Moeke v Raukawa Iwi Development - [2023] NZHC 1952

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2019-463-46

[2023] NZHC 1952

BETWEEN
FORD MOEKE

Plaintiff

AND

RAUKAWA IWI DEVELOPMENT LIMITED

First Defendant

SOUTH WAIKATO DISTRICT COUNCIL

Second Defendant

Hearing: 22 June 2023

Appearances:

Megan Crocket for the Plaintiff Gary Judd KC for the Defendants

Judgment:

27 July 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application to set aside privilege and for non-party discovery]

This judgment was delivered by me on 27 July 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
K J Patterson Law, Tauranga, for the Plaintiff
Tompkins Wake (Megan Crocket), Hamilton, for the Defendants

Copy for:
Gary Judd KC, Kerikeri, for the Plaintiff

MOEKE v RAUKAWA IWI DEVELOPMENT LIMITED [2023] NZHC 1952 [27 July 2023]

Table of contents

Paragraph

Introduction [1]

Background [3]

Mr Moeke’s application [7]

Council’s opposition [9]
Legal principles [11]

Setting aside privilege [11]

Non-party discovery [15]

Analysis [16]

Whether leave should be granted to Mr Moeke to permit the
late filing of his application? [18]
Whether the Council’s claim to privilege in respect of documents from 2018 for which solicitor-client privilege is claimed is
a proper claim? [21]

Conclusion on this issue [27]

Whether the redactions made by the Council from documents
on the basis of irrelevance are properly made? [35]
Whether orders for non-party disclosure against
Mr Douch and Mr Bracken should be made? [37]

Result [41]

Orders [42]

Introduction

[1] The second defendant, the South Waikato District Council (the Council), applied in an application dated 26 February 2021 for leave to apply for orders for further and better discovery and for an order to answer interrogatories and, if leave is granted, for those orders to be made. The Council’s application has been resolved by agreement between the parties, and accordingly is not dealt with in this judgment.

[2] The plaintiff, Mr Ford Moeke (Mr Moeke) made an application dated 15 March 2023 for orders setting aside the Council’s claim to privilege of certain documents and for non-party discovery.

Background

[3] In May 2019, Mr Moeke commenced these proceedings seeking summary judgment on liability against Raukawa Iwi Development Limited (Raukawa) and the Council in relation to a property at 10 Dumfries Road, Tokoroa (the property). Mr Moeke pleaded that Raukawa breached its contract to sell the property to him, by instead selling it to the Council, and that both defendants had conspired to defraud him.

[4] On 4 December 2019, Associate Judge Sargisson entered summary judgment as to liability against both Raukawa and the Council (the Liability Judgment).1 This left the issue as to quantum alone to be determined.

[5] On 13 April 2022, Mr Moeke then applied to join five further defendants personally as members of, or lawyers for, Raukawa and the Council. Finding that the exceptional circumstances required for joinder post-judgment were not made out, the Court declined that application on 1 February 2023.2

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 Moeke v Raukawa Iwi Development

Details

AGLC: Moeke v Raukawa Iwi Development [2023] NZHC 1952
Case: [2023] NZHC 1952
Decision Date: 27 July 2023

CaseChat Overview and Summary

The case of Moeke v Raukawa Iwi Development involved an application by Ford Moeke against the South Waikato District Council and Raukawa Iwi Development Limited for orders setting aside privilege and for non-party discovery. Moeke sought to set aside the Council's claim to privilege for certain documents and for non-party discovery from two solicitors. The Council opposed the application on various grounds, including the late filing of the application and the improper nature of the claims to privilege and confidentiality. The central legal issues were whether the late filing of Moeke's application should be permitted, whether the Council's claim to privilege was valid, whether the redactions made by the Council were properly made, and whether orders for non-party discovery should be made against the solicitors.

The Court granted leave for Moeke to file his application late, finding that the directions given by the Associate Judge on 1 March 2023 superseded earlier directions. The Court held that the Council's claim to privilege for the 2018 documents should be set aside as they were created for a "dishonest purpose" within the meaning of the Evidence Act 2006. The Court found that the dishonest conduct found by the Liability Judgment contained the requisite moral turpitude to constitute a "dishonest purpose." The Court declined to set aside the redactions for irrelevance as they were properly made. Finally, the Court held that an order for non-party discovery against one solicitor should be adjourned until the outcome of Moeke's summary judgment application against him. An order was made for the other solicitor to confirm that he did not hold any further discoverable documents.

The orders made by the Court were that Moeke's application to set aside the Council's privilege for the 2018 documents was granted, the application to set aside redactions for solicitor/client privilege was granted, the application to set aside redactions for irrelevance was dismissed, the application for non-party discovery against one solicitor was adjourned, and the other solicitor was to swear an affidavit confirming he did not hold any further discoverable documents.

Orders