Spackman v Martin - [2021] NZHC 157

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-142

[2021] NZHC 157

UNDER the Evidence Act 2006

IN THE MATTER

of SOLAR BRIGHT LIMITED (IN LIQ)

BETWEEN

AND

MURRAY SPACKMAN

First Plaintiff

THOMAS MOORE
Second Plaintiff

AND AND

PATRICK MARTIN

First Defendant

NICOLA MARTIN
Second Defendant

continued ….2

Hearing: 2 February 2021

Counsel:

G Slevin for First and Second Plaintiffs

K Smith, J Moss and H Weston for First and Second Defendants E L Keeble for Third and Fourth Defendants (appearance excused)

Judgment:

12 February 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 12 February 2021 at 2.30 pm
pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 12 February 2021

SPACKMAN v MARTIN [2021] NZHC 157 [12 February 2021]

AND

AND

ROBERT SNOEP

Third Defendant

CREATEIP

Fourth Defendant

[1] The first plaintiff, Murray Spackman (Mr Spackman), seeks orders setting aside claims for legal advice privilege made by each of the defendants in their respective lists of documents.

[2]The fourth defendant, CreateIP, is a firm of intellectual property lawyers.

[3]The third defendant, Robert Snoep, is a principal of CreateIP.

[4] The third and fourth defendants have claimed privilege in respect of their communications with the first and second defendants.

[5] Counsel for the third and fourth defendants sought and were granted leave not to appear at the hearing as the privilege in issue is that of the first and second defendants. The third and fourth defendants will abide the Court’s decision in relation to privilege.

[6]The application relies on s 67(1) of the Evidence Act 2006 which provides:

67 Powers of Judge to disallow privilege

(1) A Judge must disallow a claim of privilege conferred by any of sections 54 to 59 and 64 in respect of a communication or information if satisfied there is a prima facie case that the communication was made or received, or the information was compiled or prepared, for a dishonest purpose or to enable or aid anyone to commit or plan to commit what the person claiming the privilege knew, or reasonably should have known, to be an offence.

Background

[7] The first defendant, Patrick Martin (Mr Martin), and the second defendant, Nicola Martin (Mrs Martin), were shareholders in and directors of Solar Bright Ltd (in liq) (SBL).

[8] In early 2017 the plaintiff and a third party, Mr Moore, were invited to invest in SBL. SBL had developed an invention known as PATeye, developed by Mr Martin, which was like a conventional roads cat’s eye, but with the ability to sense temperature and omit a warning light if the temperature dropped below freezing. SBL owned patents and other intellectual property rights in that invention. PATeye was at the early stages of development.

[9] A new invention called Dataeye had also been developed by Mr Martin and, as at early 2017, was at the point where Mr Martin had instructed the fourth defendant to apply for a New…

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 Spackman v Martin

Details

AGLC: Spackman v Martin [2021] NZHC 157
Case: [2021] NZHC 157
Decision Date: 12 February 2021

CaseChat Overview and Summary

Murray Spackman and Thomas Moore (the plaintiffs) seek orders under section 65 of the Evidence Act 2006 setting aside claims for legal advice privilege made by the first and second defendants, Patrick Martin and Nicola Martin (the defendants). The defendants are shareholders in and directors of Solar Bright Ltd (in liquidation). The plaintiffs allege they were deceived by the defendants as to Solar Bright Ltd owning the intellectual property of the Dataeye invention and say they would not have invested any money in Solar Bright Ltd had they known that it did not own the Dataeye intellectual property. They say the defendants fraudulently represented to them that Solar Bright Ltd owned the Dataeye intellectual property despite planning to secure ownership of the intellectual property in Mr Martin alone. The defendants claim privilege in respect of their communications with the third and fourth defendants. The plaintiffs argue that the defendants' claims for privilege should be disallowed as they were made for a dishonest purpose. The court found that the plaintiffs had established a prima facie case of sharp practice. It was satisfied that the requirement under section 67 of the Evidence Act 2006 that the documents sought be linked to the unlawful purpose was met, and that this was one of those unusual cases where it was appropriate to set aside the privilege claimed in respect of the documents subject to the application. The plaintiffs' application under section 65 of the Evidence Act 2006 was successful. The court ordered that the privilege claimed in respect of the documents subject to the application be set aside. The first and second defendants were directed to prepare a list of documents within 20 working days.

Orders