Taua v Tahi Enterprises Limited - [2020] NZHC 2899

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001589

[2020] NZHC 2899

BETWEEN
TE WARENA TAUA, GEORGE HORI WINIKEREI TAUA, NGARAMA

WALKER and MIRIAMA TAMAARIKI as

trustees of the Te Kawerau Iwi Tribal Authority

Plaintiffs

AND

TAHI ENTERPRISES LIMITED

First Defendant

DIANNE LEE
Second Defendant

TAO (MARTIN) LI

Third Defendant

Hearing: 7 August 2020

Appearances:

J S Langston for the Plaintiffs C Upton for the Defendants

Judgment:

4 November 2020

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 4 November 2020 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Shieff Angland, Auckland LeeSalmonLong, Auckland

TAUA v TAHI ENTERPRISES LTD [2020] NZHC 2899 [4 November 2020]

Introduction

[1] This is an application by the defendants, under r 10.12 of the High Court Rules 2016, that this proceeding (relating to breach of confidence) and proceeding CIV-2017-404-435 (“the earlier proceeding”) are consolidated and case managed together, and that the two proceedings be tried at the same time. The alternative application sought in the notice of application (that this proceeding be stayed until after determination of the earlier proceeding) was not pursued at the hearing.

[2] The plaintiffs oppose the defendants’ application and contend that consolidating the proceedings or having them case managed together will prejudice the plaintiffs and will delay progressing this proceeding.

[3] An interlocutory application in the earlier proceeding was heard with this application. That application, brought by the first and second defendants, sought particular discovery of any registers of the individual members of the Te Kawerau ā Maki iwi (“the Iwi”) in the control of the plaintiffs. They also sought discovery of other specific documents and objected to redactions made and confidentiality claimed. The outcome of that application is the subject of a separate judgment.

The earlier proceeding

[4] The first and second defendants in this proceeding, Tahi Enterprises Ltd (“Tahi”) and Dianne Lee (“Mrs Lee”), are the first and second plaintiffs in the earlier proceeding. The third defendant in this proceeding, Tao (Martin) Li (“Mr Li”), is Mrs Lee’s husband. Mr Li is not a party in the earlier proceeding.

[5] The plaintiffs in this proceeding, the trustees of the Te Kawerau Iwi Tribal Authority (“the Tribal Authority”), are the second defendants in the earlier proceeding.

[6] The earlier proceeding arises out of three alleged agreements involving Tahi, Mrs Lee, Te Warena Taua (“Mr Taua”) and the Iwi. The first of these was a joint venture agreement dated 27 June 2007 (“the 2007 Agreement”). The named parties to the 2007 Agreement were Tahi and “Te Kawerau ā Maki”. Mrs Lee signed the

document for Tahi, and Mr Taua and Piki Taylor for the Iwi. Under the 2007 Agreement, Tahi agreed to provide funding of up to $2 million “in support of Te Kawerau’s Treaty claims process”. In consideration for receiving the sums, the Iwi agreed that Tahi would be its exclusive partner in all commercial developments undertaken…

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.

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Details

Case: [2020] NZHC 2899
Decision Date: 4 November 2020

CaseChat Overview and Summary

The case of Taua v Tahi Enterprises Limited involved an application by the defendants to consolidate two proceedings. The first proceeding related to a breach of confidence claim, while the second proceeding involved the interpretation and enforcement of several agreements between the parties. The plaintiffs opposed the consolidation of the proceedings, arguing that it would prejudice them and cause delays. The court considered whether the proceedings shared common questions of law or fact, whether they involved the same series of events and transactions, and whether consolidation would lead to savings in time and cost. The court found that the proceedings did not share sufficient commonality to justify consolidation. While the defendants argued that the List of Members and Further Documents came into their possession pursuant to the agreements at issue in the earlier proceeding, the court found that the issues in the two proceedings were distinct. The court also found that consolidation would not lead to savings in time and cost, and would result in serious injustice to the plaintiffs. The application for consolidation was therefore dismissed. The court ordered a case management conference to be held after the Court of Appeal had delivered its judgment on the appeal of a previous decision relating to the discovery of the Register of Members in the earlier proceeding. At that conference, the court would determine whether there were any live issues remaining in the breach of confidence proceeding. The plaintiffs were entitled to the costs of defending the application on a 2B basis.

In summary, the court found that the two proceedings did not share sufficient commonality to justify consolidation. While the defendants argued that the List of Members and Further Documents came into their possession pursuant to the agreements at issue in the earlier proceeding, the court found that the issues in the two proceedings were distinct. The court also found that consolidation would not lead to savings in time and cost, and would result in serious injustice to the plaintiffs. The application for consolidation was therefore dismissed, and a case management conference was ordered to be held after the Court of Appeal had delivered its judgment on the appeal of a previous decision relating to the discovery of the Register of Members in the earlier proceeding. At that conference, the court would determine whether there were any live issues remaining in the breach of confidence proceeding.

Orders