Mills v Dalzell
[2024] NZCA 675
•17 December 2024
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA186/2024 [2024] NZCA 675 |
| BETWEEN | LYNETTE JOY MILLS |
| CARL JAMES PETERSON Second Applicant | |
| THE PETERSON/MILLS PARTNERSHIP Third Applicant | |
| AND | KELLY DALZELL |
| 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 | |
| AND | GRAHAM HOWARD MILLS | |
| Court: | Courtney and Cooke JJ |
Counsel: | Applicants in person |
Judgment: | 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.
____________________________________________________________________
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 the courts.[1]
[1]Mills v Dalzell [2024] NZHC 581 [Radich J’s judgment] at [8] and [16]; and Mills v Dalzell [2022] NZHC 2439 [High Court prior proceedings] at [51]. See also Mills v Dalzell [2023] NZCA 458 [Court of Appeal prior proceedings] at [26]; and Mills v Dalzell [2024] NZSC 6 [Supreme Court prior proceedings] at [6].
The respondents say that in the proposed appeals the appellants seek to relitigate issues that have been decided in previous litigation and the appeals and are an abuse of process.[2]
[2]We note there is no appearance from the tenth respondent, Associate Judge Johnstone, and the third respondent, Ms Levenbach.
The appeal in CA186/2024 is brought in relation to a proceeding commenced in March 2024, which Radich J in the High Court struck out as an abuse of process because it sought to relitigate matters that had been decided in previous proceedings.[3] Shortly after the notice of appeal in CA186/2024 was filed in this Court, Katz J, in a minute dated 29 April 2024, directed that consideration be given to striking out the appeal under r 44A of the Court of Appeal (Civil) Rules 2005 (the Rules).[4]
[3]Radich J’s judgment, above n 1, at [16]–[17]. The parties to this proceeding are Ms Mills, Mr Peterson and the Mills/Peterson partnership. For convenience, we refer to Ms Mills and Mr Peterson throughout as encompassing all the parties.
[4]Court of Appeal (Civil) Rules 2005, r 44A(1)(c).
Although the notice of appeal in CA186/2024 was filed within time, it was not served on the respondents until some five weeks later. As a result, the appeal was not brought within time and an extension of time would be required for it to continue.[5] Ms Mills and Mr Peterson have not applied for an extension of time and the respondents are opposed to any extension being granted.
[5]Rules 31(1)(b) and 29(1)(a).
The appeal in CA318/2024 is brought against Associate Judge Skelton’s refusal to set aside a bankruptcy notice issued by Mr Mills against Ms Mills in relation to unpaid costs in the earlier litigation.[6] The Judge held that the counterclaims and set-offs asserted by Ms Mills were based on allegations that had been finally determined in previous proceedings, and the claims relating to the emissions trading scheme (ETS) interests were an abuse of process.[7] The appeal in CA318/2024 was filed out of time and an extension of time has been sought. Mr Mills, the only respondent to that application, opposes the application. Mr Mills has also applied to strike out the appeal under r 44A.
The background to this litigation
The first round of litigation
[6]Mills v Mills [2024] NZHC 733 [Associate Judge Skelton’s judgment].
[7]At [35]–[37].
The summary below is drawn from the decision of Associate Judge Johnston in relation to the prior proceedings brought by Ms Mills and Mr Peterson:[8]
[8]High Court prior proceedings, above n 1 (footnotes in original).
[12] Mr Mills and Ms Mills were both domestic and business partners. They farmed two properties. They banked with ASB in Nelson. They operated what I take to have been a joint current account (referred to in the evidence as a “revolving credit account”, and apparently styled an “Orbit” account), and term loan accounts. ASB held all obligations first ranking mortgage securities over their properties.
[13] Although Mr Mills and Ms Mills were not married, they used the same surname. Mr Mills adopted Ms Mills’ surname. …
[14] In 2010, Mr Mills and Ms Mills separated, though of course this did not have any immediate impact on their contractual rights and obligations in relation to ASB.
[15] In 2014, Mr Peterson and Ms Mills commenced a relationship, which also had, and continues to have, both domestic and business dimensions.
[16] In May 2015, Mr Peterson, Ms Mills and Mr Mills agreed that Mr Peterson would acquire Mr Mills’ relationship property and assume Mr Mills’ indebtedness and related obligations to ASB. No doubt this appeared to the parties to be a tidy way of addressing aspects of the division of relationship property as between Mr Mills and Ms Mills. Regrettably, however, the parties did not involve ASB until after they had made these arrangements. When, eventually, they sought ASB’s consent, it was not forthcoming.
