McKenzie v New Zealand Proud Kapiti Limited
[2025] NZCA 586
•6 November 2025 at 3 pm
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA130/2025
[2025] NZCA 586
BETWEEN ANGUS EDWARD MCKENZIE Appellant AND NEW ZEALAND PROUD KAPITI LIMITED AND OTHERS Respondents
| Hearing: | 29 September 2025 |
| Court: | Collins, Cull and Osborne JJ |
| Counsel: | Appellant in person |
| No appearance for Respondents |
an amended statement of claim by 28 March 2025.[1] The second judgment of
6 March 2025 required him to file a further amended statement of claim with
documentation by 28 March 2025, in the absence of which, the proceedings were to
be struck out without further order of the Court.[2]
Procedural background
[1] McKenzie v New Zealand Proud Kapiti Ltd [2025] NZHC 320 [first judgment] at [18]–[19].
[2] McKenzie v New Zealand Proud Kapiti Ltd [2025] NZHC 395 [second judgment] at [21]–[23].
On 15 January 2025, Mr McKenzie filed a statement of claim against
NZ Proud Kapiti and nine other defendants, comprising associated corporate entities,
directors, shareholders and consultants of NZ Proud Kapiti. Mr McKenzie asserts that
the defendants misled him as to the duration and cost of a renovation project and
asserts that they have breached various obligations in undertaking the renovation work
on Mr McKenzie’s house.
The Registrar of the High Court did not accept Mr McKenzie’s statement of
claim for filing and referred the documents to McQueen J under r 5.35A of the Rules
on the grounds that on its face, the statement of claim was plainly an abuse of the
process of the Court.
Statement of claim
In summary, Mr McKenzie claims against NZ Proud Kapiti and its associates
that they misled him as to the duration of the renovation project, quoted him an
inaccurate number of hours of labour for carpenters, charged him an hourly rate higher
than advertised, misled or lied to him about invoicing and sourcing alternative
sub-contractors, installed a door he had not chosen and installed poorly aluminium
joinery, kitchen joinery and architraves.
It is pleaded that those actions deprived Mr McKenzie of opportunity and refers
to various statutory provisions in the Fair Trading Act 1986 (FTA)[3] including ss 22
and 27, and the Consumer Guarantees Act 1993 (CGA), including sections relating to the sale of goods.[4] He also cites ss 219 and 240 of the Crimes Act 1961, concerning
the crimes of theft and obtaining by deception respectively.
[3] We note that Mr McKenzie relied on the Fair Trading Act 2014 in his statement of claim, but the
[4] Consumer Guarantees Act 1993, ss 5A, 6, 8, 9 and 11.
Mr McKenzie in his initial statement of claim, seeks relief in the sum of
$5 million for each “cause of action” and refers to pt 2, subpt 1 of the
Sentencing Act 2002, which relates to monetary penalties and s 32 of that Act, which
concerns imposing a sentence of reparation. He has filed an amended statement of
claim as part of this case for the hearing. We deal with this further below.
First judgment
In the first judgment, the Judge recorded that there was a significant lack of
particularisation and clarity in Mr McKenzie’s statement of claim. He did not specify
which of the statutory provisions the alleged actions breach and there was no reference
to any contract or any other arrangement, under which the renovation was undertaken.
There was also no indication as to how the other nine defendants were specifically
implicated in the alleged breaches.[5]
[5] First judgment, above n 1, at [10].
The Judge also identified that in making a blanket claim for relief of $5 million,
the statement of claim failed to outline the loss suffered as a result of the various
breaches or the relationship with Mr McKenzie’s actual loss suffered, based on the
limited figures provided. The further problem was that the relief is claimed as
monetary penalties and reparation.[6]
[6] At [11].
The Judge traversed the statutory provisions relied on noting that there
appeared to be no basis for the allegations of breach under ss 22 and 27 of the FTA, as
these relate to misleading representations made to prospective investors/employees
about business activities and consumer information standards respectively. Nor were
the sections relating to the sale of goods under the CGA relevant to Mr McKenzie’s
claim. The criminal charges alleged against the defendants did not only appear baseless but plainly not available, given that this is a civil proceeding and
Mr McKenzie has not filed any charging document.[7]
[7] At [12], citing the Criminal Procedure Act 2011, s 26.
The Judge however, considered that on the pleaded facts there was a potential
foundation for claims of breaches of ss 9, 11, 12A[8] and 13 of the FTA concerning
misleading and deceptive conduct and unsubstantiated, false or misleading
representations. There was also a potential viable claim for breaches under ss 28–31
of the CGA, relating to guarantees as to reasonable care and skill and fitness for
purpose.[9]
[8] The Judge corrected this in her second judgment, as s 12C of the Fair Trading Act provides that
[9] First judgment, above n 1, at [13].
