McKenzie v New Zealand Proud Kapiti Limited

[2025] NZHC 320

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 320

BETWEEN

ANGUS EDWARD McKENZIE

Plaintiff

AND

NEW ZEALAND PROUD KAPITI LIMITED AND OTHERS

Respondents

Hearing:	On the Papers
Counsel:	Plaintiff in Person
Judgment:	27 February 2025

JUDGMENT 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 has referred the documents 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.

Relevant law

[3]    If I consider that the statement of claim does amount to such an abuse of process, under r 5.35B of the Rules, I may make orders or give directions to ensure

McKENZIE v NEW ZEALAND PROUD KAPITI LIMITED AND OTHERS [2025] NZHC 320 [27 February 2025]

the proceeding is disposed of or proceeds in a manner that complies with the Rules, including striking out or staying the proceeding under r 15.1 of the Rules.

[4]    When deciding whether to strike out a proceeding under r 5.35B of the Rules, the Court must determine:1

(a)whether it would be manifestly unfair to the defendants 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 document to be regarded as a proper document, or if it were to allow the proceeding to proceed further.2

[5]    The power 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.3

[6]    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 proceedings. That must be weighed against the right of a litigant to bring proceedings.4

The statement of claim

[7]    In his statement of claim, Mr McKenzie makes various accusations against NZ Proud Kapiti and its associates (being apparently related companies, shareholders, directors and employees). He says that they:

1      Mathiesen v Slevin [2018] NZHC 1032, (2018) 25 PRNZ 116 at [6] citing Mathiesen v Fildes

[2017] NZHC 2258.

2      O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [30].

3      Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board [2023] NZCA 63.

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

(a)misled him as to the duration of the renovation project he has undertaken;

(b)quoted him an inaccurate number of hours of labour for carpenters;

(c)charged him an hourly rate higher than advertised;

(d)misled or lied to him about invoicing and sourcing alternative subcontractors; and

(e)installed a door that he had not chosen and installed poorly aluminium joinery, kitchen joinery and architraves.

[8]    Mr McKenzie says in relation to each of these matters that these actions “have taken my opportunity away from me” and refers to various statutory provisions in the Fair Trading Act 2014 (FTA) and the Consumer Guarantees Act 1993 (CGA). These relate to misleading and deceptive conduct,5 false and misleading representations,6 harassment and coercion,7 consumer information standards,8 and guarantees in respect of supplying goods and services.9 Mr McKenzie also refers to ss 219 and 240 of the Crimes Act 1961, which concern the crimes of theft and obtaining by deception respectively.

[9]    Mr McKenzie seeks relief in the sum of $5,000,000 for each “cause of action” and refers to pt 2, subpt 1 of the Sentencing Act 2002, which relates to monetary penalties, as well as s 32 of that Act, which concerns imposing a sentence of reparation. He also refers to pt 4 and s 32 of the CGA, which set out means of remedying failures to comply with guarantees in relation to the supply of services.

5      Fair Trading Act 2014 (FTA), ss 9 and 11.

6      Sections 13 and 22.

7      Section 23.

8      Section 27(1A).

9      Consumer Guarantees Act 1993 (CGA), ss 5A, 6, 8, 9, 11, 28, 29, 30 and 31.

Discussion

[10]   There is a significant lack of particularisation and clarity in Mr McKenzie’s statement of claim. Although he provides relatively clear information on what he alleges NZ Proud Kapiti have done—namely misleading and overcharging him and doing poor work on his house—he does not specify which of the statutory provisions he has listed each alleged action breaches. There is no reference to any contract that has been breached, nor to any other arrangement under which the renovation was undertaken. Additionally, there is no indication as to how the defendants other than NZ Proud Kapiti are implicated in the alleged breaches, given those breaches all appear only to concern the actions of NZ Proud Kapiti.

[11]   Mr McKenzie’s statement of claim also fails to outline the loss suffered as a result of the various breaches, instead making a blanket claim for $5 million. Such a figure does not seem to have any relationship to the actual loss suffered, based on the limited figures he does provide. Also problematic is that the relief is sought as monetary penalties and reparations.

[12]   Many of the statutory provisions relied upon appear irrelevant to the alleged breaches by NZ Proud Kapiti. On the pleaded facts, there appears to be no basis for alleging a breach of s 22 of the FTA, as this concerns misleading representations about certain business activities, such as prospective employees or investors, rather than customers. The same can be said about the allegations of breach of s 27 of the FTA, concerning consumer information standards, and ss 5A, 6, 8, 9 and 11 of the CGA, which relate to the supply of goods rather than services. The criminal charges raised against the defendants not only appear baseless but are not available given this is a civil proceeding and Mr McKenzie has not sought to file a charging document.10

[13]   However, on the pleaded facts there does appear to be a potential foundation for claims of breaches of ss 9, 11, 12A and 13 of the FTA, which concern misleading and deceptive conduct and unsubstantiated, false  or  misleading  representations.  Mr McKenzie may also have a viable claim for breaches of ss 28–31 of the CGA,

10     Criminal Procedure Act 2011, s 26.

which relate to guarantees as to reasonable care and skill, fitness for purpose, time of completion and pricing of services.

[14]   I therefore consider this to be a different situation from a previous claim brought by Mr McKenzie that was struck out by Gwyn J.11 In that case, no comprehensible cause of action was pleaded against the defendant to which it could respond.12 In contrast, I am able to discern here the general claims that Mr McKenzie seeks to make against NZ Proud Kapiti.

[15]   Although much of the statement of claim is groundless and poorly pleaded, I do not consider this to be a case where striking out the claim in its entirety is warranted. Rather, I consider that Mr McKenzie should have the opportunity to amend his pleading to remove irrelevant and meritless claims and properly particularise the remaining claims which may possibly have some merit.

[16]   Mr McKenzie must also remove the defendants other than NZ Proud Kapiti from his statement of claim or demonstrate a clear basis for why they should be named as defendants in this proceeding.

[17]   I further require Mr McKenzie to provide with any amended statement of claim documents in support of his claim. This would include any contract between him and NZ Proud Kapiti and/or any documentary evidence of the arrangements between him and NZ Proud Kapiti as to the renovation referred to in the claim.

Directions

1. I therefore make the following directions pursuant to r 5.35B(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:

11     McKenzie v Co-operative Bank Ltd [2024] NZHC 3573.

12 At [17].

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.

[19]   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.

[20]   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. If so, I will direct that an application to lift the stay may then be filed and determined.

[21]   Under r 5.35B(3), I am required to advise Mr McKenzie that, under s 56 of the Senior Courts Act 2016, he has the right to appeal this decision to the Court of Appeal in accordance with the Court of Appeal (Civil) Rules.

McQueen J