…
[18] In mid-June 2015, Mr Peterson made a payment of $40,000 into the current account. Following this payment, Mr Mills, who of course was an account holder, asked ASB to reduce the overdraft limit for the account from $50,000 to $12,000. ASB did so. When Mr Peterson and Ms Mills became aware of the reduction in the overdraft limit, Ms Mills, who was the other account holder, requested the Bank to reinstate the $50,000 limit. Again, ASB did so. Following the reinstatement of the $50,000 overdraft facility, Mr Mills withdrew $40,000.
[19] These events, and most particularly Mr Mills’ withdrawal of funds from the joint current account, … led to Mr Peterson and Ms Mills commencing proceedings against both Mr Mills and ASB. It is unnecessary to describe these claims in detail. The proceeding against Mr Mills was commenced by Mr Peterson and Ms Mills in late 2015 and the claim against ASB in early 2016. The theme running through these claims was that Mr Mills had defrauded Mr Peterson and Ms Mills, that ASB, through its officers, Ms Dalzell and the late Ms Levenbach, and Mr Levenbach, a solicitor practising in Nelson, and his legal executive, Ms Krammer, were all complicit in the fraud or frauds.
[20] Mr Peterson and Ms Mills’ proceeding against Mr Mills was concluded by May 2021. Orders made by Palmer J in that proceeding facilitated the transfer to Mr Peterson of Mr Mills’ half share in the properties and the repayment of the residual indebtedness to ASB by means of the sale of one of the properties.[9] [Ms Mills and Mr Peterson applied, unsuccessfully for leave to appeal to this Court].[10]
[21] In the claim against ASB, [ASB] applied for summary judgment and was successful in the District Court.[11] Mr Peterson and Ms Mills appealed to [the High] Court unsuccessfully.[12] They then sought leave to appeal to [this Court], and this application was declined [by the High Court].[13] However, special leave to appeal was granted by [this Court] on the question of whether the District Court was correct to grant ASB summary judgment on one of several pleaded causes of action.[14] … [T]he parties agreed to the appeal being upheld on that ground, and the matter [was] referred back to the District Court.[15]
[22] At this point, the parties entered into a settlement agreement … dated 21 December 2021.
The second round of litigation
[9]Peterson v Mills [2020] NZHC 2400.
[10]Peterson v Mills [2021] NZCA 179.
[11]Peterson v ASB Bank Ltd [2018] NZDC 14505.
[12]Mills v ASB Bank Ltd [2019] NZHC 1505.
[13]Mills v ASB Bank Ltd [2019] NZHC 2383.
[14]Mills v ASB Bank Ltd [2020] NZCA 228; [2020] NZCCLR 22.
[15]Mills v ASB Bank Ltd [2021] NZCA 259.
Notwithstanding that appeal rights in respect of the original claim against Mr Mills had been exhausted, and notwithstanding the settlement agreement with ASB, in early 2022 Ms Mills and Mr Peterson commenced fresh proceedings against Mr Mills, ASB, and a number of ASB staff. They alleged fraud by Mr Mills in using Ms Mills’ name, and fraud and breaches of fiduciary duty by ASB and its staff.
We note, because it will become relevant later, that the allegations included several references to the Deed of Settlement, including:
Under the Deed of Settlement the plaintiffs appear to be obligated to pay Mr Mills the sum of $95,800 plus added interest by 21 March 2022 …
Because all of the terms of the Deed of Settlement have not yet been satisfied, Mr Mills can in no way be indemnified from these further claims …
Judge Johnstone struck out the proceedings on 23 September 2022.[16] Addressing the allegations of fraud, the Judge said:
[45] The allegation appears to start from the premise that Mr Mills adopted Ms Mills’ name for fraudulent purposes. It is true that Mr Mills was adjudicated bankrupt prior to the events involved in this case, and it is of course conceivable that he adopted Ms Mills' surname in order to avoid the stigma of that bankruptcy. However, that scarcely constitutes fraud. Even if it did Mr Peterson and Ms Mills' pleading is framed on the basis that any fraud involved the deception of ASB and its officers, rather than them.
…
[51] In this case, not only is the pleading opaque in the extreme, but there is no evidence at all to support the allegations of fraud made by Mr Peterson and Ms Mills against ASB and its officers (a Mr Mills). They are mere allegations.
