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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McCracken v McGrath

Details

AGLC: McCracken v McGrath [2024] NZHC 1856
Case: [2024] NZHC 1856
Decision Date: 9 July 2024

CaseChat Overview and Summary

The case of McCracken v McGrath involves two separate proceedings brought by Kevin Noel McCracken against various defendants. The first proceeding, CIV-2024-409-296, names Catherine McGrath, Chloe Jolliffe, and Tristan Harcourt as defendants. The second proceeding, CIV-2024-409-318, involves Hamish Riach and Ashburton District Council. Both cases were filed under the New Zealand High Court's Christchurch registry and were referred to Judge Dunningham due to concerns over their abusive nature. McCracken's claims stem from the sale of a property he formerly owned, now sold through a mortgagee sale. The first proceeding targets McGrath, the CEO of Westpac New Zealand Ltd, and Jolliffe and Harcourt, individuals associated with the sale process. The second proceeding targets Riach, the CEO of Ashburton District Council, and the Council itself, focusing on the enforcement of property rates.

The legal issues at the heart of these proceedings revolve around the validity and coherence of McCracken's claims. The court had to determine whether the proceedings were plainly an abuse of the court process, as outlined in the High Court Rules 2016. Specifically, the court examined if it would be manifestly unfair to the defendants to require them to respond and whether allowing the proceedings to continue would reflect poorly on the court's control over its processes. McCracken's claims lack a clear legal basis and are filled with irrelevant references and incoherent arguments. For instance, the first proceeding questions the legality of a home loan contract without explaining how Westpac's right to enforce the mortgagee sale is affected. The second proceeding challenges the authority of the Council to levy rates, asserting that paying property tax infringes on ownership rights, which is not supported by any legal basis.

Judge Dunningham found that the proceedings were indeed an abuse of the court process. The claims were either incoherent or clearly untenable, with no basis for the named defendants to be held liable. The court emphasized that the relief sought, such as monetary compensation and proof of jurisdictional authority, did not align with any legal principles. Given the findings, the court struck out both proceedings under rule 5.35B(2)(a) of the High Court Rules 2016, preventing them from proceeding further. The decision was communicated to McCracken, who retains the right to appeal the ruling.

The final orders of the court were that both proceedings be struck out and not proceed further. The Registrar was directed to inform the defendants of this decision and record that McCracken has the right to appeal. This judgment underscores the importance of ensuring that court proceedings are both legally sound and fair to all parties involved.

Orders