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Mills v Dalzell

Mills v Dalzell

Case [2024] NZCA 675 17 December 2024

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA186/2024
[2024] NZCA 675

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 LAW Seventh Respondent
MINTERELLISONRUDDWATTS Eighth Respondent
MORGAN COAKLE LAWYERS 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 S B 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)	17 December 2024 at 3.30 pm

JUDGMENT OF THE COURT

A We strike out the proposed appeal CA186/2024 for want of jurisdiction.
BIf the applicants file any applications in this Court in relation to [2022] NZHC 581, the registry is directed to refer them to a Judge of this Court for directions before the respondents are required to file any response to them.
CThe application for an extension of time for CA318/2024 is declined.
D The applicants in CA186/2024 together must pay indemnity costs and usual disbursements to: (1) the 1st, 3rd, 8th, 13th and 14th respondents (2) the 4th, 7th, 11th and 12th respondents and (3) the 5th, 6th, 9th, 15th, 16th and 17th respondents.
EThe applicant in CA318/2024 must pay the respondent indemnity costs in respect of both the r 29A application and the r 44A application and usual disbursements.

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

These proposed appeals have their origins in a dispute between Ms Mills and Mr Peterson (Ms Mills’ current domestic and business partner) on the one hand, and Mr Mills (Ms Mills’ former domestic and business partner) on the other. The dispute arose from the parties’ attempt to agree on the distribution of Ms Mills and Mr Mills’ relationship property. It has led to a significant body of litigation brought by Ms Mills and Mr Peterson against Mr Mills and various staff of ASB Bank Ltd (ASB) and, latterly, lawyers acting for Mr Mills and ASB. One of the central themes in the litigation is whether Mr Mills, who took Ms Mills’ name during their relationship and continued to use it afterwards, acted fraudulently in doing so. This complaint, and the allegations based on it, have been consistently rejected by…

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 [2024] NZCA 675
Case: [2024] NZCA 675
Decision Date: 17 December 2024

CaseChat Overview and Summary

In Mills v Dalzell, the Court of Appeal of New Zealand was asked to decide the outcome of two appeals: one involving a proposed appeal (CA186/2024) and the other an appeal against the refusal to set aside a bankruptcy notice (CA318/2024). The appeals arose from ongoing litigation between Lynette Mills and her former partner Graham Mills concerning the division of relationship property and allegations of fraud. The Court was required to determine whether the proposed appeal should be struck out for want of jurisdiction and if an extension of time should be granted for the appeal in CA318/2024. Additionally, the Court needed to decide whether costs should be awarded to the respondents.

The Court found that the proposed appeal CA186/2024 was struck out for want of jurisdiction as it sought to relitigate issues that had been decided in previous proceedings and was an abuse of process. The Court noted that the appeal was not served on the respondents within the required time and that no application for an extension of time had been made. Despite one new allegation regarding the transfer of ETS interests, the Court concluded that the appeal was hopeless and an abuse of process. Therefore, the Court declined to grant an extension of time for the appeal in CA318/2024. The appeal in CA318/2024 was also found to be hopeless as it relied on claims that had been previously determined to be without merit.

The Court ordered that the applicants in CA186/2024 pay indemnity costs and usual disbursements to the respondents in groups based on their relationship to the parties involved. The applicant in CA318/2024 was ordered to pay indemnity costs in respect of both the r 29A application and the r 44A application, along with usual disbursements. The Court emphasized that the applicants' attempts to relitigate decided issues amounted to vexatious and frivolous conduct, justifying the award of indemnity costs.

Orders