Internet Traders Ltd v Williams - [2015] NZHC 2562

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2014-470-158 [2015] NZHC 2562

BETWEEN
INTERNET TRADERS LTD AND ORS

Plaintiffs

AND

NICOLE JEAN WILLIAMS AND ORS Defendants

Hearing: 21 September 2015 (in Auckland)

Counsel:

J P Temm and K J Patterson for Plaintiffs
R E Harrison QC for Defendants

Judgment:

20 October 2015

JUDGMENT (NO. 3) OF HEATH J

This judgment was delivered by me on 20 October 2015 at 2.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Ken Patterson, Tauranga
Abernethy Broatch Law, Mount Maunganui
Counsel:
J P Temm, Rotorua
R E Harrison QC, Auckland

INTERNET TRADERS LTD AND ORS v WILLIAMS AND ORS [2015] NZHC 2562 [20 October 2015]

CONTENTS

Introduction  [1]
Background  [6]
The application for review

(a) The remaining issues [10]

(b) Discovery – business records for Internet Traders and

IT Pharmaceutical [11]

(c) Discovery – legal professional privilege

(i)       The issue [13]

(ii)      The Associate Judge’s decision [16]

(d) Analysis [21]

Application to strike-out Third Amended Statement of Claim

(a) Background [32]

(b) The Associate Judge’s decision [35]

(c) Problems with the Third Amended Statement of Claim

(i) Introduction [37]

(ii) The first cause of action [39]

(iii) The second and fourth causes of action [43]

(iv) Remaining causes of action [49]

Result [51]

Costs [54]

Introduction

[1] Ms Nicole Williams, the trustees of the Aesculapian Family Trust (Ms Williams and Arnold Trustees 2009 Ltd), Glencove (2014) Ltd and KiwiPharma Ltd (collectively, the Williams’ interests) have applied to this Court to review1 a number of decisions made by Associate Judge Bell, in the High Court at Tauranga, on 15 July 2015.2 Reasons for those decisions were given on 3 August 2015.3

[2] One of the decisions in issue required part of the substantive claim to be set down for hearing over seven days, commencing on 9 November 2015, on terms directed by the Associate Judge. I granted an application for review of that decision in a judgment given on 24 September 2015. I vacated the proposed hearing and adjourned the trial for a hearing of all issues over three weeks in 2016, to commence
on a date to be fixed by the Registrar.4

1      Judicature Act 1908, s 26P(1) and r 2.3 of the High Court Rules.
2      Internet Traders Ltd v Williams HC Tauranga CIV 2014-470-158, 15 July 2015 (Minute).
3      Internet Traders Ltd v Williams [2015] NZHC 1809.
4      Internet Traders Ltd v Williams (No 2) [2015] NZHC 2327 at para [28].

[3] My decision on the other challenges remained reserved. The Williams’ interests seek to review Judge Bell’s decision not to order the Heale interests5 to discover documents (relating to the question of damages) and requiring them to disclose documents to which legal professional privilege had been claimed by Ms Williams personally.6

[4] The Williams’ interests also apply for orders striking out parts of the Third Amended Statement of Claim of 24 July 2015. That pleading was filed as a result of directions…

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 Internet Traders Ltd v Williams

Details

AGLC: Internet Traders Ltd v Williams [2015] NZHC 2562
Case: [2015] NZHC 2562
Decision Date: 20 October 2015

CaseChat Overview and Summary

The High Court of New Zealand heard an application for review by Nicole Williams and others against Internet Traders Ltd and others. The applicants sought to review decisions made by an Associate Judge, including the denial of a discovery order and the refusal to strike out parts of the plaintiffs' Third Amended Statement of Claim. The court found that the Associate Judge's decision on discovery was incorrect, as it required Ms. Williams to abandon evidence given in an earlier affidavit. The court reversed the decision and ordered the plaintiffs to file a verified list of documents by a specified date. The court also found issues with the pleading in the Third Amended Statement of Claim, including the continuation of claims against non-director defendants and the rolling up of factual allegations. The application to strike-out was adjourned for reconsideration, and the parties were directed to file a Fourth Amended Statement of Claim addressing the identified issues. The court awarded costs to the applicants on a 2B basis, together with reasonable disbursements.

The legal issues in this case centered around the discovery of business records and legal professional privilege. The court found that the Associate Judge erred in making a conditional order for discovery, as it required Ms. Williams to abandon evidence given in an earlier affidavit. The court also found issues with the pleading in the Third Amended Statement of Claim, including the continuation of claims against non-director defendants and the rolling up of factual allegations. The court emphasized the importance of pleading distinct causes of action separately and clearly, as required by the High Court Rules.

Orders