Messenger v Stanaway Real Estate Ltd - [2014] NZHC 2103

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-7205 [2014] NZHC 2103

BETWEEN
JAMES MESSENGER and JUNE MARY

MESSENGER Plaintiffs

AND

STANAWAY REAL ESTATE LIMITED Defendant

AND

GARY MESSENGER First Third Party

REALTY NZ LIMITED Second Third Party

SIMPSON WESTERN (A FIRM) Third Third Party

Hearing: 3 June 2014

Appearances:

M G Ring QC for Applicant/Defendant
G P Blanchard and R M Cederwall for Plaintiffs
P M Fee for Third Third Party

Judgment:

2 September 2014

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 2 September 2014 at 3.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Kennedys, Auckland Counsel: M G Ring QC, Auckland Lowndes Jordon, Auckland G P Blanchard, Auckland Jones Fee, Auckland

MESSENGER v STANAWAY REAL ESTATE LIMITED [2014] NZHC 2103 [2 September 2014]

Introduction

[1] The Defendant (“Stanaway”) seeks orders setting aside claims for privilege made by the Plaintiffs (“the Messengers”) in their affidavit of documents sworn
19 July 2013. The documents in issue comprise 14 files and are dated between

4 December 2006 and at least 21 January 2013 (“documents”).

[2] The Messengers have asserted that the documents are privileged on the grounds of either or both solicitor/client privilege or litigation privilege. There is no dispute that the Messengers were entitled to claim privilege. The issue is whether they since have waived privilege by:

(a) disclosing, or allowing the third third party, the Messengers’ solicitors Simpson Western, to disclose any significant part of the documents in circumstances that are inconsistent with a claim of confidentiality;1 and/or

(b) acting so as to put the documents in issue in the proceeding.2

[3] The Messengers oppose the application on the ground that there has been no waiver.

[4] In their submissions, Simpson Western proposed a “middle ground”, being an order for tailored discovery. I do not propose to adopt that course.

[5] For reasons set out below, I am satisfied that there has been a waiver of privilege in a confined class of documents, but not in the balance.

Background

[6] I do not understand the matters to which I refer below to be contentious but, if I am wrong, nothing I say in this decision has any bearing on the facts that may be
found at trial.

1 Evidence Act 2006, s 65(2).
2 Section 65(3).

[7] The dispute at the heart of this proceeding arises from events in and after

2006. In 2006 the Messengers appointed Stanaway as their agents on the sale of their property in Auckland (“property”). The Messengers’ claim is that Stanaway was negligent in its advice and they seek to recover losses which they contend were caused by that negligence. Stanaway denies the claim but, if it is found to have any liability, seeks contribution from various third parties, including Simpson Western.

[8] On 30 November 2006, the Stanaway agent handling the matter (“agent”)

presented two offers to purchase. The Messengers accepted one of these offers on

1 December 2006,…

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: [2014] NZHC 2103
Decision Date: 2 September 2014

CaseChat Overview and Summary

In this case, the plaintiffs, James and June Messenger, are suing Stanaway Real Estate Limited, their former real estate agent, for negligence in the sale of their property. The dispute arises from events in and after 2006 when the Messengers appointed Stanaway as their agent for the sale of their property in Auckland. The Messengers claim that Stanaway was negligent in its advice and they seek to recover losses which they contend were caused by that negligence. Stanaway denies the claim but, if it is found to have any liability, seeks contribution from various third parties, including Simpson Western, the Messengers' solicitors. The primary legal issue before the court is whether the plaintiffs have waived their privilege over certain documents by disclosing or allowing their solicitors to disclose any significant part of the documents in circumstances that are inconsistent with a claim of confidentiality.

The court considered various categories of documents on which Stanaway relied as constituting waiver by the Messengers. The court held that there has been a waiver of privilege in a confined class of documents, but not in the balance. Specifically, the court found that the disclosure of two particular documents by Mr. Messenger in his brief of evidence constituted a waiver pursuant to s 65(2) of the Evidence Act 2006. These documents were an email from Mr. Messenger to Mr. Stewart dated 21 January 2007 and a file note dated 22 January 2007 of a discussion between Mr. Stewart and Mr. Messenger. The court also found that the disclosure of six documents by the Messengers constituted a waiver pursuant to s 65(2), as they also addressed the contentious issue of the events of 30 November/1 December 2006. The court held that the Messengers are required to give discovery of all documents that are relevant to the issue of what transpired on 30 November and 1 December 2006.

In conclusion, the court found that there has been a waiver of privilege to the extent identified in [47] and [52] above. The Messengers are required to give discovery of all documents that are relevant to the issue of what transpired on 30 November and 1 December 2006. The court reserved leave to apply if any issue or dispute arises as to the scope of the waiver, or any other matter.

Orders