Body Corporate 82981 v AIG Insurance New Zealand Limited

[2025] NZHC 1332

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-003332

[2025] NZHC 1332

UNDER

the Declaratory Judgments Act 1908

BETWEEN

BODY CORPORATE 82981

Plaintiff

AND

AIG INSURANCE NEW ZEALAND LIMITED

Defendant

On the papers
Counsel:	N S Wood for the Plaintiff E I D Fox for the Defendant
Judgment:	26 May 2025

JUDGMENT OF VAN BOHEMEN J

[application for access to court documents]

This judgment was delivered by me on 26 May 2025 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………..

Counsel/Solicitors:

D R Kalderimis KC and T Nelson, Auckland Chapman Tripp, Wellington

Fee Langstone, Auckland

Copy to: Cy Kennedy and Kajsa Bjors

BODY CORPORATE 82981 v AIG INSURANCE NEW ZEALAND LTD [2025] NZHC 1332 [26 May 2025]

[1]    Cy Kennedy and Kajsa Bjors (the Applicants) have applied  under  the  Senior Courts (Access to Court Documents) Rules 2017 (the Rules) for access to “the complete case file” in the proceeding brought by Body Corporate 82981 against  AIG Insurance New Zealand Ltd (AIG) (the AIG Proceeding). I take the request to mean that the Applicants seek access to the complete Court file in the AIG Proceeding.

[2]    In the AIG Proceeding, the Body Corporate is challenging AIG’s decision to decline cover for costs incurred in defending an on-going proceeding brought by the applicants against the Body Corporate and former members of the Body Corporate committee in a dispute over the Body Corporate’s discharge of its responsibilities for the management of the Dominion Building at 78–80 Victoria Street, Wellington.

[3]The substantive hearing in the AIG Proceeding is set down for 5 August 2025.

[4]    The Applicants say they want to look at the documents because they are owners of property in the Dominion Building; they are members of the Body Corporate and are paying special litigation levies in the AIG Proceeding; their names are mentioned in the Body Corporate’s statement of claim; and they have commenced a proceeding against the Body Corporate and former members of the Body Corporate committee.

[5]    AIG has advised that it is neutral on the Applicants’ application. However, the Body Corporate is opposed to access being granted. It says it has passed on to all unit owners the information they require at this point and that its dispute with AIG is commercially sensitive and confidential and may have implications for the conduct of the proceeding between the Body Corporate and the Applicants.

Relevant rules

[6]    While the Applicants are parties to the proceeding between themselves and the Body Corporate, they are not parties to the AIG Proceeding. Accordingly, their right to access documents on the Court file other than those in the formal court record is the same as that of any other member of the public and falls for consideration under rr 12 to 15 of the Rules.

[7]    Rule 12 provides that, in determining a request for access, a Judge must consider the nature of and the reasons given for a request for access and take into account matters set out in the rule that are relevant to the request or any objection to the request.

[8]    The following matters set out in r 12 are relevant to the Applicants’ request and the Body Corporate’s objection:

(a)the orderly and fair administration of justice:

…

(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:

(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:

(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):

(f)the freedom to seek, receive, and impart information:

…

(h)       any other matter that the Judge thinks appropriate.

[9]    Rule 13 provides that in applying r 12, a Judge must have regard to the following:

(a)before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited:

(b)during the substantive hearing, open justice has—

(i)greater weight than at other stages of the proceeding; and

(ii)greater weight in relation to documents relied on in the hearing than other documents:

(c)after the substantive hearing,—

(i)open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but

(ii)the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.

Analysis

[10]   The Applicants’ reasons for being granted access to the Court file relate to their membership of the Body Corporate, and the proceeding they have brought against the Body Corporate and former members of the Body Corporate committee. The Applicants do not say why those matters mean they should be granted access. Accordingly, I consider the application by reference to the relevant matters in rr 12 and 13 of the Rules.

[11]   While the principles of open justice and the freedom to seek, receive, and impart information militate in favour of granting the request, the other relevant matters in r 12, including the orderly and fair administration of justice, incline strongly the other way.

[12]   The AIG Proceeding concerns the relationship between the Body Corporate and its insurer. That is a matter of considerable commercial sensitivity and confidentiality and affects all unit owners. How and what the Body Corporate determines should be disclosed to unit owners is for the Body Corporate to decide. The Applicants have no greater right to that information than any other unit owner.

[13]   In addition, the request is made before the substantive hearing in the proceeding between the Body Corporate and AIG. I am satisfied that, in this situation and as recognised by r 13, the protection of confidentiality and privacy interests, and the orderly and fair administration of justice require that access to the documents be limited.

[14]   For these reasons, I decline the application for access to the complete Court file. If the Applicants wish to obtain a copy of the judgment issued on 8 May 2025,

as reissued on 16 May 2025 on the Body Corporate’s application for discovery,1 that is part of the formal court record and can be provided upon request.

G J van Bohemen J

1      Body Corporate 82981 v AIG Insurance New Zealand Ltd [2025] NZHC 1099.