally without merit”. The Court of Appeal viewed this phrase as meaning “bound to fail”.17 Where a proceeding has multiple causes of action, it is totally without merit if all pleaded causes of action are bound to fail.18 Whether a proceeding is bound to fail may sometimes arise because of the finding in a judgment on the proceeding.19 In other cases, it may be necessary to examine the factual and legal bases for the proceeding.20 The extent of the inquiry required to be undertaken is case-dependent.21

15     Mawhinney v Auckland Council [2021] NZCA 144, [2021] 3 NZLR 519 at [37]–[49].

16     If so satisfied, as under the Senior Courts Act regime, the Court had a discretion whether to make an order.

17     Mawhinney v Auckland Council, above n 15, at [58].

18 At [60].

19 At [64].

20 At [65].

21 At [66].

High Court Companies Act proceeding (CIV-2018-435-8)

[27]   As noted earlier, the first proceeding relied on by AB as being totally without merit is CD’s proceeding in the High Court under the Companies Act (the third claim discussed above).22

[28]   AB submits there are two problems with this proceeding. The first is that it was “deeply under-particularised”. It did not identify any specific documents or clauses relied on, nor specific instances of alleged breaches by AB. Nor was detail provided as to which funds AB had failed to contribute, how much, and at what time.

[29]   The second problem is said to be that it was commenced for a collateral purpose. It is said that this is because the proceeding sought to influence the liquidator, who was to be appointed at a time when there had not been any breach of an agreement about the responsibility for MGL’s costs. This concern arises out of CD’s affidavit in which she explains her reason for bringing the proceeding as follows:

An application was made to the Court because the liquidator was attempting to charge me for expenses based on my higher percentage investments in the purchase property (57%) instead of the Contracting Out Agreement (and in the absence of the Company Documents which the applicant has always refused to surrender). He would have held me responsible for 57% of the expenses and running costs of the farm, both retrospectively and going forward despite that the Contracting Out agreement and company documents clearly specified this to be 50/50%.

This claim was made in order to preserve the division of costs of the company on the 50%/50% basis which had been agreed in the Contracting Out Agreement and had been enacted in practice for the entire duration of our relationship to mid-March 2017.

Had I not submitted his claim, which constituted a volume of evidence of repeated emails from [AB] consistently confirming the 50% expense sharing agreement, then the liquidator would have applied a different expense sharing agreement. With this application filed, the liquidator accepted that he would apportion the expenses for the duration of our relationship (but not following separation) on the basis of the evidence supplied.

The application was withdrawn when the liquidator accepted the division of expenses and there was no need to continue with the proceeding.

22     At [10]–[12] above.

[30]   AB says that the Court can infer from the absence of particulars and CD’s explanation for the proceeding that AB had not breached the shareholder agreement at the time of filing, and that the proceeding was an abuse of process, it was bound to fail and was therefore totally without merit.

[31]   CD says that the application was not filed to obtain documents or influence the liquidator but to ensure compliance with the shareholders agreement that had been breached. Further, if the Court considers it was an abuse of process, any impropriety was at the minor end. CD also says that AB did not seek further particulars, the particulars could have been further specified if the proceeding continued and the statement of claim was drafted and filed by counsel. CD says that the absence of particulars therefore should not be held against CD personally.

[32]   I am satisfied the proceeding was totally without merit. Notwithstanding CD’s explanation in her affidavit, it is apparent that there was no basis at the time the proceeding was filed to be concerned about the liquidator’s treatment of costs. The submissions for CD contend that there is a discrepancy in the evidence about when the liquidator was appointed and when CD’s statement of claim was filed. However, the timing is clear on the evidence. The statement of claim was dated 23 March 2018 and was dated stamped as received by the High Court on 26 March 2018. The application for a liquidator was made in July 2017,  but  the appointment  was  not  made until 10 April 2018 as confirmed by the liquidator’s report and a High Court judgment given on 11 May 2018 that refers to it.23

[33]   As the liquidator had not been appointed, there were no grounds for CD’s concern that he would allocate the costs of MGL on the wrong basis. Nor was there any basis for a concern that he would not have access to the relevant documentation about this and would be unwilling to engage in the issue. Following the liquidator’s appointment, CD corresponded with the liquidator in July and September 2018, the MGL property was sold in  August  2018,  the  liquidator’s  report  was  issued  on 11 October 2018, and CD’s High Court Companies Act proceeding was discontinued two months later. In other words, the concerns CD had before a liquidator was

23     [AB] v [CD] [2018] NZHC 1031 [Liquidation proceeding costs decision].

appointed and which motivated her to bring the claim were without any reasonable foundation at the time she commenced the proceeding and subsequently. The proceeding was bound to fail and therefore totally without merit.

