Imperial Homes Limited v Omundsen
[2025] NZHC 3389
•7 November 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-1132
[2025] NZHC 3389
BETWEEN IMPERIAL HOMES LIMITED
Plaintiff
AND
NICHOLAS PAUL OMUNDSEN and
MARK EDWARD LIPSHAM, as trustees of the LIPSHAM FAMILY TRUST
Defendants
Hearing: 20 October 2025 (by AVL) Appearances:
N Tabb for Plaintiff J Burt for Defendant
L J McNeely for Non-party
Judgment:
7 November 2025
JUDGMENT OF ASSOCIATE JUDGE LESTER
This judgment was delivered by me on 7 November 2025 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
………………
IMPERIAL HOMES LIMITED v OMUNDSEN [2025] NZHC 3389 [7 November 2025]
[1] This proceeding involves a claim by Imperial Homes Ltd (Imperial), a building company, against the Lipsham Family Trust (the Trust) (whose trustees have varied over the years—a matter I will come back to), for invoices Imperial issued in relation to a building project undertaken by the Trust in Flat Bush, Auckland pursuant to a contract entered into in August 2020.
[2] This judgment, however, involves an application for non-party discovery by the current trustees of the Trust being Mr Omundsen and Mr Lipsham.
[3] The application for non-party discovery is against Mr Blomfield, his company Blomfield Consulting Limited (BCL), and another company of Mr Blomfield, NZL Trustee Limited (NZL).
[4] At the time of the building project (the Project), NZL was trustee of the Trust and Mr Blomfield was, and always has been, the sole director and shareholder of NZL. Throughout the Project, Mr Blomfield and BCL were agents of the then trustees to manage the Project.
[5]The application is opposed by Imperial and Mr Blomfield.
Principles applying to discovery in a summary judgment context
[6] It is common ground that in the context of summary judgment applications, discovery should only be granted if exceptional circumstances exist.1
[7] Again, it is common ground that while the Court has the ability to order non-party discovery, the making of such an order is discretionary. The general rules relating to discovery under the High Court Rules 2016 apply to non-party discovery including the principles of relevance and proportionality.2
1 BNZ v Garnhan (2015) NZHC 2922 at [38]–[43].
2 Talley’s Group Ltd v Biomex Trustees ltd [2022] NZHC 860 at [44]–[51].
[8] Mr Burt, counsel for the Trust, recognised that discovery is rarely ordered before disposal of an application for summary judgment, however, he submits such discovery may be appropriate in cases where the Court would otherwise have difficulty in deciding whether a genuine defence exists, and there are grounds to believe that discovery would assist the Court in coming to a proper conclusion on the summary judgment application.3
[9] It is therefore necessary to examine the nature of the summary judgment application against the Trust, the nature of its defence and the extent to which the Trust requires discovery from Mr Blomfield in order to be able to properly defend the application for summary judgment.
The building contract
[10] The August 2020 contract was on the Master Builders 2018 New Build Form (the contract). The contract is produced by Mr Zhu, director of Imperial. The contract was a fixed price contract, the build cost being $1,400,000 inclusive of GST. It recorded an expected start date of 25 September 2020 and an expected completion date to be 25 September 2021. As it happens, code compliance was not achieved until 18 October 2023. The Trust says Imperial was removed from the Project in April 2022 and a new contractor was brought in to finish the work.
[11] In its notice of opposition to the summary judgment application, the Trust refers to the contract being fixed price. Imperial has invoiced a total of $1,851,442.92 (inclusive of GST) which includes $70,000 invoiced on 17 February 2025, almost two years after the last work undertaken by Imperial and 16 months after the issue of code compliance. The Trust says that Imperial first raised the alleged outstanding invoices in February 2025.
[12] Imperial pleads that the Trust has made payments of $1,353,344.60. After adjustments of two credit notes, Imperial says the amount of $498,908.32 is outstanding and that is the amount for which judgment is sought, together with interest at the contractual rate.
3 NZI Bank Ltd v Philpott (1988) 1 PRNZ 560 (HC) at [565].
[13] What is markedly missing from the statement of claim or Mr Zhu’s affidavit in support of the summary judgment application, is an attempt to address the fact that this was a fixed price contract.
[14] The contract provides, in respect of variations requested by the owner, that such variations must be requested in writing and where the parties have agreed to an adjustment to the contract price, it will be valued pursuant to provisions in the contract.
[15] On one invoice there is a reference to ‘variation’ and on another, issued 30 November 2020 for $38,339.28, an assertion that “All the above item are extra option item, it is not included in the original contract, upon receiving the invoice the customer agreed the additional amount and job to be done”.
