Mills v Howard-Mills

[2024] NZHC 3241

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2024-441-91

[2024] NZHC 3241

BETWEEN

LYNETTE JOY MILLS

Plaintiff

AND

GRAHAM HOWARD-MILLS

First Defendant

BODEE OLIVER

Second Defendant

Hearing:	On the papers
Counsel:	Plaintiff self-represented
Judgment:	4 November 2024

JUDGMENT OF RADICH J

[1]    On 14 October 2024, Ms Mills filed this proceeding in which a range of remedies are sought in relation to the sale and purchase of a property in 2015. 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.

MILLS v HOWARD-MILLS [2024] NZHC 3241 [4 November 2024]

[3]    On 18 March 2024, I gave a judgment striking out, under r 5.35B, a related proceeding on the basis that the proceeding then in question was plainly an abuse of process.

[4]    The allegations in this proceeding overlap with allegations in the earlier proceeding. However, new elements are introduced and different defendants have been cited. The issue that arises is whether, in those circumstances, orders should be made under r 5.35B in relation to this proceeding also.

[5]    As discussed in my 18 March 2024 decision, the powers in r 5.35B reflect the Court’s inherent power to prevent its procedures from being misused.1 It is not a power that should be used in cases where it may later be shown that a cause of action is untenable, factually or legally, particularly where it is too early in the process to determine factual and legal issues in a case clearly. Rather, the power is there to enable proceedings that are clearly an abuse to be struck out or stayed at the get-go. To be an abuse at this stage of the process, the proceeding must, for example, be an improper use of the Court’s procedures to an extent as to bring the administration of justice into disrepute or a proceeding that is brought, for example, for some ulterior or improper purpose.

[6]    The broad public interest and the private interests of individuals who may otherwise be drawn into an entirely unmeritorious proceeding are to be considered and must be weighed against the right of a litigant to bring proceedings.2

[7]    As I mentioned in my March decision, it will be an abuse of process if a plaintiff endeavours to relitigate claims that have been determined already, including through a proceeding that brings a collateral challenge to claims that have already been determined. It will be an abuse under this head, for example, to endeavour through a new proceeding to resurrect claims that have been dealt with in the courts already, even in a collateral way.3

1      Mills v Dalzell [2024] NZHC 581 at [3] and [4]; citing Te Wakaminenga o Nga Hapu Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63 at [14]–[17].

2      Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3220 at [20].

3      Young v Ross [2023] NZHC 2795 and Re McNab [2018] NZHC 1817, (2018) 24 PRNZ 224.

[8]    This proceeding is focused on the same May 2015 sale and purchase agreement over a Rautiti property that was the subject of:

(a)a decision of Associate Judge Johnston which struck all of the claims out;4

(b)a decision of the Court of Appeal which considered the underlying causes of action and agreed with the Associate Judge’s assessment that the plaintiff’s case was “hopeless”;5

(c)a decision of the Supreme Court which upheld the Court of Appeal’s decision;6

(d)my 18 March  2024 decision in which I found  the proceeding that  Ms Mills, together with Mr Peterson7 had filed, to be an attempt to relitigate the same issues as it was centred on the same underlying factual allegations and the same allegations of fraud.

[9]    The same can be said of many of the allegations in the statement of claim that has now been filed. Like the earlier claims, it is focused on a view that Mr Howard- Mills had proceeded fraudulently through the use of “Mills” as his surname in completing the settlement of the transaction relating to the Rautiti property. Much of the relief sought in this proceeding arises directly from that same allegation, such as prayers for relief requiring the repayment of sums paid in the settlement of that transaction, the removal of caveats and related claims – that are difficult to understand

– such as “orders annulling the fictitious Graham Mills title claims against the Rautiti and Porangahau properties in controversy …”

[10]   However, a new claim arising from the transaction has been introduced. It is said that Mr Mills breached the agreement relating to the sale and purchase of the property “by failing to transfer his interests in the Climate Change Response Act

4      Mills v Dalzell [2022] NZHC 2439.

5      Mills v Dalzell [2023] NZCA 458 at [27] – a decision which was considering an application for an extension of time after the deemed abandonment of the appeal.

