Wynyard v Bremner - [2020] NZHC 1589

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2018-488-000046

[2020] NZHC 1589

BETWEEN
DIANNE MARY WYNYARD

First Plaintiff

DIANNE MARY WYNYARD, TRACEY MAREE WYNYARD, WARREN VERNON

WYNYARD as trustees of the WYNYARD FAMILY TRUST

Second Plaintiff

BAY OF ISLANDS REAL ESTATE LIMITED

Third Plaintiff

AND

ALICE IRENE BREMNER

First Defendant

ALICE IRENE BREMNER and DARREN

CHARLES SANDERS as trustees of the SANDERS FAMILY TRUST

Second Defendant

DARREN CHARLES SANDERS

Third Defendant

Hearing: 22 – 24 June 2020

Counsel:

AP Holgate for Plaintiffs NW Taefi for Defendants

Judgment:

6 July 2020

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 6 July 2020 at 4 pm
pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

WYNYARD v BREMNER [2020] NZHC 1589 [6 July 2020]

The case

[1] As its name suggests, Bay of Islands Real Estate Ltd is a real estate agency in the Bay of Islands.1 Dianne Wynyard and Irene Bremner founded the company. Their relationship later soured. Ms Bremner left the company, went overseas, resigned her directorship, then joined a rival in the same town, Russell. Mrs Wynyard alleges Ms Bremner took files and information from the company and exploited both in her new role. Mrs Wynyard contends Ms Bremner is liable for post-departure commissions in connection with the rival.

[2] Ms Bremner describes the allegations as “lies”. She says the claim is the latest in a campaign of harassment by Mrs Wynyard involving failed complaints to the Real Estate Agents Authority and Baycorp (NZ) Limited.2

[3] The case is heavily factual. And unusual. Frequently, the allegation a director or employee took (confidential) company information rests on inference. So, for example, a defendant’s immediate poaching of clients is advanced as evidence she or he must have taken or memorised a client-list. How else, the question is rhetorically posed, could the defendant contact 30 of the plaintiff’s clients a day after parting company with the plaintiff? Sometimes circumstantial evidence is advanced. For example, discovery of remnants of client data in places it should not be: the defendant’s personal mobile phone. In this case, however, the plaintiffs rely on direct evidence. Mrs Wynyard says she saw Ms Bremner copy and remove company information in July and August 2013. Mrs Wynyard’s husband, Warren, says he saw Ms Bremner load company files into her car on 30 June that year. Neither voiced either allegation until this claim was filed in May 2018.

Background

[4] Mrs Wynyard and Ms Bremner met in 2004. In 2008, they worked together at Jan Madden Real Estate Ltd. On 14 July 2009, Ms Madden sold the associated business to Ms Wynyard and Ms Bremner.

1 The company.
2 Baycorp.

[5] On 7 August 2009, Mrs Wynyard and Ms Bremner incorporated the company. Both became directors. At the same time, the company entered a franchise agreement with Century 21 New Zealand Ltd.3

[6] Things went well for a time, or at least not badly. But,…

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 Wynyard v Bremner

Details

AGLC: Wynyard v Bremner [2020] NZHC 1589
Case: [2020] NZHC 1589
Decision Date: 6 July 2020

CaseChat Overview and Summary

Dianne Wynyard and Irene Bremner founded Bay of Islands Real Estate Ltd. Their relationship soured. Ms Bremner left the company, went overseas, then joined a rival. Ms Wynyard alleges Ms Bremner took files and information from the company and exploited both in her new role. Ms Wynyard contends Ms Bremner is liable for post-departure commissions in connection with the rival. The core contention is Ms Bremner removed and exploited company files and information. The plaintiffs rely on direct evidence. Mrs Wynyard says she saw Ms Bremner copy and remove company information in July and August 2013. Mr Wynyard says he saw Ms Bremner load company files into her car on 30 June 2013. Neither voiced either allegation until this claim was filed in May 2018. The court found the core contention was not established to the civil standard. The court was satisfied Ms Bremner did not take company files or copy company documents, and equally satisfied her conduct in relation to the sales did not breach her fiduciary obligations. The court found both causes of action failed on the evidence.

Orders