H v S

Case [2015] NZHC 310 2 March 2015

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THIS JUDGMENT IS SUBJECT TO THE SUPPRESSION/NON-

PUBLICATION ORDERS SET OUT IN PARAGRAPH [150] OF THE JUDGMENT

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2404

[2015] NZHC 310

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

Hearing:
28 February 2014; 13 August 2014

Further submissions 16 and 17 September 2014

Counsel:

K G Davenport QC and J W Wall for Plaintiffs R J Katz QC and C J Pendleton for Defendants

Judgment:

2 March 2015

Reissued:

2 April 2015

JUDGMENT OF ASSOCIATE JUDGE SMITH

Introduction

[1] This is a re-issued judgment on an application by the plaintiffs to strike out parts of the defendants’ pleadings in both their defence and counterclaim. Among other things, the plaintiffs contend that certain privileged and/or confidential matters had been wrongly included in the defence and counterclaim.

H and H v S [2015] NZHC 310 [2 March 2015]

[2] In a judgment on the strike-out application given on 2 March 2015, I declined to strike out the impugned allegations in the defence and counterclaim, and called for further written submissions from counsel on the extent to which the names of the parties and other relevant entities or facts should be “anonymised” in order to preserve any rights of privilege or confidentiality the plaintiffs might have pending the trial of the action. In the meantime, I directed that no part of the judgment issued on 2 March 2015 was to be published pending further order of the Court.

[3] I have received further submissions from counsel, and the judgment is now re- issued with certain additional “anonymising” which I am satisfied is necessary to preserve any rights to legal privilege and/or confidentiality pending trial. Specific suppression and non-publication orders are set out at the end of this judgment.

The Proceeding

[4] The plaintiffs sue their former solicitor (who I will refer to in this decision as Mr S) and the second defendants for damages and other relief, following the failure of a joint venture agreement entered into by the parties in 2011. Among the plaintiffs’ claims is a claim to recover the sum of $1.585 million invested in the joint venture by the second plaintiff.

[5] Mr S had acted as solicitor for the first plaintiffs (who I will refer to as Mr and Mrs H) since February 2007. The second defendants, as the trustees of a family trust associated with Mr S, were participants in the joint venture with the plaintiffs and Mr S. For convenient reference I will refer to the second defendants as “the T trustees”.

[6] In their defence and counterclaim, Mr S and the T trustees plead that the funds which Mr and Mrs H invested in the joint venture (through the second plaintiff, which is the trustee of a trust created by Mr and Mrs H, which I will call the XYZ Family Trust) were illegally acquired, and are for that…

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 [2015] NZHC 310
Case: [2015] NZHC 310
Decision Date: 2 March 2015

CaseChat Overview and Summary

This case involved an application by the plaintiffs, H and H, to strike out parts of the defendants' pleadings in their defence and counterclaim. The plaintiffs sought to strike out the defendants' allegations of illegality based on breaches of the laws of foreign country A and foreign country B, as well as certain other matters. The defendants, S and others, opposed the application. The court found that the plaintiffs' application to strike out the defendants' illegality defences was not successful. The court concluded that it was at least arguable that the defendants' illegality defences were tenable, and therefore could not be struck out at this stage. The court also found that the defendants' counterclaim was not clearly untenable and could proceed to trial. The court ordered that certain names and other expressions in the judgment be anonymised to protect the parties' rights of confidentiality pending trial. The plaintiffs' application to strike out parts of the defendants' pleadings was dismissed.

Orders