Mills v Howard-Mills

[2024] NZHC 3611

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2024-441-91

[2024] NZHC 3611

UNDER

The Contract and Commercial Law Act 2017, the Crimes Act 1961, the Lawyers and Conveyancers Act 2006, the Fair Trading Act 1986, the Land Transfer Act 2017 and the

Climate Change Response Act 2002

IN THE MATTER OF

Fraudulent misrepresentation, tortious deceit, false declaration, breach of contract, and

infringement offences

BETWEEN

LYNETTE JOY MILLS

Plaintiff

AND

GRAHAM HOWARD-MILLS

Defendant

On the Papers
Judgment:	29 November 2024

JUDGMENT OF GWYN J

(Striking out claim under 5.35B High Court Rules 2016)

Background

[1]                  On 4 November 2024 Radich J made an order under r 5.35B(2)(b) of the High Court Rules 2016 that the plaintiff file an amended statement of claim removing from the statement of claim allegations relating to claims that had already been dealt with.1 The Judge stated:

… the plaintiff needs to file an amended statement of claim that removes allegations which resurrect claims that have already been dealt with, even in a collateral way, such as those referred to in para [9] above. The statement of

1      Mills v Howard-Mills [2024] NZHC 3241 [November decision] at [16].

MILLS v HOWARD-MILLS [2024] NZHC 3611 [29 November 2024]

claim should be concerned solely with the allegations that are made under the Climate Change Response Act.

[2]                  The judgment also notified the plaintiff that under s 56 of the Senior Courts Act 2016 she had a right to appeal against the decision. It appears that Ms Mills has now filed an appeal.

Amended statement of claim

[3]                  Following Radich J’s direction, Ms Mills has filed an amended statement of claim dated 18 November 2024. The amended claim has been referred to me as  Duty Judge, to consider whether it meets the requirements specified by Radich J, so that the stay of proceedings can be lifted.

[4]                  I have concluded that the amended claim does not comply with Radich J’s direction and should be struck out.

[5]                  The first 15 paragraphs of the amended statement of claim mainly purport to relitigate Radich J’s judgment. Similarly, two paragraphs of the amended claim purport to relitigate the earlier decisions of Mallon J and Associate Judge Johnston.

[6]                  The amended statement of claim sets out “offences by Graham Howard-Mills under the Climate Change Response Act 2002”. It also includes “amended claims against solicitor Bodee Oliver”.

[7]I consider each of those in turn.

Claims against Graham Howard-Mills

[8]                  The plaintiff alleges that Mr Howard-Mills falsely declared that he was a Rautiti property owner entitled to register as an Emissions Trading Scheme (ETS) participant.

[9]                  The plaintiff makes allegations against Mr Howard-Mills under multiple sections of the Climate Change Response Act 2002 (CCR Act).

[10]              At the heart of the CCR Act claims is the allegation that on 13 December 2011 the defendant lodged an application to be registered as a participant in the ETS with the plaintiff. Ms Mills pleads that in that application Mr Howard-Mills falsely claimed to be an owner of the Rautiti property. The claim goes on to repeat the allegations that Graham Mills is a forged name.

[11]              This central allegation repeats the allegations made in the earlier statement of claim, albeit those allegations are now intertwined with the “new” claims. In the earlier proceeding the allegation that Mr Howard-Mills falsely used the name “Mills” as his surname related to completion of the settlement of the transaction relating to the Rautiti property, but it is at its heart the same allegation. For example, in the amended statement of claim the plaintiff pleads that “S 263(1)(c) [of the CCR Act] embraces the fraudulent actions and breaches of Mr Howard-Mills in the Purchase and Sale Agreement of 21 May, 2015; …”. And further, “…the forged and fictious name of Graham Mills is deeply entwined with the plaintiff’s claims against Graham Howard- Mills under the Climate Change Response Act 2002”.

[12]              The claim against Mr Howard-Mills purports to invoke both the civil and criminal law. For example, the claim says the “false declaration” made by him was a “criminal offence under sections 111, 114, 240, 255, 256, and 257 of the Crimes Act 1961, and therefore tortious deceit against legal title holder Lynette Mills, …”. Later the amended statement of claim pleads “criminal offences and frauds under sections 6, 225, and 226 of the Land Transfer Act 2017” and “tortious deceits”. In the following paragraph the claim invokes the Contract and Commercial Law Act 2017. All in all, it appears the plaintiff has canvassed the statute book to give her amended claim the illusion of being a different claim than the one stayed by Radich J.

[13]              The relief sought against Mr Howard-Mills in the amended statement of claim relies almost entirely on the allegation of “forgery/fictitious person” Graham Mills and, with the exception of one order discussed in the next paragraph, the orders seek to cancel the Purchase and Sale Agreement of 21 May 2015, to sever Mr Howard- Mills’ interest from the Deed of Settlement of 21 December 2021 and to vacate the earlier judgments. These substantially relate to the alleged acts or omissions covered in previous proceedings and in Radich J’s judgment.

