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Mills v Dalzell

Mills v Dalzell

Case [2022] NZHC 2439 23 September 2022

Unconscionable Conduct

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2022-454-9

[2022] NZHC 2439

UNDER Parts 12 and 15 of the High Court Rules

BETWEEN

LYNETTE JOY MILLS

First Plaintiff

CARL JAMES PETERSON
Second Plaintiff

AND

KELLY DALZELL

First Defendant

TRACY LEVENBACH
Second Defendant

ASB BANK LIMITED
Third Defendant

GRAHAM HOWARD MILLS
Fourth Defendant

JOHN LEVENBACH
Fifth Defendant

CAROL KRAMMER

Sixth Defendant

Hearing: 11 August 2022

Appearances:

Plaintiffs in person

B J Upton and S L Hawksworth for First and Third Defendant No appearance for Second Defendant

J R Sparrow and S T Hartley for Fourth Defendant
B R Webster and W L Abrie for Fifth and Sixth Defendants

Judgment:

23 September 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

MILLS v DALZELL [2022] NZHC 2439 [23 September 2022]

TABLE OF CONTENTS

Introduction  1
Principles governing applications pursuant to r 15.1  7
The factual background  11
Application of first and third defendants  23
The merits of the claim  43
Statutory limitation period  61
Conclusion in relation to the application by the first and third defendants               67
The remaining applicants  68
The second defendant  83
Result  85

Introduction

[1] Before the Court for determination are three interlocutory applications by the first and third defendants, Kelly Dalzell and ASB Bank Ltd; the fourth defendant, Graham Mills; and the fifth and sixth defendants, John Levenbach and Carol Krammer. The categorisation of those groups is based primarily on the fact that they are represented by different solicitors and counsel. The second defendant, Tracy Levenbach, does not feature in the above groups as she has died and no appearance has been entered by her personal representative or representatives.

[2] The three applications are the same, although the grounds upon which they are made differ. They seek either an order pursuant to r 15.1 of the High Court Rules 2016 striking out the plaintiffs’ claims against the applicant or applicants, or an order pursuant to r 12.2 for summary judgment. The two plaintiffs, Lynette Mills and Carl Peterson, who are self-represented, oppose all three applications.

[3] In my assessment, the defendants’ applications are more naturally analysed under r 15.1, as applications for orders striking out the plaintiffs’ claims, than as applications for summary judgment.

[4] If, as they contend, the defendants are able to establish that they are entitled to orders striking out the claims against them on the basis that the plaintiffs have no arguable claim against them, then they would also be entitled to summary judgment.

[5] If, on the other hand, the defendants are not entitled to orders striking out the claims, it will be necessary to consider their applications for summary judgment.

[6]It will also be necessary to come back to the position of the second defendant.

Principles governing applications pursuant to r 15.1

[7]Rule 15.1 of the High Court Rules provides that:

15.1 Dismissing or staying all or part of proceeding

(1)The court may strike out all or part of a pleading if it—

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 [2022] NZHC 2439
Case: [2022] NZHC 2439
Decision Date: 23 September 2022

CaseChat Overview and Summary

The case of Mills v Dalzell involved an interlocutory application by several defendants seeking to have the plaintiffs' claims against them struck out or to have summary judgment entered in their favour. The plaintiffs, Lynette Joy Mills and Carl James Peterson, were self-represented and opposed all three applications. The defendants argued that the claims against them were not reasonably arguable, were barred by a settlement agreement, and were time-barred under the Limitation Act 2010.

The court found that the settlement agreement did indeed bar the plaintiffs' claims against the first, third, and fourth defendants, as it released and discharged all claims arising from the relevant proceedings and facts. The plaintiffs' argument that the settlement agreement did not prevent them from pursuing further claims was rejected, as there was no evidence of a common understanding to that effect.

Furthermore, the court found that the plaintiffs' claims against the first and third defendants were not reasonably arguable on the merits, as there was no proper pleading or evidence to support their allegations of fraud, breach of fiduciary duty, or contravention of the Credit Contracts and Consumer Finance Act 2003.

Finally, the court held that any claim would be time-barred under the Limitation Act 2010, as the events giving rise to the claims occurred more than six years prior to the commencement of the proceeding.

As a result, the court granted an order striking out the plaintiffs' claims in their entirety against all defendants pursuant to r 15.1 of the High Court Rules 2016. The court reserved costs, indicating that the successful defendants were likely to be awarded costs if the parties could not resolve the issue themselves.

Orders