McKenzie v The Co-Operative Bank Limited
[2025] NZCA 318
•15 July 2025 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA787/2024 |
| BETWEEN | ANGUS EDWARD MCKENZIE |
| AND | THE CO-OPERATIVE BANK LIMITED |
| Hearing: | 15 May 2025 |
Court: | Thomas, Fitzgerald and Eaton JJ |
Counsel: | Appellant in person |
Judgment: | 15 July 2025 at 11.00 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Eaton J)
Introduction
Angus McKenzie appeals the 27 November 2024 decision of Gwyn J striking out his claim against the respondent under r 5.35B of the High Court Rules 2016.[1]
Background
[1]McKenzie v Co-operative Bank Ltd [2024] NZHC 3573.
On 20 November 2024, Mr McKenzie filed a statement of claim alongside a document entitled “Summery of Facts” in the High Court at Wellington. The named defendant is The Co‑operative Bank Ltd (the Bank). Although difficult to follow, there appear to be four causes of action pleaded.
The first alleges that, since 2015, the Bank had been deceitful and misleading in its failure to provide proof of transactions in accordance with s 135 of the Banking (Prudential Supervision) Act 1989.
The second alleges that, between 2021 and 2023, Mr McKenzie was scammed multiple times, leading to a six-figure depletion of his bank account. It alleges the Bank failed to carry out wellness checks and failed to provide care and skill under the Consumer Guarantees Act 1993.
The third alleges the Bank made misrepresentations “such as providing statements that show transactions being on the wrong day and providing another form of transaction history that has been inconsistent with printed statements”. It alleges the Bank has lied in emails and voicemails and that Mr McKenzie has been contacted by “false aliases” representing the Bank. This cause of action alleges breaches of the Fair Trading Act 1986.
The fourth alleges the Bank has deceitfully provided fraudulent transaction logs in breach of the Crimes Act 1961.
For each of the four causes of action, Mr McKenzie seeks relief in the sum of $466 million with reliance on either “the basis of The Sentencing Act 2002 Part 2” (for the first, third and fourth causes of action) or the Consumer Guarantees Act (for the second cause of action). The relief sought is seemingly quantified as “roughly $1000 compensation for every $1” in respect of which Mr McKenzie has been “ripped off and gaslit”.
The accompanying summary of facts is 14 pages, incorporating images of Mr McKenzie’s bank statements and screenshots of his bank account, and advances a narrative alleging deceit or fraud by the Bank. The summary focuses particularly on the dates on which direct debits or payments were recorded as being deducted from Mr McKenzie’s bank account in what are said to be discrepancies reflecting a “fraudulent manipulation” of his account. The summary refers to a notice to surrender shares held in the Bank as a result of his account having been closed. Mr McKenzie appears to allege the Bank stole his closing balance of $8.06.
The summary also incorporates allegations in relation to life insurance and home and contents insurance. Mr McKenzie says the Bank misled him as regards its commission on insurance sales and complains about the denial of an insurance claim following a burglary.
Finally, the summary records that Mr McKenzie has engaged with the Banking Ombudsman but that the Ombudsman has failed to investigate his complaint, an action described by Mr McKenzie as “aiding and abetting”.
Judgment under appeal
The Judge observed that the documents filed by Mr McKenzie had been referred to her by the Registrar under r 5.35A of the High Court Rules on the grounds that, on their face, the documents were plainly an abuse of process of the Court.[2] The Judge discussed the powers conferred by r 5.35B and acknowledged that it must be clear that the plaintiff is seeking to use the processes of the Court for some ulterior or improper purpose.[3] The Judge observed that the Court must consider both public and private interests, which are to be weighed against the right of a litigant to bring proceedings.[4]
[2]At [3].
[3]At [6], citing Te Wakaminenga O Nga Hapu Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63, [2023] NZAR 180 at [17].
[4]At [7], citing Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3220 at [20].
The Judge referred to and summarised the documents Mr McKenzie had filed, concluding that had she been able to identify what could be a viable claim, she would have stayed the claim and sought further information. The Judge acknowledged that it was plain Mr McKenzie had a grievance against the Bank but found that, not only did the claim not plead a comprehensible cause of action,[5] but that “right thinking people” would regard the Court as exercising very poor control of its processes if it were to allow Mr McKenzie’s document to be regarded as a proper document.[6] The Judge described the statement of claim as relying on a mix of civil and criminal law. The statement of claim was struck out and the proceeding dismissed.[7]
Approach on appeal
[5]At [17].
[6]At [19].
[7]At [20].
