Bright v Wolfbrook Residential Limited
[2025] NZHC 2389
•21 August 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-795
[2025] NZHC 2389
UNDER the Fair Trading Act 1986 and the Companies Act 1993 BETWEEN
PAMELA ALISON BRIGHT
Plaintiff
AND
WOLFBROOK RESIDENTIAL LIMITED
First Defendant
STEVEN CAVELL BROOKS
Second DefendantJAMES OWEN COONEY
Third Defendant
Hearing: 4 August 2025 Counsel:
M Freeman for Plaintiff
S D Campbell for Defendants
Judgment:
21 August 2025
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 21 August 2025 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
BRIGHT v WOLFBROOK RESIDENTIAL LIMITED [2025] NZHC 2389 [21 August 2025]
[1] The plaintiff (Ms Bright) sues the first defendant (Wolfbrook) to recover losses she suffered upon cancellation of an agreement with Fix My Property Ltd for the sale of her Upper Hutt property.1 Ms Bright contends Fix My Property Ltd entered into the agreement as Wolfbrook’s agent. She also pursues an alternative claim against Wolfbrook for breaches of the Fair Trading Act 1986, and separate claims against the second and third defendants (respectively Messrs Brooks and Cooney), directors of Wolfbrook, under s 301 of the Companies Act 1993.
[2] Wolfbrook has applied to strike out Ms Bright’s statement of claim or for summary judgment. Wolfbrook contends it has never had an agency arrangement with Fix My Property Ltd and that Wolfbrook is a promotional entity only. Its application is supported by affidavits of Messrs Brooks and Cooney.
[3] Ms Bright opposes the summary judgment/strike out application and has filed an affidavit annexing as an exhibit an affidavit sworn by Mr Brooks in other proceedings (the Churton affidavit).
[4] In the Churton affidavit Mr Brooks deposes that Wolfbrook’s core business involves buying, developing and selling residential properties and references other matters which Ms Bright will argue support her contention that Wolfbrook has an agency relationship with special purpose corporate entities and, by extension, arguably with Fix My Property Ltd.2
[5] The Churton affidavit may also cast doubt upon Wolfbrook’s assertion that there are no further documents that could be obtained on discovery to support Ms Bright’s claim, such that the case is suitable to be determined by summary judgment.
[6] Wolfbrook applied to strike out those parts of Ms Bright’s affidavit that refer to the Churton affidavit. While Mr Brooks does not resile from any of his evidence in the Churton affidavit, he says Wolfbrook’s business practises have changed, and his
1 Fix My Property Ltd is now in liquidation.
2 To compare the evidence of Messrs Brooks and Cooney in support of Wolfbrook’s application for strike out/summary judgment and the Churton affidavit see Bright v Wolfbrook Residential Ltd [2025] NZHC 437 at [11]–[17].
earlier evidence has to be considered in its proper context and was specifically directed at the issues that arose in that other proceeding.
[7] The application to strike out parts of Ms Bright’s affidavit was made in reliance on r 7.32 of the High Court Rules 2016 (the Rules). Rule 7.32 provides:
7.32 Previous affidavits and agreed statements of fact
(1)Affidavits already filed in the court and agreed statements of fact, if made in the same proceeding or, with the leave of a Judge, in any other proceeding between the same parties, may be used on the disposal of any application if—
(a)prior notice of the intention to use them has been given to the opposite party (whether in the notice of application or in the notice of opposition or otherwise); or
(b)in the case of an application without notice, they are referred to in the notice of application.
(2)Subclause (1) does not apply to an affidavit or to an agreed statement to the extent that the affidavit or statement contains any admission of the kind described in rule 7.31.
[8] Wolfbrook’s position was that r 7.32 regulated the use of affidavits in the disposal of interlocutory applications, and as its requirements were not satisfied Ms Bright could not rely on the Churton affidavit and any parts of her affidavit relying upon it should be struck out.
