MacDonald v Bank of New Zealand

[2016] NZHC 823

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2015-406-000041 [2016] NZHC 823

IN THE MATTER OF

an appeal by LUCKIE CHRISTOPHER

MACDONALD

BETWEEN

LUCKIE CHRISTOPHER MACDONALD

Appellant

AND

BANK OF NEW ZEALAND Respondent

Hearing:	28 April 2016
Counsel:	Appellant in person N J Mckessar for Respondent
Judgment:	28 April 2016

JUDGMENT OF COLLINS J

Introduction

[1]      I am dismissing Mr MacDonald’s appeal from a summary judgment entered

against him by Judge Zohrab in the Blenheim District Court on 28 October 2015.1

Judgment was entered against Mr MacDonald in favour of the Bank of New Zealand

(BNZ) for $6,619.98 together with costs and disbursements.

1      Mr MacDonald’s appeal was lodged out of time.  The Bank of New Zealand acknowledges the delays in Mr MacDonald filing his appeal were only slightly out of time and that it is not prejudiced by the delay.  I therefore allow Mr MacDonald leave to appeal out of time pursuant to High Court Rules, r 20.4(3); Ike v New Zealand Couriers Ltd HC Auckland CIV-2011-404-648,

14 March 2011.

MACDONALD v BANK OF NEW ZEALAND [2016] NZHC 823 [28 April 2016]

Background

[2]      Mr MacDonald had a credit card with the BNZ and failed to repay the debt he incurred.      By   the   time   summary   judgment   proceedings   were   commenced, Mr MacDonald owed the BNZ $6,619.98.

[3]      The  BNZ  issued  demands  requiring  Mr  MacDonald  to  pay  his  debt. Mr MacDonald responded by sending the BNZ letters on 22 August and 1 and 11

September  2014.    These  letters  purported  to  be  sent  pursuant  to  the  Bills  of

Exchange Act 1908.  Mr MacDonald also sent an “estoppel notice” to the BNZ on

20 April 2015.  Understandably, these responses made no sense to the BNZ.

[4]      When the BNZ issued its proceeding for summary judgment, Mr MacDonald responded by filing a document that referred to the letters he had sent to the BNZ and the “estoppel notice”.

[5]      Mr MacDonald’s letters which purport to have been sent under the Bills of Exchange Act 1908 do not reflect the law of New Zealand.  They appear to require the BNZ to validate its actions and to have the BNZ confirm it had carried out due diligence under the Anti-Money Laundering and Countering Financing of Tourism Act 2009.   The “notice of estoppel” is equally misconceived.   It seems to be predicated on letters from Mr MacDonald in which he required the BNZ to prove its claim within specified timeframes.  Mr MacDonald seems to believe that the BNZ’s failure to comply with his demands estopped the BNZ from bringing any claim against him.

[6]      The hearing in the District Court reflected Mr MacDonald was labouring under a significant misunderstanding.   The transcript says Mr MacDonald was challenging what he said was the “subject matter jurisdiction”.  Mr MacDonald did not adequately explain however what he meant by this concept.

[7]      Judge Zohrab recorded that the conditions to obtaining summary judgment had been satisfied by the BNZ and that Mr MacDonald had failed to raise any legitimate basis for defending the BNZ’s application.

Grounds of appeal

[8]      It  has  not  been  easy  to  determine  the  grounds  of  appeal  advanced  by Mr MacDonald.   In his most recent document filed in this Court, Mr MacDonald states:

(1)       What he believes to be the foundations and sources of the law. (2)     That he is “moving forward in suri juris”.

(3)       That he is entitled “to be assisted by an unlicenced layman”.

(4)       That “the subject matter” was not settled in the District Court.

[9]      When Mr MacDonald’s appeal was called before me today he explained: (1) His name is Paul.

(2)       He is a “sovereign being”.

(3)       He wished to exercise his right to remain silent.

Analysis

[10]     I appreciate Mr MacDonald has represented himself and that he has found the court  process  to  be  a  very  distressing  experience.     I  also  understand  that Mr MacDonald had suffered ill-health as a result of stresses he endured during the Christchurch earthquakes.

[11]     I must, however, put to one side feelings of sympathy for Mr MacDonald. The BNZ is entitled to have me apply the law of New Zealand without favour.

[12]     Mr Mckessar, counsel for the BNZ, submitted Mr MacDonald was invoking

“pseudo law” to advance his case. That is an apt description.

[13]     Mr MacDonald has referred to what he says is a right “to be assisted by an unlicenced layman”.   Mr MacDonald referred to American authority in support of this proposition.  I interpret Mr MacDonald’s reference to him being assisted by a “McKenzie friend”, the name for a lay assistant which arose from the United Kingdom case McKenzie v McKenzie.2   The New Zealand law allows an unqualified person to act in a purely ministerial capacity, such as when a friend assists a litigant in person without attempting to act as his solicitor.3   However, every judicial officer has the right to regulate the proceedings of his or her own Court, and in doing so, has a discretion whether to appoint a lay assistant.4   In the present case, Mr MacDonald has not in fact applied for a McKenzie friend.   His reference therefore to being assisted by an “unlicenced layman” is not relevant.

[14]     It is clear that the grounds of appeal advanced by Mr MacDonald do not raise any basis in law or fact for me to set aside the summary judgment obtained by the BNZ.

Conclusion

[15]     The appeal is dismissed.

[16]     The summary judgment entered in the Blenheim District Court is upheld. [17]         The BNZ is entitled to costs on a scale 2B basis.

D B Collins J

Solicitors:

Hardy-Jones Clark, Blenheim for Respondent

2      McKenzie v McKenzie [1970] 3 All ER 1034.

3      Mihaka v Police [1981] 1 NZLR 54 (HC).

4      KBI v CLM [2012] NZFC 3816.