Under s 56(4)(a) of the Senior Courts Act 2016, any party may appeal to this Court against any order or decision of the High Court “striking out or dismissing the whole or part of a proceeding”. Mr McKenzie bears the onus of satisfying us that the Judge was wrong.[8]
Submissions
[8]Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4] and [13].
Mr McKenzie filed a written submission and made brief oral submissions advancing two primary arguments.
First, he confirmed that he now relies on an “Amended Statement of claim”, which he submits is more coherent and will be “easier for the defendant to respond to and for the court to understand”. He submits the statement of claim is now compliant with the High Court Rules and thus the proceeding is not an abuse of process.
Secondly, he submits that he should be permitted to allege criminal offending and to rely on criminal legislation in the context of civil proceedings. He says he is alleging criminal offending against the Bank, not a particular individual. He submits it is not necessary to rely on the Criminal Procedure Act 2011 to initiate a criminal prosecution in order to seek reparation under the Sentencing Act. He refers to the purposes provision, s 3, as supporting his submission that it is appropriate to advance his allegation of criminal offending in High Court civil proceedings.
In accordance with this Court’s usual practice on appeals from decisions under r 5.35B, the respondents were not required to, and did not, participate in the appeal.
Amended statement of claim
The amendments we identify in the amended statement of claim are as follows:
(a)Each of the four causes of action are numbered.
(b)The first cause of action alleges the Bank has provided statements that “fail to be proof of transactions”. The original claim alleged the Bank “failed to provide proof of transactions”.
(c)The first cause of action relies on s 151, and not s 135, of the Banking (Prudential Supervision) Act and also s 256 of the Crimes Act.
(d)The third cause of action now includes two examples of alleged misrepresentations.
(e)The fourth cause of action adds an allegation of forgery to the allegations of theft and obtaining by deception, includes an example of an allegedly fraudulent transaction log and refers to the closure of Mr McKenzie’s account and the seizure of the closing balance of $8.06.
Mr McKenzie did not refer to any amendments to the summary of facts that accompanies the amended statement of claim.
Legal principles
Rule 5.35B entitles a Judge to (among other things) strike out a proceeding if “satisfied that the proceeding is plainly an abuse of the process of the court”.[9] An abuse of process is the “improper use of [the court’s] machinery”,[10] or the use of a court process “for a purpose or in a way which is significantly different from [its] ordinary and proper use”.[11] The right to bring proceedings before the court is a fundamental right and the court will cautiously exercise its power to strike out or stay a proceeding.[12] There are, however, reasonable limits to recourse to law.[13]
[9]High Court Rules 2016, r 5.35B(1) and (2)(a).
[10]Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [87], quoting Simon Goulding, DB Casson and William Blake Odgers Odgers on Civil Court Actions (24th ed, Sweet & Maxwell, London, 1996) at [10.15].
[11]Te Wakaminenga O Nga Hapu Ki Waitangi v Waitangi National Trust Board, above n 3, at [14], quoting Attorney-General v Barker [2000] 1 FLR 759 (QB) at 764.
[12]At [15].
[13]Faloon v Planning Tribunal at Wellington [2020] NZCA 170 at [1].
A two-limbed test for strike out under r 5.35B was adopted in Mathiesen v Slevin[14] and refined by this Court in O’Neill v Judicial Conduct Commissioner.[15]That test requires the Court to consider:
(a)whether it would be manifestly unfair to the respondent that it be required to respond; and
(b)whether right thinking people would consider the Court was exercising very poor control of its processes if it permitted the matter to proceed further.
Discussion
Amendments
[14]Mathiesen v Slevin [2018] NZHC 1032, (2018) 25 PRNZ 116 at [6].
[15]O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [30].
In our view the amendments made to the statement of claim do not address the concerns raised by the Judge. The most significant amendments are to the first cause of action. Mr McKenzie now seeks to rely on s 151 of the Banking (Prudential Supervision) Act and s 256 of the Crimes Act to support the allegation that the Bank provided statements that fail to be proof of transactions and that his latest bank statement “appears to be altered and manipulated”.
Mr McKenzie’s reliance on both provisions is misconceived, as was his initial reliance on s 135 of the Banking (Prudential Supervision) Act. Section 151 is entitled “Offence to destroy, alter or conceal records”. No doubt that heading appealed to Mr McKenzie. Section 151 provides the imprisonable criminal offence of intentionally destroying, altering or concealing records of or relating to a registered bank that is subject to statutory management. That provision has no application to Mr McKenzie’s claim. Section 256 of the Crimes Act provides the offence of forgery. Forgery is the criminal offence of making a false document with intent to use it to obtain a benefit.
