Gavigan v Disputes Tribunal, District Court, Hamilton

[2025] NZHC 2791

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2024-419-0353

[2025] NZHC 2791

UNDER

the Judicial Review Procedure Act 2016

BETWEEN

ANTHONY JOHN GAVIGAN

Applicant

AND

DISPUTES TRIBUNAL, DISTRICT COURT, HAMILTON

First respondent

GILLOVIC MANAGEMENT LIMITED

Second respondent

Hearing:

27 August 2025

Appearances:

Applicant in person

A J Nolan for second respondent

Date of judgment:

25 September 2025

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 25 September 2025 at 2.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Nolan & Lu Lawyers, Hamilton Crown Law, Wellington

Copy to:

Applicant

GAVIGAN v DISPUTES TRIBUNAL [2025] NZHC 2791 [25 September 2025]

[1]    Anthony Gavigan seeks judicial review of the Disputes Tribunal’s 9 July 2024 decision,1  ordering he pay Gillovic Management Limited $28,909.89 on or before  30 July 2024.

Background

[2]    Gillovic Management owns rural property near Hamilton which it leased to   a third party. Mr Gavigan had bloodstock  on  the  property.  In  response  to  Gillovic Management’s March 2021 notice to cancel the lease for unpaid arrears, on 21 March 2021, the third party is said to have assigned some of its  debts  to  Gillovic Management, including as contended owed by Mr Gavigan for agistment fees.

[3]    On Mr Gavigan’s application, the third party appears to have been placed in liquidation at 12.14 pm on 24 April 2024. This Court’s sealed order produced in evidence by Mr Gavigan includes recitation of some of his 21 February 2024 pleading in that proceeding, in 2019,  he  had  fully  and  finally  settled  matters  with  Gillovic Management for the benefit of the third party.

Approach on judicial review

[4]    The relevant subject of judicial review here is “the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power”.2 ‘Statutory power’ means  a  power  or  right  to  do  particular  things,  including  “to  exercise  a statutory power of decision”.3 On judicial review, this Court assesses if the power is exercised “in accordance with law, fairly and reasonably”.4 If not, there is specified relief the Court may grant,5 and it generally is discretionary,6 if presumed in circumstances in which an applicant is substantially prejudiced by error in the exercise

1      Gillovic Management Limited v Gavigan DC Hamilton CIV-2022-019-1648, 9 July 2024.

2      Judicial Review Procedure Act 2016, s 4.

3      Section 5.

4      New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.

5      Judicial Review Procedure Act, ss 16–19.

6      Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].

of a statutory power.7 As illustrated by the available relief, this Court’s review broadly is of the impugned exercise’s process and not the substantive merits of its result.8

Discussion

[5]    The Disputes Tribunal has statutory powers, including to determine claims not exceeding $30,000 founded on contract.9 In determination of such claims, the Disputes Tribunal may order a party to the proceedings to pay money to any other party,10 which decision is final and binding on the parties and not susceptible to appeal (except in limited compass, not presently relevant to this judicial review application).11

[6]    Allowing for Mr Gavigan’s unrepresented status, the foundation for his application for judicial review of the Disputes Tribunal’s 9 July 2024 decision is not clear. He raises two causes of action:

(a)first, in reliance on the third party’s liquidation as meaning his alleged debt to the third party “does not exist” and rendering its assignment to Gillovic Management “void or voidable”; and

(b)second, the third party’s invoices assigned to Gillovic Management were “false and incorrect”.

[7]    Whether there was a debt and if it was assigned to Gillovic Management are matters of substance not capable of being revisited on  judicial  review.  The  Disputes Tribunal found Mr Gavigan was a debtor of the third party in the amount of

$39,576.23,12 which debt the third party validly assigned to Gillovic Management (which  claimed  a  lesser  sum  from  Mr  Gavigan  to  bring  its  claim  within  the

7      Air Nelson Ltd v Minister of Transport [2008] NZCA 26 at [61], referring to Murdoch v New Zealand Milk Board [1982] 2 NZLR 108 at 122 (HC) and Unison Networks Ltd v Commerce Commission CA284/05 19 December 2006.