[16]High Court prior proceedings, above n 1, at [67].
The Judge held that, in any event, the settlement agreement was a complete bar to the claim against Mr Mills and ASB (and its staff).[17]
[17]At [42].
The pleading against the solicitor, Mr Levenbach, and the legal executive, Ms Krammer, were held to lack any proper pleading or foundation.[18]
[18]At [80] and [81].
In a separate decision, Judge Johnstone ordered that the applicants are to pay the three groups of defendants scale costs at a 2B rate increased by 33 per cent.[19] Ms Mills and Mr Peterson applied for a stay of that judgment. One of the grounds advanced in support of the application was an asserted breach by Mr Mills of his obligation under the settlement agreement to transfer his ETS interests to Mr Petersen. The application for stay was declined.[20]
[19]Mills v Dalzell [2022] NZHC 3067.
[20]Mills v Dalzell [2023] NZHC 1530.
Ms Mills and Mr Peterson appealed Judge Johnstone’s decision striking out the proceedings. They applied unsuccessfully for an order dispensing with security for costs.[21] Ultimately the appeal was deemed to be abandoned under r 43(1) of the Rules, following which the Court declined an application for an extension of time, agreeing with the Judge’s assessment of the claim as hopeless.[22] An application for leave to appeal to the Supreme Court was dismissed.[23]
The bankruptcy proceedings and CA318/2024
[21]Mills v Dalzell [2023] NZCA 68.
[22]Court of Appeal prior proceedings, above n 11, at [26].
[23]Supreme Court prior proceedings, above n 11, at [6].
Mr Mills issued a bankruptcy notice against Ms Mills in relation to the unpaid costs (including the costs awarded by Judge Johnstone). Ms Mills applied to set aside the notice, asserting counter-claims and set-offs. Judge Skelton refused to set aside the notice, holding that the counterclaims and set-offs asserted by Ms Mills were based on allegations that had been finally determined in previous proceedings, and the ETS claims were an abuse of process.[24]
[24]Associate Judge Skelton’s judgment, above n 6, at [35]–[37].
Ms Mills applied for judicial review of Judge Skelton’s decision. That application (which was never served on Mr Mills) was struck out under r 5.35B of the High Court Rules 2016.[25]
The appeal in CA 186/2024
The High Court decision
[25]Mills v Howard-Mills HC Napier CIV-2024-441-34, 10 May 2024 (Minute of Boldt J).
In March 2024, a month after the Supreme Court refused leave to appeal Judge Johnstone’s strike-out decision, Ms Mills and Mr Peterson filed fresh proceedings. The proceedings named 17 defendants — the original six defendants (with Mr Mills now named as Graham Howard-Mills), 10 new defendants who were all counsel or solicitors or firms of solicitors associated with the original defendants, and Judge Johnstone.
At the outset of the statement of claim, Ms Mills and Mr Peterson asserted that they were not estopped from bringing the claim because:
Every claim in CIV‑2022‑454‑9 is directly dependent upon the actions of alleged fourth defendant Graham Howard Mills, which is a fiction, and therefore of no legal effect.
It is noteworthy that before his name change to Graham Howard-Mills, he simply used the name Graham Mills in effecting his numerous frauds against the ASB Bank, later Ms Mills in August 2011, OD fraud and the 2014 title name change, and later to Carl Peterson in the Purchase and Sale Agreement of 21 May 2015, the Mills Proceeding , the Deed of Settlement and finally CIV‑2022‑454‑9. Even though his legal name change to Graham Howard‑Mills, must have occurred before he registered the pines on the Ruatiti property under the ETS in the name of Graham Howard‑Mills, he soon after began inserting Howard as his middle name while relying on the Graham Mills title fictions, obviously in the hope that he could seduce every interested party in avoiding criminal offences and fraud charges.
It is now clear that the “Graham Mills” alias used between 1998 and 2011 is distinctly different from the “Graham Howard Mills “ alias used after that time, but the latter name is clearly intended to bridge the legal gap between the clearly fraudulent Graham Mills name and his legal name change to Graham Howard‑Mills.
We submit that neither Graham Mills nor Graham Howard Mills have legal standing, meaning that there is no claim in the CIV‑2022‑454‑9 that is repeated or duplicated in this new proceedings.
As well, there are numerous completely new claims introduced as well as an entirely new list of defendants. Thus there can be no estoppel preventing this proceeding.
