Bright v Wolfbrook Residential Limited
[2025] NZHC 1946
•15 July 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 1946
BETWEEN PAMELA ALISON BRIGHT
Plaintiff
AND
WOLFBROOK RESIDENTIAL LIMITED
First Defendant
STEVEN CAVELL BROOKS
Second DefendantJAMES OWEN COONEY
Third Defendant
Hearing: 3 July 2025 Appearances:
M Freeman and G Dewar for Plaintiff
S Campbell and C Martin for Defendants
Judgment:
15 July 2025
JUDGMENT OF ASSOCIATE JUDGE SKELTON
[Joinder]
[1] The plaintiff, Pamela Bright, applies for an order under rr 4.56 and 4.3 of the High Court Rules 2016 to join Wolfbrook Property Group Ltd (Wolfbrook Property) as an alternative first defendant to Wolfbrook Residential Ltd (Wolfbrook Residential). The defendants oppose the application.
[2] For the reasons set out below, I find that the effective and efficient administration of this proceeding requires joinder of Wolfbrook Property.
BRIGHT v WOLFBROOK RESIDENTIAL LIMITED [2025] NZHC 1946 [15 July 2025]
The claims
[3] Ms Bright claims that Wolfbrook Residential, which is part of the group of companies known as the Wolfbrook Property Group, through its agent, Bill Riding, approached her about whether she would sell her property at 58 Martin Street, Upper Hutt as part of a property development venture. Wolfbrook Residential then used Fix My Property Ltd (FMP) as its agent for the purchase. Ms Bright and FMP executed the contract for sale and purchase of the property on 16 December 2021. The contract became unconditional on 9 March 2022. The settlement date was 9 November 2022.
[4] Ms Bright contends that, in reliance on the contract, she entered into another contract to purchase a property at 56 McLeod Street, Upper Hutt for $938,000, which settled on 27 April 2022. Ms Bright arranged bridging finance of $918,000 until the settlement of the sale of 58 Martin Street. FMP did not settle the purchase of 58 Martin Street on 9 November 2022 and has not taken any steps to settle the purchase or otherwise perform the contract. This is despite Ms Bright issuing a settlement notice and a statutory demand for default interest for late settlement. FMP was placed into liquidation by resolution of its shareholders on 30 June 2023. Ms Bright cancelled the contract with FMP on 27 November 2023.
[5]Ms Bright has sued the defendants, pleading the following causes of action:
(a)First, Ms Bright claims that Wolfbrook Residential as the principal purchaser (FMP acting as its agent) repudiated the contract and is liable for breach of contract.
(b)Second and alternatively, Ms Bright claims that Wolfbrook Residential engaged in unconscionable conduct under ss 7 and 8, and misleading and deceptive conduct under s 9 of the Fair Trading Act 1986. In particular, it was represented that she would be selling to Wolfbrook Residential (a resourced and reputable company) rather than FMP (a company with no assets). She alleges FMP was used as purchaser as a device to protect Wolfbrook Residential from liability if it chose not to settle the purchase of the property.
(c)Third, Ms Bright says that the second and third defendants, as directors of FMP, breached their duties to FMP and its creditors under ss 135 and 136 of the Companies Act 1993 by directing FMP to enter into the contract with Ms Bright.
[6] The defendants deny the claims. In their statement of defence dated 6 August 2024, they plead that Mr Riding enquired whether Ms Bright would sell her home to “an entity associated with the Wolfbrook Property Group of companies”. In his affidavit evidence, Mr Riding states that he is a “contractor to various subsidiaries in the Wolfbrook Property group as well as other separate entities for property acquisitions”. Further, his evidence is that he works “in a senior role in Wolfbrook Property’s property acquisition team”. He states that he identified himself to Ms Bright as working for “Wolfbrook Property group, not Wolfbrook Residential”.
[7] The defendants say FMP was the entity associated with Wolfbrook Property Group that entered into the contract to purchase Ms Bright’s property. They argue that FMP was not an agent for Wolfbrook Residential or any other company in the Wolfbrook Property Group. The defendants also plead that the sole shareholder of Wolfbrook Residential is Wolfbrook Property and, as at the date of purchase on 16 December 2021, the shareholders would have been Wolfbrook Property and Star Developments Ltd. The defendants plead and give evidence that Wolfbrook Property (not Wolfbrook Residential) applied in June 2022 for a resource consent for the residential development at 58 Martin Street and 60 Martin Street, and that Wolfbrook Property (not Wolfbrook Residential) received the resource consent in November 2022.
