Walker v Forbes - [2017] NZHC 2711

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2012-409-2486 [2017] NZHC 2711

BETWEEN
ROBERT BRUCE WALKER

First Plaintiff

PROPERTY VENTURES LIMITED
(In Receivership and in liquidation)

FIVE MILE HOLDINGS LIMITED
Third Plaintiff

AND

AUSTIN JOHN FORBES

First Defendant

Hearing: 1 November 2017

Appearances:

J B M Smith QC and K Francis for plaintiffs W J Palmer for First Defendant

Second Defendant in person

R Raymond QC for Third Defendant M J Wallace for Fifth Defendant

J Moss for Sixth Defendant K Harkess for Third Party F A Darlow for PWC

Judgment:

7 November 2017

JUDGMENT OF LANG J

[re application for order requiring disclosure of terms of settlement between PWC and the plaintiffs]

This judgment was delivered by me on 7 November 2017 at 12 noon pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

WALKER v FORBES [2017] NZHC 2711 [7 November 2017]

Date……………

ALISTER SPEDDING JOHNSTON
Second Defendant
GORDON LEWIS HANSEN
Third Defendant
ADOLF DE ROOS
Fifth Defendant
DANIEL JAMES GODDEN
Sixth Defendant
PWC (Sued as a firm) Seventh Defendant
VERO LIABILITY INSURANCE LIMITED
Third Party

[1] The first defendant has applied for an order requiring the plaintiffs to provide him with the terms of the settlement reached between the plaintiffs and the seventh defendant, PricewaterhouseCoopers (PWC).

[2] The plaintiffs accept that the defendants are entitled to be provided with the amount that PWC agreed to pay pursuant to the settlement and the date on which payment was made. PWC has also given its consent to that occurring on the terms suggested in a memorandum filed by counsel for the plaintiffs prior to yesterday’s hearing.

[3] Following discussions that occurred between counsel at the hearing on 1 November, I am now in a position to make directions in relation to the disclosure of the terms of the settlement. PWC has now had three days within which to file a memorandum responding to issues not covered in the memorandum filed prior to the hearing but has not filed any memorandum.

[4] An issue has arisen since the hearing because counsel for the plaintiffs has indicated he proposes to disclose a redacted version of the settlement agreement to counsel for the defendants and third party. This is designed to protect information that is commercially sensitive. He confirms that if the defendants are not happy with this the plaintiffs will provide the Court with an unredacted version so that it can decide whether or not disclosure should be made of unredacted material.

[5] Counsel for the first defendant filed a memorandum last evening objecting to the plaintiffs’ proposal. He submits that the plaintiffs’ position is adequately protected by the fact that disclosure will only be made to counsel in the first instance, and that the Court cannot realistically make an informed decision about the relevance of unredacted material to the defendants. I have now read the memorandum filed by counsel for the plaintiffs in response. This essentially reiterates the arguments…

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 Walker v Forbes

Details

AGLC: Walker v Forbes [2017] NZHC 2711
Case: [2017] NZHC 2711
Decision Date: 7 November 2017

CaseChat Overview and Summary

In Walker v Forbes, the first defendant, Austin John Forbes, applied for an order compelling the plaintiffs to disclose the terms of a settlement agreement between the plaintiffs and the firm PricewaterhouseCoopers (PWC). The plaintiffs argued that disclosure of the settlement terms was unnecessary as they were willing to provide the amount of the settlement and the date of payment. PWC had consented to the disclosure of this information. However, the plaintiffs proposed to provide a redacted version of the settlement agreement to protect commercially sensitive information. The first defendant objected to this proposal, arguing that the court needed to see the unredacted settlement agreement to make an informed decision on its relevance. The court considered the arguments and concluded that disclosure to counsel alone was unlikely to result in undue dissemination of sensitive information. However, it was not realistically positioned to determine the relevance of redacted material from the defendants' perspective. Therefore, the court ordered that the unredacted settlement agreement be disclosed to counsel for the defendants and the third party, subject to confidentiality undertakings.

The primary legal issue in this case was whether the terms of the settlement agreement between the plaintiffs and PWC should be disclosed to the defendants and third parties. The plaintiffs argued that disclosure was unnecessary, while the first defendant contended that the court needed the unredacted agreement to determine its relevance. The court had to balance the plaintiffs' interest in protecting commercially sensitive information against the defendants' need for relevant information to prepare their case. The court found that disclosure to counsel alone was unlikely to result in undue dissemination of sensitive information, but it was not realistically positioned to determine the relevance of redacted material from the defendants' perspective. Therefore, the court ordered that the unredacted settlement agreement be disclosed to counsel for the defendants and the third party, subject to confidentiality undertakings.

The court upheld the submissions for the first defendant, finding that disclosure of the unredacted settlement agreement was necessary for the court to make an informed decision on its relevance. The court directed the plaintiffs to disclose the amount and date of the settlement payment to counsel for the defendants and the third party, subject to confidentiality undertakings. In addition, the plaintiffs were directed to disclose the unredacted settlement agreement to counsel for the defendants and the third party, subject to similar confidentiality undertakings. The court also provided for the liquidators to inform the defendants and third party of how any funds received as a result of the settlement with PWC had been applied. The court noted that the extent to which details of the settlement could be disclosed to others or published during or following the trial would be determined at trial, pending which no publication or dissemination of the details of the settlement agreement would be permitted beyond what was expressly permitted by the undertakings. The court further noted that the defendants had leave to seek an extension of time within which to serve their briefs if any issue arose regarding the scope of these directions or their implementation.

In summary, the court ordered the disclosure of the unredacted settlement agreement to counsel for the defendants and the third party, subject to confidentiality undertakings. The court also provided for the liquidators to inform the defendants and third party of how any funds received as a result of the settlement with PWC had been applied. The court further noted that the extent to which details of the settlement could be disclosed to others or published during or following the trial would be determined at trial, pending which no publication or dissemination of the details of the settlement agreement would be permitted beyond what was expressly permitted by the undertakings. The court also provided for the defendants to seek an extension of time within which to serve their briefs if any issue arose regarding the scope of these directions or their implementation.

Orders