Peterson v Howard-Mills - [2024] NZHC 3451

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2024-441-95

[2024] NZHC 3451

UNDER s 309(1)(a) of the Insolvency Act 2006

IN THE MATTER

of alleged fraudulent misrepresentation,

tortious deceit, in-completed contract, breach of contract, abuse of process, use of fictitious person/forgery, and improper purpose by GRAHAM HOWARD-MILLS

BETWEEN

CARL JAMES PETERSON

Applicant

AND

GRAHAM HOWARD-MILLS

First Respondent

THE OFFICIAL ASSIGNEE

Second Respondent

A J LESTER

Third Respondent

Hearing: On the Papers

Counsel:

Applicant in person

Judgment:

19 November 2024

JUDGMENT OF GRICE J

[1] On 7 October 2024, Mr Peterson, the applicant, filed an application to annul his bankruptcy adjudication. The application was accepted for filing on 17 October 2024. The application names Graham Howard-Mills and The Official Assignee as respondents. A handwritten amendment to the intituling

PETERSON v HOWARD-MILLS [2024] NZHC 3451 [19 November 2024]

inserts “AJ Lester” as third respondent, presumably a reference to Associate Judge Lester.

[2] The claims in the application are difficult to make sense of, but in substance repeat claims which have been struck out for abuse of process on an earlier occasion. The application also makes bare allegations that a judge made an order “of unconscionable malfeasance” and that “Every defendant counsel, their law firms and A J Johnston, committed unconscionable breaches of procedure and duties of honesty to the court…”.

[3] The 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.

[4] The approach under r 5.35B is that if I am satisfied that the proceeding is plainly an abuse of the process of the Court, then I may 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.

[5] The nature of the powers conferred under r 5.35B reflect the Court’s inherent power to prevent its procedures from being misused.1 The power should not be used in cases where a claim sought to be advanced may later be shown to be untenable as a matter of law.2 It must be clear that applicants are seeking to use Court processes for an ulterior or improper purpose. A claim that relitigates already determined claims is an area recognised as being an abuse of process.3

[6] The current application relies on s 309(1)(a) of the Insolvency Act 2006 which allows the court to annul the adjudication on the application of the Assignee or any

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 At [16].
3 See Young v Ross [2023] NZHC 2795, where the plaintiff attempted to use…

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 Peterson v Howard-Mills

Details

AGLC: Peterson v Howard-Mills [2024] NZHC 3451
Case: [2024] NZHC 3451
Decision Date: 19 November 2024

CaseChat Overview and Summary

In Peterson v Howard-Mills, the High Court was tasked with determining whether the bankruptcy adjudication against Carl James Peterson should be annulled. The application to annul the adjudication was filed by Peterson, naming Graham Howard-Mills and The Official Assignee as respondents. The application, which was accepted for filing, contained multiple claims including alleged fraudulent misrepresentation, deceit, and breach of contract. The application also included broad allegations of judicial misconduct and procedural breaches by various parties.

The court was required to decide whether the application constituted an abuse of process, a concept which encompasses claims that are relitigations of issues that have already been conclusively determined. The court noted that the claims made in the application mirrored those in previous litigations, which had already been struck out as an abuse of process. The application included similar allegations of fraud and breach of fiduciary duty against Howard-Mills and the ASB Bank, as well as claims regarding the bankruptcy adjudication itself. Given that these issues had already been determined in prior proceedings, the court needed to determine whether the current application was an attempt to relitigate those issues.

The court found that the application was indeed an abuse of process. The allegations made by Peterson were based on the same issues that had been conclusively determined in previous litigations. The court found that Peterson was attempting to relitigate claims that had been found to be without merit. The court cited previous decisions where similar claims were struck out as an abuse of process. Given that the application was yet another attempt to bring claims that had already been determined, the court concluded that it was an abuse of the court's process.

As a result, the application was struck out, and the proceeding was dismissed. The court made an order under r 5.35B(2)(a) of the High Court Rules, which allows for the striking out of proceedings that are an abuse of process. The decision was to be served on the respondents, and Peterson was informed of his right to appeal the decision to the Court of Appeal.

Orders