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.…

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 [2020] NZHC 3466
Case: [2020] NZHC 3466
Decision Date: 21 December 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Peterson v Mills involved a dispute between Carl James Peterson, Lynette Joy Mills, the Peterson/Mills Partnership, and Graham Howard Mills. The central issue was the sale of Graham Mills' share of two properties, with additional complications arising from ASB Bank's refusal to transfer Graham Mills' overdraft liabilities to Carl Peterson. Both Carl Peterson and Lynette Mills sued Graham Mills, and despite an agreement to cancel the original contract, they disagreed on the specifics of the cancellation. The court was tasked with clarifying and expanding upon the orders made under section 43 of the Contract and Commercial Law Act 2017, specifically regarding the sale of one property and the application of its proceeds.

The legal issues before the court involved the interpretation of the contract and the orders made under the Act, including the transfer of title from Graham Mills to Carl Peterson and the treatment of any interest earned on the $40,000 used from the overdraft facility. The court was also required to determine whether the applicants' proposed appeal met the necessary criteria for leave to appeal, including whether it raised a question capable of serious argument or involved a public or private interest of sufficient importance to justify the appeal.

Palmer J clarified and expanded upon the previous orders, making explicit the transfer of title and ordering the return of any interest earned on the $40,000 to Carl Peterson. Regarding the application for leave to appeal, Palmer J extended the time for the application to consider it on its merits. However, the court found that the proposed appeal did not meet the high threshold for leave to appeal, as it did not raise a question capable of serious argument or involve significant public or private interest. The applicants were advised to focus on implementing the judgment and to pursue separate proceedings if they wished to address the bank-related issues.

The final orders of the court included clarifications on the property sale and the handling of the overdraft interest, as well as the denial of leave to appeal to the Court of Appeal.

Orders