PATERSON v LEPIONKA & CO INVESTMENTS LTD [2020] NZHC 3243

PATERSON v LEPIONKA & CO INVESTMENTS LTD [2020] NZHC 3243

The Court struck out the mortgagee proceeding as barred by res judicata and an abuse of process and struck out the bankruptcy proceeding for disclosing no reasonably arguable cause; the plaintiff's conduct was unreasonable and caused the proceedings, justifying a costs award on a 2B basis with a 50% uplift and a...

Source-derived case information.

Citation
[2020] NZHC 3243
Parties
Plaintiff (trustee): Garth Bowkett Paterson (as trustee of the Garth Paterson Family Trust); Plaintiff (personal): Garth Bowkett Paterson; First Defendant: Lepionka & Company Investments Limited; Second Defendants: Stefan Jozef John Lepionka, Joeduncan and Gregory Bernard Horton (as trustees of the Lepionka Business Trust); Third Defendant: Lepionka and Company Limited; Fourth Defendants: Stefan Jozef John Lepionka and Nigel Warren Hughes (as trustees of the SJ Lepionka Family Trust); Fifth Defendant: Stefan Jozef John Lepionka
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 December 2020
Procedural Posture
Civil Litigation Concerning Mortgagee Sale, Related Bankruptcy and Costs Applications / Costs Judgment Following Strike Out and Restriction Order (post Judgment)
Outcome
Mortgagee and bankruptcy proceedings struck out; restriction order under s166 Senior Courts Act 2016 made against Mr Paterson; costs awarded to defendants with uplift and disbursements ordered.
Legal Topics
Strike Out, Res Judicata, Abuse of Process, Section 166 Restriction Order, Costs Uplift, Malicious Bankruptcy, Dishonest Assistance
Civil Procedure Costs Injunctions and Restrictive Orders Bankruptcy Equity and Trusts Property and Mortgagee Sales Strike Out Res Judicata +5 more

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Parties

Garth Bowkett Paterson (as trustee of the Garth Paterson Family Trust)

Plaintiff (trustee)

Garth Bowkett Paterson

Plaintiff (personal)

Lepionka & Company Investments Limited

First Defendant

Stefan Jozef John Lepionka, Joeduncan and Gregory Bernard Horton (as trustees of the Lepionka Business Trust)

Second Defendants

Lepionka and Company Limited

Third Defendant

Stefan Jozef John Lepionka and Nigel Warren Hughes (as trustees of the SJ Lepionka Family Trust)

Fourth Defendants

Stefan Jozef John Lepionka

Fifth Defendant

Procedural Posture

Civil Litigation Concerning Mortgagee Sale, Related Bankruptcy and Costs Applications / Costs Judgment Following Strike Out and Restriction Order (post Judgment)

Legal Issues

  1. 1 Whether the mortgagee proceeding was barred by res judicata and an abuse of process
  2. 2 Whether the bankruptcy proceeding disclosed a reasonably arguable cause of action
  3. 3 Whether a section 166 restriction order was justified

Ratio Decidendi

The Court struck out the mortgagee proceeding as barred by res judicata and an abuse of process and struck out the bankruptcy proceeding for disclosing no reasonably arguable cause; the plaintiff's conduct was unreasonable and caused the proceedings, justifying a costs award on a 2B basis with a 50% uplift and a restriction order under s166 of the Senior Courts Act 2016.

Court Disposition

Mortgagee and bankruptcy proceedings struck out; restriction order under s166 Senior Courts Act 2016 made against Mr Paterson; costs awarded to defendants with uplift and disbursements ordered.

Orders

  • Mortgagee proceeding CIV-2019-441-000078 struck out as barred by res judicata and an abuse of process
  • Bankruptcy proceeding CIV-2020-441-000041 struck out for disclosing no reasonably arguable cause of action