…
Normally an estoppel would apply to a case that has exhausted all avenues of appeal. However in this case esptoppel cannot apply because CIV‑2022‑454‑9 was brought against the fictional “person” Graham Mills and accomplices. The fact that all defendants, court officers and even [Judge] Johnston knowingly participated in name, title, and false document fraud against the court as well as against the plaintiffs, means that estoppel would apply only to a new case wherein Graham Mills was a defendant, rather that the real legal person Graham Howard‑Mills.
In fact, the allegations in the statement of claim substantially reflected those made (and determined) in the previous proceedings, except that they were framed as having a fraudulent overlay as a result of Mr Mills’ use of an alias and the knowledge of the other parties of that fact. In determining that the proceeding should be struck out as an abuse of process, Radich J said:[26]
[7] The allegations made, and the causes of action, in the statement of claim in this proceeding show clearly that it is an attempt to relitigate matters that had been determined conclusively already. Previously, the same plaintiffs brought proceedings against the parties that are now cited as the first to sixth defendants. The “new” parties, cited as the seventh to seventeenth defendants in this proceeding, are, in all but one case, solicitors or counsel for the first to sixth defendants. The exception is Associate Judge Johnston who gave a decision in which he struck out the previous proceeding.
[8] The subject matter in this proceeding, in all relevant ways, mirrors that in the previous proceeding. … In the initial proceeding and in this proceeding, the first and second plaintiffs allege that banking facilities with the ASB Bank were entered into fraudulently by Mr Howard-Mills through his use of the surname of the first plaintiff Ms Mills. It is said that by using Ms Mills’ surname, instead of his own, when entering into arrangements with the bank, fraud was committed in relation to a range of transactions. It is pleaded that ASB Bank managers and employees are complicit in the fraud. The claims in both cases include allegations of a breach by the ASB Bank of its fiduciary obligations to the plaintiffs and claims under the Credit Contracts and Consumer Finance Act 2003.
…
[13] The statement of claim the plaintiffs have now filed, just a month after the Supreme Court’s decision [refusing leave to appeal in respect of Judge Johnston’s decision] is quite clearly an attempt to relitigate the same issues. It is centred upon the same underlying factual allegations and the same allegations of fraud. In the statement of claim itself, the plaintiffs have said that “although many of the claim herein mirror the claims in the above proceeding relating to the fictional Graham Mills, the fact that they are directed at a real legal person rather than a legal fiction preclude any notion of estoppel”. …
…
[15] This Court has already held that there is no basis at all to support the allegations of fraud made by Mr Peterson and Ms Mills against the first to sixth defendants. Equally, therefore, there is no basis to say that their solicitors or counsel were complicit or that the Judge who made the relevant findings could somehow have furthered the fraud.
[16] The allegations made in the causes of action in this proceeding are based upon the same underlying issues that have been struck out by the High Court and in circumstances where both the Court of Appeal and the Supreme Court have expressed their support for that finding. Plainly in my view the proceeding is an abuse of process. …
Grounds of appeal
[26]Radich J’s judgment, above n 1 (footnote omitted).
Ms Mills and Mr Peterson filed an appeal on the basis that Radich J failed to recognise that six of the pleaded causes of action — claims 7, 8, 10, 11, 12, and 13 — are new. These claims assert that:
(a)Claim 7: Mr Mills entered proceedings under a false name, so all judgments should be vacated and costs reimbursed.
(b)Claim 8: the deed of settlement was compromised by Mr Mills use of a false name and Mr Mills failed to transfer his ETS interests to Mr Peterson as required by the deed.
(c)Claims 10 and 11: ASB and their employees created fraudulent titles to Graham Mils in 2003–2004 and knowingly helped Mr Mills in 2022 when becoming aware of his real name.
(d)Claims 12 and 13: the law firms and the counsel representing Mr Mills were wilfully blind to the fraud and consequently an accessory.[27]
Striking out under r 44A and extending time to appeal
[27]For completeness we note that the applicants have filed a memorandum seeking to apply to add and remove respondents and also adduce further evidence. The proposed changes to the respondents are irrelevant to our conclusion. The further evidence the applicants seek to adduce is, in their own words, “already before the court”.
