Thomson t/a Graeme Thomson Antique Jewellery v Lloyd
[2025] NZHC 2139
•1 August 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-001185
[2025] NZHC 2139
IN THE MATTER of an appeal from the District Court BETWEEN
GRAEME THOMSON trading as GRAEME THOMSON ANTIQUE JEWELLERY
Appellant
AND
ARTESHAR MAI-RAH LLOYD
Respondent
Hearing: 16 July 2025 Appearances:
Further submissions completed:
G J Jones for the Appellant
L T Meys for the Respondent
24 July 2025
Judgment:
1 August 2025
JUDGMENT OF POWELL J
[Determination of status of appeal/Application to file further evidence on appeal/Application for stay/ Application for confidentiality]
This judgment was delivered by me on 1 August 2025 at 3.30 pm Pursuant to Rule 11.5 of the High Court Rules 2016
……………….
Registrar/Deputy Registrar
GRAEME THOMSON trading as GRAEME THOMSON ANTIQUE JEWELLERY v ARTESHAR MAI-RAH LLOYD [2025] NZHC 2139 [1 August 2025]
[1] This judgment addresses four issues that have arisen prior to the hearing of the appellant, Graeme Thomson’s, appeals which are set down for hearing on 26 August 2025. The judgment is reasonably brief given my hearing commitments since the submissions were completed and the short time remaining until the hearing of the appeals. In the light of my conclusion I have enlarged the previous timetable for the filing of the common bundle and submissions, with those amendments set out at the conclusion of this judgment.
Background
[2] Mr Thomson has brought two appeals against two judgments of Judge A A Sinclair dated 28 February 2025,1 and 2 May 2025.2
[3] Mr Thomson also filed an appeal against an earlier decision of Judge Sinclair dated 16 December 2024, which declined leave for Mr Thomson to file further evidence post the substantive hearing in the District Court (first appeal).3 This appeal was not ultimately accepted for filing by the Registry and returned to Mr Thomson in March 2025 on the basis it had been filed out of time. On behalf of Mr Thomson, Mr Jones maintained that the appeal had been filed in time. The first issue to be determined is therefore the status of the first appeal and whether it can be heard with the other appeals on 26 August 2025.
[4] The three other issues requiring determination are applications brought on behalf of Mr Thomson, set out in the order that they will be addressed in this judgment:
(a)an application to adduce further evidence;
(b)an application for stay of enforcement of pending appeal; and
1 Lloyd v Thomson [2024] NZDC 27285. This judgment was initially issued on 13 December 2024. It was recalled on 3 February 2025 (Lloyd v Thomson [2025] NZDC 1937) and reissued in amended form on 28 February 2025.
2 Lloyd v Thomson [2025] NZDC 8829.
3 Lloyd v Thomson [2024] NZDC 30279.
(c)an application for confidentiality orders in respect of personal information provided by Mr Thomson in support of the stay application.
Determination of status of first appeal
[5] Since the hearing and the filing of further material by the parties, I have had the opportunity to review the circumstances surrounding the filing of the first appeal. It is clear that the reason the Registry rejected the appeal as having been filed out of time was because the date of the judgment under appeal was recorded on the notice of appeal as having been issued on 13 December 2024. The Registry had no way of verifying otherwise, as it is also noted the citation for the judgment sought to be appealed was not recorded on the notice of appeal. This resulted in the Registry calculating the last date for filing of the appeal as being 23 January 2025.
[6] It now transpires that, as noted, the judgment against which the first appeal was lodged was dated 16 December 2024. In addition, it is clear from the distribution email sent by the District Court Registry that it was sent to the parties on 17 December 2024. I therefore accept Mr Jones’ submission that the appeal was brought in time, having been filed on the final day.
[7] Given this, it is appropriate to confirm the earlier direction of Lang J that the first appeal is to be heard with the other two appeals on 26 August 2025. To accommodate this, I direct an amended notice of appeal in respect of the first appeal, setting out the correct date of the judgment under appeal and otherwise complying with Part 20 of the High Court Rules 2016 is to be filed at the same time as Mr Thomson’s submissions and the common bundle. If the original filing fee was returned to Mr Thompson, the filing fee for the first appeal is to be paid at the same time.
