Waterhouse v Contractors Bonding Ltd

Link copied
Case Copied 40 min read

For a Court ready (fee required) version please follow this link

IN THE SUPREME COURT OF NEW ZEALAND
SC 66/2012
[2013] NZSC 89
BETWEEN

GODFREY WATERHOUSE AND ROBERT JOHN WATERHOUSE
Appellants

AND

CONTRACTORS BONDING LIMITED
Respondent

Hearing:

19 March 2013

Court:

Elias CJ, McGrath, William Young, Chambers* and Glazebrook JJ

Counsel:

S J Mills QC and S A Grant for Appellants
R E Harrison QC and J E Riddle for Respondent

Judgment:

20 September 2013

JUDGMENT OF THE COURT

AThe appeal is allowed in part and the orders set out at [78] and [79] are made in substitution for the orders made by the Court of Appeal. 

BAs each party has had a measure of success, there is no costs award.

____________________________________________________________________

REASONS

(Given by Glazebrook J)

Table of Contents

Para
Introduction [1]
The High Court judgment [3]
The Court of Appeal judgment [7]
Parties’ submissions [14]
  The Waterhouses’ submissions [14]
  Contractors Bonding’s submissions [19]
Issues arising from the submissions [23]
Should the torts of maintenance and champerty be abolished? [25]
Should the courts exercise a general supervisory role over litigation funding arrangements? [27]
Is the ability for the courts to intervene confined to cases where conduct amounting to the tort of abuse of process manifests itself? [30]
Are there other matters that can give rise to an abuse of process in litigation funding cases? [33]
  The approach in Fostif [35]
  General comments [41]
  Control of litigation and remuneration [44]

  Is it an abuse of process for a litigation funder not to

  provide an indemnity for costs?

[49]
  Terms on which funding can be withdrawn [54]
  What is the appropriate position for New Zealand with
  regard to litigation funding and abuse of process?
[56]
In what circumstances should disclosure of litigation funding arrangements be made? [60]
  Applications for a stay on abuse of process grounds [61]
  Applications for security for costs [63]
  Applications for costs [64]
  Initial disclosure [66]
  When should there be disclosure of litigation funding
  arrangements?
[73]
Should there be limits on disclosure? [75]
Conclusion [76]
Result [77]

Introduction

  1. Messrs Godfrey and Robert Waterhouse have brought proceedings against Contractors Bonding Ltd in relation to a failed insurance business in Georgia, the United States of America.[1]  The Waterhouses allege negligence, deceit and breach of fiduciary duty.  The litigation is to be funded by a third party litigation funder.

    [1]The full details of the claim are set out in the judgments of the Courts below: Waterhouse v Contractors Bonding Ltd HC Auckland CIV-2010-404-3074, 13 December 2010 at [2]–[10] [Waterhouse (HC)]; and Contractors Bonding Ltd v Waterhouse [2012] NZCA 399, [2012] 3 NZLR 826 at [3]–[7] [Waterhouse (CA)]. We note that the High Court entered summary judgment against Mr  Robert Waterhouse with regard to the claims on 3 August 2012.  Summary judgment was also sought but not entered against Mr Godfrey Waterhouse: Waterhouse v Contractors Bonding Ltd [2012] NZHC 566 at [133]. Mr Robert Waterhouse filed a notice of appeal against the High Court’s 3 August 2012 decision…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Waterhouse v Contractors Bonding Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2013] NZSC 89
Decision Date

CaseChat Overview and Summary

In Waterhouse v Contractors Bonding Ltd, Godfrey and Robert Waterhouse brought proceedings against Contractors Bonding Ltd in relation to a failed insurance business in Georgia, United States of America. The Waterhouses alleged negligence, deceit and breach of fiduciary duty. The litigation was to be funded by a third party litigation funder. Contractors Bonding sought a stay of proceedings on the grounds that the Waterhouses had not sought and obtained leave to bring proceedings funded by a litigation funder. Contractors Bonding argued that the Waterhouses were impecunious and that Mr Robert Waterhouse was resident in the United States of America. The Waterhouses were ordered to disclose the litigation funding agreement to the Court for inspection so that the Court could ensure that the funder was not legally able to usurp control over the proceeding. The Waterhouses appealed against the Court of Appeal's decision that they should disclose the litigation funding agreement to Contractors Bonding. The Waterhouses argued that the Court of Appeal had erred in requiring disclosure of the funding agreement to Contractors Bonding. Contractors Bonding argued that the Waterhouses should be required to disclose the funding agreement to it. The court held that the Waterhouses should be required to disclose the funding agreement to Contractors Bonding. The Waterhouses were ordered to disclose the identity and location of the litigation funder and its amenability to the jurisdiction of the New Zealand courts. The Waterhouses were also ordered to disclose a redacted version of the litigation funding agreement to Contractors Bonding within 10 working days. The Waterhouses were further ordered to make an application to the High Court if they considered that this disclosure raised an issue of privilege and/or confidentiality (including relating to litigation sensitive material). The effect of filing such an application would be to stay the requirement to make disclosure, pending further order of the High Court. The proceeding in the High Court remained stayed pending disclosure of the matters set out above and of the redacted version of the agreement or further order of that Court. If the application for abuse of process was withdrawn, then no order for disclosure of the redacted funding agreement was required. The disclosure of the details at [76](a)(i) and (ii) would still be required. As each party had had a measure of success, there was no costs award.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.