McKenzie v New Zealand Proud Kapiti Limited

[2025] NZHC 395

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-22

[2025] NZHC 395

BETWEEN

ANGUS EDWARD McKENZIE

Plaintiff

AND

NEW ZEALAND PROUD KAPITI LIMITED AND OTHERS

Respondents

Hearing:	On the Papers
Counsel:	Plaintiff in Person
Judgment:	6 March 2025

JUDGMENT (NO 2) OF McQUEEN J

[1]    On 15 January 2025, Mr Angus McKenzie filed a statement of claim against New Zealand Proud Kapiti Ltd (NZ Proud Kapiti) and nine other defendants apparently associated with the company. In the statement of claim, Mr McKenzie appears to assert that the defendants have breached various obligations while engaged to undertake renovation work on Mr McKenzie’s house.

[2]    The Registrar referred the statement of claim to me under r 5.35A of the High Court Rules 2016 (the Rules) on the basis of their belief that, on its face, the statement of claim is plainly an abuse of the process of the Court.

[3]    On 27 February 2025,  I  issued  a  judgment  in  which  I  concluded  that  Mr McKenzie should have an opportunity to amend his pleading to remove irrelevant

McKENZIE v NEW ZEALAND PROUD KAPITI LIMITED AND OTHERS [2025] NZHC 395 [6 March 2025]

and meritless claims and properly particularise the remaining claims which may possibly have some merit.1 I made the following directions:2

(a)This proceeding is stayed until further order of the Court.

(b)No application to lift the stay may be heard until:

(i)Mr McKenzie has filed an amended statement of claim that:

1.   removes irrelevant and meritless claims and coherently sets out the basis for his claims;

2.   removes parties other than NZ Proud Kapiti as defendants of his claim, except where he can demonstrate there is a proper basis for that party to be named as a defendant in the proceeding; and

3.   Mr McKenzie has filed documents that support his claim.

(ii)compliance with the above has been certified by a judge.

[4]    I also directed that if no amended statement of claim and supporting documents that comply with the above directions is filed in  the Court by 5:00 pm  on  Friday  28 March 2025, the proceeding would be deemed to be struck out without further order of the Court.3

Amended statement of claim

[5]    Mr McKenzie filed an amended statement of claim dated 28 February 2025. Mr McKenzie sent a covering email with the amended pleading. In his email he said:

With all due respect to the judges [sic] 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

1      McKenzie v New Zealand Proud Kapiti Ltd & Ors [2025] NZHC 320 at [15].

2      At [18]

3 At [19].

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.

[6]    The Registrar reminded Mr McKenzie that he had a month in which to file an amended statement of claim and asked him to confirm that he had filed everything he wished me to reconsider. Mr McKenzie confirmed this was the case.

Discussion

[7]    The changes Mr McKenzie has made to the statement of claim are minor. The amended document does not include the particularisation I directed nor remove the irrelevant or meritless claims.

[8]    Nor has Mr McKenzie removed any of the defendants. Rather, he has added the following comment to his claim:

All defendants are listed because they are all the same shareholder/ shareholders including the ceo’s spouse, builder and admin who are co shareholders in the business entities that are located at the same address and are all directly involved in the same business (building industry) and have inevitably profited from NZ Proud Kapiti’s deceit and theft. Admin and consultants Halina and Pete have been listed as defendants because Halina is responsible for sending and tracking invoices meaning by default she was responsible for losing an invoice that I had paid. Pete was at the site measure tearing apart my rimu joinery for a site measure with Rylock and he failed to note the door I wanted to purchase. I am not suggesting I should recover what I have lost, I am seeking what I think would make things right.

[9]    I am not satisfied that Mr McKenzie has properly pleaded any claim against the second to tenth defendants.

[10]   Mr McKenzie also continues his claim under s 22 of the Fair Trading Act 1986, as mentioned above, characterising himself as an investor. In my view, Mr McKenzie misconceives what the section is directed at. As I said in my earlier judgment, there are other provisions of the Fair Trading Act that are likely more applicable on the facts

Mr McKenzie asserts. In this context I also point out to Mr McKenzie that s 12C of the Fair Trading Act provides that only the Commerce Commission may commence proceedings in relation to a contravention of s 12A.

[11]   Mr McKenzie has made no changes to the provisions of the Consumer Guarantees Act 1993 on which he relies, despite my comments about the relevance of several of the provisions.