[8] Documents relevant to the first appeal are to be included in the common bundle being prepared by Mr Thomson, and both parties are to address the first appeal in their respective submissions.
[9]No issue of costs arises on the first issue.
Application to adduce further evidence
[10] At the call of the appeals on 17 June 2025 Mr Jones had foreshadowed the filing of an application to adduce further evidence and was directed to file and serve the application no later than 3 July 2025. This direction was not complied with and although being dated 3 July 2025, the application was not filed until 9 July 2025.
[11] Notwithstanding the date of filing, Mr Meys on behalf of the respondent, Ms Lloyd, filed a notice of opposition, an affidavit of Ms Lloyd in opposition, together with submissions in opposition.
[12] When given the opportunity to make submissions on the application at the hearing on 10 July 2025, Mr Jones objected. Although, speaking to the application for three quarters of the time originally set aside for the fixture, Mr Jones sought to rely upon Lang J’s direction which had stated:
The Judge who presides on 10 July 2025 will determine whether that application needs to be heard before the substantive hearing on which a further interlocutory fixture should be allocated prior to 26 August 2025.
[13] Having heard from counsel, it was clear the application to adduce further evidence needed to be determined prior to the hearing of the appeal. Likewise, in the time remaining before the hearing it was not practicable to allocate another interlocutory fixture to enable the issue to be determined and give certainty to the parties around what documents were needed in the common bundle and what issues needed to be addressed in submissions. As a result, in addition to giving Mr Jones the opportunity to make oral submissions on the application at the hearing, he was given leave to file further written submissions by 23 July 2025. I indicated I would then determine the application.
[14] Submissions were filed as directed, but Mr Jones once more submitted that I should not determine the issue as “there has not been full argument on the issue”, and that “an assessment by a court without the benefit of full appeal argument is … incorrect” and “it is not possible for the Court to responsibly assess the factors required based on a limited hearing and a limited exposure to the appeal case”.
[15] Having considered Mr Jones submissions I consider it is appropriate to deal with the application at that point. Mr Jones’ concerns are unfounded and overstated. It is important that the parties know the scope of the evidence to be considered at appeal and if the issue is not determined in advance of the appeal, it is likely to take up much of the substantive hearing time resulting in the appeals having to be adjourned part heard.
[16]I therefore proceed to determine the application.
The evidence sought to be adduced
[17]The application at issue relevantly applies:
(a) For leave to adduce further evidence in the appeal in CIV-2025-404-1185, in the form of the affidavit of Robin Moncreiff Oliver filed by in support of this application; and/or
(b) Directions as to the manner in which further evidence is to be tendered to the Court; the nature and extent of evidence in reply; and the procedures by which the evidence is to be heard including orders, for example, as to cross-examination.
[18]Mr Oliver is a tax consultant. The evidence sought to be adduced concerns:
a. What constitutes a “taxable activity” so as to make a person liable to register for GST under the Goods and Services Act 1985 (Act).
b. Whether Ms Lloyd should have been registered for GST.
c. If so, what Mr Thomson should have done upon receiving payment for the jewellery he on-sold for Ms Lloyd.
[19] Mr Oliver concludes that Ms Lloyd was required to be registered for GST and Mr Thomson charged GST understanding that Ms Lloyd was registered.
[20] Mr Jones says the evidence is cogent and compelling because if Mr Thomson was able to pay GST on the transaction, it would reduce the amount potentially owing by him to Ms Lloyd. This is because Mr Thomson is trying to reduce the amount owing to bring it down to the amount offered by way of the Calderbank letter sent in January 2021.
