Peterson v Mills

[2020] NZHC 3466

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2019-470-126

[2020] NZHC 3466

BETWEEN

CARL JAMES PETERSON

First appellant

LYNETTE JOY MILLS
Second appellant

THE PETERSON/MILLS PARTNERSHIP
Third appellant

AND

GRAHAM HOWARD MILLS

Respondent

Hearing:	On the papers
Appearances:	First and second appellants in person J R Sparrow for the respondent
Judgment:	21 December 2020

JUDGMENT NO 2 OF PALMER J

This judgment was delivered by me on Monday 21 December 2020 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Parties/Solicitors:

First and second appellants in person Holland Beckett Law, Tauranga

PETERSON v MILLS NO 2 [2020] NZHC 3466 [21 December 2020]

Judgment

[1]    On 16 September 2020, I issued judgment in these proceedings saying, in summary:1

[1]  Mr Graham Mills and Ms Lynette Mills separated. Mr Carl Peterson, Ms Mills’ friend and now personal partner, then agreed to buy Mr Mills’ share of two properties. It was agreed that Ms Mills, who also signed the agreement, would retain business assets on the properties. But ASB Bank declined to allow Mr Mills’ overdraft liabilities to transfer to Mr Peterson. Mr Peterson and Ms Mills sued Mr Mills. Both parties agreed the Agreement had been cancelled but disagreed on who cancelled it and when. The late Judge A P Christiansen made orders under s 43 of the Contract and Commercial Law Act 2017 (the Act) for the sale of one of the properties and application of the proceeds to the ASB mortgage and overdraft and to net debts between the parties. Mr Peterson and Ms Mills appeal those orders.

[2]  Judge Christiansen’s orders represent a pragmatic solution to the situation but were not explicit in some respects. I clarify and expand the Judge’s orders, making explicit the transfer of title from Mr Mills to Mr Peterson and ordering any interest earned by Mr Mills on the $40,000 he used from the overdraft facility be returned to Mr Peterson. That interest and the $40,000 should be transferred to Mr Peterson as the first step to allow him capital to sell one of the properties as ordered.

[2]    Mr Sparrow, for Mr Mills, sought clarification of some issues arising from the judgment and Mr Peterson responded. I dealt with those issues in a minute of 28 October 2020.

Application for leave to appeal

[3]    Mr Peterson and Ms Mills have continued to file a variety of documents since then. In particular, on 13 November 2020 they emailed to the Registry an application for leave to appeal the judgment to the Court of Appeal. Their subsequent memorandum in support of that application relies on an affidavit of 16 November 2020 by Ms Mills. The memorandum explains that the application for leave is out of time due to Ms Mills’ illness. Another memorandum seems to envisage joining more parties to the proceeding.

[4]    Mr Mills does not take issue with the application for leave to appeal being out of time. He opposes the application for leave to appeal. Mr Sparrow submits the

1      Peterson v Mills [2020] NZHC 2400 (citations omitted).

proceedings do not meet the high threshold for leave to appeal to be granted. He submits it is a purely factual dispute, there is no public interest in the appeal, the issues raised do not justify the gravity of a second appeal, the sums in dispute are relatively low and the “grounds of appeal” are not on any questions of law.

Should leave to appeal be granted?

[5]    Under r 20.4(3) of the High Court Rules 2016, I extend the time for leave to appeal so as to consider the application on its merits. But there are few, if any. As a second appeal, the proposed appeal needs to raise a question capable of serious argument, in a case involving public or private interest of sufficient importance to outweigh the cost and delay of the appeal.

[6]    I said in the judgment that the applicants’ written submissions erred on the side of relitigating all the issues that were considered by the District Court.2 The same is true of their memoranda now. They dispute a variety of matters of fact, some of which were determined in the judgment and some of which were not the subject of it. The only legal issue identified appears to be an allegation, that was not the subject of the judgment, that a bank employee breached a fiduciary duty and a submission that the proceeding should be amalgamated with another proceeding.3

[7]    None of the matters raised by the applicants hint at a question capable of serious argument or public or private interest of sufficient importance to outweigh the cost and delay of an appeal. The applicants would be better to focus on implementation of the judgment, which gave them benefits they were seeking. If they wish to pursue the bank issues they should do so in a separate proceeding. But, if they wish to under s 60(2) of the Senior Courts Act 2016, the applicants are able to apply further to the Court of Appeal for leave to appeal.

Palmer J

2 At [16].

3      Further Memorandum in support of Lynette Mills Affidavit and Application for leave to appeal that Court of Appeal the Judgement of Palmer J issued on 16 September 2020, 21 November 2020, at [13]-[15].