[8]Mr Steven Brooks states in his affidavit evidence that:
The Wolfbrook Property Group (as a group of companies) is involved in the purchasing, development, and sale of property in New Zealand. As a group, Wolfbrook has many subsidiary, related and special purpose companies that perform specific functions in that group. I consider Wolfbrook Residential is a “promoting entity”, as I describe below.
The structure is common among property development groups and, in the case of the Wolfbrook Property Group, it includes an ultimate holding company (Wolfbrook Property Group Limited (Wolfbrook
Property), a finance company (Wolfbrook Capital Ltd), asset holding companies and special purpose entities.
[9] Based on the additional information that has emerged from the pleadings and affidavit evidence, Ms Bright now seeks to join Wolfbrook Property as an alternative first defendant. Counsel for Ms Bright, Mr Freeman, submits that the terms and conditions of the Wolfbrook website indicate that the group is owned by Wolfbrook Property. I note this is confirmed in the affidavit evidence of Mr Brooks, as is the fact that Wolfbrook Residential was a subsidiary of Wolfbrook Property. Mr Freeman submits that it is possible that Mr Riding is employed, or contracted to, Wolfbrook Property, rather than Wolfbrook Residential. He submits that this should be verifiable in discovery, which is yet to occur. Mr Freeman also notes that Wolfbrook Property applied for and received the resource consent to develop 58 and 60 Martin Street.
Procedural background
[10]This proceeding has been mired by procedural wrangling.
[11] There have been applications by the defendants for change of registry and security for costs. Then, on 6 August 2024, Wolfbrook Residential mounted an application to strike out the statement of claim and/or for summary judgment. This application is yet to be heard because Wolfbrook Residential sought to strike out “impermissible evidence” from Ms Bright’s affidavit, which was filed in opposition to the strike out/summary judgment application. In a judgment dated 7 March 2025, Associate Judge Paulsen dismissed Wolfbrook Residential’s application to exclude evidence from Ms Bright’s affidavit.1 However, Wolfbrook Residential applied for leave to appeal that decision and sought a hearing. The matter has been scheduled for hearing on 4 August 2025. Even if the application for leave to appeal is unsuccessful and Wolfbrook Residential does not then apply to the Court of Appeal for leave to appeal, it seems unlikely that the substantive application for strike out and/or summary judgment will be heard before early 2026.
1 Bright v Wolfbrook Residential Ltd [2025] NZHC 437.
[12] Against this procedural background, Mr Freeman submits that Ms Bright is seeking joinder of Wolfbrook Property now (in advance of discovery) because limitation issues may arise if Wolfbrook Property is not joined before 9 November 2025.
Legal principles — joinder of a party
[13]The power to add parties to a proceeding is provided by r 4.56:
4.56 Striking out and adding parties
(1)A Judge may, at any stage of a proceeding, order that—
…
(b)the name of a person be added as a plaintiff or defendant because—
(i)the person ought to have been joined; or
(ii)the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.
[14] When the application is to join a defendant, r 4.56 should be read in conjunction with r 4.3 of the High Court Rules:
4.3 Defendants
(1) Persons may be joined jointly, individually, or in the alternative as defendants against whom it is alleged there is a right to relief in respect of, or arising out of, the same transaction, matter, event, instrument, document, series of documents, enactment, or bylaw.
...
(4)A plaintiff who is in doubt as to the person or persons against whom the plaintiff is entitled to relief may join 2 or more persons as defendants with a view to the proceeding determining—
(a)which (if any) of the defendants is liable; and
(b)to what extent.
[15] Rule 4.56 imposes “a fairly low threshold”.2 A party “ought to have been joined” for the purposes of r 4.56(1)(b)(i) if the presence of the party is necessary for
2 Beattie v Premier Events Group Ltd [2012] NZCA 257 at [24] as cited in Newhaven Waldorf Management Ltd v Allen [2015] NZCA 204 at [46].
