Birchfield v Birchfield - [2025] NZHC 2609

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CIV-2024-418-005

[2025] NZHC 2609

BETWEEN
EVAN RAYMOND BIRCHFIELD, GARY PAUL BIRCHFIELD AND ANDREW LEE BIRCHFIELD

Plaintiffs

AND

ALLAN JOHN BIRCHFIELD

First Defendant

AND

BIRCHFIELD COAL MINES LTD

Second Defendant

Hearing: 5 September 2025

Appearances:

R J Hollyman KC (via VMR), G K Riach and M K Crimp for Plaintiffs

P A Cowey and J J Taylor for First Defendant
C L Webber and R L Symon for Second Defendant

Judgment:

8 September 2025

JUDGMENT OF EATON J

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BIRCHFIELD v BIRCHFIELD [2025] NZHC 2609 [8 September 2025]

[1] The first defendant, Allan Birchfield (Allan), has served a subpoena on the first named plaintiff, his brother, Evan Birchfield (Evan). That subpoena requires Evan to appear at trial and give evidence. It also requires him to produce documents.

[2] The plaintiffs apply to set aside the subpoena. Alternatively, a direction is sought that Evan give evidence remotely, either from his home on the West Coast or from the Greymouth Court, with “live transcription” of the questions he is asked.

[3] Mr Cowey, for Allan, acknowledges the requirement within the subpoena that Evan bring documents to trial should be set aside. That reflects the prior tailored discovery orders made in this proceeding. He otherwise opposes the application to set aside the subpoena. He does not accept there are grounds to order that Evan give evidence remotely or with transcription of questions.

[4] In the light of the fast-approaching 15 September 2025 trial date, the current applications were given an urgent hearing date.

Factual background

[5] Evan, Gary and Allan are brothers. Andrew is Evan’s son. Andrew, Gary and Allan are co-owners of the Kaiata Yard (the Yard) situated at 434 Main Road, Kaiata, Greymouth, as tenants in common (Andrew 25 per cent, Gary 50 per cent, Allan 25 per cent). Andrew recently assumed ownership of his father’s interest in the Yard.

[6] Evan, Gary, Allan and their sister, Karen, are each 25 per cent shareholders (either personally or through family trusts) in Birchfield Holdings Limited, the parent company of Birchfield Coal Mines Ltd (BCML). Disputes arose and Allan was removed as a director of BCML and other related entities in April 2019.

[7] BCML uses the Yard primarily for its retail coal sales to the public and for storage, and as a waypoint for distribution of wholesale quantities of coal to its customers. The plaintiffs and BCML say that it uses the whole of the Yard. Allan says it does not.

[8] There is acrimony within the family and the parties agree that the current ownership structure of the Yard cannot continue.

[9] The plaintiffs, as majority owners, seek orders that Allan be bought out of his minority share for fair value. The plaintiffs’ case is that Allan does not use the Yard but is…

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.

Continue reading Birchfield v Birchfield

Details

AGLC: Birchfield v Birchfield [2025] NZHC 2609
Case: [2025] NZHC 2609
Decision Date: 8 September 2025

CaseChat Overview and Summary

The case of Birchfield v Birchfield involved an application to set aside a subpoena issued by Allan Birchfield, the first defendant, to Evan Birchfield, his brother and the first named plaintiff. The subpoena required Evan to attend court and produce documents related to the Kaiata Yard, a property owned by the parties as tenants in common. The plaintiffs sought to set aside the subpoena or, alternatively, for Evan to give evidence remotely. Allan opposed the application, arguing that Evan's evidence was necessary. The court found significant shortcomings with the notice served under r 9.7(6) of the High Court Rules 2016, which mandates detailed information about the intended evidence from a witness who has not provided a brief. Allan's notice failed to address steps taken to obtain a brief, provided unclear reasons for Evan's non-compliance, and lacked details of the evidence expected. The court held that Allan had not taken reasonable efforts to obtain a brief and that Evan's evidence was not necessary as the topics Allan proposed were either undisputed or irrelevant. Additionally, the court found that any evidence Evan might give had low probative value and would needlessly prolong proceedings. The subpoena was set aside.

The court reserved costs.

Orders