Rafiq v Baycorp PDL (NZ) Limited

[2025] NZHC 106

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-1613

[2025] NZHC 106

UNDER

the High Court Rules 2016

BETWEEN

RAZDAN RAFIQ

Plaintiff

AND

BAYCORP PDL (NZ) LIMITED

First Defendant

LATITUDE FINANCIAL SERVICES LIMITED

Second Defendant

Hearing:

On the papers

Counsel:

Plaintiff in person

No appearance for the Defendants

Judgment:

10 February 2025

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 10 February 2025 at 3.30 pm Pursuant to r 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

RAFIQ v BAYCORP PDL (NZ) LTD [2025] NZHC 106 [10 February 2025]

Introduction

[1]    On 19 June 2024, the plaintiff, Razdan Rafiq (Mr Rafiq), filed a claim for summary judgment against the first defendant, Baycorp PDL (NZ) Ltd (Baycorp PDL) and the second defendant, Latitude Financial Services Ltd (Latitude).

[2]    The application for summary judgment was called in the summary judgment list on 3 September 2024. Mr Rafiq appeared in person. The application had not been served on either defendant. I made an order in Court striking out the proceeding as an abuse of process. I later recorded the decision in a brief minute dated 3 September 2024.1 Mr Rafiq now seeks leave to appeal that decision.

[3]    In addition, Mr Rafiq requires an extension of time to apply for leave to appeal, because he failed to bring his application for leave within the 20-working-day time limit prescribed in s 56(3) of the Senior Courts Act 2016 (SCA).

Background

[4]    Mr Rafiq is a vexatious litigant. On 27 May 2015, the High Court made an order under s 88B of the Judicature Act 1908 (the s 88B order):2

No civil proceeding shall, without the leave of this Court, or a Judge of the Court, be instituted by Mr Rafiq in any court. Any civil proceeding instituted by Mr Rafiq in any court before the making of this order, shall not be continued by him without such leave.

[5]    Mr Rafiq consented to the order. He accepted the allegations contained in the Attorney-General’s pleading seeking the order.3

[6]    Mr Rafiq unsuccessfully applied for leave out of time to appeal the s 88B order, despite having consented to it. In rejecting the application for leave, the Court of Appeal noted the nature of the multiple proceedings that had been brought by Mr Rafiq, as pleaded by the Attorney-General in the application for the s 88B order:4

1      Rafiq v Baycorp PDL (NZ) Ltd HC Auckland CIV-2024-404-1613, 3 September 2024 (Minute of Associate Judge Brittain).

2      Attorney-General v Rafiq [2015] NZHC 1153 at [10].

3      At [5] and [8].

4      Rafiq v Attorney-General [2018] NZCA 292 at [3].

(a)the same arguments being frequently repeated and constantly rejected;

(b)an entrenched pattern of behaviour by Mr Rafiq indicating an unwillingness to accept adverse decisions or that appeal rights had been exhausted;

(c)the proceedings initiated against an ever-widening circle of defendants;

(d)issuing new proceedings in order to litigate matters that could have been raised in earlier proceedings, in order to avoid the effect of stays of the earlier proceedings;

(e)an intention to file vexatious proceedings in an attempt to clog the workings of the court and harass the defendants to the proceedings;

(f)baseless and scandalous allegations that have no prospect of success, including allegations against judicial officers;

(g)numerous claims being disposed of by being struck out or stayed; and

(h)Mr Rafiq not pursuing claims and allowing them to lie dormant.

[7]    Mr Rafiq subsequently sought leave to appeal the Court of Appeal decision out of time. On 16 June 2021, the Supreme Court declined the application noting the application was well out of time, the Court of Appeal had applied settled principles and Mr Rafiq had not pointed to any error that gave rise to the appearance of a miscarriage of justice.5

[8]    Mr Rafiq then set about making numerous applications to the High Court for leave to commence a proceeding. For example, during the first five months of 2019 Mr Rafiq filed 14 applications for leave. All were dismissed.6

[9]    Mr Rafiq also endeavoured to file proceedings in the District Court. For example, on 3 September 2018 the District Court rejected the filing of Mr Rafiq’s appeal of a decision of the Disputes Tribunal.

[10]   The s 88B order expired on 28 February 2022.7 Since then, Mr Rafiq has resumed his pattern of filing vexatious proceedings. This includes a proceeding against Baycorp (NZ) Ltd (Baycorp) and Latitude in this Court, CIV-2023-404-108, filed on 20 January 2023. That proceeding was served on the defendants. Baycorp

5      Rafiq v Attorney-General [2021] NZSC 65 at [6]–[7].

6      Rafiq v Whata [2019] NZHC 1193 at [2].

7 At [37].

and Latitude applied for security for costs. On 3 July 2023, Grice J ordered security for costs of $35,000 payable in tranches, including a first tranche of $8,000.8

[11]   Grice J assessed the merits of Mr Rafiq’s claims against Latitude and Baycorp, summarising Mr Rafiq’s claim as follows:9

The plaintiff brings a claim by way of summary judgment against the first defendant and second defendant concerning various finance transactions in which he was recorded as the debtor and the steps taken to recover the debts by the first and second defendant.