the Court to adjudicate the exact issues arising on the pleadings.3 Once the jurisdictional threshold is met, rr 4.2 and 4.3 are relevant to determining the application.4
[16] The second ground under r 4.56(1)(b)(ii) requires that joinder “the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding”. This ground is wider than the first limb and permits the addition of parties who may not otherwise qualify under rr 4.2 and 4.3, including intervenors.5
[17] When jurisdiction is established, typically the Court will exercise its jurisdiction liberally in favour of joinder, particularly in cases where the plaintiff seeks joinder of additional defendants.6
[18]In Sellman v Slater, Palmer J held:7
[10] The New Zealand courts take a liberal approach to joinder, especially to joinder of defendants by plaintiffs.8 Plaintiffs can bring proceedings against all the defendants they wish to sue in relation to the same matters. Defendants can apply to strike out proceedings if they wish. Richardson J (as he then was) encapsulated the position for the Court of Appeal in Auckland Regional Services Trust v Lark:9
The purpose of joinder rules is to secure the determination of all disputes relating to the same subject-matter without the delay and expense of separate proceedings. The general test is whether the proposed party will be directly affected by any order which may be made in the proceedings and the general rule is that it is for the plaintiff to decide who he or she will sue and for any person named as defendant to take striking out proceedings if it is considered by them that there is no arguable cause of action.
[11] There is good reason for this approach. Otherwise the substance of a dispute could be the subject of shadow litigation, over whether there should be joinder, delaying substantive resolution of proceedings. Or litigation over related issues against different parties could proliferate in separate proceedings, causing coordination problems and, potentially, injustice.
3 Newhaven Waldorf Management Ltd v Allen, above n 3, at [42].
4 Laura O’Gorman (ed) Sim’s Court Practice (online ed, Lexis Nexis) at [HCR4.56.9(a)].
5 At [42]–[46].
6 At [44]–[45] as discussed in Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) [McGechan] at [HR4.56.10].
7 Sellman v Slater [2016] NZHC 2415 at [11].
8 Chan v Seyip Assn of NZ Inc [2008] NZAR 37 (HC) at [11]–[12].
9 Auckland Regional Services Trust v Lark [1994] 2 ERNZ 135, 138 (CA).
[19] The authorities referred to by counsel indicate conflicting views in this Court as to whether an applicant seeking to join a party must show a tenable cause of action against that party in the sense that it would survive strike out.10
[20] It is difficult to see why the applicant should necessarily be required to show a tenable cause of action sufficient to survive strike out. The threshold tests under r 4.56(1)(b) do not expressly require this, and there are different rules and principles applying to applications for strike out. Further, the applicant is not required to serve the party proposed to be joined.11 So, for example, where the applicant is the plaintiff seeking to join another defendant, any opposition to joinder will usually be by the existing defendant or defendants. In these circumstances, it does not seem to me to be appropriate to allow the opposition to be treated as a de facto strike out application. This approach could pre-determine any subsequent application for strike out by the new defendant. The better approach is to allow joinder, if the “fairly low threshold” is met, and for the party joined as defendant to bring their own strike out application if they consider there is no tenable cause of action.12
[21] Similarly, it is difficult to see why, as a matter of principle, joinder should turn on whether the evidence offered in support of the application could at trial support the cause of action alleged against the party sought to be joined.13 Even if strike out principles are applicable, the established position is that the Court approaches the pleaded facts relevant to the proposed cause of action on the basis that they are assumed to be true and does not attempt to resolve disputed issues of
10 Cases requiring the applicant to show a tenable cause of action include Bridgeway Projects Ltd v Webb HC Auckland CIV-2003-404-1965, 7 July 2003 at [10]–[11] and Stanley Construction Ltd (in liq) v Stanley [2025] NZHC 717 at [14]. Cases not requiring demonstration of a tenable cause of action include Kirkland v Jaco’s Timber Co Ltd HC Dunedin CP45/97, 1 May 1998 at pp 6–8 and Inverness Switzerland GmBH v MDS Diagnostics Ltd HC Auckland CIV-2007-404-748, 1 November 2007 at [8]. See also McGechan on Procedure, above n 6, at [4.56.09].
11 McGechan on Procedure, above n 6, at [HR4.56.02] and Laura O’Gorman (ed) Sim’s Court Practice (online ed, LexisNexis) at [HCR4.56.7].
12 Sellman v Slater, above n 7, at [10]–[11].
13 O’Sullivan v NZ Ostriches Ltd (2000) 14 PRNZ 47 at [26]. Reservations were expressed about any general adoption of this approach in Bridgeway Projects Ltd v Webb, above n 10, at [10]–[11].
fact.14 Further, requiring evidence to support the intended cause of action at trial seems to me to encourage “shadow litigation” as referred to in Sellman v Slater.15
[22] However, there may be exceptional cases where it is so plain that the intended cause of action against the proposed new party cannot succeed that the application for joinder is an abuse of process and should be dismissed.16
[23]Accordingly, the issues for determination are:
(a)whether I have jurisdiction to make an order under r 4.56 of the High Court Rules for joinder of Wolfbrook Property; and
(b)if so, whether to exercise my discretion to make such an order.
