Anderson v NZI International Acceptances Limited

[2023] NZCA 463

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA333/2023
 [2023] NZCA 463

BETWEEN	STEPHEN GILBERT ANDERSON Appellant
AND	NZI INTERNATIONAL ACCEPTANCES LIMITED, NZI SECURITIES LIMITED AND NZI FINANCE LIMITED Respondents

Court:	Miller and Brown JJ
Counsel:	Appellant in person
Judgment: (On the papers)	21 September 2023 at 2.00 pm

JUDGMENT OF THE COURT

The appeal is struck out.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

1. On 10 July 2023 this Court gave Mr Anderson notice under r 44A of the Court of Appeal (Civil) Rules 2005 of its intention to consider striking out his appeal on the ground that it is frivolous, vexatious or otherwise an abuse of the process of the Court. As required by r 44A, Mr Anderson has been given an opportunity to make submissions.

2. The judgment under appeal was delivered on 22 June 2023 by Dunningham J, striking out an application by Mr Anderson as an abuse of the process of the Court.[1]  The Judge accurately described Mr Anderson’s application as one seeking damages pursuant to a decision of Holland J dated 19 November 1987.  In that decision Holland J had granted an interim injunction in Mr Anderson’s favour restraining finance companies from proceeding with a mortgagee sale of his farm on the ground that statutory notice requirements had not been complied with.[2]  However, Holland J acknowledged that Mr Anderson was in default and the defendants might simply issue another notice giving him proper time to remedy the breach and then proceed with a mortgagee sale.[3]  That is what happened.  All of the defendants have since been liquidated and deregistered.

   [1]Anderson v NZI International Acceptances Ltd [2023] NZHC 1561.

   [2]Anderson v NZI International Acceptances Ltd HC Dunedin CP113/87, 19 November 1987.

   [3]At 12.

3. Mr Anderson attempted to relitigate the issues in 1999, filing a new proceeding which was struck out.[4]  In 2005 he filed a further application, effectively seeking to have the proceeding in which Holland J granted the interim injunction set down for substantive hearing.  Chisholm J declined to do so, noting that the proceeding had been dormant for 18 years and stating that there was no prospect of the Court allowing it to be reactivated.[5]  Apart from the fact that the defendants were no longer on the register, the claim would be barred by the Limitation Act 1950.[6]  Further, the 1999 decision striking out a proceeding which sought essentially the same relief had not been appealed.[7]

   [4]Anderson v NZI International Acceptances Ltd HC Dunedin CP43/99, 1 September 1999.

   [5]Anderson v NZI International Acceptances Ltd HC Dunedin CIV-2005-412-610, 20 October 2005 at [5(a)–(b)].

   [6]At [5(c)].

   [7]At [5(d)].

4. Mr Anderson appealed the decision of Chisholm J, without success.  This Court found that Mr Anderson could not point to any unlawful act of the defendants leading to the sale of his property and dismissed the appeal in a judgment dated 16 March 2006.[8]

   [8]Anderson v NZI International Acceptances Ltd CA242/05, 16 March 2006 at [9]–[10].

5. In 2022 Mr Anderson asked the Court to recall its 2006 decision.  The Court declined to do so.[9]  An application for leave to appeal to the Supreme Court was dismissed.[10]  In dealing with what amounted to an application to bring an appeal direct from the High Court’s 1999 decision, the Supreme Court stated that the 1987 proceedings were effectively at an end.[11]

   [9]Anderson v NZI International Acceptances Ltd [2022] NZCA 167.

   [10]Anderson v NZI International Acceptances Ltd [2022] NZSC 85.

   [11]Anderson v NZI International Acceptances Ltd [2023] NZSC 64 at [12].

6. It is clear from the submissions which he has filed in connection with the present decision that Mr Anderson is still advancing the same claim, relying on the interim injunction granted by Holland J and contending that the predatory behaviour of the defendants led to a disadvantageous sale and resulted in his creditors remaining unpaid.

7. We are satisfied that this appeal is yet another attempt to relitigate a closed proceeding.  As such it is a plain abuse of process.  It is struck out.