McCracken v McGrath

[2024] NZHC 1856

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-296

[2024] NZHC 1856

BETWEEN

KEVIN NOEL MCCRACKEN

Plaintiff

AND

CATHERINE MCGRATH

Defendant

AND

CHLOE JOLLIFFE

Defendant

AND

TRISTAN HARCOURT

Defendant

CIV-2024-409-318

BETWEEN

KEVIN NOEL MCCRACKEN
Plaintiff

AND

HAMISH RIACH

Defendant

AND

ASHBURTON DISTRICT COUNCIL

Defendant

Hearing:	On the papers
Appearances:	Plaintiff in person
Judgment:	9 July 2024

JUDGMENT OF DUNNINGHAM J

[1]                 Mr Kevin McCracken has filed two proceedings that have been referred to me pursuant to r 5.35A of the High Court Rules 2016. That rule provides:

MCCRACKEN v MCGRATH [2024] NZHC 1856 [9 July 2024]

5.35A Registrar may refer plainly abusive proceeding to Judge before service

(1)This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.

(2)The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.

(3)However, the Registrar may,—

(a)as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

(b)until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.

[2]                 Once referred under r 5.35A, and if satisfied that the proceeding is plainly an abuse of the process of the court,  a Judge has the  following powers provided for in  r 5.35B(2).

…

(2)The Judge may, on his or her own initiative, 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 these rules, including (without limitation) an order under rule 15.1 that—

(a)the proceeding be struck out:

(b)the proceeding be stayed until further order:

(c)documents for service be kept by the court and not be 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).

…

[3]                 In Mathiesen v Slevin, the Court explained that in deciding whether to strike out a proceeding under r 5.35B, the Court had to determine the following questions:1

1      Mathiesen v Slevin [2018] NZHC 1032; (2018) 25 PRNZ 116 at [6].

(a)whether it would be manifestly unfair to the respondents that they be required to respond and;

(b)whether right thinking people would regard this Court as exercising very poor control of its processes if it were to allow the applicant’s document to be regarded as a proper document.

[4]                 The second question has also been expressed by the Court of Appeal as asking whether right thinking people would consider the Court was exercising poor control over its processes if it permitted the matter to proceed further.2 It is this approach which I apply in the present case.

[5]                 Finally, I note the power in r 5.35B must be exercised sparingly and only in the clearest of cases.3

The claims

[6]                 In the present case both proceedings relate to a property formerly owned by the trustees of the K N McCracken Family Trust, who include Mr McCracken.4 The property has now been sold under a mortgagee sale.

1. In proceedings CIV-2024-409-296, Mr McCracken purports to sue:

(a)Catherine McGrath, the CEO of Westpac New Zealand Ltd;

(b)Chloe Jolliffe of Anthony Harper Law; and

(c)Tristan Harcourt of Grenadier Real Estate Ltd.

2      O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [33].

3      Te Wakaminenga o Nga Hapu Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63 at [15].

4      This understanding as to ownership is taken from the private individual client authority and instruction form held  by  Argyle  Welsh  Finnigan  and  which  is  attached  as  Exhibit  C  to  Mr McCracken’s affidavit in support of his application for statement of claim in the proceedings CIV-2024-409-318.

[8]                 It is unclear from the proceeding why these persons are sued in their personal capacity as opposed to suing the organisations they work for.

[9]                 The statement of claim is difficult to follow. It begins with the opaque statement:

I rebut the 12 laws of presumption and all other presumptions and assumptions are rebutted which leaves only facts and proof to be produced.

[10]             It does not identify any cause of action against the second and third defendants. The claim against the first  defendant  (which  in  reality  seems  to  be  Westpac New Zealand Ltd (Westpac)), appears to question the legality of the home loan contract which Westpac relied on to exercise its power of mortgagee sale. However, Mr McCracken’s own evidence filed in support of his statement of claim includes evidence that he signed the relevant loan contract with the bank.

[11]             While Mr McCracken appears to be critical of his solicitor for not explaining the meaning and effect of the loan document, he does not say how Westpac’s right to enforce its powers as mortgagee is impugned by that. He notes an objection to the same solicitor taking instructions from Westpac and yet acting for him. However, he appears to be referring to the standard practice of a bank requiring the borrower’s solicitor to confirm that they have explained the meaning and effect of the loan documents to their client. That, without more, could not impugn the bank’s entitlement to rely on the solicitor’s certificate and to enforce the terms of the loan.5

[12]             Mr McCracken also refers to irrelevant legislation (for example the Countering Financing of Terrorism Act 2009), without saying how this impugns Westpac’s ability to exercise its power of sale.

[13]             Finally, in terms of relief, Mr McCracken appears to expect the defendants to pay him $850,000 pursuant to an invoice dated 22 March 2024.6 This claim appears to be based on their role in effecting the mortgagee sale by Westpac. However, without

5      ANZ National Bank Ltd v Smith (2009) 10 NZCPR 898.

6      Exhibit N to Mr McCracken’s affidavit dated 28 May 2024.

any pleadings which clearly explain why Westpac was not entitled to exercise its power of mortgagee sale, a claim for damages could not be sustained.

CIV-2004-409-318

[14]             The second statement of claim is advanced against Mr Hamish Riach, the CEO of Ashburton District Council, and against the Council itself. The claim appears to relate to the Council enforcing its right to seek payment of rates in respect of the property. However, Mr McCracken has a fundamental objection to paying rates, with his pleadings saying the following:

1.The local authority is inconsistent with the New Zealand Bill of Rights [Act] 1990 and everyone has a right to freedom of residence.

2.When we are forced to pay property tax, does that mean we as people don’t own the land we have purchased. Paying a fee to live on the land would suggest we are a tenant.

3.When purchasing property, full disclosure was not given. There is no mention of property taxes when names on property titles are exchanged.

[15]             The relief sought is that the Council provide “proof” that local authorities have jurisdiction “over the earth to demand property taxes (rates)”. Again, Mr McCracken has issued an invoice to the Council seeking a refund of rates and building consent fees, plus $500,000 in “[u]nlawful fines, fees, unlawful policing, stress”, making a total claim of $537,000.

[16]             There is no basis identified in the pleadings on which Mr Riach could be sued personally. Furthermore, there is nothing identified in the pleadings which would raise a successful defence to the Council’s right to levy and recover rates against a rating unit such as Mr McCracken’s property in Dawsons Road, Ashburton, pursuant to the Local Government (Rating) Act 2002.

Conclusion

[17]             The proceedings do not identify any tenable cause of action against any of the named defendants. The pleadings also refer to a wide range of irrelevant material and submissions.

[18]             In all the circumstances, I am satisfied that the proceedings are a misguided and incoherent attempt by the plaintiff to seek redress, having lost his home through a mortgagee sale. It is either impossible for the named defendants to identify what the alleged cause of action against them is or, where they can identify that, the claim is so clearly untenable I consider they should not be put to the trouble of doing so.

[19]             For  these  reasons,   the   proceedings   are   both   struck   out   pursuant   to s 5.35B(2)(a).

[20]             I direct the Registrar to provide a copy of this decision to the named respondents in accordance with r 5.35B(4) and I record that Mr McCracken has a right to appeal this decision in accordance with r 5.35B(3).

Copy to:

Mr McCracken