Anderson v NZI International Acceptances Limited

[2023] NZHC 1561

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2005-412-610

[2023] NZHC 1561

BETWEEN

STEPHEN GILBERT ANDERSON

Plaintiff

AND

NZI INTERNATIONAL ACCEPTANCES LIMITED, NZI SECURITIES LIMITED AND NZI FINANCE LIMITED

Defendant

Hearing:	On the papers
Appearances:	Plaintiff in person
Judgment:	22 June 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 22 June 2023 at 10.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1]                 The Court is in receipt of an application seeking damages purportedly pursuant to a decision of Holland J dated 19 November 1987 (the 1987 judgment).1 The matter has been referred to me, as Duty Judge, under r 5.35A of the High Court Rules 2016 on the grounds the application is plainly an abuse of the process of the Court.

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

ANDERSON v NZI INTERNATIONAL ACCEPTANCES LIMITED [2023] NZHC 1561 [22 June 2023]

[2]                 On receipt of such a referral, a Judge has a number of options under r 5.35B. Specifically, I may make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with the High Court Rules, including making an order under r 15.1 that:

(a)the proceeding be struck out:

(b)the proceedings be stayed until further order:

(c)documents for service be kept by the court and not served until the stay is lifted:

(d)no application to lift the stay be heard until the person who filed the proceeding files further documents as specified in the order (for example, an amended statement of claim or particulars of claim).

The application

[3]                 The application is filed by Mr Stephen Anderson and relates to a long history of proceedings in which he was involved regarding the mortgagee sale of his family farm.

[4]The current application is described as follows:

APPLICATION TO FINALIZE THE INJUNCTION DAMAGES CLAIM LEFT FOR A LATER DATE AND RUNNING ON FROM THE INTERIM INJUNCTION DATED 19TH NOVEMBER 1987. (C.P. No; 113/87) GRANTED BY HOLLAND J.

[5]                 In the 1987 judgment, Holland J granted an injunction in Mr Anderson’s favour restraining the defendant  finance  companies  from  proceeding  with  the  sale  of Mr Anderson’s Wanaka farm on various grounds including that the defendants had not effectively given notice under the Property Law Act 1952. Holland J held there was an arguable case that service of the Property Law Act notices was inadequate to have authorised the defendants to have exercised their power of sale under the mortgages and he restrained the defendants until further order of the Court from executing their power of sale pursuant to the two notices that they had served. That said, the Judge acknowledged that Mr Anderson was in default to the defendants and noted the possibility that the defendants simply issue another Property Law Act notice giving Mr Anderson proper time to remedy the breach and then proceed with another sale.

The only issue the Judge reserved was costs. He did not reserve the question of damages.

[6]                 Mr Anderson now is attempting to revive those proceedings in order to seek an award of damages. However, there are two insurmountable obstacles in his way. First, he had already attempted to do so in proceedings in 1999. The defendants successfully sought to have the proceedings struck out and Master Venning expressed the view that the case in favour of the strike out application was clear cut (the 1999 decision).2 Secondly, in 2005 Mr Anderson filed an application to revisit the interim injunction granted in the 1987 judgment. In a judgment dated 20 October 2005, Chisholm J similarly dismissed the attempt to revive the interim injunction proceedings.3 He noted that:4

(a)the defendants were no longer on the companies register;

(b)the interim injunction proceeding had been dormant for almost 18 years and there was no prospect of the Court granting permission for it to be reactivated;

(c)on the information before the Court there was “not the slightest prospect that an order would be made” to restore the defendants to the register;

(d)because it would be necessary for new proceedings to be instituted, the Limitation Act 1950 would come into play and the claim would be barred; and

(e)in the 1999 decision, Master Venning had already struck out a proceeding which, in broad terms, sought to pursue the same issues that Mr Anderson was seeking to pursue now.

2      Anderson v NZI International Acceptances Ltd HC Dunedin CP43/99, 1 September 1999 at [13].

3      Anderson v NZI International Acceptances Ltd HC Dunedin CIV-2005-412-610, 20 October 2005.

4      At [4]–[5].

[7]                 If that were not sufficient to demonstrate that this application was an abuse of process, I need only to look at the recent decision of the Supreme Court dealing with Mr Anderson’s attempts to reopen the proceedings which were the subject of the 1999 decision.5 Mr Anderson’s application to the Supreme Court was expressed as follows:6

“Further” written submission in support of an application for leave to appeal the High Court’s refusal of the 20th  July 1999 relief/damages claim filed by  S G Anderson to finalize the injunctive damages running on from the interim injunction dated 19 November 1987 (C.P. No; 113/87) granted by Holland J”.

[8]                 The Supreme Court confirmed that, in 2022, it declined leave to appeal a decision by the Court of Appeal in relation to the 1987 judgment and concluded “the 1987 proceedings are effectively at an end”.7 The Court went on to say:8

The 1988 mortgagee sale (under a properly served second demand) was not challenged at the time. The 1999 judgment struck out a belated challenge to that mortgagee sale. The 1999 judgment was not appealed at the time. The respondents have long ago been liquidated in the ordinary course of a commercial restructuring. The land was acquired by a bona fide third-party purchaser 35 years ago, in 1988. The 1999 proceedings were struck out, rather than discontinued, and any appeal therefrom is long out of time.

[9]                 The pronouncement by the Supreme Court that the 1987 proceedings are effectively at an end, confirming the result of the 1999 and 2005 judgments, clearly precludes Mr Anderson from advancing the current application. Indeed, I am satisfied it is an abuse of the process of the Court.

[10]Accordingly, it is struck out pursuant to HCR 15.1.

[11]I note, for the record, that Mr Anderson has the right to appeal this decision.

Copy to Mr Anderson

5      Anderson v NZI International Acceptances Ltd [2023] NZSC 64.

6 At [8].

7      At [12], citing Anderson v NZI International Acceptances Ltd [2022] NZSC 85.

8 At [13].