Auckland City Council v Union House Limited

[2004] NZCA 181

NO SUPPRESSION ORDER HAS BEEN MADE IN RESPECT OF THIS EDITED VERSION OF THIS JUDGMENT

IN THE COURT OF APPEAL OF NEW ZEALAND

CA162/03

BETWEENAUCKLAND CITY COUNCIL

Appellant

ANDUNION HOUSE LIMITED

First Respondent

ANDUNION HOUSE LEASE LIMITED

Second Respondent

Hearing:11 March 2004

Coram:Hammond J
Chambers J
O'Regan J

Appearances:  R J Asher QC and N R Hall for Appellant

R B Stewart QC for Respondents

Judgment:11 August 2004 

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J
(FOR PUBLIC DISSEMINATION)

Introduction

[1]       This appeal is concerned with a complex agreement which provided for certain property transactions, resolved certain litigation, and provided for ongoing co-operation between the parties in relation to the Britomart project in downtown Auckland.

[2]       The central issue on the appeal is whether a confidentiality clause prohibiting the disclosure of the terms of this agreement, without the prior consent of both the parties thereto, operated to render the purported assignment of that agreement by one of them ineffective.

[3]       In a judgment delivered on 30 July 2003 in the High Court at Auckland (CIV-2003-404-923), Randerson J held that the relevant Deed of Assignment was effective to assign the entire agreement, even though there was no consent to the assignment, and that consequently the respondents had a caveatable interest in the subject property.  The Auckland City Council (ACC) now appeals to this Court against that judgment.

[4]       In the result, we take a different view of the correct interpretation of the agreement than was taken by the Judge (and for that matter by the parties).  The appeal will therefore be allowed, but the case will be remitted to the High Court to enable that Court to reconsider the disposition of it in light of the views we have expressed as to the proper ambit of the relevant provisions of the agreement.  The burden of this judgment is therefore to explain how we have reached those conclusions.

… [Refer para [58] below]

Conclusion

[55]     In the result, the appeal is allowed.  There will be no order for costs in this Court.

[56]     There will be a declaration that any purported assignment by a party of its rights under the agreement in issue in this litigation without the consent of the other party will be ineffective if the assigning party had breached clause 15, and, as a consequence, some or all of the terms of the agreement have been disclosed to the assignee.

[57]     The proceeding is remitted under s 62 of the Judicature Act 1908 to the High Court.  That Court will have to consider whether ACC should be able to amend its pleadings to allege breach of clause 15.  That Court will also need to determine, if it does permit amendment, the future course of the proceeding.

[58]     This judgment contains material relating to the agreement and its terms.  The parties will receive the complete judgment but, at this stage, only paras [1]-[4], and [55]-[58] will be released to the public.  The parties should confer as to how the balance of the judgment can be released in a manner which preserves the parties’ rights to confidentiality.  If by 30 August 2004 the parties can reach agreement, then a joint memorandum should be filed indicating the parties’ views.  If agreement cannot be reached, then the ACC should file and serve submissions on or before 6 September 2004 setting out its views.  Union House should then respond by memorandum, to be filed and served on or before 13 September 2004.  ACC may, on or before 20 September 2004, file and serve any submissions in reply.  After considering the submissions, and if necessary hearing from the parties, we will make appropriate orders to protect what we consider to be confidential information contained in the judgment.

Solicitors:

Simpson Grierson, Auckland for Appellant
Knight Coldicutt, Auckland for Respondents