Bright v Wolfbrook Residential Limited - [2025] NZHC 437

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 437

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 Defendant

JAMES OWEN COONEY

Third Defendant

Hearing: 25 February 2025

Appearances:

M Freeman for Plaintiff

T P Westaway and N R Harvey for Defendants

Judgment:

7 March 2025

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 7 March 2025 at 4.15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

BRIGHT v WOLFBROOK RESIDENTIAL LIMITED [2025] NZHC 437 [7 March 2025]

[1] The plaintiff (Ms Bright) owns a property at 58 Martin Street, Upper Hutt. She was approached to sell the property for development purposes and entered into an agreement dated 16 December 2021 (the agreement) to sell the property to Fix My Property Ltd. Fix My Property Ltd failed to settle. Ms Bright ultimately cancelled the agreement but suffered substantial losses. Fix My Property Ltd is now in liquidation and is not a party to this proceeding. Ms Bright seeks to recover her losses from the first defendant (Wolfbrook) and the second and third defendants (Mr Brooks and Mr Cooney respectively).

[2] As far as Wolfbrook is concerned, Ms Bright alleges that Fix My Property Ltd was its agent in respect to the purchase of her property and that Wolfbrook must compensate her for her loss consequent upon its repudiation of the agreement.

[3] Mr Brooks and Mr Cooney are 50 per cent shareholders in Fix My Property Ltd and both were directors of the company at relevant times. Ms Bright makes claims against them for breaches of the Fair Trading Act 1986 and the Companies Act 1993.

[4] Wolfbrook has made an application for strike out/summary judgment. Relevantly, it asserts:

(a)it is only a promoting entity for the wider Wolfbrook group of companies;

(b)it never intended to purchase 58 Martin Street;

(c)Fix My Property Ltd was not its agent in respect to the purchase of the property;

(d)developments were undertaken by special purpose vehicles within the Wolfbrook group, of which Fix My Property Ltd is an example; and

(e)there are no documents to be obtained on discovery to support Ms Bright’s case.

[5] Wolfbrook’s application is supported by affidavits of Mr Brooks and Mr Cooney. In opposition to the application, Ms Bright has filed an affidavit referring to and annexing an affidavit previously made by Mr Brooks in a proceeding between Wolfbrook and a purchaser of a property in another development (the Churton affidavit). The Churton affidavit is said to:

(a)contradict evidence that Wolfbrook is (or was at the material times) simply a promotional entity;

(b)raise a serious issue as to whether Fix My Property Ltd was the agent of Wolfbrook in respect to the purchase; and

(c)cast doubt on the assertion that there are no further documents that could be obtained…

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.

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Details

Case: [2025] NZHC 437
Decision Date: 7 March 2025

CaseChat Overview and Summary

The High Court was asked to consider whether the plaintiff, Ms Bright, could rely on an affidavit made by Mr Brooks in other proceedings (the Churton affidavit) in her opposition to an application by Wolfbrook Residential Limited (Wolfbrook) to strike out her claims and enter summary judgment in its favour. Ms Bright sought to recover losses she suffered when Fix My Property Ltd, which was in liquidation and not a party to the proceedings, failed to settle the sale of her property. Wolfbrook was a shareholder in and director of Fix My Property Ltd, and Ms Bright brought claims against Wolfbrook and two other defendants for breaches of the Fair Trading Act 1986 and the Companies Act 1993. Wolfbrook argued that r 7.32 of the High Court Rules 2016 prevented Ms Bright from relying on the Churton affidavit in opposition to its application. It also argued that the Churton affidavit was irrelevant, prejudicial, and would cause unnecessary prolongation of the proceeding. Ms Bright contended that r 7.32 did not prevent her from relying on the Churton affidavit and that it was relevant and admissible. The Churton affidavit was said to contradict Wolfbrook’s evidence and cast doubt on the assertion that there were no further documents that could be obtained on discovery to support Ms Bright’s case. The court found that r 7.32 did not prevent Ms Bright from relying on the Churton affidavit, as it only applies to affidavits filed in the same proceeding or in another proceeding between the same parties. The court also found that the Churton affidavit was relevant and admissible. The court dismissed Wolfbrook’s application to strike out Ms Bright’s claims and evidence. The court directed Ms Bright to file another affidavit attaching the complete Churton affidavit with exhibits. The court noted that Ms Bright was usually entitled to costs but gave the defendants an opportunity to be heard on the matter.

Orders