Peterson v Mills - [2021] NZCA 179

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA35/2021
[2021] NZCA 179

BETWEEN	CARL JAMES PETERSON First Applicant LYNETTE JOY MILLS Second Applicant PETERSON/MILLS PARTNERSHIP Third Applicant
AND	GRAHAM HOWARD MILLS Respondent

Court:	French and Courtney JJ
Counsel:	First, Second and Third Applicants in person J R Sparrow for Respondent
Judgment: (On the papers)	13 May 2021 at 9 am

JUDGMENT OF THE COURT

AThe application for leave to bring a second appeal is declined.
BThe applicants must pay the respondent one set of costs for a standard application on a band A basis together with usual disbursements.

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REASONS OF THE COURT

(Given by French J)

Introduction

The applicants, Ms Mills and Mr Peterson suing in their own right and in the name of their partnership, seek leave to appeal a decision of Palmer J in the High Court.[1] Leave is required under s 60 of the Senior Courts Act 2016 because it would be a second appeal, the High Court decision being itself an appeal from the District Court.[2]
[1]Peterson v Mills [2020] NZHC 2400 [High Court judgment].
[2]Peterson v Mills [2019] NZDC 21874 [District Court judgment]. The facts of this case are further explained in an earlier District Court decision: see Peterson v Mills [2019] NZDC 9128.
As required under the Senior Courts Act, the applicants first sought leave to appeal from the High Court. However, leave was declined by Palmer J,[3] prompting the applicants to seek leave directly from this Court.

Background

[3]Peterson v Mills (No 2) [2020] NZHC 3466.

Ms Mills and the respondent Mr Mills were personal and business partners. They separated in 2010. In October 2014 they began negotiations for a division of their assets. The primary assets were two rural properties which were subject to three ASB bank mortgages.
Mr Peterson who was a friend of Ms Mills and now her personal partner agreed under a written contract to buy Mr Mills’s half share of the two properties for $100,000. 50 per cent of the purchase price was to be paid by 31 May 2015 as a deposit.
The terms of the agreement included provisions that Mr Peterson would assume responsibility for Mr and Ms Mills’s debts including the mortgage payments and a bank overdraft facility. It was further agreed that Ms Mills who was also a signatory to the agreement would retain items on the properties that had been used for the business. These were described in the agreement as building materials and tools.
On 26 May 2015, Mr Peterson paid $50,000 into Mr Mills’s bank account.
However, problems arose in fully implementing the agreement because the ASB bank refused to agree to Mr Mills’s liabilities under the overdraft to be transferred to Mr Peterson.
On 19 June 2015 Mr Peterson deposited $40,000 into the ASB overdraft account. The following month, Mr Mills withdrew $40,000 from the account and transferred it to his own personal account.
Mr Mills’s explanation for that…

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 Mills

Details

AGLC: Peterson v Mills [2021] NZCA 179
Case: [2021] NZCA 179
Decision Date: 13 May 2021 at 9 am

CaseChat Overview and Summary

In the case of Peterson v Mills, Ms Lynette Mills and Mr Carl Peterson, both individually and as the Peterson/Mills Partnership, sought leave to appeal a decision made by Palmer J in the High Court of New Zealand. The High Court had previously considered an appeal from a decision of the District Court, which had ordered a sale of one of the two rural properties owned by the parties, with the proceeds used to pay off debts. The applicants sought leave to bring a second appeal on the basis that there were errors in the High Court's decision that created a new legal landscape.

The court considered whether the applicants had satisfied the threshold for granting leave to bring a second appeal, namely that the proposed appeal raised a question of law or fact capable of a bona fide and serious argument. The applicants argued that the High Court's decision created a new legal landscape and that the proposed appeal involved points of law and factual matters of considerable importance to them. However, the Court held that the proposed grounds of appeal were not seriously arguable and were not of public importance. The Court held that the High Court's decision did not alter the essence or substance of the orders made by the District Court and that the proposed appeal fell well short of meeting the threshold for granting leave.

The Court declined the application for leave to bring a second appeal and ordered the applicants to pay one set of costs to the respondent on a band A basis together with usual disbursements. The Court held that there was no reason why the unsuccessful party should not pay costs to the successful party.

Orders