[9] In a judgment of 7 March 2025, I dismissed Wolfbrook’s application.3 I found that the purpose of r 7.32 was to avoid unnecessary duplication of evidence upon the hearing of interlocutory applications and to ensure that the parties had fair notice of evidence they must respond to. I also found that r 7.32 is not concerned with the admissibility of evidence and did not apply here because its subject matter was limited to affidavits (or agreed statements of fact) filed in the same or other proceedings between the same parties. I found there was no justification to extend its application beyond its terms to affidavits filed in other proceedings between other parties which are otherwise admissible in evidence.4
3 Bright v Wolfbrook Residential Ltd, above n 2.
4 At [34]. There was no challenge by Wolfbrook to the admissibility of the Churton affidavit except on the grounds of relevance which I rejected at [42]–[44]. That argument has not been advanced on this application for leave to appeal my judgment.
[10] Wolfbrook applies for leave to appeal my decision under s 56(3) of the Senior Courts Act 2016. The argument it now advances is different from the one it previously relied upon, and is encapsulated in Mr Campbell’s submissions as:
The leave requirement in r 7.32 is, properly construed, a partial codification of the implied undertaking in civil litigation in relation to documents provided in civil litigation. … This undertaking similarly imposes a requirement for leave before use of affidavits from other proceedings, which was not sought here, and which should not be granted.
…
Rule 7.32 is not directly applicable but by analogy demonstrates a leave requirement for affidavits. This requirement for leave is also part of the implied undertaking in civil litigation, which is a very strict test. On top of this, the Access Rules [under the Senior Courts (Access to Court Documents) Rules 2017] also impose a requirement of leave. The effect of these three regimes is that there is always a requirement for leave, which was not sought or granted here. …
[11] Wolfbrook also contends its proposed appeal raises issues of general public importance, which it identifies as:
(a)… whether the implied undertaking applies to affidavits that have not been the subject of a hearing in open court.
(b)… whether it is an abuse of process for a third party to be provided a copy of an affidavit outside of the Access Rules, which cuts across a critical function of the Court.
(c)… to understand the scope of r 7.32 and whether it permits the course adopted here.
[12] Wolfbrook then submits the issues on appeal are of importance to the parties as by allowing Ms Bright to rely on the Churton affidavit my judgment potentially creates a barrier to what could be a dispositive application.
[13] Ms Bright opposes the application for leave to appeal. She says there is no arguable error of law arising, the new argument Wolfbrook raises concerns restrictions on the use of documents in different circumstances than apply here and is not relevant, no issues of public importance arise, and the interests of justice favour declining leave so the case can be progressed without further delays.
Legal principles
[14] Wolfbrook requires leave to appeal from the judgment. Sections 56(3) and (4) of the Senior Courts Act 2016 provide:
56 Jurisdiction
...
(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
(4)Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—
(a)striking out or dismissing the whole or part of a proceeding, claim, or defence; or
(b)granting summary judgment.
...
[15] The principles that apply to an application for leave to appeal under s 56(3) are set out by the Court of Appeal in Greendrake v District Court of New Zealand.5 There, the Court of Appeal stated:
[6] In Finewood Upholstery Ltd v Vaughan, to which Dunningham J referred to in the leave decision, Fitzgerald J appropriately observed that the requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made. The following considerations were recognised as relevant on an application for leave to appeal:
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
5 Greendrake v District Court of New Zealand [2020] NZCA 122 (footnotes omitted).
(e)the ultimate question is whether the interests of justice are served by granting leave.
[7] This Court in Ngai Te Hapu Inc v Bay of Plenty Regional Council indicated that considerations similar to the principles applicable to applications under the former s 24G of the Judicature Act 1908, as explained in Meates v Taylor [Leave], apply to applications under s 56(5) stating:
We agree that leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.
Error of law
[16] Wolfbrook’s original position, reliant as it was on r 7.32, faced the obvious difficulty that r 7.32 has nothing to say about the circumstances of this case. It concerns only the use of affidavits filed in proceedings between the same parties. As Mr Campbell acknowledges in his written submissions, “the fundament of the rules is directed at the same party status”.
[17] Whether one analyses the matter in terms of r 7.32 or the new argument that Wolfbrook now advances, its position is an unappealing one. Its seeks to exclude from the Court’s consideration relevant and undisputed affidavit evidence in relation to what may be a dispositive interlocutory application.
[18] Wolfbrook’s argument is also novel. It does not point to any single principle or rule of the Court that supports its contention. It says the requirement for leave to be first obtained before the Churton affidavit can be read is established by drawing together several strands of the law which together form a “cohesive whole”. The strands are said to be:
(a)r 7.32 and other High Court rules such as 8.30(4) and 9.14(e);
(b)the implied undertaking against the use of documents in civil litigation for collateral purposes; and
(c)the rules governing access to court documents.
