IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-001143
[2019] NZHC 1614
UNDER the Consumer Guarantees Act 1993, Fair Trading Act 1996 and
High Court Rule 4.24
BETWEEN
DAVID ERIC PAINE and LYNDA CAROLINE BOWERS
First Plaintiffs
…/Plaintiffs cont over
AND
AND
CARTER HOLT HARVEY LIMITED
Defendant
AUCKLAND COUNCIL and ORS
First to Twenty-Ninth Third Parties
Hearing: 24 June and 1 July 2019 Counsel:
AS Ross QC and RA Havelock for Plaintiffs
JG Miles QC, M Heard and ED Nilsson for Defendant FP Divich for Second to Eight, Tenth, Thirteenth,
Seventeenth to Nineteenth, Twenty-First to Twenty-Third, Twenty-Fifth, Twenty-Seventh and Twenty-Ninth Third Parties (granted leave to withdraw, abides decision of the Court)
Judgment:
11 July 2019
JUDGMENT OF DOWNS J
This judgment was delivered by me on Thursday, 11 July 2019 at 3 pm
pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Lee Salmon Long, Auckland. AS Ross QC, Auckland.
JG Miles QC, Auckland. Heaney and Partners, Auckland.
PAINE v CARTER HOLT HARVEY LTD [2019] NZHC 1614 [11 July 2019]
KEVIN BRYAN START and FLORENCE ELIZABETH START
Second Plaintiffs
DONALD BRAMWELL JACKSON and HEATHER MAY PROCTOR JACKSON, and DONALD BRAMWELL JACKSON, HEATH MAY PROCTOR JACKSON and HOLLAND BECKETT TRUSTEE
No. 11 LIMITED as Trustees of the Jackson Family Trust 2011
Third Plaintiffs
STEPHEN MATHEW DEVCICH, JESSIE DIANA DEVCHICH and JOHNNY CHARLES AUGUST as
Trustees of the Devcich Family Trust Fourth Plaintiffs
Table of contents
The issues [1]
Abuse of process application
Did the plaintiffs require permission to bring their claim? [5] Wrongful encouragement of meritless claims by misleading information? [22] Comparisons with the Crown’s claim [30]
Other means of redress [37]
About the value of the claim [43]Many meritless claims? [55]
The funding agreement [61]
Carter Holt’s submission [67]
Analysis [68]
Discovery [84]
Do the statements to the National Business Review amount to an abuse of process? [88]
Permission to appeal in relation to particulars and an associated stay [95]
Principle [97]
Arguable errors of significant importance to Carter Holt? [98]
Issues of wider significance or precedential value? [113]
A stay pending appeal? [117]
Directions in relation to the plaintiffs’ application for case management [120]
Costs [123]
The issues
[1] Shadowclad is a form of external cladding. It is made, supplied and promoted by Carter Holt Harvey Ltd.1 The plaintiffs have Shadowclad on their homes. On 13 June 2018, the plaintiffs filed a claim against Carter Holt, alleging Shadowclad is inherently defective. The claim is representative. And, funded by a litigation funder.
[2] On 7 June 2019, Carter Holt filed an application to stay or dismiss the claim. Carter Holt contends it is an abuse of process. Carter Holt submits the claim has been brought without the Court’s (necessary) permission; the plaintiffs’ solicitor made misleading statements in promoting the claim; and funding arrangements are objectionable. Taken together, Carter Holt contends an exceptional remedy is justified.
1 Carter Holt.
[3] The plaintiffs refute Carter Holt’s analysis and…
Keep reading for free
Create a free CaseChat account to read Paine v Carter Holt Harvey Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2019] NZHC 1614
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiffs did not need to seek permission to bring their representative claim, as those represented had agreed to the proceeding. The court rejected Carter Holt's argument that funded representative proceedings require close supervision by the courts, and held that the funding agreement did not assign the causes of action to the funder or constitute an abuse of process. The court also found that the solicitor's statements, while some were misleading, did not amount to an abuse of process. The court granted timetable directions for the plaintiffs' application for case management, including staged trials, and declined permission for an appeal and a stay pending appeal. Costs were awarded to the plaintiffs.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.