[12]   Mr Rafiq’s amended statement of claim dated 23 May 2023 included allegations, in substance, that Baycorp was wrongfully seeking to recover for Latitude a debt of $10,054.03. Mr Rafiq alleged that the defendants’ actions had affected his credit history, and on 9 December 2022 at 6.10 am his application for a credit card was declined due to the conduct of the defendants.

[13]   Grice J concluded that Mr Rafiq’s application for summary judgment was highly unlikely to succeed and the proceedings generally appeared to lack merit.10 Grice J described Mr Rafiq’s pleadings as “virtually unintelligible”.11

[14]   Mr Rafiq sought leave to appeal Grice J’s decision. That application was declined by Grice J on 21 February 2024.12 Mr Rafiq did not pay the first tranche of security required to progress CIV-2023-404-108. Instead, he filed CIV-2024-404- 1143, naming Baycorp PDL and Latitude as defendants. Baycorp and Baycorp PDL are subsidiaries of Baycorp Holdings (NZ) Ltd. All three companies share the same directors.

[15]   The CIV-2024-404-1143 statement of claim dated 7 May 2024 challenged  Mr Rafiq’s debt of $10,054.03 owed to Latitude, and pleaded that the conduct of Baycorp PDL and Latitude had resulted in Mr Rafiq’s application to Kiwibank for a

8      Rafiq v Latitude Financial Services [2023] NZHC 1690.

9 At [3].

10 At [32].

11 At [33].

12     Rafiq v Latitude Financial Services Ltd [2024] NZHC 253.

credit card being declined on 9 December 2022 at 6.10 am. Mr Rafiq was attempting to bring the same allegations that were stayed in CIV-2023-404-108.

[16]   Mr Rafiq applied for summary judgment in CIV-2024-404-1143. The application was called before me in the summary judgment list on 16 July 2024. The proceeding had not been served on either defendant. I struck the matter out as an abuse of process, and subsequently recorded that decision in a brief minute dated 16 July 2024.13

[17]   It appears that Mr Rafiq anticipated that outcome. Before CIV-2024-404-1143 was struck out, Mr Rafiq filed this proceeding, CIV-2024-404-1613, including an application for summary judgment and a statement of claim and interlocutory application nearly identical to those filed in CIV-2024-404-1143. The CIV-2024-404- 1143 statement of claim also referenced the decision of Grice J ordering security for costs in CIV-2024-404-108. I struck out this proceeding on 3 September 2024 for the same reasons that I struck out CIV-2024-404-1143 on 16 July 2024.14

Legal principles

[18]   Pursuant to s 56(3) of the SCA 2016, Mr Rafiq is required to obtain the leave of this Court to pursue an appeal against my decision.

[19]   The rationale behind the requirement for leave is simple: it serves as a filtering mechanism, ensuring that neither unmeritorious appeals of interlocutory orders, nor appeals against insignificant interlocutory orders, are allowed to proceed so as to delay unnecessarily the proceedings in which the orders were made.15

[20]   The approach to an application for leave, and the principles governing its grant or refusal, are well-established:16

(a)a high threshold exists;

13     Rafiq v Baycorp (NZ) Ltd HC Auckland CIV-2024-404-1143, 16 July 2024 (Minute of Associate Judge Brittain).

14     Rafiq v Baycorp PDL (NZ) Ltd, above n 1.

15     Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

16     Tomar v Tomar [2021] NZCA 419 at [6].

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

[21]   The threshold for leave may be lower in respect of a judgment that in a practical sense finally determines a proceeding.17

Discussion

[22]   Both CIV-2024-404-1143 and this proceeding were intended to circumvent the order for security for costs made by Grice J in CIV-2023-404-108. It is not arguable that my finding that this proceeding is an abuse of process was wrong in law or fact. The interests of justice are served by declining Mr Rafiq leave to appeal my decision.

Orders

[23]   The plaintiff’s application for an extension of time to apply for leave to appeal is dismissed.

[24]   The plaintiff’s application for leave to appeal my decision striking out this proceeding is dismissed.

[25]There is no order as to costs.

Associate Judge Brittain

17     See Simons v ANZ Bank New Zealand Ltd [2022] NZHC  2842  at  [7];  Singh  v  Body Corporate 207650 [2023] NZHC 1269 at [13]; and D v RMC [2023] NZHC 1931 at [16].