Safari Construction (2005) Limited v Concept Builders Queenstown Limited

[2023] NZHC 2380

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2022-425-081

[2023] NZHC 2380

BETWEEN

SAFARI CONSTRUCTION (2005) LIMITED

First Applicant

SAFARI CONSTRUCTION (2015) LIMITED

Second Applicant

SAFARI CONSTRUCTION LIMITED
Third Applicant

SAFARI CONSTRUCTION 2019 LIMITED
Fourth Applicant

SAFARI GROUP (NZ) LIMITED
Fifth Applicant

AND

CONCEPT BUILDERS QUEENSTOWN LIMITED

First Respondent

MARTIN LAWN

Second Respondent

Hearing:	29 August 2023
Counsel:	M V Kilkelly for Applicants P F Dalkie for Respondents
Judgment:	29 August 2023

ORAL JUDGMENT OF CHURCHMAN J

[Admissibility]

[1]    A pre-trial issue has arisen in relation to the application before me this morning regarding the setting aside of some restraining orders.

SAFARI CONSTRUCTION (2005) LIMITED v CONCEPT BUILDERS QUEENSTOWN LIMITED (ADMISSIBILITY) [2023] NZHC 2380 [29 August 2023]

[2]    The particular issue involved is the admissibility of an affidavit  from  Damien Taylor filed on behalf of the Safari Group. I refer to them by their name because with applicants becoming respondents and respondents becoming applicants in respect of this application, it is easier to use the parties’ personal names.

[3]    The affidavit was filed recently. No leave was sought for it to be filed. It contains a number of annexures and it is really these annexures that have been the matters that Mr Dalkie, on behalf of Mr Lawn and Concept, has taken issue with.

[4]    The affidavit is said to be an updating affidavit and it is said to contain the annexures on the basis that they are relevant to the onus that is on the Safari Group in respect of the application for restraining orders to demonstrate a good arguable case.

[5]    Mr Kilkelly, for the Safari Group, conceded that in respect of a draft brief of evidence, unsigned, in the name of Joe Willmott, that this could not be tendered to the Court as proof of the truth of its contents. That concession is correct. It has some evidential value but it obviously, before it could substantively be accepted as to the truth of its contents, needs to be the subject of cross-examination and also evidence given in a sworn context.

[6]    Mr Dalkie has drawn my attention to various aspects of the material which he submits are inadmissible. A particular point is set out at [16] of his submissions and it relates to an email exchange where the deponent, Mr Taylor, says Mr Lawn can be seen joking with Mr Dunning about the fact one of the ghost contractors, James Noble, does not exist. That appears to be an expression of an opinion or an inference which Mr Taylor draws. For the purposes of this hearing, I do not accept that is valid and will not be having any regard to that.

[7]    In terms of the balance of the matters that are the appendices to the affidavit, the point made by Mr Kilkelly is that there are a number of documents, in particular invoices that were the documents of Mr Lawn and Concept, and on the basis that none of those documents will therefore be new to Mr Lawn and Concept, there is no basis for opposing them.

[8]    Mr Dalkie raises a similar issue in relation to some criticism that Mr Kilkelly made in relation to the appending of a Settlement Agreement between Safari and   Mr Dunning to the bundle of documents filed by Concept and Mr Lawn. It does seem to be that neither party can object when documents of their own are placed before the Court based on the principles articulated in the Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal decision that both parties have referred me to.1

[9]    In respect of the draft witness statement of Joe Willmott, Mr Kilkelly points out that a copy was provided to Mr Dalkie indicating that it would be the subject of comment. The issue for me is ultimately two-fold.  Firstly, is the evidence relevant, or potentially relevant, to an issue that I am required to determine today; and secondly, in terms of the issue of good arguable case which is a test that Safari has to meet – is it potentially a matter that may assist the Court.

[10]   On both of those, I conclude that potentially it is. Obviously the weight that I will give to it will be subject to the right that Mr Dalkie has sought and which I grant him to immediately file a reply should his clients give him instructions to do that.

[11]   The entirety of the affidavit is said by Mr Kilkelly to be relevant to giving the Court the full picture. I accept that there is some basis to that when considering whether the  good  arguable  case  is  met.  In  particular,  while  the  evidence  of  Mr Willmott is not determinative of any issue, it is potentially relevant to the knowledge on the part of Concept/Mr Lawn that their so-called ghost employees were having invoices in respect of them submitted and in some instances an administration fee in the sum, I believe, of $15 per hour being charged by Concept. So, on that basis, that material is admissible.

[12]   Both parties have addressed me on the issue of delay in relation to matters such as discovery. I do not consider the question of delay is ultimately determinative or indeed particularly relevant to the issues. Delays happen and neither party can be criticised in respect of delay.

1      Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2016] NZCA 633.

[13]   Ultimately my conclusion is that I will provisionally admit the affidavit subject to Mr Dalkie having the right to file his affidavit in reply as indicated. I have also expressed the view that at least some of the contents of the appendices and the affidavit itself are inadmissible and I will not be having regard to those matters that I have identified as such.

Churchman J

Solicitors:

Meredith Connell, Auckland for Applicants Hazelton Law, Wellington for Respondents