Mills v Dalzell - [2025] NZCA 91

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA186/2024
[2025] NZCA 91

BETWEEN

LYNETTE JOY MILLS
First Applicant

CARL JAMES PETERSON
Second Applicant

THE PETERSON/MILLS PARTNERSHIP
Third Applicant

AND

KELLY DALZELL
First Respondent

TRACY HOWARD LEVENBACH
(deceased)
Second Respondent

ASB BANK LIMITED
Third Respondent

GRAHAM HOWARD-MILLS
Fourth Respondent

JOHN LEVENBACH
Fifth Respondent

CAROL KRAMMER
Sixth Respondent

HOLLAND BECKETT
Seventh Respondent

MINTERELLISONRUDDWATTS
Eighth Respondent

MORGAN COAKLE
Ninth Respondent

ASSOCIATE JUDGE JOHNSTON
Tenth Respondent

JEREMY RUSSELL SPARROW
Eleventh Respondent

SEBASTIAN THOMAS HARTLEY
Twelfth Respondent

STACEY LEE MICHELSEN
Thirteenth Respondent

SEAN CHRISTOPHER DAVID ALBERT GOLLIN
Fourteenth Respondent

BRIAR RENEE WEBSTER
Fifteenth Respondent

KIRSTY BRONWYN PERRETT
Sixteenth Respondent

WALDO ABRIE
Seventeenth Respondent

CA318/2024
BETWEEN	LYNETTE JOY MILLS Applicant
AND	GRAHAM HOWARD-MILLS Respondent

Court:	Courtney and Cooke JJ
Counsel:	Applicants in person S C D A Gollin and S L Michelsen for First, Third, Eighth, Thirteenth and Fourteenth Respondents in CA186/2024 No appearance for Second Respondent in CA186/2024 T J Conder for Fourth, Seventh, Eleventh and Twelfth Respondent in CA186/2024 and Respondent in CA318/2024 B R Webster and K B Perrett for Fifth, Sixth, Ninth, Fifteenth, Sixteenth and Seventeenth Respondents in CA186/2024 No appearance for Tenth Respondent in CA186/2024
Judgment: (On the papers)	3 April 2025 at 10.30 am

JUDGMENT OF THE COURT

AThe applicants in CA186/2024 must pay costs to the first, third, eighth, thirteenth and fourteenth respondents in the sum of $3,992.80.
BThe applicants in CA186/2024 must pay costs to the fifth, sixth, ninth, fifteenth, sixteenth and seventeenth respondents in the sum of $2,361.60.
CThe applicants in CA186/2024, and the applicant in CA318/2024, must pay costs to Graham Howard-Mills in the sum of $2,189 in respect of CA186/2024, and the sum of $3,729 in respect of CA318/2024.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooke J)

By judgment dated 17 December 2024 this Court struck out the applicants’ proposed appeal in CA186/2024, and declined an application for an extension of time in CA318/2024.[1] When doing so it awarded indemnity costs against the applicants.[2] In relation to CA186/2024 the Court said:[3]
[36] Indemnity costs are awarded only in exceptional cases. Flagrant misconduct is generally required. We consider this case meets the threshold for an award of indemnity costs. Ms Mills’ and Mr Petersen’s claims are clearly an attempt to relitigate matters which have been determined conclusively already. The applicants are unduly prolonging a case by groundless contentions and meet the threshold for an award of indemnity costs.

And in relation to CA138/2024:[4]

[37] Mr [Howard-]Mills sought increased or indemnity costs in relation to CA318/2024. We are satisfied that this is an appropriate case for indemnity costs. For the reasons already discussed, we consider that Ms Mills has acted vexatiously, frivolously, improperly, and unnecessarily in commencing the proceedings and pursuing her appeal.
[1]Mills v Dalzell [2024] NZCA 675 [strike-out judgment] at [38] and [40].
[2]At [41] and [42].
[3]Footnotes omitted.
[4]Footnotes omitted.

In relation to CA186/2024, the Court ordered the applicants to pay indemnity costs and usual disbursements…

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.

Continue reading Mills v Dalzell

Details

AGLC: Mills v Dalzell [2025] NZCA 91
Case: [2025] NZCA 91
Decision Date: 3 April 2025

CaseChat Overview and Summary

The case of Mills v Dalzell, CA186/2024 and CA318/2024, involved multiple applicants seeking to appeal decisions made by the Court of Appeal of New Zealand. The applicants in CA186/2024 were Lynette Joy Mills, Carl James Peterson, and the Peterson/Mills Partnership, while the applicant in CA318/2024 was Lynette Joy Mills alone. The respondents included Kelly Dalzell, Tracy Howard LeVenbach (deceased), ASB Bank Limited, and several other individuals and entities. The primary dispute centered around the applicants' attempts to relitigate issues that had already been conclusively decided, leading to the Court awarding indemnity costs against them.

The court was required to determine the appropriate quantum of indemnity costs that should be awarded to the respondents. Indemnity costs are awarded in exceptional cases where there is flagrant misconduct, and the court had already determined that the applicants' actions met this threshold. The specific legal issues included the reasonableness of the time spent on the litigation, the hourly rates charged, and the overall reasonableness of the fees claimed. The court also had to consider whether the applicants' liability for costs in CA186/2024 was joint and several.

The court reviewed the memoranda filed by the respondents detailing the steps taken in the litigation, the amount of time spent, and the hourly rates used. It found that the time spent and the hourly rates were reasonable, as was the total amount claimed. The court accepted the apportionment of costs across the various proceedings and concluded that the overall costs were reasonable. However, it deducted $550 from the claim for the cost of the indemnity costs memorandum, as it did not consider this amount within the current award for indemnity costs. The applicants' liability for costs in CA186/2024 was joint and several.

The court ordered that the applicants in CA186/2024 must pay costs to the first, third, eighth, thirteenth and fourteenth respondents in the sum of $3,992.80, and to the fifth, sixth, ninth, fifteenth, sixteenth and seventeenth respondents in the sum of $2,361.60. Additionally, the applicants in CA186/2024, and the applicant in CA318/2024, must pay costs to Graham Howard-Mills in the sum of $2,189 in respect of CA186/2024, and the sum of $3,729 in respect of CA318/2024. This decision underscores the court's authority to award indemnity costs in cases of vexatious and frivolous litigation.

Orders