The Judge concluded that although much of Mr McKenzie’s statement of claim
was groundless and poorly pleaded, this was not a case where striking out the claim in
its entirety was warranted. Instead, the Judge gave Mr McKenzie the opportunity to
amend his pleading to remove irrelevant and meritless claims and to properly
particularise the remaining claims. The Judge gave Mr McKenzie directions to
remove the defendants other than NZ Proud Kapiti or demonstrate a clear basis for
why they should be named as defendants in the proceeding.[10]
[10] At [15]–[16].
Under r 5.35B(2) the Judge directed that the proceeding be stayed until further
order of the Court and should not be lifted until Mr McKenzie had filed an amended
statement of claim that complied with the Judge’s three directions that he:[11]
[11] At [18].
(1) remove irrelevant and meritless claims and coherently set out the basis for his claims; (2) remove parties other than NZ Proud Kapiti as defendants of his claim, except where there was a proper basis for that party to be named as a defendant; and (3) file documents that supported his claim.
Mr McKenzie was directed to file an amended statement of claim and
supporting documents no later than 5.00 pm on Friday 28 March 2025. In the absence
of doing so, the proceedings would be deemed to be struck out without further order
of the Court.[12]
Second judgment
[12] At [19].
Mr McKenzie followed the Judge’s direction above and immediately filed an
amended statement of claim on 28 February 2025, the day after the first judgment was
delivered. He sent the following covering email with the amended pleading, stating:[13]
[13] Second judgment, above n 2, at [5].
With all due respect to the judges … decision and directions I have attached
an amended statement of claim and a copy of the deposit with NZ Proud Kapiti
Ltd as a form of documentation that was requested for reference. I have not
entirely removed S 22 of FTA, I have only removed part 1 and kept part 2 but
i have further detailed each cause of action with relevance to S 22 part 2 and i
have explained why i have listed each defendant in my claim. Also I will leave
a quote I have copied from comcom.govt.nz. ~ Section 22 of the Act states
that it is unlawful for anyone to make a representation that is false or
misleading in a material particular regarding the profitability or risk, or any
other material aspect of the business activity that they are inviting people to
engage or participate in, if that activity requires them to perform work or
invest money and perform work.~ This law is relevant because I am the
investor, investing in my property (which I have %100 equity in) with the
services of NZ Proud.
The Registrar reminded Mr McKenzie that he had a month in which to file an
amended statement of claim but Mr McKenzie confirmed that he had filed everything
he wished the Judge to reconsider.[14]
[14] At [6].
The Judge observed that the changes Mr McKenzie made to the statement of
claim were minor and did not include the particularisation the Judge directed, nor did
he remove the irrelevant or meritless claims.[15]
[15] At [7].
Contrary to the Judge’s directions in her first judgment, Mr McKenzie did not
plead any specific claim against the second to tenth defendants or remove them as the
Judge directed. He continued his claim under s 22 of the FTA, failed to make changes
to the provisions of the CGA, and did not remove the references to the allegations of
theft and obtaining by deception under the provisions of the Crimes Act.[16]
[16] At [8]–[12].
The blanket claim for relief of $5 million was still claimed as monetary
penalties and reparation under the Sentencing Act for an asserted loss of opportunity.
Mr McKenzie provided two documents to support his claim. The first referred to a
booking deposit required to secure a booking and the second was the terms and
conditions of engagement referring to a 10 per cent booking deposit, capped at $10,000
to be invoiced immediately after the customer has confirmed NZ Proud Kapiti’s
estimate.[17]
[17] At [13]–[15].
The Judge concluded that despite her first judgment, Mr McKenzie had not
taken the opportunity to remove irrelevant and meritless claims, or properly
particularise the remaining claims that may possibly have some merit. Nor was there
sufficient documentation provided to support his claim for relief.[18]
[18] At [17].
Despite these substantial shortcomings in Mr McKenzie’s pleading, the Judge
nevertheless decided to give Mr McKenzie one further chance to amend his pleading,
to ensure he had access to the court in relation to any genuine dispute with NZ Proud
Kapiti. The Judge encouraged Mr McKenzie to seek legal advice before he filed any
further amended claim and gave him specific directions as to how his claim should be
amended.[19]
[19] At [18]–[22].
[22] The Judge directed that Mr McKenzie make further amendments to his statement of claim,[20] file documentation showing that he paid the invoice he had provided to the Court, together with any further invoices issued by NZ Proud Kapiti
[20] The Judge directed that he should remove the second to tenth defendants, omit references to
relevant to the causes of action pleaded and confirmation of his payment (or not) of
those invoices. Mr McKenzie was given until 5.00pm on 28 March 2025 to comply
with the Judge’s directions or the proceeding would be deemed to be struck out without
further order of the Court.[21] On 6 March 2025, the same date of delivery of the second
[21] At [21]–[23].
judgment, Mr McKenzie filed his notice of appeal.
Grounds of appeal
The grounds in the notice of appeal do not particularise error in either of the
two judgments but take the form of a written complaint made by Mr McKenzie to the
Judicial Conduct Commissioner about the Judge. Among other things, Mr McKenzie
contests the legitimacy of the Judge’s rulings, contests the Judge’s directions to amend
his statement of claim as depriving him of using the Court for justice “after an effective
attempt at [his] life,” alleges false claims and makes wide-ranging allegations of a
criminal nature.
