Architecture and Project Management Limited v Windowmakers Limited - [2016] NZHC 700

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003023 [2016] NZHC 700

BETWEEN
ARCHITECTURE AND PROJECT

MANAGEMENT LIMITED Plaintiff

AND

WINDOWMAKERS LIMITED First Defendant

MARTIN ERIC BAMFORD Second Defendant

PLATINUM PACIFIC HOMES LIMITED Third Defendant

Hearing: On the papers

Judgment:

15 April 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 15 April 2016 at 3.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

ARCHITECTURE AND PROJECT MANAGEMENT LTD v WINDOWMAKERS LTD [2016] NZHC 700 [15
April 2016]

Introduction

[1] Following the plaintiff ’s discontinuance of this proceeding the defendants sought costs from a non-party, Terence Brown, who is the director of the plaintiff. Associate Judge Christiansen made a costs order against Mr Brown.1 I reviewed that decision and set aside the costs order.2 The defendants seek leave to appeal my decision. In addition, they seek an order requiring the plaintiff to disclose the details
of the funding arrangement it had for the original proceeding. Mr Brown seeks costs on the review hearing.

Disclosure of the funding arrangement

[2] The Associate Judge’s determination proceeded on the basis of Mr Brown’s own evidence which included the fact that he had engaged a lawyer for APM on a contingency basis. Details of the contingency arrangement were not, however, before the Court and there was no application for disclosure of those details. The defendants now seek full disclosure of the funding arrangement on the basis that it is potentially relevant in relation to the proposed appeal (whether Mr Brown was the real plaintiff), to other possible non-parties and to Mr Brown’s costs application.

[3] The defendants relied on Waterhouse v Contractors Bonding Ltd , in which the Supreme Court said that the existence and terms of a litigation funding agreement may be relevant to an application for security for costs and to an application for costs.3 However, the Supreme Court also made it clear that it was not considering conditional fee arrangements by solicitors, which are subject to the Lawyers and Conveyancers Act 2006 and the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care Rules) 2008, rr 9.8 – 9.10.4

[4] I do not consider that there is any basis on which to require disclosure of the
plaintiff’s funding arrangements. Whether details of the funding arrangement could be used to impugn a factual finding of mine is not a matter that is live before me; if

1      Architecture and Project Management Ltd (in liquidation) v Windowmakers Ltd [2014] NZHC
3318.
2      Architecture and Project Management Ltd v Windowmakers Ltd [2015] NZHC 2268.
3      Waterhouse v Contractors Bonding Ltd [2013] NZSC 89 at [76](d).
4      See also Kain v Wynn Williams & Co [2012] NZCA 563, [2013] 1 NZLR 498; Kain v Wynn
Williams [2013] NZSC 26.

leave to appeal were granted then it would be a matter for the Court of Appeal in the context of an application to adduce further evidence. Nor is the possible…

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.

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Details

Case: [2016] NZHC 700
Decision Date: 15 April 2016

CaseChat Overview and Summary

Architecture and Project Management Limited, through its director Terence Brown, initiated proceedings against Windowmakers Limited, Martin Eric Bamford, and Platinum Pacific Homes Limited. The primary dispute centred around the costs incurred by the defendants, following the plaintiff's discontinuance of the proceeding. Associate Judge Christiansen had previously made a costs order against Mr Brown, but this decision was reviewed and set aside by Justice Courtney. The defendants sought leave to appeal the decision and requested disclosure of the funding arrangement for the original proceeding. Mr Brown also sought costs related to the review hearing.

The court examined whether the funding arrangement details were relevant to the proposed appeal, other potential non-parties, and Mr Brown's costs application. It found that disclosure of the funding arrangement was not necessary as the matter was not live before the court, and the appropriate time for seeking disclosure had passed. The court also considered whether leave to appeal should be granted, based on the criteria established in Waller v Hider and Payne v Attorney-General. The court concluded that the proposed appeal did not meet the required criteria and dismissed the application for leave to appeal.

Justice Courtney further addressed the defendants' alternative arguments and concluded that they did not provide sufficient grounds for a second appeal. Finally, the court granted costs to Mr Brown for the review hearing, amounting to $5,100.

Orders