[16] Perhaps aware that the issue of variations was a live one, the statement of claim in addition to suing on the unpaid invoices as if they were a debt, raises a second cause of action in quantum meruit. Under that cause of action, the price the property has been sold for is noted, and it is pleaded that Imperial’s work has not been paid for in full and that the Trust has therefore been unjustly enriched by receiving Imperial’s work and materials. It is pleaded it would be unfair and unjust for Imperial to retain the benefit of the work without paying the fair market value for the work (and materials).
[17] I am conscious this is not a hearing of the application for summary judgment. However, in assessing whether the Trust requires non-party discovery, I must examine the elements of the causes of action the Trust faces to assess whether discovery is needed for the Trust to respond to those claims. As pleaded, I see no prospect of Imperial obtaining summary judgment in respect of the quantum meruit cause of action. In a fixed price contract, the risk of price escalation falls on to the contractor, so the simple fact that Imperial has invoiced more than the contract price will not of itself found such a claim in quantum meruit. This issue may well shade into whether variations were requested outside the formal framework of the contract and completed by Imperial, but such would have to be pleaded in detail. In any event, the quantum of a quantum meruit claim does not automatically equate to the value of the unpaid invoices issued by Imperial.
[18] There is no explanation in Imperial’s evidence as to how the cost blew out to such an extent, although I note that the build period covered the time of the COVID lockdown when materials escalated in price. However, none of the contractual bases under which a builder can seek a price adjustment set out in the contract are relied on in the statement of claim or addressed by Mr Zhu in his affidavit.
[19] As to the cause of action in debt, Mr Zhu, in his affidavit, refers to being asked by Mr Blomfield while NZL Trustee ltd was trustee, to provide producer statements so the Trust could apply for code compliance. Mr Zhu says he was reluctant to provide the producer statements before being paid in full, but says he understood there was a legal obligation to provide producer statements and records of work promptly. Mr Zhu says:
Matthew Blomfield promised me that if I provided the producer statements, Imperial would be paid and so I provided them. Unfortunately, Imperial did not receive payment and has still not received payment of its outstanding invoices.
[20] Imperial does not plead the invoices are due on the basis they reflect agreed variations rather, its application for summary judgment appears to rest on the above hearsay statement. Mr Zhu gives no detail as to when or how Mr Blomfield is alleged to have made the statement relied on. Mr Blomfield has not sworn an affidavit to confirm Mr Zhu’s evidence.
[21] Mr Lipsham, in his affidavit in opposition to the application for summary judgment, in substance, denies such an assurance was made by Mr Blomfield. He refers to there being issues with Imperial’s construction of the house leading to Imperial’s removal as builder and it being replaced by another builder. The other builderinvoiced $865,329.79 (including GST) to complete the work. Mr Lipsham asserts that much of this work was needed because of Imperial’s failure to complete the Project and Imperial’s poor workmanship. Imperial says much of the amount paid to the other contractor concerns a different property.
[22] Mr Lipsham says he understood that Mr Blomfield had resolved all disputes with Imperial and that no amounts were outstanding. As far as Mr Lipsham was concerned, there was no further contact from Imperial between May 2023 when it issued its last invoice, until about February 2025 when Imperial’s solicitor, and then Mr Zhu, contacted the new trustee, Mr Omundsen.
[23] Mr Lipsham says that the correspondence from Imperial’s solicitor in February 2025 was the first he knew of any outstanding invoices. Mr Lipsham says he was told by Mr Blomfield that everything had been accounted for. Mr Lipsham says he understood that Imperial had been paid for all work carried out and for the materials provided during the construction of the dwelling at the property. That understanding is at least consistent with the amount actually paid by the Trust when compared to the contract price. Accordingly, Mr Lipsham’s version of events is diametrically opposed to that of Mr Zhu, but it is also based on hearsay statements.
[24] In a summary judgment application, what would the Court make of this conflict of hearsay evidence? I cannot see any basis on the material for that dispute to be resolved.
Mr Blomfield’s opposition to the application for non-party discovery
[25] Mr Blomfield raises numerous grounds of opposition. The first is one that can be dealt with in short order. It is the claim by Mr Blomfield that neither he nor NZL should be parties to the application. Mr Blomfield says NZL Trustee Ltd acted solely as corporate trustee of the Trust and that other than the Trust deed and Trust administration documents, it does not hold any documents relevant to this proceeding. Mr Blomfield says the documents are held by Blomfield Consulting, which claims a lien over the relevant files in respect of unpaid invoices totalling $64,024.41.4
[26] That NZL and Mr Blomfield personally are respondents to the application for non-party discovery is immaterial. I say that as the capacity in which documents are
4 I acknowledge that Mr McNeely, counsel for the non-party, accepts that the presence of a lien does not provide an answer to Court ordered discovery. So much was confirmed by Master Hansen (as he then was) in Richmond Equities Ltd v Interfauna Trading Company (NZ) Ltd (1988) 4 NZCLC 64,666 (HC), where a non-party unsuccessfully asserted a lien in respect of an application that they give non-party discovery.