[19] I do not consider there is an arguable case that Ms Bright needs leave to use the Churton affidavit. None of the “strands” Wolfbrook relies upon, whether viewed individually or collectively, require Ms Bright to do so. I will consider each briefly in turn.
[20] Rule 7.32 and the other rules relied upon restrict the use of affidavits, documents and briefs of evidence in specific circumstances that do not apply here. There are good reasons for those restrictions, but no basis that I can see to create a further unarticulated restriction on the use of affidavits in proceedings.
[21] The implied undertaking against the use of documents obtained in litigation does not apply. The undertaking will only arise where a party is compelled by a rule or order of the Court to disclose documents or information where the invasion of that party’s rights to privacy is justified because of the need to do justice between those parties in the litigation before the Court. The Churton affidavit was not obtained by compulsion. An affidavit which a party voluntarily files to support its own application for summary judgment is not protected by the implied undertaking.6
[22] The Access Rules do not apply either. The Churton affidavit was obtained from the defendant in that proceeding as a consequence of Wolfbrook applying for summary judgment and serving it upon her. It was not obtained under the Access Rules.
[23] Even if I were to accept that Ms Bright requires leave to rely on the Churton affidavit, I have not heard argument on whether leave should be granted. In my view, the Court of Appeal should not be asked to determine an issue without there having been any prior consideration of it by this Court.
[24] There is also a submission made in Mr Campbell’s written submissions that I was in error in applying the inherent jurisdiction of the High Court to allow the Churton affidavit to be read. I did not purport to invoke the Court’s inherent jurisdiction.
6 Prudential Assurance Co v Fountain Page Ltd [1991] 1 WLR 756, [1991] 3 All ER 878 at 767. See also Wilson v White [2005] 3 NZLR 619, (2005) 17 PRNZ 537 (CA) at [29].
Importance of error of law and delay
[25] Given Wolfbrook’s change of position in relation to r 7.32, and my conclusion that it has not raised an arguable basis for its contention that Ms Bright requires leave to use the Churton affidavit, it follows that I also do not consider the alleged errors are of public importance.
[26] Even if I was wrong about that, the interests of justice would not be served by granting Wolfbrook leave to appeal for several reasons. First, Mr Brooks has already responded to the Churton affidavit. He quotes from the affidavit, acknowledges its contents, and does not resile from his evidence. He was not required to do so for Wolfbrook to advance its application to strike out the Churton affidavit. Ms Bright is entitled under r 7.32 to rely upon Mr Brook’s latest affidavit in opposition to Wolfbrook’s application for summary judgment/strike out. Further, by responding to the Churton affidavit Wolfbrook must be taken to have waived any objection to its consideration by the Court.
[27] Second, I do not accept that the admission or exclusion of the Churton affidavit will be determinative of Wolfbrook’s application for strike out/summary judgment. The Churton affidavit goes primarily to Ms Bright’s first cause of action asserting Fix My Property Ltd was Wolfbrook’s agent. Even if Wolfbrook could show that cause of action was not arguable, Wolfbrook is still facing a second cause of action under the Fair Trading Act which is pleaded as an alternative cause of action and does not depend upon the existence of an agency relationship.
[28] Third, this proceeding was filed on 4 December 2023 and has become bogged down in procedural skirmishes. Wolfbrook’s summary judgment/strike out application was filed over a year ago and still has not been set down for hearing. Ms Bright cannot advance her claim towards trial until the application is determined. The delays impose a greater burden upon Ms Bright than upon a commercial entity such as Wolfbrook, but it is Wolfbrook that has primarily caused the delays which should not be allowed to continue.
[29] I do not consider the argument Wolfbrook wishes to advance meritorious or of sufficient importance (generally or to the parties) to justify the substantial delay and expense of an appeal.
Result
[30]Wolfbrook’s application for leave to appeal is dismissed.
[31] Ms Bright is entitled to costs on a 2B basis plus reasonable disbursements as fixed by the Registrar.
[32]The file should be put before an Associate Judge for case management review.
O G Paulsen Associate Judge
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt Wynn Williams, Christchurch
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