McKenzie v ASB Bank Limited

[2025] NZHC 1074

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-000968

[2025] NZHC 1074

BETWEEN

ANGUS EDWARD MCKENZIE

Plaintiff

AND

ASB BANK LIMITED

Defendant

Hearing:	On the papers
Appearances:	Plaintiff in person
Judgment:	6 May 2025

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 06 May 2025 at 4 pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Copies to Plaintiff

ASB Bank Ltd.

MCKENZIE v ASB BANK LIMITED [2025] NZHC 1074 [6 May 2025]

Introduction

[1]                 The Registrar has referred this matter to me pursuant  to  r  5.35A of  the High Court Rules 2016. The documents referred to me are:

(a)a statement of claim between Angus Edward McKenzie, plaintiff, and ASB Bank Ltd, defendant; and

(b)a notice of proceedings dated 18 November 2024 to ASB Bank Ltd (ASB) as defendant.

[2]Mr McKenzie by way of his statement of claim claims the following relief:

(a)$500,000 for deceitful and misleading behaviour because ASB branch number 3164 is said to be associated with an address in Murchison which is not an ASB bank branch. The legislation cited in support of that cause of action is the Sentencing Act 2002, the Consumer Guarantees Act 1993, the Crimes Act 1961 and the Fair Trading Act 1986.

(b)$500,000 for a nine-day delay in ASB opening Mr McKenzie’s bank account.

(c)$500,000 for committing fraud and theft, and failing to resolve issues with the bank application and missing money.

(d)$500,000 because the ASB banking application is misleading and unreliable.

(e)$500,000 for theft and fraud on the basis that the ASB banking application has been altered with and manipulated to disguise theft. The factual basis for this claim is that on 7 February 2025 Mr McKenzie captured and saved a screenshot of his account on the ASB banking application which displayed an available balance of $282.28. At

1.45 am on 10 February the bank account displayed an available

balance of $264.27 for 7 February instead of $282.28, leaving an

$18.01 discrepancy that the ASB bank manager has not been able to explain when enquired via email.

[3]                 Mr McKenzie cites various legislation to support his various claims including the Sentencing Act, the Crimes Act, the Consumer Guarantees Act, the Fair Trading Act and the Banking (Prudential Supervision) Act 1989.

[4]                 The statement of claim states that the plaintiff is seeking the amounts sought to punish ASB, keeping them responsible for their actions. The statement of claim says that the plaintiff is to “seek an education and training abroad with the opportunities available with a huge financial reward and hopefully to better the economy by firstly “scaping” [him] from poverty and the grips of fraudulence”. The statement of claim states that if it were in the plaintiff’s capabilities he would be seeking a hostile take over of the entire bank and that is why he mentions education and training abroad as being a more likely possibility if having the financial capacity.

Jurisdiction

[5]Rules 5.35A and 5.35B of the High Court Rules provide:

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.

5.35B Judge’s powers to make orders and give directions before service

(1)This rule applies if a Judge to whom a Registrar refers a proceeding under rule 5.35A is satisfied that the proceeding is plainly an abuse of the process of the court.

(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)        Rule 7.43(3) does not apply. However, if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.

(4)        A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.

(5)        See rule 2.1(3)(b) concerning the exclusion of the jurisdiction and powers of a Judge under this rule from the jurisdiction and powers of an Associate Judge.

[6]                 The power under r 5.35B must be exercised sparingly and only in the clearest of cases.1 A claim should be struck out when pleadings are so unintelligible that it would be inappropriate to require a response to the pleadings; and when it is apparent from the nature of the claim that it could not be re-pleaded in a manner that would identify an appropriate cause of action.2

[7]                 Claims that are clearly an abuse of process, including attempts to judicially review or collaterally challenge judgments of the court,  can be struck  out under      r 5.35B.3 Genuinely brought claims, even if misconceived or legally untenable, must

1      Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board [2023] NZCA 63, [2023] NZAR 180 at [15].

2      Sixtus v Ardern [2022] NZHC 1161 at [11].

3      Power v The Court of Appeal [2022] NZHC 25 at [5]; and Smith v Māori Land Court [2022] NZHC 1028 at [17].

not be struck out under r 5.35B.4 Proceedings can be struck out where there is a reasonable basis to believe that the appellant is seeking to use the court processes for an ulterior or improper purpose.5

Analysis

[8]                 Having reviewed the statement of claim and notice of proceeding I am satisfied that it would be inappropriate to require a response to the pleadings and it is apparent from the nature of the claim that it could not be repleaded in a manner that would identify an appropriate cause of action. In this case Mr McKenzie purports to bring civil action but relies on criminal legislation which cannot apply.

[9]                 I am satisfied that the appellant is seeking to use the court process for an ulterior of improper purpose.

[10]             A court does not lightly find that a proceeding is an abuse of process, but the court may act to protect defendants from oppressive or frivolous proceedings, and to protect public confidence in the administration of justice.

[11]             The complaints made by the plaintiff are frivolous, involving small delays to his ability to open a bank account (a matter of days); very small monetary discrepancies in the amount shown in his banking in the ASB application and a complaint related to whether an ASB branch is located at a particular address.

[12]             The statement of claim reveals that the plaintiff is seeking a financial windfall. I find that the proceeding is an abuse and that it is an improper use of the court’s processes to address trivial and frivolous complaints.

Result

[13]The statement of claim is struck out.

[14]The notice of proceeding is struck out.

4      Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board, above n 1, at [13].

5      At [17].

Wilkinson-Smith J