As noted, Ms Mills and Mr Peterson require an extension of time to appeal because by the time the appeal was served, the time for commencing it had expired. Rule 29A of the Rules requires an interlocutory application for an extension of time in which to appeal but no such application has been made. As a result, there is no extant appeal that can be struck out under r 44A. It is, however, appropriate to record our clear view that no basis exists for time to be extended and any appeal properly brought would, inevitably, be struck out.
The usual considerations in deciding whether time should be extended are the length and reason for the delay, the conduct of the parties (especially the applicant), prejudice to other parties, and the significance of the issues raised.[28] The merits of the appeal may be relevant but are likely to be so only where the lack of merit is readily apparent and the appeal clearly hopeless.[29] In this case, the delay was not excessive and arose from the late service rather than late filing. However, no other factors favour granting an extension of time and the proposed appeal is clearly hopeless.
[28]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].
[29]At [39].
It is beyond argument that the proceeding was an attempt to relitigate the allegations of fraud and misconduct that have previously been considered and rejected. Mr Mills’ use of Ms Mills’ name was a live issue in the previous proceedings and the arguments Ms Mills and Mr Peterson now seek to advance are not tenable in the face of the earlier determinations that he did not act fraudulently in using a name that was not his own. The recasting of the claim to focus on Mr Mills’ use of a variation on that name does not raise a genuinely new issue. The attempt to do so is unquestionably an abuse of process that ought not be permitted to consume the resources of this Court or require a response from the intended respondents.
We accept that there is one allegation that has not been determined in previous litigation, namely the allegation in claim 7 that Mr Mills has failed to transfer his ETS interests to Mr Peterson as required by the deed of settlement. In his memorandum addressing the questions whether the proposed appeal should be struck out or an extension of time granted, Mr Conder, counsel for Mr Mills, submitted that because issues relating to the ETS had been raised in the context of the stay application referred to earlier, they ought not be able to be raised now.
It is clear from Judge Johnstone’s decision on the stay application that Mr Mills’ failure to transfer the ETS credits was live between the parties and could have been included in the substantive pleading in CIV-2022-454-9. This complaint could, and should, have been made in that proceeding. Parties are obliged to bring all their claims relating to the same subject matter at the same time and failure to do so means that a later attempt to bring the claim will be regarded as an abuse of process.[30]
[30]Henderson v Henderson (1843) 3 Hare 100 at 115, 67 ER 313 (Ch) at 319; and Commissioner of Inland Revenue v Bhanahbai [2007] 2 NZLR 478 at [58]–[60].
Given the history of this litigation, there would be obvious prejudice to Mr Mills and the other respondents in allowing the appeal to be brought. The pleadings in this case (and in the earlier cases) have been prolix and consistently found to be entirely lacking in merit. Ms Mills and Mr Peterson have made repeated attempts to relitigate matters that have been properly determined, and now to raise a matter that could, and should, have been raised earlier. Allowing the appeal to proceed would result in an unfair burden in terms of time and costs on the respondents and take up valuable court resources.
Even if we had considered it to be appropriate to grant an extension of time, it will be evident from our discussion that we regard this appeal as an abuse of process that ought not take up the resources of the Court more than it already has. We would have struck out the proposed appeal as an abuse of process pursuant to r 44A of the Rules. However, as indicated above, no application for an extension of time has been made and therefore there is no appeal to strike out. We consider this an appropriate case to strike out the proposed appeal for want of jurisdiction.
The applications in CA318/2024
This appeal relates to Judge Skelton’s refusal to set aside a bankruptcy notice against Ms Mills, as explained above.[31] Ms Mills filed the appeal out of time as a result of applying for judicial review of the decision rather than filing a notice of appeal. She has now applied for an extension of time under r 29A of the Rules. In her application for an extension of time, Ms Mills explains the basis on which she took this course, namely that she considered that she had a right of review under s 27 of the New Zealand Bill of Rights Act 1990 and s 414 of the Insolvency Act 2006.
[31]Associate Judge Skelton’s judgment, above n 6.
Mr Mills opposes the application for extension and applies to strike out the appeal under r 44A of the Rules.
Ms Mills is unrepresented. However, as a result of the litigation in which she been involved over many years, she can be taken to have been well aware of the procedural requirements for an appeal. Mr Conder, for Mr Mills, suggests that Ms Mills’ decision not appeal but rather to start fresh proceedings was likely driven by the wish to avoid having to pay security for costs. We do not speculate on that possibility. But we are satisfied that Ms Mills fully understood the requirements for appealing and do not consider that the delay in bringing an appeal — during which time the resources of the High Court were taken up with the meritless judicial review application — should be treated lightly. Nor do the other relevant factors in considering an extension of time favour Ms Mills.
