Safari Construction (2005) Limited v Concept Builders Queenstown Ltd

[2023] NZHC 2811

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2022-425-81

[2023] NZHC 2811

BETWEEN

SAFARI CONSTRUCTION (2005) LIMITED

First Applicant

AND

SAFARI CONSTRUCTION (2015) LIMITED

Second Applicant

AND

SAFARI CONSTRUCTION LIMITED

Third Applicant

AND

SAFARI CONSTRUCTION 2019 LIMITED

Fourth Applicant

AND

SAFARI GROUP (NZ) LIMITED

Fifth Applicant

Continued over

Hearing:	On the papers
Appearances:	W N Fotherby for Applicants P F Dalkie for Respondents
Judgment:	6 October 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 6 October 2023 at 3.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SAFARI CONSTRUCTION (2005) LTD v CONCEPT BUILDINGS QUEENSTOWN LTD [2023] NZHC 2811

[6 October 2023]

AND

CONCEPT BUILDERS QUEENSTOWN LTD
First Respondent

AND

MARTIN LAWN

Second Respondent

[1]    The Court is in receipt of an application for access to Court documents made on behalf of Triple Connection Ltd (TCL). TCL seeks access to documents filed in civil proceedings between Safari Construction (2005) Ltd v Concept Builders Queenstown Ltd which sought freezing orders over assets of the first and second respondents (the freezing order proceedings). Specifically, TCL seeks access to the following documents:

(a)the most recent pleadings (amended statement of claim, amended statement of defence, and other similar documents filed by the parties);

(b)Concept Builders Queenstown Ltd’s/Martin Lawn’s application to discharge freezing orders;

(c)all affidavits filed in support of Concept Builders Queenstown Ltd’s/Martin Lawn’s application to discharge freezing orders; and

(d)all affidavits filed in opposition to Concept Builders Queenstown Ltd’s/Martin Lawn’s application to discharge freezing orders.

[2]    The freezing order was made to protect against dissipation of assets while separate proceedings were pursued regarding allegedly fraudulent invoicing by the respondents.

[3]    The reason given for the request is that TCL (one of the respondents in the freezing order proceedings) is currently in dispute with Concept Builders Queenstown

Ltd (Concept Builders) in relation to, among other things, Concept Builders’ entitlement to payment for invoices issued for certain building works undertaken for TCL. TCL’s solicitors assert that the documents sought are “likely to be relevant to the issues to be determined in this dispute”.

[4]    While the plaintiffs abide the decision of the Court in respect of the application, counsel for the six defendants, Mr Dalkie, opposes the application.

[5]    In opposing the application, Mr Dalkie explains that TCL is currently seeking to have a s 289 Companies Act demand issued by Concept Builders set aside. He supplies the following further information regarding these proceedings:

(a)TCL’s application to set aside the s 289 demand; and

(b)an extract of an adjudicator’s determination of a dispute between TCL and Concept Builders over payment claims made by Concept Builders and which rules that TCL is liable to pay the invoices.

[6]    One of the allegations made by TCL in that dispute is that there were claims for “false work”. In respect of this claim, it is noted that TCL says:

The issue … is not that the work/tasks were completed; the issue is that due to insufficient detail in the time sheets, TCL cannot see how many hours it took to complete those works/tasks.

The adjudicator declined the deductions sought in respect of these claims.

[7]    Mr Dalkie, for the defendants, points out that, first, TCL’s allegation regarding the claims was not made out in the proceedings before the adjudicator. Furthermore, the defendants dispute that the documents sought are likely to be relevant to “issues to be determined”.

[8]    Mr Dalkie argues that given the early stage of the proceedings, where the pleadings have not closed, and where there is to be an application to fix a ceiling on the assets which are subject to a freezing order, there is nothing contained in the documents sought which go beyond allegations. Allegations cannot assist TCL

substantiate anything in its current dispute with Concept Builders. For these reasons, the application should be declined.

