Winkelmann v Kirkham
[2025] NZHC 1678
•24 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-069-000249 [2025] NZHC 1678
BETWEEN BRENT RETFORD WINKELMANN and LOUISE ANNE FOLEY
First Plaintiffs and First Counterclaim Defendants
AND
NASHORN LIMITED and MERE TRUSTEES LIMITED
Second Plaintiffs and Third Counterclaim Defendants
TERENCE ARTHUR KIRKHAM
First Defendant and First Counterclaim Defendant
TATA TRUSTEE LIMITED
Second Defendant and Second Counterclaimant
KEVIN GLOVER
Second Counterclaim Defendant
CIV-2024-463-000066 UNDER
the Arbitration Act 1996 and Part 19 of the High Court Rules
BETWEEN
TERENCE ARTHUR KIRKHAM
Plaintiff
AND
BRENT RETFORD WINKELMANN and LOUISE ANNE FOLEY
Respondents
Hearing: 16 June 2025 Appearances:
G Judd KC / T Newman for T A Kirkham and Tata Trustee Ltd D J Cooper KC / J W H Little for B R Winkelmann, L A Foley, Nashorn Ltd and Mere Trustees Ltd
B D Gray KC / M Karlsen for K Glover (in CIV-2023-069-249)
KIRKHAM v WINKELMANN & FOLEY [2025] NZHC 1678 [24 June 2025]
Judgment: 24 June 2025
JUDGMENT OF ASSOCIATE JUDGE COGSWELL
This judgment was delivered by me on 24 June 2025 at 3.00 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
Introduction
[1]This decision involves two proceedings. They are:
(a)CIV-2023-069-249 (the substantive proceeding); and
(b)CIV-2024-463-66 (the originating application).
[2]The key parties involved in the claims are:
(a)Brent Retford Winkelmann and Louise Anne Foley; and
(b)Terence Arthur Kirkham.
Background
[3] Mr Winkelmann and Ms Foley are directors of the Taupō law firm, Le Pine & Co. They were in partnership with Mr Kirkham until 13 September 2019, when they expelled him for gross misconduct.
[4] Mr Kirkham challenged the validity of his expulsion and referred the dispute to arbitration.
[5] By an award dated 9 June 2021 (the Award), the arbitrator held that Mr Kirkham had been validly expelled and made dishonesty findings against him.
[6] He did not seek to challenge the Award by appeal. He is out of time to do so now.
[7] The arbitrator also quantified the sum to which Mr Kirkham was entitled on his expulsion, which has been paid.
The claims and the application
[8] Mr Winkelmann and Ms Foley are plaintiffs in the substantive proceedings (along with their trusts) and respondents to the originating application. Mr Kirkham is the defendant (along with his trust) in the substantive proceedings and the plaintiff in the originating application. Mr Glover is a defendant/counterclaim plaintiff in the substantive proceeding only. I refer to the parties using their names in this decision.
[9] The substantive proceeding was commenced in the District Court and was transferred to this Court. In that proceeding Mr Winkelmann and Ms Foley seek the transfer to them of certain partnership property still retained by Mr Kirkham and/or his trust.
[10] The primary basis for Mr Kirkham’s defence to that claim is an allegation that the Award should not be enforced because it was induced by fraud. Mr Kirkham has filed a counterclaim in the substantive proceeding seeking damages. He has joined a barrister, Kevin Glover, as a counterclaim defendant to the substantive proceeding.
[11] Mr Glover advised Mr Winkelmann and Ms Foley in their partnership dispute with Mr Kirkham and acted for them during the arbitration. Mr Kirkham has joined Mr Glover on the basis that he was a party to “an unlawful conspiracy” with Mr Winkelmann and Ms Foley to “injure” Mr Kirkham by “coercing him into agreeing to leave the partnership or, if coercion failed, by expelling him”.
[12] The originating application seeks an order under Article 34 of Schedule 1 of the Arbitration Act 1996 setting aside the Award on the basis that it was “induced by fraud or corruption”. Mr Winkelmann and Ms Foley have filed a detailed notice of opposition and specifically rely in that notice of opposition to their pleadings in the substantive proceeding.
