First NZ Properties Limited v Millar - [2023] NZHC 1031

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2020-442-62

[2023] NZHC 1031

UNDER the Companies Act 1993

IN THE MATTER OF

breaches of director’s duties and breaches of contract

BETWEEN

FIRST NZ PROPERTIES LIMITED

Plaintiff

AND

MICHAEL JOHN MILLAR

First Defendant

INVESTMENT SERVICES LIMITED
Second Defendant

PAUL JOHN MEPHAN

Third Defendant

CIV-2020-442-63

BETWEEN

SPRINGS ROAD PROPERTY LIMITED
Plaintiff

AND

MICHAEL JOHN MILLAR

First Defendant

INVESTMENT SERVICES LIMITED
Second Defendant

PAUL JOHN MEPHAN

Third Defendant

CIV-2020-442-64

BETWEEN

SUPERSTORE PROPERTIES LIMITED
Plaintiff

AND

MICHAEL JOHN MILLAR

FIRST NZ PROPERTIES LIMITED v MILLAR [2023] NZHC 1031 [3 May 2023]

First Defendant

INVESTMENT SERVICES LIMITED
Second Defendant

Hearing: 1-5, 7-9 May 2023

Appearances:

B M Nathan and N Laing for the Plaintiffs

M J Radich for the First and Second Defendants
R Fowler for the Third Defendant in CIV-2020-442-62/63

Judgment:

3 May 2023

JUDGMENT OF GWYN J

(Media Application)

[1] First NZ Properties Ltd, Springs Road Property Ltd and Superstore Properties Ltd (property companies) are suing Michael Millar, Investment Services Ltd and Paul Mephan in respect of fees arising from the provision of property and investment management services to the property companies.

[2] The seven day trial of the matter started on 1 May 2023. The plaintiffs’ witnesses are still giving evidence.

[3]Ms Victoria Young from BusinessDesk has applied for access to copies of:

(a)The pleadings, including any counter-claim;

(b)The parties’ opening submissions;

(c)The briefs of evidence of the witnesses of fact;

(d)The notes of evidence, once they are complete; and

(e)The closing submissions, when delivered.

Law of access to Court documents

[4] The documents are sought pursuant to the Senior Courts (Access to Court Documents) Rules 2017 (Rules).

[5] Rules 8(1) and (4) of the Rules provide every person has a right to access the “formal court record” relating to a civil proceeding, which includes judgments, orders and minutes by a Judge.

[6] Under r 12, the Court must consider the nature of, and the reasons for a request, for other information. Rule 12 requires that the Court also take into account:
(a)the orderly and fair administration of justice:

…
(c)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:
(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:
(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):
(f)the freedom to seek, receive, and impart information:

…
(h) any other matter that the Judge thinks appropriate.

[7] Under r 13(b), during the substantive hearing, open justice has greater weight than at other stages of the proceeding, and greater weight in relation to documents relied on in the hearing, than other documents. The Court of Appeal…

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 1031
Decision Date: 3 May 2023

CaseChat Overview and Summary

The case of First NZ Properties Limited v Millar, decided by Gwyn J in the High Court of New Zealand, concerns a legal dispute involving multiple property companies, First NZ Properties Ltd, Springs Road Property Ltd, and Superstore Properties Ltd, who are suing Michael Millar, Investment Services Ltd, and Paul Mephan. The plaintiffs seek to recover fees related to property and investment management services provided to them. The defendants, Millar and the companies, are contesting these claims. The case was heard over a period of several days in May 2023, and the plaintiffs' witnesses were in the process of giving evidence at the time of the judgment.

The legal issues before the court included the scope of access to court documents for media representatives under the Senior Courts (Access to Court Documents) Rules 2017, balancing the principles of open justice and freedom of information against the protection of privacy and commercial confidentiality. Specifically, the court had to decide whether Ms Victoria Young from BusinessDesk should be granted access to various documents and submissions in the proceedings, as requested under the Rules. The court also had to consider the implications of the New Zealand Bill of Rights Act 1990, particularly the right to freedom of expression.

The court's reasoning focused on the importance of open justice and the principle that court proceedings should be open to scrutiny, especially during substantive hearings. Gwyn J acknowledged the public interest in the case due to the involvement of property funds with public investors. The court granted Ms Young access to several categories of documents, including pleadings, opening and closing submissions, briefs of evidence, and notes of evidence, while ensuring that commercially confidential information would not be disclosed. The court directed the Registry to facilitate the provision of these documents to Ms Young, subject to certain conditions and exceptions.

The final orders of the court allowed Ms Victoria Young to access the pleadings, including any counter-claims, the parties' opening submissions, the briefs of evidence of the witnesses of fact, the notes of evidence once they are complete, and the closing submissions when delivered. This decision underscores the court's commitment to the principles of open justice and transparency in legal proceedings.

Orders