Kiriwai Consultants Ltd v Holmes - [2013] NZHC 3290

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-000531 [2013] NZHC 3290

BETWEEN KIRIWAI CONSULTANTS LIMITED Plaintiff

ANDKENNETH ANGUS HOLMES Respondent

KENNETH ANGUS HOLMES and DAVID BRIAN RUSSELL AS TRUSTEES OF THE K A HOLMES 2003
FAMILY TRUST Second Defendants
HOLMES VENTURES LIMITED Third Defendant

Hearing: 27 November 2013

Appearances: P J Dale for Plaintiff
B D Gray QC for Defendants

Judgment: 10 December 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 10 December 2013 at 2.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date................................

KIRIWAI CONSULTANTS LTD v HOLMES & ORS [2013] NZHC 3290 [10 December 2013]

Introduction

[1] The plaintiff, Kiriwai Consultants Limited, applies to vary a consent order requiring it to give discovery of documents relating to dealings between its director, Christopher Emmens and named third parties.1 Kiriwai asserts that its counsel, Mr Dale, misapprehended the extent of discovery required when he signed a consent memorandum agreeing to the order being made. Further, Kiriwai maintains that the documents required to be discovered are irrelevant and there are confidentiality issues affecting the third parties that make it unfair to require Kiriwai to produce them.

[2] The defendants oppose the application on the ground that the consent order was founded upon a contract between the parties that can only be set aside or varied if it was obtained by a mistake qualifying under the Contractual Mistakes Act 1977, the rationale being that the underlying agreement must itself be set aside. It is agreed that no such mistake can be shown.

Relevant principles

[3] Mr Gray QC, for the defendants, relied on Phillips v Phillips2 in which the Court of Appeal treated the Court’s jurisdiction to set aside a consent order as being based on grounds that would justify setting aside a contract, the question then being whether it is in the interests of justice to do so. However, the point was not argued; counsel simply accepted that as the position and later decisions, including those in which Phillips is cited, have proceeded on the basis that this Court may set aside consent orders as part of its inherent jurisdiction to control its own processes without specifying the need for a qualifying mistake. For example, in Auckland Regional
Services Trust v Lark Richardson J said that:3

It is well settled that the High Court has an inherent jurisdiction to set aside a consent order if the interests of justice require it but good ground must be established to warrant that course.

1      Minute of Lang J 25 September 2013
2      Phillips v Phillips [1993] 3 NZLR 159 (CA).
3      Auckland Regional Services Trust v Lark [1994] 2 ERNZ 135 (CA).

[4] Even though Phillips was cited, this statement does not suggest that the jurisdiction to vary or set aside a consent order could only be exercised if there were a qualifying mistake. Subsequent decisions of this Court, in which the point has been argued in greater…

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: [2013] NZHC 3290
Decision Date: 10 December 2013

CaseChat Overview and Summary

Kiriwai Consultants Limited sought to vary a consent order requiring it to provide discovery of documents relating to its director, Christopher Emmens, and third parties. Kiriwai argued that its counsel had misapprehended the extent of the discovery required. The defendants opposed the application, arguing that the consent order could only be set aside or varied if a mistake qualifying under the Contractual Mistakes Act 1977 was shown. The Court considered the principles governing the jurisdiction to vary or set aside consent orders, finding that while such orders are generally enforceable, the Court has an inherent jurisdiction to vary or set aside an order if it is in the interests of justice to do so. The Court held that in this case, varying the consent order was in the interests of justice as it would avoid an adverse effect on Kiriwai due to its counsel's error, and there was no basis to conclude that documents created after November 2012 would be relevant.

The Court varied the consent order in the terms sought by Kiriwai, but declined to award costs in the usual course. The Court noted that if counsel wished to pursue the matter further, they could file memoranda.

Orders