Cardno (NZ) Limited v Stokes - [2023] NZHC 676

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-134

[2023] NZHC 676

IN THE MATTER of the Insolvency Act 2006

AND

IN THE MATTER

of the bankruptcy of Colin Peter Stokes

BETWEEN

CARDNO (NZ) LIMITED

Judgment Creditor

AND

COLIN PETER STOKES

Judgment Debtor

Counsel: D M Abricossow for Judgment Creditor C P Stokes (judgment debtor) in person

Judgment:

30 March 2023

(Determined on the papers)

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 30 March 2023 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CARDNO (NZ) LIMITED v STOKES [2023] NZHC 676 [30 March 2023]

The application

[1] Colin Stokes applies for a copy of a transcript of a hearing before Associate Judge Paulsen on 20 February 2023. Alternatively, he asks that facilities be made available to him to listen to the audio recording of the hearing and make his own transcript.

[2] The application was made informally by way of email to the Registry, but I am treating it as a request under the Senior Courts (Access to Court Documents) Rules 2017.

Background

[3] Mr Stokes has been involved in several proceedings since around 2010 involving a subdivision of land in a yet to be completed subdivision at Yaldhurst. The first of those proceedings involved an application of Mr Stokes and others against the developer, Noble Investments Ltd (Noble), for orders that caveats they had lodged over the subdivision (to protect easements) not lapse.1

[4] Subsequently, Mr Stokes and Gregory Smith issued substantive proceedings against Noble and other defendants, including Justin Prain and Cardno (NZ) Ltd (Cardno). In December 2019, Mr Prain and Cardno applied to strike out the claim. That application was successful.2 A substantial award of costs was made against Mr Stokes (the “initial costs award”).3 Mr Stokes appealed to the Court of Appeal. His appeal was dismissed subject to adjustments which were specified in the Court of Appeal’s judgment.4

[5] Associate Judge Lester then made the adjustments to the costs award as required by the Court of Appeal and fixed the costs payable by Mr Stokes at
$77,627.20 plus disbursements (the “final costs award”).5

1      Philpott v Noble Investments Ltd [2012] NZHC 1431.
2      Smith v Noble Investments Ltd [2020] NZHC 1236.
3      Smith v Noble Investments Ltd [2020] NZHC 1766 (Costs Judgment).
4      Stokes v Prain [2021] NZCA 683.
5      Smith v Noble Investments Ltd [2022] NZHC 1964.

[6] Cardno issued a bankruptcy notice against Mr Stokes in respect of the costs award.6 Mr Stokes applied to set aside the bankruptcy notice. That application was set down for hearing before Associate Judge Paulsen on 20 February 2023.

[7] A matter advanced by Mr Stokes in challenging the bankruptcy notice was that Cardno’s former manager, Mr Graham, perjured himself in an affidavit in the caveat proceedings. Mr Stokes raised this matter before the Court of Appeal in his appeal from the initial costs…

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: [2023] NZHC 676
Decision Date: 30 March 2023

CaseChat Overview and Summary

In this case, Colin Peter Stokes, a bankrupt, applied for a copy of a transcript or access to an audio recording of a hearing before Associate Judge Paulsen on 20 February 2023. The application was made in relation to a bankruptcy notice issued by Cardno (NZ) Limited, which was seeking to enforce a costs award against Mr Stokes. Cardno opposed the application, but did not dispute the application being heard. The application was treated as a request under the Senior Courts (Access to Court Documents) Rules 2017. The legal issues before the court were whether Mr Stokes had demonstrated good reason for his request for access to the audio recording of the hearing, and whether the Associate Judge should have referred his complaint of alleged perjury by a former manager of Cardno to the Police.

The court found that the general rights of parties to access court files and documents were subject to certain qualifications, including that a record of a court proceeding in electronic form may only be copied with the permission of a Judge. The court noted that granting access to a transcript where one had not been prepared in the course of the proceeding would involve a significant use of the court's resources and that good reason must be shown before one will be ordered. The court found that Mr Stokes had not demonstrated good reason as to why he should be given access to the audio record or that a transcript be prepared and he be given access to it. The court found that there was already a record of Mr Stokes's complaint to a Judge that a former manager of Cardno perjured himself, namely in the Associate Judge's Minute set out in the judgment. The court also found that the Associate Judge's reasons for refusing the request to make a referral to the Police were adequately set out in the minute. The court found that the Associate Judge had not heard argument from the parties and was not in a position to form a judgment on the matter. Any referral to the Police in those circumstances would have been inappropriate.

The court refused Mr Stokes's request for access to the audio recording of the hearing or a transcript of the hearing. The court found that Mr Stokes's allegation of perjury was unproved and his evidence was rejected by the Court of Appeal. The court noted that Mr Stokes's indication that he had made a complaint to the Police who, he says, would not act upon it, did not alter the conclusion set out in the judgment.

The final orders of the court were that Mr Stokes's request for access to the audio recording of the hearing or a transcript of the hearing be refused.

Orders