Spence v Lynch - [2015] NZHC 609

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-7681 [2015] NZHC 609

BETWEEN
STUART GORDON SPENCE

Plaintiff

AND

CHRISTOPHER MAURICE LYNCH Defendant

AMANDA ADELE WHITE First Third Party/First Applicant

ANNE LEOLINE EMILY FREEMAN Second Third Party/Second Applicant BANK OF NEW ZEALAND

Non-Party/Respondent

Hearing: On the papers

Counsel:

First and Second Applicants in person
L A O’Gorman for Respondent

Judgment:

30 March 2015

JUDGMENT OF KATZ J [Application to rescind judgment]

This judgment was delivered by me on 30 March 2015 at 4:30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Buddle Findlay, Auckland

SPENCE v LYNCH & ORS [2015] NZHC 609 [30 March 2015]

Introduction

[1] On 28 March 2013 Amanda White and Anne Freeman applied for non-party discovery orders against the Bank of New Zealand (“Bank”). Orders were made, as set out in my judgment of 9 May 2013.1 The Bank complied with those orders. The proceedings were subsequently substantively determined by Priestley J in his judgment of 19 June 2013.2 Ms White and Ms Freeman now apply to have my interlocutory judgment of 9 May 2013 rescinded.

[2] Rule 7.51 of the High Court Rules provides that a Judge may rescind any order that has been fraudulently or improperly obtained. The onus of proving the improper or fraudulent conduct lies on the person making the allegation.3 The primary consideration for the Court in an application under r 7.51 is the overall justice of the case. The fact that the order would not have been granted had the alleged impropriety not occurred is a relevant factor in the exercise of the discretion.4

The non-party discovery application

[3] The application for non-party discovery encompassed three categories of documents:

(a) documents relating to any Account Operating Authority signed by the plaintiff, Stuart Spence (“Request A”);

(b)any Account Operating Authority enabling Mr Spence to have internet access to the Spence Personal Accounts “linked to the DCT Trust” (“Request B”); and

(c) all bank statements in relation to the DCT Trust Account from the date the Account Operating Authority enabling Mr Spence to have access to the DCT Trust Account was signed (allegedly late 2005) to the date
the Authority was cancelled (“Request C”).

1      White v Bank of New Zealand [2013] NZHC 1087.
2      Spence v Lynch 92013] NZHC 1478.
3      Ellinger v Guinness Mahon & Co [1939] 4 All ER 16, at 25.
4      Yang v Ko & Anor HC Auckland CIV-2005-404-4583, 31 July 2007, at [24]; Aerospace
Developments Ltd v Altitude Aerospace Interiors Ltd (No 2) [2013] NZHC 1337 at [6] and [46].

[4] I made orders in relation to Request A by consent. In relation to Request B, counsel for Mr Spence appeared at the hearing and advised that Mr Spence was willing to consent to the disclosure of the documents sought in that category. The Bank accordingly withdrew its opposition to disclosure of such documents and I ordered that they be discovered.

[5] Ms White and Ms Freeman elected, at the hearing, not…

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 Spence v Lynch

Details

AGLC: Spence v Lynch [2015] NZHC 609
Case: [2015] NZHC 609
Decision Date: 30 March 2015

CaseChat Overview and Summary

In the High Court of New Zealand, case Spence v Lynch and others was heard and decided by Katz J. The dispute involved Stuart Gordon Spence, the plaintiff, and Christopher Maurice Lynch, the defendant, with Amanda Adele White and Anne Leoline Emily Freeman as third parties. The primary issue was the application to rescind the non-party discovery orders against the Bank of New Zealand. The third parties, White and Freeman, sought to rescind the interlocutory judgment of 9 May 2013, arguing that the orders were fraudulently or improperly obtained. The court assessed the application under Rule 7.51 of the High Court Rules, which allows for the rescission of orders obtained fraudulently or improperly, with the burden of proof on the party alleging such misconduct.

The court examined the nature of the non-party discovery application, which sought three categories of documents from the Bank of New Zealand. The first two categories, relating to Account Operating Authority and internet access to the Spence Personal Accounts, were granted by consent or through the willingness of the plaintiff. The third category, which sought bank statements for the DCT Trust Account, was not pursued by the applicants due to the Bank's evidence that such documents were either unavailable or could be obtained through other means. The court found that the Bank had acted responsibly and ordered the applicants to pay the costs of the non-party discovery application and the Bank's compliance costs.

The court concluded that the application to rescind the orders was misconceived. The applicants' dissatisfaction stemmed from an order that was not made, rather than the orders that were actually granted. There was no evidence that the orders were obtained fraudulently or improperly. The court further noted that the non-party discovery orders had already been complied with by the Bank, and rescinding the orders would serve no useful purpose. Consequently, the court declined the rescission application and ordered the applicants to pay the Bank's costs.

Orders