[14]The exception relates to the first order sought in the following terms:

That Graham Howard-Mills’ infringements under the Climate Change Response Act 2002 causing loss to plaintiff Lynette Joy Mills and interested party Carl James Peterson be remedied for like offences under other statutes, such as the CCL Act 2017, tortious deceit under the Crimes Act 1961, tortious deceit under the Land Transfer Act 2017 and fraudulent misrepresentation under the Fair Trading Act 1986.

[15]              This too, although it refers to the CCR Act, relies on the alleged acts or omissions considered in the previous proceedings. It also purports to merge criminal and civil remedies.

[16]              Interspersed with the summary list of orders sought, at the conclusion of the claim, are orders to vacate the “NZHC 2400” judgment and the judgment and costs orders of Associate Judge Johnston because of the “name forgery/fictitious person of Graham Mills”. Similarly, to cancel the Purchase and Sale Agreement of 21 May 2015 because of the “forged /fictitious person Graham Mills”, and to severe Graham Mills’ beneficiary interests in the Deed of Settlement of 21 December 2021 on account of “name fraud and breach of contract”.

Claims against Bodee Oliver

[17]              Mr Oliver is a solicitor engaged by Ms Mills in relation to the execution of a deed of settlement in December 2021. In his judgment of 4 November 2024, Radich J noted2 that the statement of claim he was then considering included claims against Mr Oliver which appeared to perpetuate the approach in earlier proceedings. The Judge observed that there was an element of the allegations relating to him having, it is said, “overlooked” the “transfer of Graham Mills’ interests under s 195(2) of the Climate Change Response Act registered against the Rautiti title”. It was also alleged that Ms Mills was denied carbon units attaching to the pine forests on the property. However, as Radich J noted, the prayer for relief against Mr Oliver was expressed differently and appeared to relate to alleged acts or omissions relating to the deed of settlement generally which had been covered in previous proceedings.

2 At [13].

[18]              To  the extent the amended statement of claim does plead claims against     Mr Oliver under the CCR Act, there are some fundamental difficulties in discerning a tenable claim. The amended claim makes certain allegations against Mr Oliver, including that he failed to inform Ms Mills and Mr Peterson of certain rights and obligations under the CCR Act. However, the specifics of that claim and whether it has a proper basis in law are unclear. For example, it appears to plead that Mr Oliver owed duties to his client under s 195 of the CCR Act. On its face, that provision imposes certain obligations on the Environmental Protection Agency.

[19] The relief claimed in respect of Mr Oliver relies on ss 4 and 306(2) of the Lawyers and Conveyancers Act 2006. It seeks to have Mr Oliver ordered liable for all costs, damages, or remedies remaining against Ms Mills and Mr Peterson after all these proceedings are finalised.

[20]              In addition to the problem of discerning a tenable claim, with a proper factual and legal basis, the fundamental problem with the claims against Mr Oliver, as with the claims against Mr Howard-Mills, is that to the extent they are claims under the CCR Act, they are intertwined with references to allegations that were the subject of Radich J’s 18 March 2024 decision and earlier judgments.

[21]              For example, the amended claim makes allegations about the alleged fraudulent use of the name Graham “Mills”. The allegation is that Mr Oliver:

failed in his duty of care to Ms Mills and Mr Peterson by failing to note, enquire, and examine the underlying CCR Act 2002 Notice pertaining to its 2011 registration, its alleged ownership, its obligations, its entitlements, its offences, and its relation to the expressed obligations of fictitious signatory Graham Mills in the Deed of Settlement.

Conclusion

[22]              In conclusion, material aspects of the amended statement of claim either purport to relitigate earlier judgments or repeat or rely on aspects of the pleadings that were the subject of both Radich J’s 18 March 2024 decision (to strike out the claim

before him as an abuse of process)3 and his 4 November 2024 decision (to stay the subsequent proceeding).4

[23]              The plaintiff has failed to comply with Radich J’s direction. This is not a case where the plaintiff has made a “decent attempt” at setting out the facts relied on, the nature of the claim and the relief sought,5 in the terms directed by Radich J. When it is viewed in the context of the prolonged history of this matter, encompassing five previous decisions,6 there is no basis on which the Court should (having regard to the public interest) provide a further opportunity for Ms Mills to attempt to formulate her claim. The amended statement of claim is an abuse of the process of the court and should not be allowed to proceed.

[24]              I strike out the amended statement of claim dated 18 November 2024, pursuant to r 5.35B(2)(a) of the High Court Rules 2016.

[25]              A copy of this decision is to be served on the defendants named in the amended statement of claim of 18 November 2024.

[26]              Under s 56 of the Senior Courts Act 2016, Ms Mills has a right to appeal this decision to the Court of Appeal. That right may be exercised through the application of the relevant rules in the Court of Appeal (Civil) Rules 2005.

Gwyn J

3      Mills v Dalzell [2024] NZHC 581 [March decision].

4      November decision, above n 1.

5      Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board [2023] NZCA 63, [2023] NZAR 180 at [17].

6      Mills v Dalzell [2022] NZHC 2439; Mills v Dalzell [2023] NZCA 458; Mills v Dalzell [2024] NZSC 6; March decision, above n 3; and November decision, above n 1.