Protection Order Variation (FAM-2017-035-73)

[34]   As noted earlier, the second proceeding relied on by AB as being totally without merit is CD’s application to the Family Court to vary the protection order (the sixth claim referred to above).24

[35]   The first issue is whether this application is a “proceeding” under s 167 of the Senior Courts Act. That Act does not define “proceeding”. The definition of “proceeding” in the High Court Rules is “any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application”.25 Similarly, and as discussed in Khatri v Tomar, s 167 distinguishes between two or more “proceedings” that are totally without merit on which a restraint order is based and permitting the court to take into account the nature of any “interlocutory applications” in determining this.26

[36]   Section 4(1) of the Senior Courts Act provides a definition of “interlocutory application”:

In this Act, unless the context otherwise requires,—

…

interlocutory application—

(a)means any application to the High Court in any civil proceedings or criminal proceedings, or intended civil proceedings or intended criminal proceedings, for—

(i)an order or a direction relating to a matter of procedure; or

(ii)in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and

24 At [14] above.

25 High Court Rules 2016, r 1.3 (definition of “proceeding”). This contrasts with the wider definition of “proceeding” in s 13 of the Legislation Act 2019, which includes interlocutory applications within that definition.

26 Khatri v Tomar [2021] NZHC 3091 at [29].

(b)includes an application to review an order made, or a direction given, on any application to which paragraph (a) applies

[37]   In Khatri v Tomar the High Court considered whether a range of Family Court applications were “proceedings” or  “interlocutory  applications” for the purposes of s 167. The Judge considered that applications to discharge or rescind orders for particular discovery, to strike out and to vary a minute or common bundle were clearly interlocutory.27 On the other hand, an application to discharge a protection order affected the applicant’s rights and this suggested it was not interlocutory in nature.28 Similarly, applications to enforce parenting orders for alleged contraventions were “probably not interlocutory in nature”.29 In the Judge’s view that did not necessarily make them “proceedings” for the purposes of s 167. This was because they had been brought in the context of “pre-existing litigation”.30 However, the Judge did not need to and did not reach a final conclusion about this.

[38]   AB relies on Khatri v Tomar and says that the application to vary a protection order is a “proceeding” for the purposes of s 167. She notes that, although the application for variation was considered under the same court file number as the protection order application, it was in substance a separate application for the exercise of civil jurisdiction under a different statutory provision,31 and resulted in final and binding orders that brought the proceeding to an end, and warranted its own costs.

[39]   The issue is not clear cut but, on balance, I favour the view that an application to vary the words of a condition to an existing protection order is an interlocutory application. That is because I consider that a variation is “ancillary” to the proceeding in which the protection order was obtained. Ancillary is used in the Senior Courts Act definition of interlocutory application quoted above (although that definition refers only to applications in the High Court and so is not directly applicable) and also in the definition of “interlocutory order” in the High Court Rules. Although this variation application is made in the Family Court, those definitions provide the concept of an

27 At [39].

28 At [47].

29 At [54].

30 At [55].

31     Family Violence Act 2018, s 108 (application to vary). The application for a protection order would now be made under s 160 of that Act.

interlocutory application.32 A variation is “ancillary” because it is additional, supplementary to, or supportive of, the protection order. I consider its nature is not necessarily determined by whether it is binding, affects rights or may be subject to costs orders. The same can be said of applications for discovery or strike out, for example, and which are accepted or defined as interlocutory applications.

[40]   I proceed nevertheless to consider whether, if the variation application were a qualifying proceeding, whether it was totally without merit. I agree that it was. It was bound to fail at the time it was made because there was no present need for it. CD’s daughter was not living in the area and would not be using the facilities for around a year. As the Judge said, there might be grounds to apply for a variation in the following year but there was no basis for it in 2017 because the variation would not “add any additional protection” for CD or her daughter at that time.33 In other words, like the High Court Companies Act proceeding, it was premature and hypothetical and therefore bound to fail. It resulted in the condition concerning the use of the pool facilities being removed from the protection order altogether.

