Evans v Six Gen Limited - [2024] NZHC 3944

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2656

[2024] NZHC 3944

BETWEEN
BELINDA ANNE EVANS

Plaintiff

AND

SIX GEN LIMITED

First Defendant

KARL JASON EVANS and TELLIC LOUISE EVANS
Second Defendants

AND BETWEEN

AND

SIX GEN LIMITED
Counterclaim Plaintiff

BELINDA ANNE EVANS

Counterclaim Defendant

Hearing: 8 November 2024

Appearances:

Carole G Smith for the Plaintiff and Counterclaim Defendant W G Manning and Georgia Bowker for the Defendants

and Counterclaim Plaintiff

Judgment:

20 December 2024

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application for orders setting aside the defendants’ claim to privilege]

This judgment was delivered by me on 20 December 2024 at 12:00md

pursuant to Rule 11.5 of the High Court Rules

Solicitors:

…………………………. Registrar/Deputy Registrar

Mac & Co (Jan McNamara), Grey Lynn, Auckland, for the Plaintiff and Counterclaim Defendant Bell & Graham (Richard Smith), Matamata, for the Defendants and Counterclaim Plaintiff

Counsel:
Carole G Smith, FortyEightShortland Chambers, Auckland, for Plaintiff and Counterclaim Defendant W G Manning/G Bowker, Park Chambers, Auckland, for the Defendants and Counterclaim Plaintiff

EVANS v SIX GEN LIMITED [2024] NZHC 3944 [20 December 2024]

Introduction

[1] The applicant, Belinda Anne Evans (Belinda)1 applies to set aside or modify the defendants’ claim to privilege for a total of 18 documents.

Background

[2] The background to the substantive dispute has been set out in Tahana J’s judgment of 14 October 2024:2
Family dispute

[3] The parties and the two proposed witnesses are family who all live in separate dwellings on a 1144-hectare farm in the Coromandel (the Farm). The Farm has been owned by members of the family for six generations.

[4] The plaintiff wishes to remain living on the Farm and has filed a claim seeking an order that she has a registrable lease or in the alternative, an irrevocable licence to occupy. The plaintiff relies on alleged agreements between her and her parents who are directors of the family company that owned the Farm before selling it to the first defendant company which is owned by the plaintiff’s brother and sister-in-law (the second defendants).

[5] The defendants counterclaim arguing that as the Farm’s registered proprietor the first defendant is entitled to exclusive possession of the Farm. The defendants seek orders requiring the plaintiff to vacate the Farm.

Parties

[6] The relevant persons share the same family name, so for ease of reference I refer to them by their first names.

[7] The plaintiff, Belinda, is the daughter of the two proposed witnesses (Zane and Ngaire). The second defendants (Karl and Tellic) are the brother and sister-in-law of Belinda.

[8] Karl and Tellic are the shareholders and directors of the first defendant, Six Gen Ltd (Six Gen). Six Gen is the current owner of the Farm having purchased it on 6 September 2023 from a family company (N Evans & Co Ltd (Evans)). The trustees of the N Evans family trust (the Family Trust) own the shares in Evans. Zane and Ngaire are directors…

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.

Continue reading Evans v Six Gen Limited

Details

AGLC: Evans v Six Gen Limited [2024] NZHC 3944
Case: [2024] NZHC 3944
Decision Date: 20 December 2024

CaseChat Overview and Summary

Belinda Anne Evans has applied to set aside the defendants' claim to privilege for a total of 18 documents. The background to the substantive dispute involves a family farm owned by the Evans family for six generations. Belinda, the daughter of Zane and Ngaire, seeks to remain living on the farm and has filed a claim seeking an order that she has a registrable lease or an irrevocable licence to occupy. The defendants, Karl and Tellic, who are Belinda's brother and sister-in-law, counterclaim that as the farm's registered proprietor, Karl is entitled to exclusive possession of the farm. Belinda relies on alleged agreements between her and her parents, Zane and Ngaire, who are directors of the family company that owned the farm before selling it to Karl and Tellic's company, Six Gen Ltd. The defendants claim privilege for the documents in question under legal advice, settlement, litigation, and common interest privilege.

The issues to be determined are whether the documents claimed to be privileged are indeed privileged. The court found that the 11 documents in respect of the defendants' claim to legal advice privilege are subject to that privilege. The court also found that settlement privilege does not apply to the documents for which it is claimed by the defendants. However, litigation privilege attaches to document D206, and common interest privilege extends to the documents in respect of which it is claimed by the defendants.

As a result of the conclusions reached, the following documents are subject to the following privileges: D 150, D 156, D 157, D 159, D 167, D 172, D 173, D 175, D 177, D 184, D 199, and D 203 are subject to legal advice privilege and common interest privilege; D 160, D 186, and D 187 are not privileged; and D 206 is subject to litigation privilege. Belinda's application to set aside the defendants' claim to privilege is dismissed in respect of all the documents listed except for documents D160, D186, and D 187, in respect of which the defendants' claim of settlement privilege is set aside.

Orders