Discussion
[21] The principles applicable to an application to adduce further evidence pursuant to r 20.16 of the High Court Rules 2016 does not appear to be in dispute. These were recently summarised by Wylie J in B v A in the following terms, which make it clear that an applicant is required to meet a high threshold before an application will be granted:4
(a)the Court can receive further evidence if it thinks that the interests of justice require it to do so;
(b)it is wrong to allow an appellant to bolster his or her case with additional evidence that was available at the lower Court hearing, but not adduced because of the particular view of the case being taken at the time;
(c)admitting further evidence on appeal is exceptional rather than routine. A change of heart about how a case should have been run will not suffice. The prospect of further evidence triggering a substantial re-litigation before the appellate Court of the substantive case will count against admitting the further evidence;
(d)generally, the further evidence must be fresh, credible and cogent;
(e)evidence will not be regarded as fresh if it could, with reasonable diligence, have been produced at the trial;
(f)the absence of freshness is not an absolute disqualification. When the further evidence is not fresh, it will not generally be admitted unless the circumstances are exceptional and the grounds compelling. In addition, the further evidence needs to pass the tests of credibility and cogency;
(g)the interests of justice require the parties to put their best case forward at trial, in order to avoid wasting the Court’s limited time and resources. A high value is placed on finality when the parties have been afforded the opportunity and failed to take it; and
(h)the standard to be met is “rightly high”.
[22] In this case, I agree with Mr Meys that the evidence sought to be adduced falls well short of meeting the threshold set out above. It is neither fresh nor cogent. On the contrary, the evidence appears fundamentally misconceived and somewhat desperate attempt “to bolster [Mr Thomson’s] case with additional evidence that was available at the lower Court hearing”.
4 B v A [2020] NZHC 580 at [25].
[23] It is noted that this is not in fact the first time that Mr Jones has sought to adduce evidence from Mr Oliver post the District Court hearing. One of the issues in Judge Sinclair’s judgment of 16 December 2024, was whether Mr Thomson could be permitted to adduce a note from Mr Oliver dated 3 April 2024. In declining the application her Honour noted:
[13] Likewise, with regard to the documentation he now wishes to produce in respect of his GST defence. Mr Thomson was well aware prior to the hearing that Ms Lloyd did not accept that the arrangement permitted him to make deduction of GST payments as well as commission from the amount due to her on each sale. Again, he had every opportunity to obtain expert evidence from Mr Oliver or any other accounting/tax expert, but he chose not to do so. It appeared during the trial that a conscious decision had been made by Mr Thomson not to do so and it is now too late for him to reverse that position and endeavour to produce further evidence.
[14] Notably, there has been considerable delay in making the applications following the hearing of the evidence in March 2024. No satisfactory explanation has been given by Mr Thomson for this delay (particularly when Mr Oliver’s note is dated 3 April 2024).
[15] I accept Mr Meys’ submission that the evidence sought to be filed is not sufficiently cogent. In the normal course, Mr Thomson would have been cross-examined and Ms Lloyd would have had the opportunity to give evidence and possibly obtain evidence from others. At this late stage, there is no opportunity for Ms Lloyd to properly respond.
[16] In addition, if the evidence was admitted, further discovery may be required in particular, in relation to the GST defence. In this regard, I note that Mr Thomson opposed Ms Lloyd’s application for further and better discovery dated 11 February 2022 seeking various accounting records including GST returns, Eftpos and credit card sales records. He now wishes to adduce the GST returns (or at least a selection of them) without the underlying documents recording all transactions relating to the particular return.
[17] This is not a case where any prejudice to Ms Lloyd can be remedied by an adjournment and/or award of costs. Rather, I am satisfied that the granting of any or all the applications would cause significant unfairness to Ms Lloyd and it is appropriate that they should be declined.
[24] Although the judgment has been appealed, Mr Jones made it clear at the hearing before me that this particular finding has not been challenged, and Judge Sinclair’s reasoning is equally apposite to the present application.
