Federal Capital Limited v MTE 31 Limited

[2025] NZHC 2667

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-213

[2025] NZHC 2667

BETWEEN

FEDERAL CAPITAL LIMITED

Applicant

AND

MTE 31 LIMITED

Respondent

Hearing:	On the papers
Judgment:	15 September 2025

JUDGMENT OF O’GORMAN J

[Application for access to court documents]

This judgment was delivered by me on 15 September 2025 at 10 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

FEDERAL CAPITAL LTD v MTE 31 LTD [2025] NZHC 2667 [15 September 2025]

[1]    In a letter dated 14 August 2001, Fee Langstone have applied on behalf of their client to access the court file in Federal Capital Ltd v MTE 31 Ltd (CIV-2020-404-213). Their client Mr Simunovich is a defendant in proceedings brought by Federal Capital Ltd in CIV-2020-404-1317. The substantive trial of that proceeding is due to commence on 22 September 2025.

Legal principles

[2]    Access to the court file in a civil proceeding is governed by the Senior Courts (Access to Court Documents) Rules 2017, particularly r 8 (general rights of public, including access to formal court record), r 9 (general right of parties to proceedings), r 11 (accessing documents not covered by general rights) and r 12 (matters to be considered).

[3]    For documents not searchable as of right under rr 8 and 9, relevant considerations include:

(a)the orderly and fair administration of justice: r 12(a);

(b)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice: r 12(c);

(c)the protection of other confidentiality and privacy interests and any privilege held by, or available to, any person: r 12(d);

(d)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions): r 12(e);

(e)the freedom to see, receive and impart information: r 12(f); and

(f)any other matter that the Judge thinks appropriate: r 12(h).

[4]    There is no presumption in favour of disclosing information.1 The balancing exercise also depends on the particular stage of the proceedings:

(a)Before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited.

(b)During the substantive hearing, open justice has greater weight than at other stages of the proceeding and in relation to documents relied on in the hearing than other documents: r 13(b)(i) and (ii).

(c)After the substantive hearing:

(i)open justice has greater weight in relation to documents that have been relied on in  a determination than other documents:  r 13(c)(i); but

(ii)the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing: r 13(c)(ii).

[5]    The reason for these three different stages was discussed by the Court of Appeal in Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróleo.2 These divisions reflect that during the substantive hearing open justice has greater weight, in particular in relation to documents admitted in evidence. When a court is engaged in hearing a dispute its workings, including documents referred to or relied on, should be open to full scrutiny by all members of the public, unless there are particular and strong reasons to the contrary. The public should be able to follow and understand the hearing process. However, prior to and after the substantive hearing, the importance of public scrutiny is less, as the court is not hearing and resolving the dispute. Prior to the hearing there is no guarantee the case will go to hearing at all. Therefore open justice has less weight. The parties are entitled to the protection of

1      Schenker AG v Commerce Commission [2013] NZCA 114, [2015] NZAR 1561.

2      Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróleo [2017] NZCA 490, [2017] NZAR 1617 at [25].

confidentiality and privacy within reasonable limits, given that they have not at that point aired the dispute in public. After the substantive hearing the need for public scrutiny diminishes in importance as time moves on.

[6]    In A2 Corp Ltd v Fonterra Co-operative Group Ltd, an application to access the Court file made by a non-party who had commenced trademark proceedings against A2 Corp Ltd was declined.3 Even if the requested documents were relevant, the Court observed there may be other routes available by which those documents could be obtained. Edwards J considered “a cautious approach is warranted where an access application is effectively used as a means of obtaining production or discovery of documents for a proceeding.”4

Grounds for application

[7]    The Fee Langstone letter says access is required because of a material crossover “in respect of the entry into, and interpretation of security sharing agreements entered in early 2019 between FCL and FE Investments Ltd (FEI)”. In particular:

The interpretation of security sharing agreements between FCL and FEI is a core issue in determining whether FCL can recover/enforce its loan agreement against Mr Simunovich. A substantially similar issue appears to arise in the proceedings against MTE. The documents sought are therefore relevant to the preparation and conduct of our client’s case. In particular, they will contain information about the intent and meaning of the security sharing arrangements between FCL and FEI which in both cases, were entered into in early 2019.

Analysis

[8]    In the caveat proceeding involving MTE 31 Ltd, no security sharing agreement was entered into. This is referred to in the judgment:5

… Federal has made demand for FEI to execute a security sharing deed, but FEI has refused, saying it is not obliged to do so.

3      A2 Corp Ltd v Fonterra Co-operative Group Ltd [2018] NZHC 3073.

4 At [15].

5      Federal Capital Ltd v MTE 31 Ltd [2020] NZHC 811 at [16].

[9]    Accordingly, I am not satisfied that the documents on that file have any relevance to the trial about to start on 22 September 2025.

[10]   In any event, Federal Capital Ltd is a party to both proceedings, so the proper framework for seeking relevant documents is through discovery.

[11]   The letter refers to unidentified other proceedings involving MTE 31 Ltd but does not provide any court reference. I am not in a position to assess unidentified files, but in any event the above information already establishes that there was no relevant security sharing deed as at April 2020, so the premise of commonality of contractual arrangements in 2019 has not been substantiated.

[12]   The applicant may have access to the formal court record in CIV-2020-404-213 if it wishes. It already has the 24 April 2020 judgment and may be provided access to the court order dated 24 April 2020.

[13]   I otherwise decline access because the grounds for relevance have not been established.

O’Gorman J