Winkelmann v Kirkham - [2025] NZHC 1678

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…

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 Winkelmann v Kirkham

Details

AGLC: Winkelmann v Kirkham [2025] NZHC 1678
Case: [2025] NZHC 1678
Decision Date: 24 June 2025

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, presided over by Associate Judge Cogswell, delivered judgment in Winkelmann v Kirkham, addressing two proceedings: CIV-2023-069-249 (the substantive proceeding) and CIV-2024-463-66 (the originating application). The substantive proceeding involves claims by Brent Retford Winkelmann and Louise Anne Foley against Terence Arthur Kirkham, including a request for the transfer of certain partnership property. Kirkham defends on the basis that the arbitration award, which found his expulsion valid, was induced by fraud. He has also filed a counterclaim against Winkelmann, Foley, and a barrister, Kevin Glover, alleging an unlawful conspiracy. The originating application seeks to set aside the arbitration award on fraud grounds. Winkelmann and Foley applied for procedural directions, including consolidation of the proceedings and a variation of existing timetabling directions.

The legal issues before the court were whether the proceedings should be consolidated, tried together, and whether Winkelmann and Foley should be required to file affidavits in support of their opposition to Kirkham's originating application. The court considered the broad discretion given under Rule 10.12 of the High Court Rules to order that two or more proceedings be tried one immediately after the other if common questions of law or fact arise. The court found that the proceedings had substantial overlap in facts and legal issues, particularly concerning the enforceability of the arbitration award due to alleged fraud. It concluded that trying both proceedings together would save time and cost, avoid wasting judicial resources, and reduce the risk of inconsistent findings. The court also found that Winkelmann and Foley's request to not file affidavits in support of their opposition did not prejudice Kirkham and was justified to achieve a just, speedy, and inexpensive determination of the proceedings. The court rejected Kirkham's argument that it lacked jurisdiction to vary the consent orders, stating that the orders sought superseded the earlier orders rather than varied them.

The court granted Winkelmann and Foley's application for procedural directions, ordering that the proceedings be tried together, with evidence in one proceeding being the evidence in the other. It also ordered a case management conference to address the further conduct of the proceedings. Winkelmann and Foley were awarded costs on a 2B scale, with the parties directed to confer and reach an agreement on the issue of costs.

Orders