[13] Mr Winkelmann and Ms Foley seek procedural directions through the following orders:
(a)an order under r 10.12 that the substantive proceeding and the originating application be tried together and that evidence in each be the evidence in the other;
(b)an order under rr 19.11, 19.13 and 7.43A that the originating application be tried as an ordinary proceeding, with evidence to be given in accordance with Part 9;
(c)an order varying the existing timetabling directions so that Mr Winkelmann and Ms Foley are not required to file affidavits in support of their notice of opposition to the originating application;
(d)an order that Mr Winkelmann and Ms Foley’s summary judgment application be discontinued, with costs reserved;1
(e)an order allocating a case management conference to address the further conduct of the two proceedings; and
(f)costs.
[14]Mr Kirkham, opposes the application on a number of grounds, including:
1 It is noted that Mr Kirkham consents to this order.
(a)the application is partly in the form of a without notice application in that it makes no provision for a date of hearing and does not otherwise comply with the requirements of a without notice application;
(b)whilst it is appropriate for the proceedings to be case managed together, it is premature to consolidate them yet, and no decision should be made until Mr Winkelmann and Ms Foley have filed their affidavits in support of their notice of opposition to the originating application; and
(c)the Court is not able to revisit the order that Mr Winkelmann and Ms Foley file affidavits in support of their notice of opposition. The orders that they do so were made by consent, and the Court may not vary those orders due to the requirements of r 7.49(2).
[15] Mr Winkelmann and Ms Foley say that there is a very substantial overlap between the two proceedings, with common questions of law and fact arising in both.
[16] They say that trying both together will save time and cost, avoid wasting judicial resources, and reduce or eliminate the risk of inconsistent findings of fact and law. Mr Winkelmann and Ms Foley reinforced the importance of avoiding inconsistent decisions, especially where there are serious allegations of fraud and dishonesty made against solicitors and the barrister acting for them.
[17] They go on to say that if the proceedings are to be tried together, it makes sense for the briefs of evidence for both to be prepared and served at the same time, as opposed to them being required to prepare two sets of written evidence covering the same issues, affidavits now and then briefs later.
[18] They say it would be wasteful and contrary to the just, speedy and inexpensive determination of the proceeding. The consolidation application actually seeks an order that the two proceedings are tried one immediately after the other. Formal consolidation is not sought.
[19] For Mr Kirkham, his primary objection to the orders sought relates to an order that Mr Winkelmann and Ms Foley are not required to file affidavits in support of their opposition to the originating application. He argues that it is “unfair” to not require affidavits to be filed, and that further, the Court does not have jurisdiction to vary the consent order that ordered Mr Winkelmann and Ms Foley to file affidavits in support of their notice of opposition.
Discussion
[20] Rule 10.12 of the Rules gives the Court a very broad discretion to order that two or more proceedings be tried one immediately after the other, if the Court is satisfied:
(a)that some common question of law or fact arises in both or all of them; or
(b)that the rights to relief claimed are in respect of or arise out of:
(i)the same event; or
(ii)the same transaction; or
(iii)the same event and the same transaction; or
(iv)the same series of events; or
(v)the same series of transactions; or
(vi)the same series of events and the same series of transactions; or
(c)that for some other reason it is desirable to make an order under this rule.
[21]Relevant considerations on determining the application under r 10.12 include:
(a)time and cost for the parties and the Court will be saved by making orders for consolidation;
(b)judicial resources being used more efficiently; and
(c)the risk of inconsistent findings (of fact and/or law) will be eliminated or reduced.
[22] Rule 10.12 applies even though the relief claimed in the proceedings is not the same.2 Here there is a claim for substantive relief in an ordinary proceeding, and an originating application to set aside the Award for fraud. However, both proceedings refer to and rely upon identical facts. Both will hear from the same witnesses. Mr Winkelmann and Ms Foley argue that in both sets of proceedings the same allegations are raised, being that the Award was obtained by fraud.