At the appeal hearing, Mr McKenzie filed a document with five “issues to be
determined.” Those “issues” comprise a mixture of statements of intention and actions
taken. The first “issue” states that he has removed all references to the Crimes Act
from his statement of claim but asks to be referred to any legislative documents that
“make clear separating civil and criminal legislation references in both courts”.
Second, he intends to remove the reference to s 27(1A) of the CGA. Third, he
has produced to the Court “a deposit as a supporting document” as “sufficient to
support the statement of claim and notice of proceeding”. Fourth, he states that he has
retained all 10 defendants in his statement of claim, as he believed “they are truly
responsible” as “majority shareholders of the business entities involved, direct
employees and active participants and profiters from the events”. Finally, he
apologises for his complaint contained within his notice of appeal, as it “was written
irrationally” and “as such was trivial.”
Discussion
This appeal has no merit. Mr McKenzie’s grounds of appeal took the form of
a complaint to the Judicial Conduct Commissioner and are framed in terms that are,
in Mr McKenzie’s own words, irrational and trivial. It is not for us to comment any
further on the nature of the allegations he made in that complaint to the
Judicial Conduct Commissioner.
Furthermore, from the issues list provided by Mr McKenzie, it is clear that
apart from the apology he proffered for the complaint material in his notice of appeal,
he intends to amend the statement of claim further to remove at least one of the
references to the CGA, as the Judge directed.
It is readily apparent that the difference between a civil proceeding and a
criminal proceeding is not understood by Mr McKenzie. Despite the Judge’s
directions to remove all references from his claim to criminal legislation,
Mr McKenzie still asks to be referred to legislative documents that make the
distinction between civil and criminal proceedings clear. It is not for this Court or
indeed any judge on the Bench to advise litigants of the basic tenets of drafting
pleadings or provide an explanation of the constitutional differences between the
criminal and civil jurisdictions in the courts. The Rules legislate the requirements for
pleadings in the civil jurisdiction of the High Court and they must be complied with.
Rule 5.26 of the Rules requires that a statement of claim must show the general
nature of the plaintiff’s claim to the relief sought and it must give sufficient particulars
of the claim to inform the Court and the party or parties against whom the relief is
sought.[22]
[22] High Court Rules 2016, r 5.26(a) and (b).
Rule 5.35B(2) enables a Judge “on his or her own initiative, [to] make an order
or give directions to ensure that the proceeding … proceeds in a way that complies
with [the Rules]”.
McQueen J, in both of her judgments went to some length to direct
Mr McKenzie on the parts of his statement of claim, which should be either removed
or repleaded. In her second judgment, the Judge said this:[23]
[23] Second judgment, above n 2.
[18] Despite these failures, I have decided to give Mr McKenzie one
further chance to amend his pleading. This is because I remain concerned that
he should have access to the court in relation to any genuine dispute between
him and NZ Proud Kapiti, should he file a statement of claim that is capable
of being accepted for filing.
The directions at [21] of that judgment made it very clear to Mr McKenzie
what needed to be amended in his statement of claim to enable it to be accepted for
filing under the Rules. The Judge’s reasons for those directions were also clearly
articulated in both her first and second judgments, with which we agree.
[33] We consider that the Judge took considerable care to ensure that
Mr McKenzie’s access to the courts was preserved. We also agree that the Judge’s
request for documentation to support Mr McKenzie’s claim was appropriate in the
circumstances, given that the blanket claim for $5 million had not been adequately
particularised or pleaded. It is particularly relevant, in our view, that when asked,
Mr McKenzie confirmed to us that the total sum of invoices paid by him was $170,000
or potentially $190,000.
There has been no error requiring appellate intervention. The Judge
appropriately and fairly exercised the discretion under r 5.35B in making the above
directions to ensure that Mr McKenzie’s proceeding complied with the Rules.
Result
The appeal is dismissed.
| Judgment: | 6 November 2025 at 3 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cull J)
Mr McKenzie appeals the strike out of his statement of claim against
New Zealand Proud Kapiti Ltd (NZ Proud Kapiti) and nine other defendants under
r 5.35B of the High Court Rules 2016 (the Rules).
This appeal involves two judgments of McQueen J. The first, delivered on
27 February 2025, stayed Mr McKenzie’s proceedings to enable Mr McKenzie to file
MCKENZIE v NEW ZEALAND PROUD KAPITI LIMITED AND OTHERS [2025] NZCA 586 [6 November
2025]
Fair Trading Act 1986 is the applicable Act.
only the Commerce Commission may commence proceedings in relation to s 12A: second
judgment, above n 2, at [10].
breaches of the Crimes Act 1961, not seek relief under the Sentencing Act 2002, provide
particulars in relation to each cause of action as to the lost opportunity taken away from
Mr McKenzie and how NZ Proud Kapiti caused it, and provide particulars as to how the sum of
$5 million, or any amended sum claimed, was calculated as relief properly claimed in relation to
each cause of action: at [21].
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