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 a judicial review proceeding to resurrect claims that had been dealt with conclusively and this claim was struck out. See also Re McNab [2018] NZHC 1817, (2018) 24 PRNZ 224 where a proposed proceeding sought to challenge collaterally, and raise issues that had been dealt with already in, previous decisions of the Court. It was held this was plainly an abuse of process.

interested party if the court considers the bankrupt should not have been adjudicated bankrupt. The applicant seeks an order annulling the bankruptcy adjudication made against him.

[7]                 The application sets out four grounds: abuse of process; defect in form or procedure; overlooking material facts and new facts discovered; and manifest injustice. A number of allegations are made under these four grounds. However, it is clear that the allegations made in this application are an attempt to relitigate claims already determined. The grounds Mr Peterson relies on have been determined multiple times.

[8]                 Radich J has recently considered another proceeding by Mr Peterson, which raised the same issues as made in the current application. While in a different form, the substantive allegations are the same as referred to by Radich J as follows:4

[8]        The subject matter in this proceeding, in all relevant ways, mirrors that  in  the  previous  proceeding.   Ms   Mills,   the   first   plaintiff,   and Mr Howard-Mills, the fourth defendant, had been in a relatively long-term relationship. In the initial proceeding and in this proceeding, the first and second plaintiffs allege that banking facilities with the ASB Bank were entered into fraudulently by Mr Howard-Mills through his use of the surname of the first plaintiff Ms Mills. It is said that by using Ms Mills’ surname, instead of his own, when entering into arrangements with the bank, fraud was committed in relation to a range of transactions. It is pleaded that ASB Bank managers and employees are complicit in the fraud. The claims in both cases include allegations of a breach by the ASB Bank of its fiduciary obligations to the plaintiffs and claims under the Credit Contracts and Consumer Finance Act 2003.

[9]        Associate Judge Johnston struck all of the claims out. In addressing the cause of action for fraud, the Associate Judge said:

In this case, not only is the pleading opaque in the extreme, but there is no evidence at all to support the allegations of fraud made by     Mr Peterson and Ms Mills against ASB and its officers (a Mr Mills). They are merely allegations.

[10]      The Associate Judge found, in addition, that the proceeding was an abuse of process having regard to the terms of a settlement deed (enforceable also by the first and second defendants cited in this proceeding as employees of the ASB Bank) and that the claims to which the proceeding related were time-barred.

4      Mills v Dalzell, above n 1 (footnotes omitted).

[11]      The plaintiffs appealed to the Court of Appeal. They were unsuccessful in seeking an order dispensing with security for costs. Then, having sought and obtained certain extensions of time, ultimately, the appeal was    deemed    to    be    abandoned     under     r     43(1)     of     the    Court of Appeal (Civil) Rules 2005 following which the Court of Appeal declined an application for an extension of time. In declining the application, the Court of Appeal considered the underlying causes of action and agreed with Associate Judge Johnston’s assessment that the plaintiffs’ case was “hopeless”.

[12]      The plaintiffs applied to the Supreme Court for leave to appeal. The application was dismissed. The Supreme Court said:

Nothing raised by the applicants indicates evident error in the assessment of merits made in the High Court in light of the contents of the settlement deed, and endorsed by the Court of Appeal or in the Court of Appeal’s application of the principles stated by this Court in Almond v Read.

[9]                 The present application is also an abuse of process. It is yet another attempt to relitigate the same issues.5

[10]              For example, while the applicant claims the bankruptcy notice was deficient in form or procedure, he largely repeats the same allegations of fraud as were pursued in the earlier litigation against Mr Howard-Mills, stating “the fraud has only been discovered after the A J Johnston hearing, and that all following proceedings – CIV-2019-470-126, CIV-2022-454-9, NZHC 733, CIV-2024-441-35 were therefore trained by Mr Howard-Mills’ fraud”. The applicant highlights a number of points in the claim that the application includes new claims, such as “that [the first respondent’s] failure to comply with all of his immediate obligations in the Deed of Settlement (particularly the failed transfer of his ETS interests) nullifies the ASB debt releases”. However, in substance, these “new claims” relate to matters already determined conclusively in the previous litigation outlined above by Radich J. This application is one of a number of applications filed by Mr Peterson either on his own, or on behalf of Ms Mills.

[11]              Overall, I am satisfied that the allegations made in the application are based upon the same issues struck out by the High Court previously, and unsuccessfully

5      See Mills v Dalzell, above n 1; Mills v Howard Mills [2024] NZHC 3241.

appealed to the Court of Appeal and the Supreme Court. I am therefore satisfied that the proceeding is an abuse of process.

Result

[12]              The  application  is  struck  out  and  the  proceeding  is  dismissed   under     r 5.35B(2)(a). Under r 5.35B(4) a copy of this decision is, if practicable, to be served on the respondents.

[13]              Under r 5.35B(3) if, as is the case here, an order is made on the Judge’s own initiative, without giving the plaintiffs an opportunity to be heard, the order is to contain a statement of the right to appeal the decision by the person who filed the proceeding. Under s 56 of the Senior Courts Act 2016, the plaintiffs have a right to appeal against this decision to the Court of Appeal. That right may be exercised through the application of relevant rules in the Court of Appeal (Civil) Rules 2005.

Grice J