[23] Mr Winkelmann and Ms Foley refer to Regan v Gill as an example where the Court directed that the proceedings be heard one after the other despite there being dissimilarity between the proceedings.3 The Court considered r 10.12 and held that the Court has a number of options on an application under r 10.12, including ordering that the two proceedings be tried at the same time, but without consolidating them. That is what is sought in the current application.
[24] The Court of Appeal in Regan v Gill said of the discretion given to the Court that “it is difficult to conceive of a wider procedural discretion”.4
[25] Turning to the pleadings, the counterclaim in the substantive proceeding relies squarely on an allegation that the Award is unenforceable as it was obtained by fraud. The pleading is that the Award was induced or affected by Mr Winkelmann and Ms Foley’s non-disclosure of Mr Glover’s invoice by preventing that invoice and the issues arising from it being enquired into and from being aired in the arbitration, including the expulsion being challenged.
[26] Mr Kirkham’s counterclaim in the substantive proceeding pleads fraud and is, for all intents and purposes, a collateral challenge to the Award. One of the causes of action pleaded by Mr Kirkham against Mr Winkelmann and Ms Foley directly refers to the originating application, applying to set aside the Award on the grounds that it was in conflict with the public policy of New Zealand as it was induced or affected by fraud or coercion.5
2 High Court Rules 2016, r 10.13.
3 Regan v Gill [2011] NZCA 607.
4 At [10].
5 Mr Kirkham’s counterclaim dated 12 June 2024, sixth cause of action at [76].
[27] The originating application makes the same allegation in seeking orders that the Award be set aside. It pleads a conspiracy between Mr Winkelmann, Ms Foley and Mr Glover to injure Mr Kirkham and refers to his counterclaim in the substantive proceeding.
[28] Hence, both proceedings raise the same factual allegations and the same legal issues.
[29] Mr Winkelmann and Ms Foley also point out that Mr Kirkham’s affidavit of 13 June 2024 accepted this at paragraph [5] when he stated:
My defence to the summary judgment application [which is in the substantive proceeding] covers much the same ground as my originating application…
[30] Mr Winkelmann and Ms Foley also say that in the transfer application made by Mr Kirkham, which sought to transfer the substantive proceeding from the District Court to the High Court, he relied as one of his grounds on the existence of the originating application and that it was desirable in the interests of justice that the District Court proceeding be transferred to the High Court to enable both sets of proceedings to be case managed together, and for appropriate arrangements to be made for the hearing of both to obviate the possibility of inconsistent decisions.
Mr Kirkham’s position
[31] Mr Kirkham’s opposition to the application is somewhat difficult to reconcile with his previous position.
[32] In essence, his complaint is that he does not want any orders made that result in Mr Winkelmann and Ms Foley not filing affidavits in support of their notice of opposition to the originating application. He says that any orders should await the filing of those affidavits.
[33] He says there is a strategic advantage to Mr Winkelmann and Ms Foley in not filing their evidence at this time. This is not accepted. The parties to both proceedings will be ordered to exchange their evidence and will be subjected to cross-examination in the usual way. Other than a general desire to see their evidence now, Mr Kirkham
was unable to point to any actual prejudice to him in the preparation for and defence of his claims.
[34] He also argues that to amend that direction now would offend against r 7.49(2) and that I do not have jurisdiction to amend those consent orders.
Discussion
[35] I do not accept Mr Kirkham’s argument that it is unfair to him not to have Mr Winkelmann and Ms Foley file affidavits in support of their notice of opposition. The orders I make below provide for both sets of proceedings together, one after the other, and for the evidence in one to be the evidence in the other.
[36] The fact that Mr Kirkham does not have sworn affidavits ahead of the date when all parties exchange their statements of evidence is not prejudicial to him. Rather, it promotes the efficient preparation for trial.
[37] I do not consider that there is any unfairness in consolidating the proceedings in the way sought by Mr Winkelmann and Ms Foley. Mr Kirkham is not being deprived of any opportunity to challenge the evidence against him at trial.