My assessment
[24] As noted above, there is an extant application by Wolfbrook Residential for strike out of the claim against it and/or summary judgment which is unlikely to be heard and determined before early 2026. At the hearing, I raised my concern that, because Ms Bright is seeking joinder of Wolfbrook Property as an alternative first defendant, there is a risk that findings made in determining the joinder application might impact on Wolfbrook Residential’s strike out/summary judgment application. I proposed that the parties consent to Wolfbrook Property being joined as an alternative first defendant on a without prejudice basis and, if Wolfbrook Property decides to pursue a strike out/summary judgment application, this could be heard and determined at the same time as the strike out/summary judgment application by Wolfbrook Residential. I also proposed that the costs of Ms Bright’s joinder application would be reserved pending the outcome of the substantive strike out/summary judgment application.
14 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267, endorsed by the Supreme Court in Couch v Attorney-General [2008] NZSC 45 at [33]; Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566; Bridgeway Projects Ltd v Webb, above n 10, at [10]–[11].
15 Sellman v Slater, above n 7, at [11].
16 Bridgeway Projects Ltd v Webb, above n 10 at [10].
[25] Mr Freeman advised that Ms Bright would agree to this approach. Mr Campbell, for the defendants, said he was unable to obtain instructions on this proposal from his clients as they are overseas. Rather, his standing instructions were to oppose joinder.
[26] However, Mr Campbell acknowledged the risk mentioned above, which may arise particularly in relation to issues raised as to separate corporate personality, Mr Riding’s authority to bind any Wolfbrook entity, causation and limitation. In the circumstances, Mr Campbell submitted that the defendants’ arguments against joinder are confined to four main points. These are that:
(a)the absence of any draft pleading setting out the intended claim against Wolfbrook Property is fatal to joinder;
(b)the absence of any evidence supporting the intended claim is fatal;
(c)there has been delay in making the application for joinder; and
(d)it would be more efficient in accordance with r 1.2 of the High Court Rules to refuse joinder.
Jurisdiction
[27] While including a draft statement of claim with an application for joinder is helpful practice, I do not consider that the absence of a draft pleading is fatal to an application for joinder.17 In this case particularly, the absence of a draft pleading is not fatal. That is because Ms Bright is seeking to join Wolfbrook Property as an alternative first defendant to Wolfbrook Residential. As I understand the position, Ms Bright intends to make the same allegations and pursue the same causes of actions as pleaded against Wolfbrook Residential in the current statement of claim. The only difference will be that Wolfbrook Property will be added to the pleading as an alternative first defendant. I understand that Ms Bright will allege in the alternative that Mr Riding was an agent of Wolfbrook Property (rather than Wolfbrook
17 Kirkland v Jaco’s Timber Co Ltd, above n 10, at 2; McGechan, above n 6, at [HR4.56.02].
Residential). Further, she will allege in the alternative that FMP was an agent of Wolfbrook Property (rather than Wolfbrook Residential). In the circumstances, I do not consider that a draft pleading is necessary.
[28] I do not accept that a lack of evidence put forward in support of an application for joinder is necessarily fatal.18 In any event, Ms Bright has put forward evidence in support of the application by way of her affidavit sworn on 9 August 2024 (which is referred to in the application for joinder). There is also other evidence relevant to the application in affidavits filed by the defendants. The pleadings are also relevant.
[29] As noted above, the evidence is that Wolfbrook Property is the ultimate owner of the group and Wolfbrook Residential was a subsidiary of Wolfbrook Property at the time of the purchase.19 The defendants plead that it was Wolfbrook Property that applied for and received the resource consent for the development at 58 and 60 Martin Street. In his evidence, Mr Riding states that he identified himself to Ms Bright as working for “Wolfbrook Property group, not Wolfbrook Residential”, and that he works “in a senior role in Wolfbrook Property’s property acquisition team”. The defendants plead that Mr Riding enquired whether Ms Bright would sell her home to “an entity associated with the Wolfbrook Property Group of companies”.