[41]   This is confirmed by the subsequent costs judgment. CD opposed costs and submitted that they should lie where they fell. The Judge expressed concern at the “significant and concerning pattern of behaviour by both parties towards the other” in the form of “psychologically abusive behaviour, including the use (and potential abuse) of legal and complaints processes by [CD] against [AB]”.34 Considering the context in which the application was made, the Judge was of the view that:35

… Whilst, on the face of it, her decision to make the application could be considered reasonably motivated by the desire to protect [EF] from further contact with [AB], the way the application was made and what was being sought were not reasonable or indicative of her acting in good faith.

…

[26] It was not reasonable for [CD] to make and pursue the variation when she and [EF] were not based in the [the area] at the time of the application, or by the time of the hearing, and had no immediate need to use the pool facilities. The only immediate effect of the variation would have been to impose

32     It is clear from s 166 that the order can relate to proceedings in “a senior court, another court, or a tribunal”.

33     Protection order variation decision, above n 7, at [14].

34     [CD] v [AB] [2020] NZFC 2420 [Protection order variation costs decision] at [7].

35 At [24].

significant restrictions on [AB]’s use and enjoyment of the facility, without any immediately identifiable benefit to [CD] or [EF].

[42]   The Judge concluded that, while not her primary intention, CD must have known that making the application would put AB to financial and emotional cost.36 She held that CD acted unreasonably or improperly in bringing the proceedings which justified an award of $3,174 in costs being made in favour of AB.

[43]   In summary, I consider the variation application does not qualify as a “proceeding” under s 167. But it was totally without merit and relevant to my discretion if there are two or more qualifying proceedings that are totally without merit.

Family Court personal property claims (FAM-2020-091-84)

[44]   As noted earlier, the third proceeding relied on by AB as being totally without merit is the claim in the Family Court after it was transferred from the Disputes Tribunal (the seventh claim referred to above).37

[45]   This was a claim for enforcement of the contracting out agreement in respect of the following:

(a)payments CD had allegedly made against AB’s car, for which CD sought reimbursement;

(b)division of chattels, CD alleging that AB had taken most of the chattels;

(c)CD’s engagement ring, CD alleging that AB had wrongly taken the ring because it was a gift;

(d)firewood, CD alleging that AB had removed firewood from the home at separation – potentially with a value of $1,000;

36 At [29].

37     At [15] above.

(e)hardship, CD alleging AB caused her hardship by vacating the home at separation and having “de-homed” her; and

(f)shortfall in loan repayments, CD alleging that AB still owed CD two amounts ($12,947.13 and around $9,000) and that AB had been fraudulent and deceptive in the information provided to the liquidator about these sums.

[46]   As the relationship was one of short duration, the Family Court’s jurisdiction depended, in part, on whether a failure to make an order would result in “serious injustice”.38 The Family Court Judge found there was no basis for a claim of serious injustice. This was because:

(a)As to [45(a)] above, any such contribution was covered by the contracting out agreement, which provided that “[a]ny contribution to the separate property of the other does not create any legal beneficial or equitable interest in that property”.39

(b)As to chattels in [45(b)] above, the only disputed matter was the trailer that had a value of $4,100 and AB had offered to pay CD half of that.40

(c)Of the items listed in [45] above, in addition to the trailer, the only items CD was able to quantify with any certainty was the alleged shortfall in loan repayments ([45(f)] above). On the sale of the property, all loans were repaid and distributions of the proceeds were made by the liquidator. If CD considered there to have been a shortfall in loan repayments, she should have pursued this with the liquidator.41

(d)As to [45(e)] above, it was unclear what was alleged because CD and her daughter had remained in the home as per her right of first option to do so under the contracting out agreement. If she had any such claim,

38     Property (Relationships) Act 1976, s 14A.

39     Personal property claims decision, above n 8, at [21].

40     At [19(a)].

41     At [34]–[36].

then it ought to have been brought in the Family Court on separation. However, it was difficult to understand how any such claim could have been successfully argued and no order to enforce the contracting out agreement as sought in the present claim would assist CD.42