The appeal is clearly hopeless. The application to set aside the bankruptcy notice rested on asserted counter-claims and set-offs based on:[32]
The core allegation … that [Mr Mills] committed fraud and an offence under s 240 of the Crimes Act 1961 by entering into a range of transactions using the surname of [Ms Mills].
[32]At [22].
Judge Skelton declined the application because that allegation had been determined by Judge Johnstone’s decision and both this Court and the Supreme Court had viewed it as entirely lacking in merit.[33]
[33]At [35].
The Judge also addressed the issue of the ETS credits which Ms Mills had raised. He recorded Ms Mills’ acknowledgement at the hearing that she and Mr Peterson had been aware of the ETS issue since February 2022.[34] The Judge considered that the issue could, and should, have been raised in that litigation and the attempt to do so at this stage was an abuse of process.[35] For the reasons discussed earlier in relation to at CA186/2024, this is undoubtedly correct. There is no realistic prospect of the appeal against Judge Skelton’s decision succeeding.
[34]At [28].
[35]At [36]–[37].
The application for an extension of time is therefore declined. As a result, we do not need to address Mr Mills’ application to strike out the appeal under r 44A of the Rules. However, it will be clear from our discussion that, even if time had been extended, the appeal would have been struck out as an abuse of process.
Costs
CA186/2024
Mr Mills and related parties have sought costs for steps taken for a standard application on a band A basis.[36] Ms Dalzell and related parties have sought indemnity costs on the grounds of incurring unnecessary expense in having to respond to a meritless appeal.[37] Mr Levenbach and related parties support the submissions of the other respondents.[38] Seventeen respondents have been named, which have been grouped depending on their relationship to Mr Mills, ASB, or Mr Levenbach.
[36]Mr Mills and related parties comprise of the fourth, seventh, eleventh and twelfth respondents.
[37]Ms Dalzell and related parties comprise of the first, third, eighth, thirteenth and fourteenth respondents.
[38]Mr Levenbach and related parties comprise of the fifth, sixth, ninth, fifteenth, sixteenth and seventeenth respondents.
This situation does not neatly fit within the costs scheme in pt 4A of the Rules because no extension of time application has been made and no appeal has been determined. However, we consider a costs order is available.[39] The appeal was accepted for filing and comprehensive submissions have been filed by Mr Mills’ and Ms Dalzell’s counsel, as required by the Court.
[39]Court of Appeal (Civil) Rules, rr 53 and 53E(3).
Indemnity costs are awarded only in exceptional cases. Flagrant misconduct is generally required.[40] 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.[41]
CA318/2024
[40]Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at [28], quoting Prebble v Awatere Huata (no 2) [2005] NZSC 18, [2005] 2 NZLR 467 at [6].
[41]Bradbury v Westpac Banking Corporation, above n 40, at [29], citing Hedley v Kiwi Co-operative Dairies Ltd (2002) 16 PRNZ 694 (HC) at [11], and Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.
Mr 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.[42]
Result
[42]Court of Appeal (Civil) Rules, r 53E(3)(a).
We strike out the proposed appeal CA186/2024 for want of jurisdiction.
If 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.
The application for an extension of time in CA318/2024 is declined.
The applicants in CA186/2024 together must pay indemnity costs and usual disbursements to:
(a)the 1st, 3rd, 8th, 13th and 14th respondents;
(b)the 4th, 7th, 11th and 12th respondents; and
(c)the 5th, 6th, 9th, 15th, 16th and 17th respondents.
The respondents may file memoranda supporting the quantum of the indemnity costs by 31 January 2025. The applicants may file memoranda in response, addressing the quantum of the costs claimed by 14 February 2025.
The 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. The respondent may file a memorandum supporting the quantum of the indemnity costs by 31 January 2025. The appellant may respond, addressing the quantum of the costs claimed by 14 February 2025.
Solicitors:
MinterEllisonRuddWatts, Auckland for First, Third, Eighth, Thirteenth and Fourteenth Respondents in CA186/2024
Holland Beckett Law, Tauranga for Fourth, Seventh, Eleventh, Twelfth Respondents in CA186//2024 and Respondent in CA318/2024
Morgan Coakle, Auckland for Fifth, Sixth, Ninth, Fifteenth, Sixteenth and Seventeenth Respondents in CA186/2024
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