Current stage of the proceedings

[9]    The documents sought relate to the application for without notice freezing and ancillary orders under pt 32 High Court Rules 2016. Those proceedings were filed in December 2022. However, these proceedings relate only to the preservation of assets on the grounds that the applicants have a good arguable case. That is, a case that is capable of tenable argument and supported by sufficient evidence, bearing in mind the early stage at which the application is likely to be brought.1 That was established both on 23 December 2022,2 and was reiterated when Churchman J issued a judgment on 31 August 2023.3 However, that is as far as the decisions of this Court go. There has been no substantive hearing on the evidence or findings made. The related substantive proceedings were only filed this year, and are at an early stage. Pleadings are still open and evidence has not been prepared.

Senior Courts (Access to Court Documents) Rules 2017

[10]   Under the Senior Courts (Access to Court Documents) Rules 2017 (the rules), TCL has an automatic right to access the Court’s formal record, including prepared judgments, orders and minutes. However, access to pleadings and evidence are governed by rr 11 to 14. Rule 11 sets out the requirements for making such an application and, under r 11(7), a Judge has the ability to grant the request with or without conditions, refuse the request, or refer the request to the Registrar for determination.

[11]   In determining whether access ought to be granted under r 11, r 12 requires a Judge to take into account the following matters where relevant:

(a)the orderly and fair administration of justice:

(b)the right of a defendant in a criminal proceeding to a fair trial:

1      Dotcom v Twentieth Century Fox Film Corporation [2014] NZCA 509 at [18].

2      THL (2005) v JDR Ltd [2022] NZHC 3627.

3      Safari Construction (2005) Ltd v Concept Builders Queenstown Ltd [2023] NZHC 2387.

(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:

(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:

(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):

(f)the freedom to seek, receive, and impart information:

(g)whether a document to which the request relates is subject to any restriction under rule 7:

(h)any other matter that the Judge thinks appropriate.

[12]   The Rules distinguish between the grant of access at the different stages of the proceeding being:

(a)the pre-substantive hearing phase (r 13(a));

(b)the period during the substantive hearing (r 13(b)); and

(c)the period after the substantive hearing (r 13(c)).

[13]   Importantly, if the application is made before the substantive hearing, r 13(a) states that the Court “must have regard” to the fact that “the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited”.

[14]   Access to documents at the pre-substantive hearing stage is generally limited because, as the Court of Appeal explained in Crimson Consulting v Berry:4

… When matters are still at the pleadings stage, there is an element of unfairness on parties in the publication of one side of the story. The allegations in the statement of claim have not yet been tested by the giving of evidence. There being no hearing in court, the need for transparency and public scrutiny is less, because pre-trial the court is not determining substantive issues.

4      Crimson Consulting v Berry [2018] NZCA 460, [2019] NZAR 30 at [39].

[15]   While these proceedings involve the application for a freezing order, that is clearly a pre-substantive hearing stage. Although evidence has been filed, it is entirely untested. Furthermore, the pleadings in the associated civil proceeding are not finalised.

[16]   In this case, TCL appears to seek access to the documents not to identify the general nature of the allegations, because they are already aware of that from the judgment, but to seek evidence which may be supportive of a claim that some of the payments sought by Concept Builders are not valid. However, first, it is not clear to me that the allegations made in the present proceedings are the same as those TCL is pursuing. Second, I consider the judgments contain sufficient information about the allegations made to understand the general nature of them. It is not clear to me that providing the supporting affidavits could take matters any further when that evidence is untested.

[17]   Furthermore, against that request, I must balance the usual expectation that access to Court documents when proceedings are at an early stage will only be permitted in limited cases.

[18]   This decision does not preclude the applicants seeking access to Court documents either at a later stage or when more specificity can be given about the reasons access is sought and is considered to be of material assistance. At present, the generalised assertion that the documents are “likely to be relevant to the issues to be determined in [TCL’s] dispute” is insufficient.

[19]Accordingly, the request for access to Court documents is declined.

Solicitors:

Meredith Connell, Auckland Hazelton Law, Wellington