Imperial Homes Limited v Omundsen - [2025] NZHC 3389

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…

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: [2025] NZHC 3389
Decision Date: 7 November 2025

CaseChat Overview and Summary

Imperial Homes Limited, a building company, has filed a claim against the Lipsham Family Trust (the Trust) for unpaid invoices related to a building project in Flat Bush, Auckland. The Trust is being represented by its current trustees, Nicholas Paul Omundsen and Mark Edward Lipsham. The defendants have applied for non-party discovery against Mr Blomfield, his company Blomfield Consulting Limited, and another company of Mr Blomfield, NZL Trustee Limited. The application is opposed by Imperial and Mr Blomfield. The principles applying to discovery in a summary judgment context were considered, with the Court finding that discovery should only be granted if exceptional circumstances exist. It was noted that the making of an order for non-party discovery is discretionary and that the general rules relating to discovery under the High Court Rules 2016 apply to non-party discovery, including the principles of relevance and proportionality.

In assessing whether the Trust requires non-party discovery, the Court examined the elements of the causes of action the Trust faces to determine whether discovery is needed for the Trust to respond to those claims. It was found that there was no explanation in Imperial’s evidence as to how the cost blew out to such an extent, although it was noted 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. The Court concluded that there were no exceptional circumstances in this case and that the application for non-party discovery was dismissed.

The Court found that there was no reason why costs should not follow the event, and 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. Imperial, as a result of the observations made in this judgment, 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.

Orders