New Zealand Commercial Law Corp Ltd v Lepionka & Company Investments Ltd  NZDC 12002
Published 18 August 2022
Judge-alone trial — dismissal of charge — stay of proceedings — theft as a person in a special relationship — failing to provide accounting — abuse of process — Crimes Act 1961, s 220 — Criminal Procedure Act 2011, ss 26 & 147 — Property Law Act 2007, s 155(1), 160, 162, 163, 165 & 185 — Senior Courts Act 2016, s 166 — Evidence Act 2006, ss 7, 17, 23, 24, 25, 50 & 139 — Paterson v Lepionka & Co Investment Ltds & Ors  NZHC 2184 — Paterson v Lepionka & Co Investments Ltd  NZCA 364 — 47 Fairfax Road Pty Ltd (as trustee of the Garth Paterson Family Trust) v Lepionka Co Investments Ltd  NZDC 13751 — Attorney-General v Seimer  NZHC 917 — Gifford v District Court of New Zealand  NZHC 851 — R v Flyger  2 NZLR 721 — R v Scale  1 NZLR 178 — Nisbitt v R  NZCA 285 — GLW Group Ltd v LCIL  NZHC 1658 — Fox v Attorney-General  3 NZLR 62 — Moevao v Department of Labour  1 NZLR 464 — Ratana v Tauranga District Court  NZHC 1306 — Denham v Clague  NZDC 12703.
In this private prosecution, the prosecutor alleged that the defendant had committed theft as a person in a special relationship. The proceedings sprang from a long-running dispute over two parcels of land in a property development. The defendant was mortgagee in possession of the land, and the prosecutor alleged that the defendant had failed its obligation to account for all income received from the land. The defendant applied for an order either dismissing the charges or staying the proceedings as an abuse of process.
To prove a charge of theft in a special relationship, the prosecutor had to show that it did have a special relationship with the defendant. The Court found that it had failed to do so. The fact that the prosecutor had tried to lodge caveats against the land did not mean that it had an interest in the land. The evidence that the prosecutor wanted to rely on had several other shortcomings, and the prosecutor had failed to show that there were any profits that it was entitled to receive. The Court dismissed the charge per s 147 of the Criminal Procedure Act, but declined to make a ruling that the proceedings were an abuse of process. Judgment Date: 1 July 2022.