McKenzie v Co-Operative Bank Ltd

[2024] NZHC 3573

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-782

[2024] NZHC 3573

UNDER

Rule 5.35A of the High Court Rules 2016

BETWEEN

ANGUS EDWARD McKENZIE

Plaintiff

AND

THE CO-OPERATIVE BANK LTD

Defendant

On the Papers
Judgment:	27 November 2024

JUDGMENT OF GWYN J

(Striking out claim under r 5.35B High Court Rules 2016)

Introduction

[1]This matter has been referred to me as Duty Judge.

[2]        On 20 November 2024, Angus McKenzie filed a statement of claim and a document labelled “Summery of Facts”.

[3]        A registrar has referred the documents to me under r 5.35A of the High Court Rules 2016 on the basis of a belief that, on their face the documents are plainly an abuse of the process of the Court.

Relevant law

[4]        If, in terms of r 5.35B, I am satisfied that the proceeding is plainly an abuse of process of the Court, then I may, of my 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

McKENZIE v THE CO-OPERATIVE BANK LTD [2024] NZHC 3573 [27 November 2024]

that complies with the rules, including a rule under r 15.1 that the proceeding be struck out or stayed.

[5]        The powers conferred under r 5.35B were described recently by the Court of Appeal in Te Wakaminenga o Nga Hapu Ki Waitangi v Waitangi National Trust Board in the following terms:1

[14]      The powers conferred under r 5.35B reflect the inherent power all courts have to prevent their own procedures from being misused, for example as a means of oppression or otherwise in a way that is manifestly unfair such that the administration of justice will be brought into disrepute. Lord Bingham described abuse of process as simply being ‘a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process’. Courts have a duty to prevent such abuse.

[15]      The powers under r 5.35B must be exercised sparingly, and only in the clearest of cases. Given that the rule contemplates a litigant being denied the fundamental right of access to the courts, with the possibility of the proceeding being halted before it is even served, the abuse must be clear beyond doubt from reading the claim.”

[6]        The Court in that case emphasised that it must be clear that plaintiffs are seeking to use the processes of the Court for some ulterior or improper purpose.2

[7]        When considering the application of r 5.35B, the Court make take into account the broad public interest and the private interests of individuals who may otherwise be drawn into entirely unmeritorious proceeding. That must be weighed against the right of a litigant to bring proceedings.3

Documents filed

[8]        Although the statement of claim is less than clear, it appears to allege that the Co-Operative Bank has been “deceitful and misleading” in failing to provide proof of transactions. This claim appears to rely on the Consumer Guarantees Act 1993 and the Banking (Prudential Supervision) Act 1989. It seeks a remedy of $466 million, on the basis of the Sentencing Act 2002.

1      Te Wakaminenga o Nga Hapu Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63 at [14]-[15].

2 At [17].

3      Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3220 at [20].

[9]        The statement of claim also alleges that the Co-Operative Bank has made misrepresentations such as providing statements that show transactions being on the wrong day and providing another form of transaction history inconsistent with printed statements. Mr McKenzie says he believes he has been contacted by false aliases representing the Bank, claiming to be in job titles that are not theirs. He claims under the Fair Trading Act 1986 and the Consumer Guarantees Act 1993 and also seeks relief of $466 million on the basis of the Sentencing Act.

[10]      The summary of facts filed appears to supplement the statement of claim. It includes various screenshots from his bank account with the Co-Operative Bank, together with a narrative that appears to allege deceit or fraud by the Bank.

[11]      A number of the references relate to the dates on which direct debits or payments  were  recorded  as  being  deducted   from   Mr   McKenzie’s   account. Mr McKenzie appears to allege discrepancies in those dates and, accordingly, a “fraudulent manipulation” of his account.

[12]      He alleges that the account history log is fraudulent and has been tampered with, manipulated and altered, because of the discrepancies referred to above.

[13]      Mr McKenzie also refers to a notice to surrender shares from the Bank in relation to an account that had been closed. Mr McKenzie appears to allege that the Bank stole his closing balance of $8.06 (as at 11 October 2024).

[14]      Mr McKenzie also makes allegations in relation to home and contents insurance which, it appears, was taken up by him through the Bank. Mr McKenzie makes claims about the increase in his premiums and the fact that, when his home was burgled, the insurance company declined his claim. He suggests the Bank had misled him as to the Bank’s commission on insurance sales. Further, Mr McKenzie alleges that the Bank failed to check on his welfare during the time he was scammed by a building company, burgled and his claim then declined by the insurance company.

[15]      Mr McKenzie records in the summary of facts that he had contacted the Ombudsman (as per complaint process provided by the Bank). I have assumed this is

a reference to the Banking Ombudsman. Mr McKenzie says the Ombudsman failed to investigate his complaint before closing it and that amounts to “aiding and abetting”.

Discussion

[16]      If I were able to identify what could be a viable claim in the material provided by the plaintiff, I could stay the claim and seek further information. I do not think this is such a case.

[17]      While it is plain that Mr McKenzie has a grievance against the Co-Operative Bank, his statement of claim does not plead any comprehensible cause of action against the Bank to which the Bank could reasonably respond. It relies on a mix of civil and criminal law.

[18]      The relief claimed ($466 million NZD), “for being ripped off and gaslit”, does not bear any relation to the amounts involved in the complaints referred to in the statement of claim and summary of facts. Mr McKenzie says “I want huge monetary compensation to enable me for sustainable financial self-determination and freedom. An amount of reparation that is short of enabling such an outcome would have me fall victim to a deceitful culture and I am deserving of better opportunity.”

[19]I am also satisfied that the second limb of the test for strike-out purposes is met

– that is, that “right thinking people” would regard the Court as exercising very poor control of its processes if it were to allow the plaintiff’s document to be regarded as a proper document.

Result

[20]      Accordingly, the statement of claim is struck out and the proceeding is dismissed.

[21]      Under r 5.35B(4), a copy of this decision is to be served on the defendant. Under r 5.35B(3), I am required to advise the plaintiff that, under s 56 of the Senior Courts Act 2016, he has a right to appeal this decision to the Court of Appeal. That

right may be exercised through the application of relevant rules in the Court of Appeal (Civil) Rules 2005.

Gwyn J