Whitford Properties Limited v Bruce - [2016] NZHC 58

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1977 [2016] NZHC 58

BETWEEN
WHITFORD PROPERTIES LIMITED

Plaintiff

AND

ROBERT IAN BRUCE First Defendant

COUMAT LIMITED Second Defendant

GREGORY BRUCE HAYHOW Third Defendant

Hearing: 14 December 2015

Appearances:

Mr M C Black for Respondent/Plaintiff
Mr A L Harlowe for the ANZ Bank
Ms J S Cooper for Wayne Allen

Judgment:

3 February 2016

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
03.02.16 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

WHITFORD PROPERTIES LIMITED v ROBERT IAN BRUCE [2016] NZHC 58 [3 February 2016]

Introduction

[1] These proceedings were commenced in August 2014. A five day trial has been allocated to hear the matter in August 2016. On 6 November 2015, the third defendant applied to join Wayne Ramon Allen, the respondent, as a third party in the proceeding. The application did not set out particular factual reasons why the respondent should be joined. It referred to the High Court Rules (Rules) and to the affidavit the respondent had filed. It would have been helpful for the grounds that are specific to the factual circumstances that this case gives rise to be explicitly identified.

[2] Ms Jennifer Cooper sought leave to appear for the proposed third party. Although it is unusual for a proposed third party to be heard on an application for joinder, there was no strong resistance to her doing so in this case from counsel for the second and third defendant applicants, Mr Steve Barter.

[3] The proposed third party opposes the application for joinder as does the plaintiff who was represented by Mr Michael Black.

[4] The facts have been comprehensively considered in an earlier judgment that Wylie J gave on an application for freezing orders which the plaintiff had sought, the judgment being dated 18 June 2015. Because the application before me, like the application that Wylie J heard, must be considered on the basis of provisional conclusions about factual issues, I will adopt the views of the facts that he did. I respectfully agree with them. I do not consider there would be any profit in setting out for a second time a lengthy discussion of the factual issues and reasons for coming to conclusions on what is known about the factual background I note that counsel accept that judgment contains a sufficiently accurate and convenient statement of those matters for the purposes of the application which I have to
decide.1

[5] The plaintiff was established in 2002 by the respondent and Mr Bruce who were directors and shareholders in the company. It acquired a property at Whitford

1 Whitford Properties Ltd (in rec and liq) v Bruce [2015] NZHC 1426.

and granted security over that property by mortgage to ANZ. Those borrowings were also secured by a general security agreement and the personal guarantees of Messrs Allen and Bruce. The plaintiff intended to sub-divide the property which would unlock…

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: [2016] NZHC 58
Decision Date: 3 February 2016

CaseChat Overview and Summary

In Whitford Properties Limited v Bruce, the plaintiff, Whitford Properties Limited, initiated proceedings against Robert Ian Bruce and others, alleging breaches of trust and seeking an account of surplus proceeds from the sale of a property. The defendants sought to join Wayne Ramon Allen as a third party, claiming damages for an alleged breach of contract related to a failed joint venture. The court was required to decide whether the third party could be joined under Rule 4.4 of the High Court Rules. The court examined whether the claim against the third party related to the same subject matter as the plaintiff's claim against the defendants, if the relief sought was substantially the same, and if there was any other basis for joinder.

The court found that the claim against the third party did not satisfy any of the criteria under Rule 4.4. The relief sought was not substantially the same, as the plaintiff sought equitable remedies for breach of trust, while the defendants sought damages for breach of contract. Additionally, the court noted the significant delay in applying to join the third party, which could potentially prejudice the plaintiff and disrupt the trial schedule. The court concluded that the application to join the third party should be declined, and ordered the defendant to pay the costs of the application.

Orders