Mikkelsten v P & D Mikkelsen Partnership - [2023] NZHC 1006

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-100

[2023] NZHC 1006

BETWEEN
D H MIKKELSEN

Applicant

AND

P & D MIKKELSEN PARTNERSHIP

First Respondent

P L MIKKELSEN

Second Respondent

Hearing: 22 March 2023

Appearances:

Kate Cornegé for the Applicant

Peter Hardie for the Second Respondent

Judgment:

11 May 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Set aside protest to jurisdiction]

This judgment was delivered by me on 11 May 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Tompkins Wake (Olivia Morgan/Kate Cornegé), Tauranga, for the Plaintiff Jones Howden (Peter Hardie), Matamata, for the Respondents

D H MIKKELSEN v P & D MIKKELSEN PARTNERSHIP [2023] NZHC 1006 [11 May 2023]

Introduction

[1] Ms Deborah Anderson, formerly Mikkelsen (Ms Anderson), has applied to set aside a notice filed by the second respondent, Mr Phillip Mikkelsen (Mr Mikkelsen), protesting the jurisdiction of the High Court to hear and determine a wind up application of P & D Mikkelsen Partnership (the Partnership).

Background

[2] On 17 October 2022, Ms Anderson filed an originating application to appoint receivers to wind up the Partnership. It was subsequently served on Mr Mikkelsen on 9 November 2022.

[3] On 25 November 2022, Mr Mikkelsen filed a notice of appearance protesting the jurisdiction of the High Court to hear and determine the originating application (the notice). Instead, he asserted the proper forum was the Family Court or that the application was an abuse of process.

[4] On 13 December 2022, Ms Anderson then filed this interlocutory application to set aside the notice of appearance.

Ms Anderson’s application to set aside notice

[5] Ms Anderson seeks an order setting aside the notice of appearance protesting jurisdiction filed by the second respondent and costs against the second respondent.1

[6]The grounds on which the orders are sought are:2

(a)On 17 October 2022, the applicant filed an originating application in the High Court seeking the appointment of receivers to the Partnership (Application).

(b)On 25 November 2022:

(i) The Second Respondent filed:

1 Interlocutory application to set aside notice of appearance protesting jurisdiction dated 13 December 2022 at [1].
2 At [2].

(A) proceedings in the Family Court seeking the division and classification of relationship property (Second Respondent only);

(B) an interlocutory application in the Family Court for orders appointing a person to sell and divide property pursuant to the Property (Relationships) Act 1976; and

(ii)The First and Second Respondent filed a Notice of Appearance Protesting Jurisdiction in the High Court on the basis that:3

(A) the High Court has no jurisdiction because (inter alia) the property of the Partnership compromises relationship property and the separate property of the Second Respondent:

(B) the originating application is an abuse of process.

(c)The Property (Relationships) Act 1976 (PRA) does not preclude the Applicant from seeking orders in the High Court appointing a receiver to wind…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 1006
Decision Date: 11 May 2023

CaseChat Overview and Summary

Ms Deborah Anderson (Ms Anderson) applied to set aside a notice protesting the jurisdiction of the High Court filed by Mr Phillip Mikkelsen (Mr Mikkelsen) in relation to an originating application seeking the appointment of receivers to wind up P & D Mikkelsen Partnership (the Partnership). Ms Anderson sought an order setting aside the notice of appearance protesting jurisdiction filed by Mr Mikkelsen and costs against Mr Mikkelsen. The issue before the Court was whether the Court had jurisdiction to appoint a receiver to the Partnership assets. The Court found that the substantive application was not one under the Property (Relationships) Act 1976 (the PRA), and therefore the Court had jurisdiction. However, if questions of relationship property did arise under the application, such questions must be resolved in accordance with the PRA. The Court concluded that if the receivers were appointed, they should complete the sale of the Partnership assets, pay the liabilities to all creditors and third parties, and then pay the remaining balance of funds to an independent party to be held in trust pending resolution of Mr Mikkelsen’s relationship property claims in the Family Court. The Court set aside the notice and directed counsel to agree costs within 20 working days of the date of the judgment. If no agreement was reached within the 20 working day period, counsel for the plaintiff would submit a memorandum as to costs (not exceeding five pages) within five working days of the expiry of the 20 working day period, and counsel for the defendant would submit a memorandum in reply (not exceeding five pages) within five working days of receipt of counsel for the plaintiff’s memorandum. Costs would then be determined on the papers.

Orders