(e)Any other items in [44] above appeared to be within the jurisdiction of the Disputes Tribunal. However, it was unclear what relief CD would be entitled to seek pursuant to her application to enforce the terms of the agreement because, with the possible exception of an adjustment for the trailer, the contracting out agreement appeared to have been complied with.43

[47]   AB submits that this claim was totally without merit. She says it was clear that there could never have been any “serious injustice” if orders in the Family Court were not made. She says this is reflected in the Judge striking out the claim as having no reasonable basis.44 She acknowledges that the claim was in the Family Court because it was transferred to the Disputes Tribunal. But that does not change the fact that it was totally without merit.

[48]   CD submits that the claim was not totally without merit because the Tribunal Referee, having reviewed it, advised her to bring the claim in a different forum. She submits that logically the Referee must have thought the claim had some merit to refer it, otherwise it would have been dismissed.

[49]   I do not accept that just because the Tribunal referred the proceedings to the Family Court, it must have assessed there to be some merit in CD’s claims. As CD accepted in her affidavit, “[b]eyond the jurisdictional question, the Disputes Tribunal Referee heard none of the evidence or information about the case, so made no finding as to the substantive matters [CD] raised”.45 The Referee was simply making a jurisdictional assessment that, if CD had a claim, it was one to be considered in the Family Court. I agree with AB that the claim in the Family Court was totally without

42 At [37].

43     At [38]–[39].

44 At [41].

45     Affidavit of CD opposing application for restraint order, above n 9, at [61].

merit as, for the reasons the Judge gave, there was no reasonable basis for a claim of serious injustice. As noted in the subsequent costs decision, despite CD’s genuine belief that she had a claim following the Disputes Tribunal referral, the property at stake “was of exceptionally low value” and there was no reasonable basis for a claim of serious injustice.46

Discretion to make an order

[50]   I have found that CD commenced at least two proceedings that were totally without merit, namely the High Court Companies Act proceeding and the Family Court personal property claim. I turn now to my discretion.

[51]   AB says that unless the order is made, CD is likely to continue to file unmeritorious and vexatious claims against her arising out of the relationship. She says this is demonstrated by, for example:

(a)CD is prone to making complaints “at the drop of a hat”, having made upwards of 100 complaints since their separation about AB and people related to her to various bodies, including the police, the Independent Police Conduct Authority, Inland Revenue, the SPCA, the Companies Office, the New Zealand Law Society, the Institute of Chartered Accountants, and AIMNZ.

(b)CD has made serious and unsubstantiated claims against AB, such as that AB has “de-homed” her.

(c)CD has shown that she is unwilling to accept the finality of decisions. For example:

(i)In the first Disputes Tribunal claim, CD claimed that AB had taken garden tools. AB conceded she had some of these tools and the Disputes Tribunal Referee determined that it was likely each party held items that belonged to the other and that the

46     [AB] v [CD] [2021] NZFC 3481 [Personal property claims costs decision] at [14(a), (c) and (d)].

fairest resolution was to deem that they cancelled each other out. CD then made a claim for a brush cutter in the second Disputes Tribunal claim.

(ii)It is apparent that, in the latest Disputes Tribunal proceeding, CD is again pursuing a claim for the alleged shortfall in repayment of a loan. The Family Court noted that the repayment of creditors and distribution of net proceeds had already been determined by the liquidator.

(d)CD’s most recent claim in the (stayed) Disputes Tribunal claim has ballooned to “about 21 different heads of claim from memory”.

[52]   AB says the order sought is proportionate to the “threat” CD poses of initiating further proceedings. CD will only be able to make claims if the Court grants leave for her to do so. AB says that she has had six years of bearing the burden of unmeritorious litigation and she should not have to continue to do so.

[53]   CD submits that the Court should refrain from exercising its discretion to make a s 166 order. Given the significance of the right to access justice under s 27 of the New Zealand Bill of Rights Act 1990, a high standard of unreasonable behaviour is required before an order should be made. She says that she is not the typical vexatious litigant who brings in multiple respondents, and files multiple recall and review applications and appeals. She has not appealed any decision and has filed claims in the correct forum or in accordance with directions as to where she should bring her claims. She was assisted by legal counsel in bringing the High Court Companies Act proceeding and the application to vary the protection order. She denies that she has “unfairly” complained to various bodies and says that an order under s 166 would not prevent her from making complaints to various bodies in any event. She notes that a complaint she made to the police for breach of the protection order led to a charge (with a subsequent discharge without conviction having been given). She also says that she has had some success in her claims and in her defence of matters raised by AB and that AB has acted oppressively in the litigation they have had.

