McNaughton v McNaughton - [2021] NZHC 2109

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2021-454-33

[2021] NZHC 2109

BETWEEN
RICHARD MCNAUGHTON

Plaintiff

AND

JANET MCNAUGHTON

First Defendant

JAMES MCNAUGHTON

Second Defendant

CIV-2021-435-1

BETWEEN

RICHARD MCNAUGHTON

Plaintiff

AND

RODNEY MILLER, AARON SLIGHT, RIGG ZSCHOKKE LTD, GARY KAY and TAVERNER KEYS & CO

Defendants

On the papers

Counsel:

Plaintiff self-represented D Bleier for Mr Miller

Judgment:

13 August 2021

JUDGMENT OF CULL J

[Access to Court documents

[1]Mr Miller seeks access to the court file in the McNaughton v McNaughton

proceedings, as intituled above.

MCNAUGHTON v MCNAUGHTON [2021] NZHC 2109 [13 August 2021]

[2] Mr McNaughton has commenced proceedings against Mr Miller and four others, McNaughton v Miller,1 alleging the misrepresentation of a now severely insolvent plumbing and roofing business sold to him in 2017. He pursues damages of
$6.4 million dollars.

[3] Mr Miller seeks security for costs of $130,000.00. This application is scheduled to be heard on 15 September 2021. Mr McNaughton opposes the application. If his claim is unsuccessful, Mr McNaughton submits that he will be able to pay the costs of the defendant, relying on an equitable interest he holds in 48a Pownall Street, a property owned by his parents. He says this property is being held for him on trust, and that his interest in the property is worth approximately
$500,000.00. Counsel for Mr Miller has been provided with a notice of the caveat lodged by Mr McNaughton and his wife against the title of 48a Pownall Street.

[4] However, Mr McNaughton has filed proceedings against his parents regarding 48a Pownall Street, being the McNaughton v McNaughton proceeding and court file, to which Mr Miller now seeks access.

[5]Mr Miller requests access to all documents that make up the court file in the

McNaughton v McNaughton proceeding, including, but not limited to any:

(a)statement of claim (or any other initiating document);

(b)statement of defence (or notice of opposition);

(c)affidavits in support, lists of documents for initial disclosure; and

(d)any memoranda filed or any court minutes.

[6] Currently, only two documents have been filed, being Mr McNaughton’s statement of claim and the plaintiff’s list of documents.

[7] Mr Bleier, Counsel for Mr Miller, submits these documents are required to sufficiently test Mr McNaughton’s claims of solvency as part of his opposition to security for costs.

1 McNaughton v Miller CIV-2021-435-1.

[8] This is opposed by Mr McNaughton on two grounds. First, he contends that the proceeding is a family dispute and is thus an inherently private matter to which Mr Miller should not have access. Second, he argues that Mr Miller has sufficient information concerning the dispute anyway. In an email sent to Counsel for Mr Miller, Mr McNaughton wrote:

My parents acquired 48a Pownall Street with the intent of realising equity so I could pursue your client and others in a High Court proceeding. Iain Shepherd, Jessica Kellow, Gavin Hodder and others will be able to confirm this for you…

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: [2021] NZHC 2109
Decision Date: 13 August 2021

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether Rodney Miller could access the court file in the McNaughton v McNaughton proceedings. The court file relates to a dispute between Richard McNaughton and his parents, Janet and James McNaughton, concerning an equitable interest in a property at 48a Pownall Street. Rodney Miller, who is involved in separate litigation with Richard McNaughton, sought access to the court file in order to assess Richard McNaughton's ability to pay his legal costs. The legal issues the court had to decide were whether the Senior Courts (Access to Court Documents) Rules 2017 allow Rodney Miller to access the court file in the McNaughton v McNaughton proceedings and if so, to what extent. The court considered the relevant factors set out in the Rules and concluded that Rodney Miller should have access to the statement of claim and any statement of defence or notice of opposition filed, but not to the entire court file. The court balanced the need for privacy and confidentiality with the principle of open justice and the freedom to seek and receive information. The court granted Rodney Miller's application for access to court documents in part and denied his application with regard to the remainder of the court file.

Orders