6      Mills v Dalzell [2024] NZSC 6.

7      Who has since been adjudicated bankrupt.

participant registration under s 195(2)”. It  is  pleaded  that, under the  agreement,  Mr Mills sold all of his interests in the property including interests in the pine forests on the land. However, the allegation appears to be that Mr Mills remained registered as holder of carbon units under the emissions trading scheme such that obligations under the Climate Change Response Act 2002 that now fall to Ms Mills were unknown causing liability for defaults under that Act.

[11]   These would appear to be new allegations, not addressed in the proceedings to which I have referred. However, as I have mentioned, they are interwoven in the pleading with allegations relating to matters that had been the subject of previous proceedings and which have been struck out. There do appear to be ulterior or improper purposes in bringing the proceeding. They are apparent from the following paragraph in the statement of claim that has been filed:

[29] The plaintiff seeks orders vacating the judgments in Peterson v Mills [2020] NZHC 2400 and Mills v Dalzell [2022] NZHC 2439, and if necessary for justice to be done, vacate any future results from the appeal courts which at present lack this crucial piece of evidence upon which to base their results.

[12]   This pleading, near to the end of the statement of claim, gives some insight into the basis upon the claim has been brought.

[13]   The statement of claim cites Bodee Oliver as second defendant. Mr Oliver is a solicitor engaged by Ms Mills in relation to the execution of a deed of settlement in December 2021. In material ways, the subject matter of that claim overlaps with the subject matter of the proceedings referred to in [8] above. As I said in my March decision, the proceeding that was then in question differed from earlier proceedings through adding as defendants solicitors and counsel involved with the property transactions in question. The new claim against Mr Oliver appears to perpetuate that approach. However, an  element  of  the  allegations  made  against  him  relate  to Mr Oliver 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 is alleged that, in turn, Ms Mills was denied carbon units attaching to the pine forests on the property. However, the prayer for relief against Mr Oliver is expressed differently and appears to relate to alleged acts or omissions relating to the deed of settlement generally, which have been covered in previous proceedings.

[14]   Moreover, the Official Assignee has been named as a respondent. But there is nothing in the pleading that relates in any way to the Official Assignee.

[15]   The net position is this: material aspects of the pleading duplicate or repeat aspects of the pleadings that were the subject of my 18 March decision to such an extent that they can only be described as an abuse of process, warranting orders that they be struck out, for the same reasons as those given in my March decision. However, new allegations relating to acts and omissions in the context of the Climate Change Response Act have been sprinkled into the proceeding. They are intertwined with the allegations that  cannot  properly  be  included.  The  allegations  against  Mr Oliver are not at all clear. There are no allegations against the Official Assignee and the Assignee cannot properly be a party. The Court has no jurisdiction to “vacate” previous decisions or to vacate prospectively decisions that the Court of Appeal might in the future make.

[16]   The Climate Change Response Act allegations could not be the subject of an order under r 5.35B but the allegations with which they are entwined are, for the reasons I have given, an abuse and cannot properly be pursued. Accordingly, the appropriate course as I see it is for the proceeding to be stayed under r 5.35B(2)(b) on the basis that 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 claim should be concerned solely with the allegations that are made under the Climate Change Response Act. And the Official Assignee could not be named as a party.

[17]   Accordingly, I make an order to that effect. The stay will remain in place unless and until it is discharged by the Court upon consideration of the terms of an amended statement of claim.

[18]   Although I have not struck the proceeding out, a copy of this decision is to be served upon the defendants named in the 14 October statement of claim.

[19]   Under s 56 of the Senior Courts Act 2016, Ms Mills has a right to appeal against 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.

Radich J