[38] Having Mr Winkelmann and Ms Foley give their evidence once achieves the overriding objective of the rules of securing a just, speedy, and inexpensive determination of the proceedings.6
[39] The other ground on which Mr Kirkham opposes the making of the orders sought is that the Court is unable to make orders conflicting with the consent order. He says that those orders were made on the basis of the parties’ joint memorandum of 5 July 2024 and that I cannot amend those orders.
[40] That memorandum sought a direction under r 19.11 that Mr Winkelmann and Ms Foley’s notice of opposition and affidavits be filed and served by 7 August 2024.
6 Rule 1.2.
They now seek an order that they are not required to serve affidavits in support of their notice of opposition, but rather that they give briefs of evidence in the ordinary way.
[41] In order to achieve the objective of r 1.2, namely, the just, speedy and inexpensive determination of the proceeding, I consider that there is little to be gained in having Mr Winkelmann and Ms Foley give affidavits in support of their notice of opposition only to have them then give statements of evidence later.
[42] Their notice of opposition to the originating application is detailed and clearly sets out their position. The pleadings in the substantive proceeding also make clear what position the parties are taking.
[43] There will be no surprise to Mr Kirkham when he goes to prepare his evidence, and no disadvantage to him in doing so without having affidavits from Mr Winkelmann and Ms Foley that will then be superseded by statements of evidence.
[44] Mr Kirkham also argued that I did not have the power to make orders at variance with the consent order. That is not accepted.
[45] The Court often revisits consent orders to deal with changing circumstances. In the present case, in the application for procedural directions made by Mr Winkelmann and Ms Foley, the Court is asked to do exactly that. That is, revisit earlier orders. The changed circumstance is the making of the application for consolidation and ancillary orders.
[46] Mr Kirkham relies on r 7.49(2) in opposing the Court’s jurisdiction to vary the terms of the consent order. He says that Mr Winkelmann and Ms Foley may not apply to vary the consent orders made by consent. However, they are not doing that. They are seeking orders for the consolidation of the proceedings that supersede the earlier orders.
[47] I do not consider that my orders under r 10.12 offend against r 7.49(2). That is because, on an application under r 10.12, the Court has an extremely broad discretion to make orders for the just, speedy and inexpensive resolution of
proceedings. That is what this order is doing. It is not varying or rescinding the consent orders. It supersedes them.
[48] Mr Winkelmann and Ms Foley argue that there is sufficient flexibility in the Part 19 procedure to enable me to order that evidence be given by briefs of evidence rather than by sworn affidavits. They rely on r 19.13, which provides that evidence may be taken orally on oath if, upon application, the Court so directs.
[49] I am not prohibited from making further orders relating to the conduct of the proceedings by virtue of the existence of a consent order and my orders pertaining to procedural matters do not offend against r 7.49(2).
[50] There is, therefore, jurisdiction for me to make the type of orders sought under rr 10.12 and 19.13.
Decision
[51] I make orders in terms of paragraph [1](a)–(f) of Mr Winkelmann and Ms Foley’s interlocutory application for procedural directions dated 1 August 2024.
[52]I note that order [1](d) is made by consent.
[53] The Registry is directed to allocate a case management conference to address the further conduct of the two proceedings.
Costs
[54] Mr Winkelmann and Ms Foley are therefore successful in this application and are entitled to costs on a 2B scale.
[55]The parties should confer and reach agreement on the issue of costs.
[56] If they are unable to agree on costs, then Mr Winkelmann and Ms Foley may file a memorandum seeking costs of no more than five pages (including attachments)
and Mr Kirkham may file a memorandum as to costs of no more than five pages (including attachments).
[57]The costs decision on this application will be made on the papers.
Associate Judge Cogswell
Solicitors:
ESL Legal, Auckland Simpson Western, Auckland
Steindle Williams Legal, Auckland Wotton Kearney, Auckland
D J Cooper KC, Auckland B D Gray KC, Auckland G Judd KC, Auckland
J W H Little, Auckland
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