[25] The lack of freshness is now even more pronounced, as is the lack of cogency. This is illustrated by the second part of the application,5 which makes it clear that Mr Oliver’s statement does not stand alone but instead will open up an evidential issue upon which Ms Lloyd is expected to engage. If this was allowed to happen, it would inevitably dominate the hearing of the appeals.6
[26] The application is made in the context where the issue had been fully addressed in the primary judgment under appeal:
[40] Mr Thomson contended that under the terms of the arrangement, GST was to be deducted from the sale price before commission, and the balance then paid to Ms Lloyd. It was his evidence that he did not specifically discuss GST with Ms Lloyd. Rather, under cross examination, he said that “It was inferred because everything has got GST” and later, “I just assumed that she would be aware that everything had GST inclusive”.
[41] Ms Lloyd denied that she had any knowledge of the imposition of GST. She told the Court that she expected to receive the sale price of each item sold less 20% commission.
[42] Mr Thomson accepted that the first payments made to Ms Lloyd were for the full amount of the sale price for specific items less 20% commission. There was no reduction for GST. After that, lump sum payments were made and payments were not allocated to specific sale transactions.
[43] Mr Thomson provided further particulars in August 2021 and an accompanying schedule recording his position with regard to each jewellery item (the August Particulars and Schedule). Notably, under the column headed “Net to Arteshar”, Mr Thomson recorded the amount of the sale price less 20% commission for each item. There was no reference to any deduction for GST.
[44] The first mention of GST being deducted from the sale price was in the schedule served with Mr Thomson’s brief of evidence. Mr Thomson contended that he was not aware until he received accounting and legal advice as to how the GST component should be recorded.
[45] The sale invoice/receipt issued by Mr Thomson included a tax number at the top of the document. The same form was also used as the shop docket. GST was not detailed on the invoices. It was Mr Thomson’s evidence that he sold his goods on a GST inclusive basis. Notably, no evidence showing payment of GST on the sales was produced at the hearing. Five months after completion of the evidence, Mr Thomson made various applications to adduce further affidavit evidence and supporting documents relating to this issue. These applications were declined for the reasons set out in that judgment.
…
5 See [17] above.
6 B v A, above n 4, at [25(c)].
[48] Mr Jones contended that on the principles of agency law, Mr Thomson’s representation that tax was charged on the supply was clearly a representation by Ms Lloyd that the tax had been charged. He asserted that Mr Thomson had full authority to sell on terms and his agency was not restricted. As a result, it was implicit in the relationship that Mr Thomson would be entitled to reduce the sum paid to Ms Lloyd by the amount which she was required to account to Inland Revenue for GST on the transaction. I do not accept that Mr Thomson had “full authority” to sell on terms and therefore it was implicit that he could deduct GST. In this regard, I refer specifically to my findings below with regard to the fixing of sale prices.
[49] Mr Jones further submitted that in general terms, an agency relationship exists where a person (the agent) is authorised by another person (the principal) to act on their behalf to create or effect legal relations between the principal and a third party. In this respect, Mr Jones contended that, even without Ms Lloyd’s direct knowledge about the charging of GST, she impliedly invested Mr Thomson with the authority to charge GST and as a result, represented to the purchaser that tax was being charged on the supply. I do not find that there is any evidence to support this submission. As discussed below, this was plainly a sale on consignment and s 60 of the GSTA applies.
[50] It was also Mr Thomson’s evidence that Ms Lloyd was in the business of selling jewellery and therefore engaged in a taxable activity. Mr Thomson asserted that Ms Lloyd had sold jewellery through other shops and had been involved in selling jewellery in Christchurch. In addition, he stated that while Ms Lloyd was in Japan, she had canvassed opportunities for the purchase of jewellery to then on sell through his shop.
[51] Ms Lloyd told the Court that one of the items given to Mr Thomson was sold on behalf of a friend for which she did not receive any profit. Otherwise, the items sold were her own. She denied that she had been engaged in the business of selling jewellery and said that she was not registered for GST. I accept Ms Lloyd’s evidence and observe that Mr Thomson did not produce any evidence in support of his general assertions.
