Fifer Residential Limited v Lowndes Associates

[2014] NZHC 786

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2008-404-6299 [2014] NZHC 786

BETWEEN

FIFER RESIDENTIAL LIMITED

Plaintiff

AND

LOWNDES ASSOCIATES Defendant

Hearing:	On papers request - 17 February 2014
Appearances:	Mr D Smyth - access request Mr C Walker for Plaintiff Mr P Fee for Defendants
Judgment:	15 April 2014

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE [On application for access to Court file]

This judgment was delivered by me on

15.04.14 at 5 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

FIFER RESIDENTIAL LIMITED v LOWNDES ASSOCIATES [2014] NZHC 786 [15 April 2014]

[1]      This is an application by Mr D Smyth for access to a Court file pursuant to r 3.13.

[2]      Because the application is brought under r 3.13 the matters to be taken into account are those which are specified in r 3.16.

[3]      In brief, the reasons why Mr Smyth seeks access is that based upon a passage in a judgment that I gave dated 17 December 2009.  In that judgment I noted that a debt which the plaintiff claimed was owing by two companies and which was in the amount of $1,585,850.86 was unsecured.1   Mr Smyth seeks access to the evidence on the file supporting the latter conclusion.

[4]      Mr Smyth says that the question of security of the debt is a matter in which he has an interest.   He says that comes about because he was the subject of a complaint to the New Zealand Law Society by the plaintiff alleging negligence on his part in not taking steps which were required to be taken in response to notices served under s 294 Companies Act 1993.  One of the points that Mr Smyth raised in the course of the New Zealand Law Society proceeding was that because any purported security was ineffective, no loss was caused by the failure to serve opposition in response to the s 294 notices within the time limited for that purpose.

[5]      The New Zealand Law Society committee made a determination that there had been unsatisfactory conduct on the part of Mr Smyth and that it was no answer to say that there had been no loss.  The foregoing represents a précis of the relevant determination of the NZLS.

[6]      Mr Smyth advises in his letter of application that Mr Alexander who was associated  with  the  plaintiff  has  now  applied  to  the  Legal  Complaints  Review Officer on behalf of Fifer and another company Compark Properties Ltd to review the decision of the standards committee.

[7]      On the basis of the material before me it is difficult to come to a clear understanding  of  why  the  issue  of  the  enforceability  of  the  security  should  be relevant to the review application.  It might be that the parties seeking the review are of the opinion that different penalty outcomes might have followed had the matter of the enforceability of the securities been decided differently.   However, I accept Mr Smyth’s statement that the issue of enforceability of the securities has been raised in the context of the application for a review.  That being so it would seem, subject to considering the matters stated in r 3.16, reasonable for him to have access to the Court file to review the materials on that file bearing on the question of enforceability.

[8]      In deciding the application the Court is required to have regard to the matters stated in r 3.16.  Included amongst these is the “freedom to seek, receive, and impart information”.2    That  particular  sub-rule  points  in  favour  of  the  grant  of  the application in this case.

[1]      None of the contrary indications stated in the other parts of the rules, and in particular sub-rule “(b)”, would seem to apply.  In my view the order which has been

sought ought to be made and I grant it.

J.P. Doogue

Associate Judge