H v S - [2017] NZHC 945

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2404 [2017] NZHC 945

BETWEEN
H AND H

First Plaintiffs

XYZ LIMITED Second Plaintiff

AND

S
First Defendant

S and Others as trustees of the T Trust
Second Defendants

S and Others as trustees of the P Trust

Third Defendants

Hearing: 24 April 2017

Counsel:

CV Walsh for plaintiffs
DM Connor for defendants

Judgment:

11 May 2017

JUDGMENT OF FITZGERALD J

[On application to review interlocutory order]

This judgment was delivered by me on 11 May 2017 at 10:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Davenports Harbour Law, Auckland (T McLeod) D Burgess Law, Auckland (D Burgess)

H v S [2017] NZHC 945 [11 May 2017]

Introduction

[1] This judgment concerns an application pursuant to High Court Rule 7.49 to partially rescind orders I made in a judgment delivered on 5 April 2017 (“April Judgment”).1 The background to the underlying proceeding is summarised in my April Judgment and I do not repeat it here. The application seeks to rescind an order I made in the April Judgment lifting suppression orders in respect of some of the defendants to this proceeding.

Procedural history

[2] This proceeding was filed in May 2013. In a judgment delivered in April

2015, Associate Judge Smith made various suppression orders, including suppression

and anonymisation orders in relation to the parties’ identities.2

[3] The question of suppression was revisited by Asher J in a judgment dated

14 March 2016.3 Asher J continued the suppression orders (at the request of the defendants), largely on the basis that the allegations being made against the defendants were, at that time, untested.

[4] The substantive trial was to commence on 24 February 2017. However, shortly prior to that, the defendants filed an amended statement of defence, in which the first defendant, the first-named second defendant, the third-named second defendant and the second-named third defendant (referred to collectively in this judgment as the “related defendants”) admitted the causes of action against them. The remaining defendants continued their defence of the plaintiffs’ claims. All defendants continued to maintain the affirmative defence of ex turpi causa non oritur actio (no action shall arise from illegal acts).

[5] Subsequently, but prior to the substantive trial commencing, by joint memorandum, the parties advised that a confidential settlement had been reached

1      H v S [2017] NZHC 644.
2      H v S [2015] NZHC 310.
3      H v S [2016] NZHC 433.

which resolved all matters in the proceeding. As a result, the parties sought, by consent, an order that:

…all interim orders made in this proceeding are rescinded as the parties’
resolution deals with the issues to which those orders relate.

[6] Given the broad manner in which the parties’ request was framed, and the extensive history to the proceeding, I asked the parties to file a further joint memorandum, clarifying the particular “interim orders” to which the parties referred. In my minute making that request,…

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 H v S

Details

AGLC: H v S [2017] NZHC 945
Case: [2017] NZHC 945
Decision Date: 11 May 2017

CaseChat Overview and Summary

H v S concerns an application to review interlocutory orders that were made in a previous judgment. The plaintiffs and the related defendants sought to rescind orders that lifted suppression orders in respect of the related defendants. The first issue was whether this was an appropriate case for review under Rule 7.49. The court held that there was not full argument or a hearing in respect of those matters raised in the parties' joint memorandum, and therefore this was an appropriate case for review under Rule 7.49. The second issue was whether the orders made in the April Judgment should be varied and/or rescinded. The court held that the suppression and anonymisation orders would continue to apply to the related defendants, as publication could have an adverse impact on the successful implementation of the settlement agreement. The court also held that the adverse consequences of publication in relation to the well-being of the first defendant may be significantly greater than the normal embarrassment and discomfort which attends publication in a case of this kind. The court made an order rescinding the order made at [58](b) of the April Judgment, conditional upon counsel for the related defendants filing a memorandum within five working days of the date of this judgment. The orders made at [58](a), (d), (e), (f) and (g) of the April Judgment continued to take effect. The court held that costs lie where they fall.

Orders