…
[54] … Ms Lloyd owned the goods and Mr Thomson agreed to sell them on her behalf. For the purposes of the GSTA, Ms Lloyd was the principal and Mr Thomson, selling on her behalf, was her agent. Section 60 makes it clear that for the purposes of GST, a supply of goods is made by the principal and not the agent where the agent is selling on behalf of the owner. Accordingly, it is the principal who must account for GST on these supplies.7
[55] I note it was not in dispute that there was no agreement in writing between the parties that s 60(1) would not apply. Accordingly, the exception in s 60(1B) is not available.
[56] Mr Jones submitted that given Mr Thomson’s legal obligations to account for GST, he would receive far less by way of commission than had been agreed if he was not entitled to first deduct the GST paid. If Mr Thomson
7 Goods and Services Act 1985; and Inland Revenue interpretation statement GST and agency
issued 28 January 2021, at 14.
has calculated his GST payments incorrectly that is a matter for him to take up with Inland Revenue, it is not a relevant consideration for this Court.
[57] In summary, I find on the evidence that Ms Lloyd did not agree (either expressly or impliedly) to the deduction of GST from the sale price of jewellery items sold by Mr Thomson and nor is it otherwise implicit in the arrangement.
[27] Finally, it is clear on its face that Mr Oliver’s proposed evidence is based on an incomplete understanding of the facts and as such, is not substantially helpful in terms of s 25 of the Evidence Act 2006.
[28] The application to adduce further evidence is therefore declined. Ms Lloyd is entitled to costs on a 2B basis on the application.
Application for stay of enforcement
[29]Mr Thomson seeks orders:
(a)Staying proceeding CIV-2019-004-001361 pending the determination of the appeal to the High Court in the Notice of Appeal dated 7 May 2025 in respect of the “liability and quantum judgment”.
(b)Staying enforcement of the “liability and quantum judgment” Lloyd v Thomson [2024] NZDC 27285 or any order for examination related to that judgment.
(c)For interim orders (pending appeal) in relation to the stay of the proceeding in CIV-2019-004-001361, should the Court require the payment of security or any undertakings to be given, as a condition of the stay of proceedings and/or any enforcement or examination process and/or an order for examination.
…
(e) For urgent interim orders staying proceeding CIV-2019-004-001361 and/or the enforcement thereof or an order for examination, pending determination of the substantive stay application
[30] Mr Jones submitted that a stay is necessary as otherwise “Mr Thomson will likely lose his business of 35 years”. First, Mr Jones submitted that if Ms Lloyd was allowed to enforce the judgments prior to the appeal, there is a significant risk Mr Thomson will be adjudicated bankrupt and his appeal rights rendered nugatory. In Mr Jones’s submission, the appeals are being prosecuted in good faith and are meritorious. Mr Jones places particular weight on the fact that one of the judgments
under appeal was required to be recalled and, in his submission, only a small adjustment in the amounts owing would change the nature of the proceeding as it would mean the January 2021 Calderbank offer would become relevant. Overall, Mr Jones submitted “it would be a substantial miscarriage of justice if the judgment was enforced”.
[31] Mr Jones also noted Mr Thomson was prepared to pay up to $125,000 into Court and since the hearing before me was prepared to pay $80,000 to Ms Lloyd albeit on the condition that this sum “will be repaid or part repaid to Mr Thomson if the net effect of any appeal is that Mr Thomson’s overall/net liability to Ms Lloyd is less than
$80,000”.
Discussion
[32] There is no dispute as to the principles applicable to the application for stay. The parties agree that the principles are as set out by the Court of Appeal in Keung v GBR Trustees Ltd.8 In particular, the factors to be taken into account are:
(a)Whether the appeal may be rendered nugatory by the lack of a stay;
(b)The bona fides of the applicant as to the prosecution of the appeal;
(c)Whether the successful party will be injuriously affected by the stay;
(d)The effect on third parties;
(e)The novelty and importance of questions involved;
(f)The public interest in the proceeding; and
(g)The overall balance of convenience.