held is irrelevant as to whether they are within a party’s power and control. I refer to
Rosamund v Ferdinand:5
[16] Whether the capacity in which documents are held is relevant to whether a party is obliged to disclose them was considered by Justice Asher in the Auckland High Court decision WHK (NZ) Ltd v Retail Media Ltd (in rec and liq). Asher J said:6
[40] It is correct that the fifth and sixth defendants have been joined to the proceedings in their capacity as trustees. I also entirely accept Mr Farrands’ submission as to the fundamental distinction between a person acting in his or her legal capacity as a trustee, and that person acting in their personal capacity. I accept Mr Scott has been joined in his capacity as trustee.
[41] However, under r 8.18, which sets out the default terms of the discovery order a party must make discovery of all documents in that party’s control which relate to a matter in question in the proceeding. There is no qualification in the rule that discovery must be limited to documents held by the party in the capacity in which that party is sued. Thus, on the fact of it, r 8.18(2) may extent to documents held in a party’s control even when the documents are held by that part in a different legal capacity to that which he or she is sued.
[27] The reality is that as Mr Blomfield is sole shareholder and director of BCL and NZL, the documents held by those entities, as well as his personal documents, are within his power and control and would be discoverable.
[28] As an aside, s 48 of the Trusts Act 2019, requires a retiring trustee or a trustee who has been removed, to provide the records they hold to the new trustee or to the continuing trustee.
[29] Mr McNeely rightly criticises the breadth of the application for non-party discovery, it being expressed as follows:
a. That Matthew Blomfield, Blomfield Consulting Limited (BCL), NZL Trustee Limited (NZL) and/or any related entity are to provide to the applicants all documents and records (both electronic and hard copy) belonging to, or relating to, the applicants and any related entity …
5 Rosamund v Ferdinand [2023] NZHC 2329.
6 WHK (NZ) Ltd v Retail Media Ltd (in rec and liq) HC Auckland CIV-2009-303-3898, 17 December 2009.
[30] It is evident from the above description of the documents sought that the application is not restricted to relevant materials. However, in the submissions filed by Mr Burt, he accepted that relevance and proportionality apply.
The real issue: are there exceptional circumstances?
[31] I am satisfied there are no exceptional circumstances in this case. As noted, this case involves a conflict of hearsay evidence.
[32] Would the Court without non-party discovery have difficulty in deciding whether there is a genuine defence? The answer, in my view, is no. Again, at the risk of repetition, this is a case involving a conflict of evidence. The situation may have been different had Imperial, in its affidavit of support, referred to documents which the Trust could only respond to by obtaining the material controlled by Mr Blomfield. However, that is not the case. Again, that highlights the skeletal nature of Imperial’s claim and its failure to address that this was a fixed price contract and the absence of an explanation as to why Imperial is entitled to recover nearly $500,000 more than the value of the fixed price contract.
[33] This is not an exceptional case. There is a conflict as to what Mr Blomfield is meant to have said to each party but such conflicts are not uncommon in summary judgment applications—unless there is some basis upon which the conflict can be resolved then the case is not suitable for summary judgment.
[34] It might also be thought to be inherently unlikely that Mr Blomfield would have committed the Trust to paying $500,000 over and above the fixed price, in his capacity as director of BCL which was managing the Project as agent for the Trust. I say that as it is questionable whether, as project manager, BCL had apparent authority to make that commitment, but in any event, for it to do so without the approval of the trustees would be for BCL to expose itself to liability to the Trust for acting without instructions.
[35] From Mr Zhu’s position, he was giving up a significant bargaining chip in handing over the producer statements and I consider it unlikely he would have done so, without recording in some way the alleged promise that the Trust would pay upon
release of the producer statements. The absence of any evidence of an immediate protest from Imperial when payment was not forthcoming following the release of the producer statements, is also telling. I am conscious I am again trespassing into the merits of the summary judgment application, but this is unavoidable where I have to determine whether the Court would be able to determine if there is a genuine defence to the summary judgment application without the discovery sought.
[36] Mr Burt, in response to me pointing out the above analysis of the strength of Imperial’s claim, said that the fixed price defence was only one aspect of the Trust’s opposition to summary judgment. The Trust claimed that in addition there was defective workmanship by Imperial which, as noted at paragraph [21], it claims it had to pay another contractor a substantial amount to rectify the defective work and to complete the Project.