[30] Based on the evidence and pleadings currently before me, I do not accept the defendants’ argument that Ms Bright’s intention to add Wolfbrook Property as an alternative first defendant is “purely speculative”. I accept that the role of the various Wolfbrook entities is not necessarily clear, and that there is doubt as to which is the appropriate entity against which Ms Bright may be entitled to relief. It is not implausible on the evidence and pleadings to allege, in the alternative, that Mr Riding was employed by, or contracted to, Wolfbrook Property, rather than Wolfbrook Residential.
[31] For these reasons, I am satisfied that either Wolfbrook Property Group ought to have been joined to the proceeding, or its presence before the Court may be necessary to adjudicate on and settle all questions involved in the proceeding.
18 Bridgeway Projects Ltd v Webb, above n 10, at [10]–[11].
19 At [6]–[8].
Discretion
[32] Turning to the issue of discretion, it seems to me that this case falls within r 4.3(1) and/or (4) of the High Court Rules.20 Ms Bright states in her affidavit evidence: “I understood I was selling my property to Wolfbrook”. However, on the basis of the evidence and pleadings, there is genuine doubt as to whether the relevant Wolfbrook entity against whom she may be entitled to relief is Wolfbrook Residential or Wolfbrook Property. Ms Bright needs the Court to determine whether either of them is liable. Therefore, she seeks to join Wolfbrook Property as an alternative first defendant.
[33] The defendants contend there has been a significant delay in bringing this application for joinder, which is a relevant consideration.21 However, as noted above, due to the ongoing procedural wrangling, this case has not progressed very far. There is no question of any trial date being jeopardised. Discovery is yet to occur which may well disclose information relevant to the issues discussed above. There is an extant application by Wolfbrook Residential for strike out and/or summary judgment which, due to the defendants’ application for leave to appeal, is unlikely to be heard and determined until 2026. As noted above, if Wolfbrook Property is joined, and also wishes to apply for strike out and/or summary judgment, the two applications could appropriately and efficiently be heard together, so joinder would not cause further delay to the proceedings.
[34] Nor is there any other obvious prejudice to the defendants in joining Wolfbrook Property. The directors of Wolfbrook Residential are also directors of Wolfbrook Property and already parties to the proceeding in their capacity as directors of FMP. Counsel for the defendants has indicated that he is likely to be instructed to represent Wolfbrook Property, if joined.
[35] The defendants contend that it would be more efficient in accordance with r 1.2 of the High Court Rules to simply refuse joinder of Wolfbrook Property. I
20 See McGechan, above n 6, at [HR4.3.05] and Richie v Earthquake Commission [2017] NZHC 1242 at [50], [55] and [58].
21 Farmers’ Milking-Machine Co Ltd v Knapp [1928] NZLR 305 (HC) and Hallam v Ryan (1989) 3 PRNZ 132 (HC).
disagree. As Mr Freeman confirmed at the hearing, if Wolfbrook Property is not joined now, Ms Bright will be forced to issue separate proceedings against Wolfbrook Property prior to 9 November 2025 because of the impending limitation issue. In addition to the unnecessary duplication of proceedings, I anticipate that this may give rise to a new wave of procedural jousting relating to the proper registry and venue, security for costs, and consolidation. Further, if Wolfbrook Property applied for strike out and/or summary judgment in the separate proceeding, there would be a risk of inconsistent findings being made on the same or similar issues raised in the extant application by Wolfbrook Residential. I have no doubt that the effective and efficient administration of this proceeding requires joinder of Wolfbrook Property.22
Result
[36] Wolfbrook Property Group is joined to this proceeding as an alternative first defendant pursuant to rr 4.56(1)(b)(i) and/or (ii) and 4.3(1) and/or (4) of the High Court Rules 2016.
[37] As to costs, Ms Bright has succeeded on her application for joinder and is entitled to costs on a 2B basis and reasonable disbursements. I expect the parties to confer and agree costs. However, if agreement cannot be reached, memoranda may be filed not exceeding three pages (excluding costs schedules) and cost will be determine on the papers.
[38] I strongly urge the parties to take a more cooperative approach to this litigation to advance the just, speedy and inexpensive determination of the proceeding.23
Associate Judge Skelton
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Plaintiff Campbell + Associates, Christchurch for Defendants
22 See Sellman v Slater, above n 7, at [12]–[15], where similar considerations arose.
23 High Court Rules 2016, r 1.2.
0
7
0