[12]   Mr McKenzie has also not removed the references to the allegations of theft and obtaining by deception under provisions of the Crimes Act 1961.

[13]   Nor has he revised or particularised his claim for relief, which remains at a blanket $5 million, still claimed as monetary penalties and reparation under the Sentencing Act 2002, for an asserted loss of opportunity.

[14]   Mr McKenzie provided the Court with what appear to be two documents. The first is a tax invoice from NZ Proud Ltd dated 13 May 2022. It appears to relate to Mr McKenzie’s address and is for a “booking deposit to secure booking”— presumably for building work to be undertaken. The second is described as the terms and conditions of trade from NZ Proud Ltd. It is unclear whether it is a separate document or attached to the invoice.

[15]   These terms and conditions record that a 10 per cent booking deposit of the total estimated job value (capped at $10,000) will be invoiced immediately after written confirmation has been received from the customer, accepting NZ Proud Ltd’s estimate. The terms and conditions include a disputes clause, which contemplates referral of any dispute to adjudication in terms of Pt 3 of the Construction Contracts Act 2003. If any dispute or difference arises between the parties, a party must give written notice to the other party and on receipt of that notice, the parties must endeavour, in good faith and expeditiously, to resolve the dispute by negotiation. If this is unsuccessful, other resolution mechanisms are acknowledged, including the issue of proceedings in a court of competent jurisdiction. The terms and conditions also include provisions addressing price (including rates and disbursements) and payment, as well as many other matters.

[16]   No documentation has been provided that shows Mr McKenzie paid the invoice for the deposit referred to  above,  nor  that  confirms  a  contract  between Mr McKenzie and NZ Proud Kapiti. Mr McKenzie has not provided any other invoices or proof of payments that might confirm that renovation work has been undertaken on his home by NZ Proud Kapiti. Nor has he provided any documentation that indicates he has given written notice to NZ Proud Kapiti of a difference or dispute, or endeavoured to resolve any dispute by negotiation.

[17]   Thus, despite my earlier judgment, Mr McKenzie has not taken the opportunity given to him to remove irrelevant and meritless claims, properly particularise the remaining claims that may possibly have some merit, and provide sufficient documentation to support his claim.

[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.

[19]   I encourage Mr McKenzie to take the time available to him to seek legal advice before he files any further amended claim. Such legal advice would likely address the contractual basis for the work said to have been undertaken by NZ Proud Kapiti and this may support a claim to be brought based on breach of contract. It would also no doubt reduce the number of statutory provisions Mr McKenzie seeks to rely on and ensure that the relief sought has a proper foundation and is for an appropriate sum.

[20]   In giving Mr McKenzie another opportunity to amend his claim, he must comply with the following directions.

[21]   I direct that any further amended statement of claim filed by Mr McKenzie must (at the least):

(a)remove the second to tenth defendants;4

(b)omit any reference to breaches of the Crimes Act;

(c)not seek relief under the Sentencing Act 2002;

(d)provide detailed particulars as to the “opportunity” said to have been taken away from Mr McKenzie and how the actions of NZ Proud Kapiti caused the loss of that opportunity. This must be pleaded in relation to each cause of action; and

(e)provide detailed particulars as to how the sum of $5 million, or any amended sum claimed, is calculated as relief properly claimed in relation to each cause of action.

[22]   I also direct that Mr McKenzie must file documentation showing that he paid the invoice he has provided to the Court and further documentation evidencing all further invoices issued to him by NZ Proud Kapiti that are relevant to the causes of action pleaded and his payment (or not) of those invoices.

[23]   If no amended statement of claim and supporting documents that comply with the above directions is filed in the Court by 5.00 pm on Friday 28 March 2025, the proceeding will be deemed to be struck out without further order of the Court.

[24]   If Mr McKenzie files an amended statement of claim as directed, it is to be referred to me to determine whether it complies with the above directions and can be certified and have the present stay of the proceeding lifted.

[25]   If Mr McKenzie does not follow the specific directions I have given above, he must expect that his claim will be struck out.

4      Should the proceeding advance, this direction is not intended to prevent the adding of further defendants at a future point, should such a step be accepted by the Court as available. But at this stage, I do not accept that Mr McKenzie has particularised a claim against those defendants in a manner that justifies them being named in the statement of claim.

[26]   I record that Mr McKenzie has a right to appeal this decision in accordance with r 5.35B(3).

McQueen J