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Mills v Dalzell

Mills v Dalzell

Case [2024] NZHC 581 18 March 2024

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2024-441-22

[2024] NZHC 581

BETWEEN
LYNETTE JOY MILLS

First Plaintiff

CARL JAMES PETERSON
Second Plaintiff

THE PETERSON/MILLS PARTNERSHIP
Third Plaintiff

AND

KELLY DALZELL

First Defendant

TRACY HOWARD LEVENBACH

Second Defendant

THE ASB BANK LIMITED, AUCKLAND
Third Defendant

GRAHAM HOWARD-MILLS
Fourth Defendant

JOHN LEVENBACH
Fifth Defendant

CAROL KRAMMER
Sixth Defendant

HOLLAND BECKETT
Seventh Defendant

… continued

Hearing: On the papers

Judgment:

18 March 2024

JUDGMENT OF RADICH J

MILLS v DALZELL [2024] NZHC 581 [18 March 2024]

… continued

MINTER ELLISON RUDD WATTS
Eighth Defendant

MORGAN COAKLE
Ninth Defendant

A J JOHNSTON
Tenth Defendant

JEREMY SPARROW
Eleventh Defendant

SEBASTIAN HARTLEY
Twelfth Defendant

STACEY MICHELSEN
Thirteenth Defendant

SEAN GOLLIN
Fourteenth Defendant

BRIAR WEBSTER
Fifteenth Defendant

K PERRET
Sixteenth Defendant

WALDO ABRIE
Seventeenth Defendant

[1] On 11 March 2024, Ms Mills and Mr Peterson, the plaintiffs, filed this proceeding naming 17 defendants. A Registrar has referred the proceeding to me under r 5.35A of the High Court Rules 2016 on the basis of a belief that, on the face of the proceeding, it is plainly an abuse of the process of the Court.

[2] If, in terms of r 5.35B, I am satisfied that the proceeding is plainly an abuse of the process of the Court, then I may, of my own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds

in a way that complies with the rules including an order under r 15.1 that the proceeding be struck out or stayed.

[3] The nature of the powers conferred under r 5.35B were described recently by the Court of Appeal in Te Wakaminenga o Nga Hapu Ki Waitangi v Waitangi National Trust Board in the following terms:1
[14] The powers conferred under r 5.35B reflect the inherent power all courts have to prevent their own procedures from being misused, for example as a means of oppression or otherwise in a way that is manifestly unfair such that the administration of justice will be brought into disrepute. Lord Bingham described abuse of process as simply being “a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”. Courts have a duty to prevent such abuse.

[15] The powers under r 5.35B must be exercised sparingly, and only in the clearest of cases. Given that the rule contemplates a litigant being denied the fundamental right of access to the courts, with the possibility of the proceeding being halted before it is even served, the abuse must be clear beyond doubt from reading the claim.

[4] The Court made the point that the power should not be used in cases in which a claim sought to be advanced may later be shown to be untenable as a matter of law, particularly in circumstances where, as there, certain key factual…

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] NZHC 581
Case: [2024] NZHC 581
Decision Date: 18 March 2024

CaseChat Overview and Summary

Mills v Dalzell was a case where Lynette Joy Mills and Carl James Peterson, along with their partnership, brought a proceeding against multiple defendants, including individuals and entities. The case was referred to the High Court of New Zealand under rule 5.35A of the High Court Rules 2016, due to concerns that the proceeding was an abuse of the court process. The primary legal issue for the court was whether the proceeding constituted an abuse of process, considering the previous decisions of the High Court, Court of Appeal, and Supreme Court that had dismissed the plaintiffs' claims. The court determined that the proceeding was an abuse of process as it sought to relitigate claims that had already been conclusively determined. The subject matter of the claims, allegations of fraud and fiduciary breaches related to banking transactions, were identical to those in a previous proceeding that had been dismissed.

The court held that the proceeding was an abuse of process because it attempted to re-litigate the same issues despite the clear findings against the plaintiffs in previous judgments. The court noted that the allegations were based on the same underlying issues that had been struck out by the High Court and supported by the Court of Appeal and Supreme Court. The court found that there was no evident error in the previous assessments and that the proceeding did not present a valid claim. Consequently, the pleading was struck out, and the proceeding was dismissed. The court also noted that the plaintiffs had the right to appeal the decision to the Court of Appeal under section 56 of the Senior Courts Act 2016.

Orders