[37] The Trust says all communication in respect of defects is held by Mr Blomfield. However, Mr Blomfield asserts Mr Lipsham was either copied into or was provided with hard copies of substantial material. Mr Lipsham has deposed that is not the case.
[38] Mr McNeely relies on Vector Gas Contracts Ltd v Contact Energy Ltd as authority for the proposition that non-party discovery must be necessary in the sense that other sources of evidence are unlikely to be sufficient because they are materially incomplete or unreliable and that the documents sought may make a real difference and not be merely marginal.7
[39] Whether other sources of material are likely to be incomplete or unreliable, the material in issue must be assessed against the purpose for which it is sought to be used. Here, it is to assist in the defence of a summary judgment application. What then are the potential alternative sources of available documents? The first is Imperial itself. Imperial would have been the recipient of correspondence from Mr Blomfield taking issue with delay, overcharging or poor workmanship. No request to Imperial for that material has been made by the Trust. Ms Tabb, counsel for Imperial, albeit without instructions, said she expected her client would co-operate in a request for that
7 Vector Gas Contracts Ltd v Contact Energy Ltd [2014] NZHC 3171, [2015] 2 NZLR 670, at [30].
material. That is not surprising. Where such material is requested and not provided, the Court may well draw an adverse inference should a plaintiff in summary judgment decline to disclose such material.
[40] The third party who carried out the substantial remedial and finishing work, alleged to have been required, would also be able to provide copies of material they provided when they took over the Project. One would expect where nearly $900,000 of further work was undertaken, that there would have been an initial ‘scope of works’ to identify what needed to be done, both in terms of completion and remediation works. Imperial was “removed” from the Project in April 2022 and the Project was not completed for another year. Accordingly, the third party that carried out that further work should have substantial material in respect of the work they carried out. There is no suggestion that they have been approached to provide either an affidavit or material.
[41] It is also not uncommon for an application for summary judgment to be defended on the basis that discovery is required.
[42] Finally, the local authority which would have been carrying out inspections during the course of the Project, may well have material relating to the defects and the need for remediation.
[43] I accept Mr Burt’s submission that Mr Blomfield is the only one party likely to have a complete record or set of material, but a complete record is not required at the time of defending a summary judgment.
[44] There is, however, a more significant issue for the Trust when it comes to wanting to defend Imperial’s claim on the basis a set-off for the remedial work. Clause 33 of the building contract provides:
33.The Owner shall have no entitlement of set-off against any sums payable to the RMB under the Building Contract.
[45] Clause 33 means if Imperial could establish it was entitled to issue the unpaid invoices under the contract, the Trust would have to ‘pay now argue later’. Clause 33
would not apply to any amount ordered under the quantum meruit cause of action as such would not be payable under the contract.
[46] In short, discovery is not necessary for the Trust to establish a set-off when the Trust cannot assert a set-off to avoid paying Imperial’s invoices.8
[47] The need for an applicant for non-party discovery to show such an order is necessary is compounded when such discovery is sought in the summary judgment context. That is because such an application will inevitably delay the determination of the plaintiff’s summary judgment application. An application for non-party discovery by a defendant in a summary judgment application must be a last resort. All other reasonably available alternatives to obtain documents to assist in mounting a defence must be exhausted first. That step has not been taken here and I am satisfied that non-party discovery is not necessary to allow the Trust to raise a reasonably arguable defence to Imperial’s claim as pleaded.
[48]Accordingly, the application for non-party discovery is dismissed.
Costs
[49] There is no reason why costs should not follow the event. Any party seeking costs may file a memorandum, not more than five pages, within 10 working days, and any reply within a further 10 working days.
Addendum
[50] This judgment is not a justification for Imperial to patch-up its application for summary judgment. It has filed its evidence in support. Mr Lipsham has filed his evidence in reply and Imperial has filed its affidavit in reply, strictly in reply. Imperial, as a result of the observations I have made above and the discussion at the hearing,
8 Browns Real Estate Ltd v Grand Lakes Properties Ltd [2010] NZCA 425, (2010) 13 NZCPR 349.
will no doubt reflect on the prospects of the summary judgment application being granted. If counsel for Imperial elect to withdraw the summary judgment application, then a memorandum to that effect is to be filed within 15 working days.
Associate Judge Lester
Solicitors:
Natalie Tabb, Auckland (for Plaintiff)
Fyers Joyce Lawyers, Auckland (for Defendants) Sue Stodard Law, Auckland (for non-party)
Copy to counsel:
M Burt, Barrister, Auckland (for Defendants)L J McNeely, Barrister, Auckland (for non-party)
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