[33] In that case the Court of Appeal also noted that “the apparent strength of the appeal can also be treated as an additional factor”,9 while the Court noted in addition:10
The applicants for the stay accept that generally a stay upon payment of a judgment sum would only be granted on provision of security. The issue is whether there is anything in the present case in terms of the factors outlined above to warrant a departure from that general rule.
8 Keung v GBR Trustees Ltd [2010] NZCA 396 at [11], citing Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC) at [9].
9 At [11].
10 At [12] (footnotes omitted).
[34] Having considered the submissions and evidence I decline to grant the application for a stay.
[35] First, I observe that with the time remaining to the hearing of this appeal, there is no risk that Mr Thomson will be made bankrupt in the interim and the appeal rendered nugatory as a result.
[36] Secondly, it is clear that Mr Thomson has substantial resources to pay at least a significant part of the judgment sum. Likewise, Ms Lloyd has made it clear she does not wish to take steps to stop Mr Thomson running his business other than to examine Mr Thomson so as to establish his ability to meet the judgment debt.
[37] The proposal to pay monies into Court or to Ms Lloyd on the condition she repay the sums immediately is not sufficient to warrant the granting of the application. Ms Lloyd is, as things stand, entitled to the benefit of the judgments and has deposed she has a pressing need for payment of some of the judgment funds to meet living expenses and ongoing legal costs. In addition, should a stay be granted, I consider there is, at least, some risk that assets may be dissipated in the interim, given as a sole trader Mr Thomson and his business are essentially interchangeable. In circumstances where by Mr Thomson’s own calculation some $87,000 is undisputed as owing to Ms Lloyd, I consider that should a stay of enforcement be granted, it is inevitable Ms Lloyd would be injuriously affected.
[38] Finally, it is difficult to see at this stage that there is any obvious merit in this appeal. As noted, there is a core of undisputed debt. Mr Thomson’s appeal relies on being able to succeed on a number of different issues while overcoming a range of credibility findings. The matters upon which Mr Thomson must succeed includes his contention he was entitled to deduct GST from the sale he undertook on behalf of Ms Lloyd so as to get the judgment sum below the amount of the Calderbank offer. Only if he can do that will he be in a position to challenge the costs, interest and disbursements component of the judgments. Having regard to Judge Sinclair’s analysis on the GST issue set out above, this argument does not appear to be strong.
[39] The application for a stay and other orders is declined. Ms Lloyd is entitled to costs on a 2B basis on the application.
Application for confidentiality orders
[40]With regard to confidentiality, Mr Thomson seeks:
… orders suppressing and/or imposing confidentiality over the personal and financial information in the affidavit of Graeme Thomson, sworn 7 May 2025, filed in support of the applications.
[41] Mr Meys confirmed at the hearing that he had no issue with regard to preserving the confidentiality of Mr Thomson’s personal information, subject to confirmation that it would not prevent the use of that information by Ms Lloyd for the purposes of legitimately enforcing the judgments.
[42] Given this position, I requested counsel to consider an appropriate wording for an order, but no such wording was ultimately provided.
Discussion
[43] Having considered the position I make the following interim orders which are to remain in force pending the determination of the appeals:
(a)The personal information provided by Mr Thomson in his affidavit filed on appeal is not to be provided to any third party other than as necessary for any enforcement action taken by Ms Lloyd.
(b)Pursuant to r 5(2) of the Senior Courts (Access to Court Documents) Rules 2017, the Court file is not to be accessed by anyone other than the parties without permission of a judge.
[44] Costs on the confidentiality application are reserved pending the outcome of the substantive appeal.
Consequential orders
[45] Having determined the applications at issue and in particular confirming that the first appeal is to be heard with the other appeal on 26 August 2025, I consider the present timetable requires some adjustment. I therefore direct that:
(a)Mr Thomson is to file and serve the submissions in support of his appeals, the common bundles, and the amended notice of appeal in respect of the first appeal by 4 pm on 7 August 2025;
(b)Ms Lloyd is to file and serve her submissions in response by 4 pm on 21 August 2025.
Powell J
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