Tavendale & Partners Limited v Dineen - [2023] NZHC 157

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000586

[2023] NZHC 157

BETWEEN
TAVENDALE & PARTNERS LIMITED

Plaintiff

AND

MARK JOHN DINEEN

Defendant

Hearing: On the papers

Counsel:

A S Butler KC and J A Tocher for Plaintiff

P F Whiteside KC and J R Pullar for Defendant

Judgment:

9 February 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 9 February 2023 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

TAVENDALE & PARTNERS LTD v DINEEN [2023] NZHC 157 [9 February 2023]

[1] The plaintiff (Tavendale) is an incorporated law firm. Mr Dineen was formerly a director and practising lawyer with Tavendale. He now practises law at another law firm.

[2] Tavendale commenced this proceeding against Mr Dineen alleging breach of fiduciary duties in respect of certain transactions he entered into with clients of the firm and that he had breached a personal undertaking in respect of Tavendale’s electronic data.

[3] Mr Dineen applied for a stay of this proceeding and referral of the disputes to arbitration under art 8(1) of sch 1 of the Arbitration Act 1996. Tavendale opposed the application.

[4] In a judgment dated 30 June 2022, I granted Mr Dineen’s application.1 I held there was at least a prima facie case that the claims brought against Mr Dineen by Tavendale were the subject of an arbitration agreement between the parties and capable of resolution by arbitration. I stayed this proceeding pending a determination by the arbitral tribunal as to whether it has jurisdiction to determine the disputes.2

[5] Tavendale now seeks leave to appeal from my judgment. It argues that it has reasonably arguable grounds of appeal and that it is in the interests of justice to grant leave to appeal in all the circumstances of the case.

[6] Counsel filed comprehensive submissions in relation to the application and asked that it be decided on the papers.

Legal principles

[7] There appears to be no dispute that Tavendale requires leave to appeal from the judgment.

[8]Section 56(3) and (4) of the Senior Courts Act 2016 relevantly provide:

1 Tavendale & Partners Ltd v Dineen [2022] NZHC 1530.
2 At [94].

56 Jurisdiction
…

(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

(4)Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court~~---~~

(a)striking out or dismissing the whole or part of a proceeding, claim, or defence; or

(b)granting summary judgment.

[9] The principles that apply to an application for…

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: [2023] NZHC 157
Decision Date: 9 February 2023

CaseChat Overview and Summary

Tavendale & Partners Limited, an incorporated law firm, brought proceedings against Mark John Dineen, a former director and practising lawyer with Tavendale, alleging breach of fiduciary duties and a personal undertaking in relation to the firm’s electronic data. Mr Dineen applied for a stay of the proceeding and referral of the disputes to arbitration, which was granted by the court. Tavendale now seeks leave to appeal the decision to grant the stay. The court must decide whether to grant leave to appeal under section 56(3) of the Senior Courts Act 2016, considering the arguable errors of law or fact, the importance of the alleged errors, the issue of delay, and the interests of justice.

The court identified four proposed grounds of appeal. The first ground is that the court relied on an arbitration clause that had not been invoked by Mr Dineen. The second ground is that the court adopted the incorrect standard of review. The third ground is that the court’s conclusions on the existence of a legally binding arbitration agreement were wrong. The fourth ground is that the scope of the arbitration agreement did not extend to the conduct of Mr Dineen that Tavendale claims is a breach. Tavendale also argues that it is in the interests of justice to grant leave to appeal. The court accepted that the second and third grounds of appeal are arguable and raise issues of general importance. The court concluded that the interests of justice weigh in favour of granting leave to appeal.

The court granted Tavendale leave to appeal the decision of 30 June 2022 under section 56(3) of the Senior Courts Act 2016. The court found that several grounds of appeal are arguable, one of which raises an issue of public interest. The court also found that the issue of delay is not significant in this case and that the interests of justice require that leave to appeal be granted. The appeal will allow Tavendale to challenge the court’s findings in relation to the arbitration agreement and the standard of review, which may provide clarity on these issues for future cases. The court’s decision to grant leave to appeal will not cause significant delay, as the proceeding has already been stayed pending the determination of the arbitral tribunal.

Orders