Moeke v Eparaima - [2024] NZHC 1767

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2023-463-30

[2024] NZHC 1767

BETWEEN
FORD BENJAMIN MOEKE

Plaintiff

AND

VANESSA EPARAIMA, CONSTANCE HUI, JOHN SPENCER and JONATHAN MICHAEL STOKES

First Defendants

JENNY SHATTOCK, JEFF GASH, MARIN GLUCINA, BILL MACHEN, ARAMA NGAPO-LISCOMBE, PETER SCHULTE, HERMAN VAN ROOIJEN and ADRIENNE BELL

Second Defendants

BENJAMIN ERIC SMIT

Third Defendant

HAMISH DOUCH
Fourth Defendant

MICHAEL BRACKEN

Fifth Defendant

Hearing: 12 June 2024

Appearances:

Garry Judd KC for the Plaintiff

Paul Fisher for the Third-named and Seventh-named Second Defendants James Gurnick for the fourth-named and seventh-named Second Defendant

Judgment:

4 July 2024

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application for leave pursuant to Rule 12.9 of the High Court Rules 2016]

This judgment was delivered by me on 4 July 2024 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

MOEKE v EPARAIMA [2024] NZHC 1767 [4 July 2024]

TABLE OF CONTENTS

Introduction

Paragraph

[1]

Background [2]

Mr Moeke’s application for summary judgment [6] Leave applications by third, fourth and seventh-named second defendants [7] Legal principles [12]
Mr Machen’s application [14]

Does a substantial defence exist? [18]

Was the delay reasonably explained? [19]

Irreparable injury/prejudice to Mr Moeke? [20]

Mr Glucina and Mr van Rooijan’s applications [22]

Was the delay reasonably explained? [25]
Irreparable injury/prejudice to Mr Moeke? [26]

Mr Moeke’s opposition [27]

The applicants are joint tortfeasors [29]

Is Said v Butts inapplicable? [32]

Res judicata estoppel [34]

Result [39]

Mr Machen’s application [39]
Why leave should be granted [41]

Orders [43]

-------

Introduction

[1] The plaintiff, Mr Ford Benjamin Moeke (Mr Moeke) seeks summary judgment for liability against the first defendants Vanessa Eparaima, Constance Hui, John Spencer, and Johnathan Michael Stokes, the directors of Raukawa Iwi Development Ltd (RIDL), the second defendants Jenny Shattock, Jeff Gash, Marin Glucina, Bill Machen, Arama Ngapo-Lipscomb, Peter Schulte, Herman Van Rooijen and Adriene Bell, councillors of the South Waikato District Council (SWDC), the third defendant Benjamin Eric Smit, the former chief executive officer of SWDC, the fourth defendant Hamish Douch, the solicitor for RIDL and the fifth defendant, Michael Bracken, the solicitor for SWDC.

Background

[2] By an agreement for sale and purchase dated 2 October 2018 (the First Agreement), RIDL agreed to sell 10 Dumfries Road, Tokoroa – a freehold section with buildings being Lot 10 DP 2883 in Certificate of Title SA468/142 (the Property) – to Mr Moeke. Settlement date was agreed to be 7 December 2018. On the day of settlement, RIDL’s solicitors advised Mr Moeke that it had elected not to sell the Property.

[3] By an agreement for sale and purchase dated 6 December 2018, RIDL agreed to sell the Property to SWDC (the Second Agreement). On 7 December 2018, the Second Agreement was settled, and a transfer of the property from RIDL to SWDC was registered.

[4] Mr Moeke successfully obtained summary judgment (

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: [2024] NZHC 1767
Decision Date: 4 July 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Moeke v Eparaima involved Mr Ford Benjamin Moeke seeking summary judgment against various defendants for their alleged involvement in a conspiracy to defraud him. Mr Moeke had previously obtained a summary judgment against Raukawa Iwi Development Ltd and South Waikato District Council for their roles in the conspiracy. Now, Mr Moeke aimed to hold the individual defendants, who were directors, councillors, and solicitors involved in the transaction, personally liable for their actions. The individual defendants applied for leave to oppose Mr Moeke's application for summary judgment. The court had to decide whether these defendants had a substantial defence, whether their delay in opposing was reasonably explained, and whether Mr Moeke would suffer irreparable injury if the defendants were allowed to oppose the summary judgment.

The court found that the defendants had substantial grounds for defence, as the previous judgment did not address their individual states of mind or roles in the conspiracy. The defendants' delay in opposing was reasonably explained due to administrative errors in the initial proceedings. Allowing the defendants to oppose the summary judgment would not cause irreparable injury to Mr Moeke, as he was already aware of the arguments being made by other defendants. Consequently, the court granted leave to the defendants to file their notices of opposition and supporting affidavits, allowing them to present their defences against Mr Moeke's claim for summary judgment.

Orders