8      Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2014] NZRMA 73 at [50], citing Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 (HL) at 1173; Mercury Energy Ltd v Electricity Corp of New Zealand Ltd [1994] 2 NZLR 385 (PC) at 388–389; and Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 397.

9      Disputes Tribunal Act 1988, s 10.

10     Section 19.

11     Section 23.

12     Gillovic Management Limited v Gavigan, above n 1, at [7].

Disputes Tribunal’s jurisdiction).13 Thus neither can the contention the invoices were false or incorrect be addressed on judicial review.

[8]    The issue for review then only can be if the third party’s liquidation is effective to oust the Disputes Tribunal’s jurisdiction to determine Gillovic Management’s claim. To that end, Mr Gavigan contends this Court’s order liquidating the third party “established a res judicata of the legal findings and facts” set out in his claim for liquidation.

[9]    ‘Res judicata’ means, where a final judicial decision has been pronounced by a New Zealand judicial tribunal of competent jurisdiction, any party or privy to the litigation is estopped from disputing or questioning the decision on the merits in another proceeding as against that party.14  The doctrine may be invoked to prevent   a party or its privy from re-litigating an issue or a cause of action determined against it, or its privy, in the previous proceeding.15

[10]   Section 241(4) of the Companies Act 1993 entitles this Court on application to appoint a liquidator if it is satisfied of one or more specified conditions, including “the company is unable to pay its debts”. That is the final judicial decision open to pronouncement by this Court, on the facts it found and the law it held applicable. Only to that extent—“determinations which are fundamental to the decision and without which it cannot stand”—are the order’s terms conclusive as between the parties or their privies.16

[11]   This Court’s 24 April 2024 order does not identify the basis for its satisfaction. It might be inferred the Court was satisfied the third party was unable to pay its debts at the time of its liquidation. It may be arguable Gillovic Management is the third party’s privy.17 But Mr Gavigan’s contended full and final settlement with

13     At [9] and [14].

14 Spark New Zealand Trading Ltd v B [2025] NZCA 153 at [33], citing Shiels v Blakeley [1986] 2 NZLR 262 (CA) at 266.

15 At [34], citing Thoday v Thoday [1964] P 181 (CA) at 197–198; and Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 (CA) at 639–640.

16 Talyancich v Index Developments Ltd [1992] 3 NZLR 28 (CA) at 38.

17  Spark New Zealand Trading Ltd v B, above n 14, at [40]–[41], citing Shiels v Blakeley, above n   14, at 268, and Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 924, [2014] RPC 5 at [32].

Gillovic Management in 2019 is not in itself determinative of the third party’s insolvency then, still less at the time of the assignment in 2021 and not at all when liquidated in 2024. It was improper for this Court’s order to be sealed in terms of aspects of Mr Gavigan’s claim not ‘fundamental to the decision and without which it cannot stand’.

[12]   In any event, the doctrine is only as between parties and their privies and does not have application to oust a tribunal from its jurisdiction.18 Rather it is a question of abuse of process—for determination here by the Disputes Tribunal—in which the burden was on Mr Gavigan to establish Gillovic Management was not entitled to bring its proceeding against him.19

[13]   The Disputes Tribunal decision records it had no evidence of the High Court’s factual findings or of the third party’s contended insolvency at the time of the assignment.20 The Disputes Tribunal concluded it could “see no reason why the subsequent liquidation of the company should invalidate the previous assignment of Mr Gavigan’s debt”.21

[14]   Whether the Disputes Tribunal was right is not for my decision. The present proceeding determinedly is not an appeal (which, if available, only lies to the District Court). The Disputes Tribunal had jurisdiction to determine Gillovic Management’s claim against Mr Gavigan.

Result

[15]The application for judicial review is dismissed.

—Jagose J

18     McLachlan v Vector Ltd CA157/05, 28 February 2006 at [27]. See also Gold & Resource Developments (NZ) Ltd v Doug Hood Ltd HC Wellington AP93/99, 11 June 1999.

19     Anura Ltd v Sealegs International Ltd [2024] NZCA 538 at [52].

20     Gillovic Management Limited v Gavigan, above n 1, at [13].

21 At [13].