The amendment to the first cause of action to allege a failure to be proof of transactions is semantic. The other amendments are to the statutory provisions relied on, and the addition of the examples we have referred to at [18]. Those amendments do not assist in identifying a viable claim against the Bank.
Alleging criminal offending and relief under the Sentencing Act
The fundamental problem with Mr McKenzie’s statement of claim is that it alleges various criminal offences against the Bank and relies on proof of criminal offending to secure an order of reparation in the sum of $466 million.
The Crimes Act does not provide a foundation for a civil proceeding. An individual cannot, through the mechanism of civil proceedings, allege criminal offending.[16] It is the Criminal Procedure Act that governs the commencement of criminal proceedings. It requires the filing of a charging document that must satisfy minimum requirements, including sufficient particulars of the alleged offending.[17]
[16]Ropiha-Waikerepuru v Simpson Grierson [2023] NZHC 646 at [16]; and Re Foster [2019] NZHC 373 at [17].
[17]Criminal Procedure Act 2011, ss 14, 16 and 17.
Mr McKenzie’s amended statement of claim repeats his claim for relief in the sum of $466 million with reliance on Part 2 of the Sentencing Act. That claim is misconceived. The Sentencing Act does not provide jurisdiction for relief in a civil proceeding. A sentence of reparation under Part 2 of the Act can only be imposed following the conviction of an offender. Reparation is a means to compensate those who suffer loss from criminal activities, avoiding the need for civil remedies.[18]
[18]R v O’Rourke [1990] 1 NZLR 155 (CA) at 158.
The stark disconnect between the pleadings (which include reference to a bank statement recording a balance of $168.05 when Mr McKenzie “believed my account balance was $177 something”) and the relief sought of $466 million highlights Mr McKenzie’s improper use of the court’s machinery. We agree with the Judge that the pleadings are plainly an abuse of the Court’s process.
Consumer Guarantees Act and Fair Trading Act
For completeness we refer to the alleged breaches of the Consumer Guarantees Act (CGA) and the Fair Trading Act (FTA). In his second cause of action, Mr McKenzie alleges that the Bank failed to carry out wellness checks in breach of its obligation to provide reasonable care and skill under the CGA. We are satisfied that the broad nature of that allegation is such that the respondent ought not be required to respond.
For the second cause of action, Mr McKenzie seeks relief of $466 million under s 32 of the CGA. Section 32 provides the options of consumers where services do not comply with guarantees. Where the failure cannot be remedied or is of a substantial character, the consumer has the right to cancel the contract or to obtain damages in compensation for any reduction in value of the product of a service below the charge paid or payable by the consumer for the service. Mr McKenzie’s reliance on s 32 of the CGA to secure damages in the sum of $466 million is again misconceived.
Finally, Mr McKenzie’s third cause of action alleges both the criminal offence of forgery and breaches of s 12A (unsubstantiated representations), s 13 (false or misleading representations), s 22 (misleading representations about certain business activities), s 23 (harassment and coercion) and s 27 (consumer information standards) of the FTA. Under this cause of action, Mr McKenzie alleges the Bank provided inconsistent bank statements which recorded transactions on the wrong day and contained very slight discrepancies in dollar value amounts. Mr McKenzie further alleges he was contacted by “false aliases” representing the Bank. These allegations are broad, allege criminal offending and overlap with the first cause of action. Again, Mr McKenzie seeks relief in the sum of $466 million. We agree with the Judge that it would not be reasonable to require the Bank to respond.
Observation
Plainly, Mr McKenzie has a grievance against the Bank. He tells us he has made a complaint to the Banking Ombudsman, who has closed the file. We understand he has not made a complaint to the police.
Mr McKenzie’s remedy does not lie in civil proceedings advancing broad allegations of criminal offending in pursuit of wholly unrealistic relief.
We are satisfied the amended statement of claim, as with the original statement of claim, does not plead a cause of action to which the Bank could reasonably respond. The proceeding engages the Court’s obligation to ensure its processes are not abused and to protect defendants from oppressive proceedings. Mr McKenzie’s right as a litigant to bring proceedings must be weighed against the broad public interest and the private interest of the Bank, who will otherwise be drawn into what we assess to be unmeritorious proceedings.
We discern no error in the decision of the Judge. We are quite satisfied that “right thinking people” would regard the Court as exercising very poor control of its processes if it were to allow this claim to proceed further.
Result
The appeal is dismissed.
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