[54]   Exercising the discretion requires balancing the s 27 right against the stress and expense that respondents of meritless litigation face and the strain on court resources that such proceedings present.47 The Court may consider how the qualifying proceedings were conducted and any wider circumstances that weigh for, or against, an order being made.48 The regime is intended to be wider than the predecessor regime.

[55]   I accept that the history of claims discussed above indicates that CD is unable to accept that she has had the opportunity to make her claims following the separation. The first Disputes Tribunal claim was the opportunity to raise any matters about how the personal property was divided following the separation and whether it was in accordance with the contracting out agreement. The liquidation was the opportunity to have CD’s concerns about amounts owed under the loans that were made or as to the allocation of MGL costs addressed.

[56]   Further, it simply cannot be the case that AB’s conduct could have necessitated making over 100 complaints to various organisations. It is an excessive number of complaints indicative of a loss of perspective following the emotional turmoil of a separation. Moreover, the allegation made in the Family Court personal property claim of fraudulent conduct by AB in her dealings with the liquidator is an extravagant claim also indicative of a loss of perspective following the separation. Likewise, the alleged fraudulent use of MGL funds for petrol for AB’s work and the alleged fraudulent GST returns referred to in the lasted Disputes Tribunal claim. The “de- homed” allegation made no sense on an objective basis.

[57]   The contracting out agreement should have enabled a clean and efficient separation of property following the breakup of the relationship. Unfortunately, that has not been the case, largely due to CD’s ongoing claims. I accept that CD has sometimes acted on legal advice but, at the end of the day, it has been CD’s decision to pursue claims. I also accept that CD has not lodged appeals or applications for review or similar. However, by attempting to relitigate in different fora matters that have already been determined or that were open to her to pursue at an earlier time, her

47     Siemer v Attorney-General [2018] NZHC 3406 at [88].

48     Mawhinney v Auckland Council, above n 15, at [115].

conduct is nevertheless oppressive of AB (even though she may genuinely feel that AB has caused her to behave in this way including by filing unnecessarily long affidavits).

[58]   The strongest discretionary factor in CD’s favour is that protection orders remain on foot. She is concerned that a s 166 order would unfairly restrict her ability to apply to the Family Court to vary the existing protection order in her favour should that be necessary. She says that requiring leave to make such an application is an inappropriate burden for a vulnerable person seeking protection and also inappropriate for variations that are urgent. I agree that a leave requirement for such applications is potentially problematic. Moreover, the Family Court is the more appropriate forum for assessing whether there is merit in any such application rather than first requiring CD to seek leave from the High Court. Recognising this point, AB’s counsel proposed that applications under the Family Violence Act 2018 could be excluded from the terms of the s 166 order. I agree that this is the appropriate way forward as it best balances CD’s right to access the court and the burden CD’s meritless proceedings impose on AB and the justice system.

[59]I am therefore satisfied that I should exercise my discretion and make an order.

The terms of the order

[60]I make an order in the following terms:

The respondent is prohibited:

(1)From continuing, without leave, any civil proceeding in any Court or Tribunal, concerning or relating to her relationship with the applicant, for three years; and

(2)From continuing, without leave, Disputes Tribunal proceeding CIV- 2021-091-43.

This order does not prohibit the respondent from making any necessary application under the Family Violence Act 2018.

[61]   If AB has not already done so, she is to pay half of the value of the trailer to CD as per [46(c)] above.

Suppression

[62]   The names of the applicant, respondent and respondent’s daughter, as well as any particulars that may lead to their identification, are suppressed so as not to defeat the operation of automatic suppression in related proceedings.49

Result

[63] I make a s 166 order as per [60]. I make a suppression order as per [62]. I make an order for costs on a 2B basis in favour of AB.

Mallon J

49     Domestic Violence Act 1995, s 125 (now Family Violence Act, s 182); Family Court Act 1980 ss 11B to 11D; and Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441.